Hunter Watson, Human Rights Campaigner, Aberdeen, in an Email sent to MSPs and fellow mental health campaigners on 20 June 2015:
“In the attached paper I point out that section 242 of the 2003 Act authorises the compulsory treatment of an adult with capacity. That is contrary to the advice of the Millan Committee, the committee that produced the report upon which the 2003 Act is based.
The paper also draws attention to the fact that a judgment of the European Court of Human Rights makes it clear that the Court assumed that an adult with capacity must not be subjected to compulsory treatment. That was made explicit in a recent judgment of the Supreme Court.
Further, a general comment made by UN Committee last year clearly demonstrates that it takes it for granted that persons with legal capacity have the right to refuse treatment. (Its only concern is that psychiatrists and others might be too ready to assume that people with a mental disorder lack capacity.)
There is a high probability that section 242 of the 2003 Act is not compatible with some Convention rights and hence, by virtue of section 29 of the Scotland Act, that the 2003 Act is not law. The Minister should not be permitted to evade making detailed responses to the points made in the attached paper by again claiming that he is confident that the 2003 Act, underpinned by the Millan principles, is compatible with the European Convention on Human Rights. The Minister should instead put in place without delay arrangements for conducting a wide review of the 2003 Act as requested by Richard Simpson and the General Assembly of the Church of Scotland.
I understand that the Scottish Parliament will be discussing the Mental Health (Scotland) Bill on Wednesday 24 June. I await with interest to find out whether the Minister accepts that there is a need for a wide review of the 2003 Act and also whether he is prepared to assure Parliament that the 2003 Act, amended by the Mental Health Bill to form the 2015 Act, is compatible with Convention rights. It would be wrong of him to offer Parliament any such assurance.”
Here is Hunter Watson’s 3 page paper on Section 242: