Article 5 of the European Convention on Human Rights refers to the person’s right to liberty and makes it clear that the person who lacks capacity will require the protection of legal safeguards. However, the person with a disability may be able to give valid consent to arrangements which might otherwise result in a deprivation of liberty with appropriate support for decision making (e.g. support for cognitive and communicative impairments).
Article 8 refers to the person’s right to respect for private and family life. Depriving anyone of these rights has serious implications for their autonomy and their ability to exercise their legal capacity.
ECHR stressed that a person should be presumed to have mental capacity unless assessed as lacking capacity. If there are concerns, then the person’s capacity must be assessed in relation to the particular decision in question. Capacity is not an ‘all or nothing’ concept and should be regarded as decision specific rather than being based on the person’s disability or condition.
Article 14 prohibits discrimination i.e. those with disability are entitled to enjoy the rights in Articles 5 & 8 of the ECHR on an equal basis with others.
The rights referred to above underpin Adults with Incapacity legislation in Scotland