Unified mental health and capacity law: Creating parity and non-discrimination?

Abstract

It has been argued that a fusion of mental health and capacity law creates parity and respects non-discrimination. This approach has been adopted in the Mental Capacity Act (Northern Ireland) 2016, although this legislation is not yet fully in force. Separately the World Health Organisation and the Committee on the Rights of Persons with Disabilities have advocated ending the separate status of mental health law. Across the rest of the UK, the possibility of fusion legislation has recently been considered, although not ultimately recommended in 2018 by the Independent Review of the Mental Health Act for England and Wales and in 2022 by the Scottish Mental Health Law Review. Challenges include potential conflicts with Article 5 of the European Convention on Human Rights, and the Committee on the Rights of Persons with Disabilities' critique of ‘mental capacity’ and whether a capacity threshold is required for unified mental health and capacity law. This article will consider the approach of the Scottish Mental Health Law Review, why it did not recommend immediate fusion and its proposals for greater alignment of mental health and capacity regimes.