The “capacity” dichotomy for Mental Health Tribunals Scotland

Sir Crispin Agnew of Lochnaw

The “capacity” dichotomy for Mental Health Tribunals Scotland

Sir Crispin Agnew of Lochnaw (Lead / Corresponding author)

Dundee Law School

Research output: Contribution to journal › Article › peer-review

75 Downloads (Pure)

Abstract

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.

Original language	English
Pages (from-to)	125-147
Number of pages	23
Journal	Juridical Review
Volume	2022
Issue number	3
Publication status	Published - 23 Sept 2022

UN SDGs

This output contributes to the following UN Sustainable Development Goals (SDGs)

SDG 3 Good Health and Well-being

Access to Document

Author Accepted ManuscriptAccepted author manuscript, 531 KBLicence: CC BY-NC

Cite this

@article{645448157225408c8aef4f6ae79b134f,

title = "The {\textquotedblleft}capacity{\textquotedblright} dichotomy for Mental Health Tribunals Scotland",

abstract = "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.",

author = "\{Agnew of Lochnaw\}, \{Sir Crispin\}",

note = "Publisher Copyright: {\textcopyright} 2022 Thomson Reuters.",

year = "2022",

month = sep,

day = "23",

language = "English",

volume = "2022",

pages = "125--147",

journal = "Juridical Review",

issn = "0022-6785",

publisher = "Sweet \& Maxwell",

number = "3",

}

TY - JOUR

T1 - The “capacity” dichotomy for Mental Health Tribunals Scotland

AU - Agnew of Lochnaw, Sir Crispin

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 -

The “capacity” dichotomy for Mental Health Tribunals Scotland

Abstract

UN SDGs

Access to Document

Other files and links

Fingerprint

The "capacity" dichotomy for Mental Health Tribunals Scotland

Cite this