TY - JOUR
T1 - The “capacity” dichotomy for Mental Health Tribunals Scotland
AU - Agnew of Lochnaw, Sir Crispin
N1 - Publisher Copyright:
© 2022 Thomson Reuters.
PY - 2022/9/23
Y1 - 2022/9/23
N2 - The article examines the very low threshold test for capacity to instruct a solicitor, applied by the Mental Health Tribunal Scotland (MHTS) against the stricter statutory and common law capacity test in Scotland and the other jurisdictions of the UK for instructing a solicitor. This is in the context that the medical evidence is that the patient does not have the mental capacity, because of his mental disorder, to understand either that he has a mental disorder or to make decisions about their medical treatment, which therefore has to be given under compulsion. If the normal capacity test applied then the patient would always require a curator ad litem. The author concludes that this approach does not comply with the UN Convention on the Rights of Persons with Disabilities (CRPD) as it leads to discrimination between a person who can instruct a solicitor under the low threshold test and those to whom a curator ad litem is appointed. Further, it does not assist with supported decision-making as envisaged by the CRPD.
AB - The article examines the very low threshold test for capacity to instruct a solicitor, applied by the Mental Health Tribunal Scotland (MHTS) against the stricter statutory and common law capacity test in Scotland and the other jurisdictions of the UK for instructing a solicitor. This is in the context that the medical evidence is that the patient does not have the mental capacity, because of his mental disorder, to understand either that he has a mental disorder or to make decisions about their medical treatment, which therefore has to be given under compulsion. If the normal capacity test applied then the patient would always require a curator ad litem. The author concludes that this approach does not comply with the UN Convention on the Rights of Persons with Disabilities (CRPD) as it leads to discrimination between a person who can instruct a solicitor under the low threshold test and those to whom a curator ad litem is appointed. Further, it does not assist with supported decision-making as envisaged by the CRPD.
UR - https://uk.practicallaw.thomsonreuters.com/Document/I497BDDF03A0711ED8D34BBA5F568AB34/View/FullText.html?originationContext=document&transitionType=DocumentItem&ppcid=222a1d5e3a3d4205bdaa652739f6a45b&contextData=(sc.Search)&comp=wluk&navId=80243DF474C3B3CA6E6DBB272FE93518
M3 - Article
SN - 0022-6785
VL - 2022
SP - 125
EP - 147
JO - Juridical Review
JF - Juridical Review
IS - 3
ER -
