Edinburgh Napier University

  Across the world mental health and capacity law is often justified on the basis of protecting persons with mental disabilities and wider public safety. In some cases, the use of such laws is rising (Sheridan Rains et al, 2019) and it is becoming increasingly clear that even so-called 'human rightsbased' mental health and capacity laws may not be effective and non-discriminatory (Scott Review, 2022).

This begs the question of what exactly is meant by ‘human rights-based approaches’ which is brought into particularly sharp relief when it comes to maximising autonomy through reducing or eliminating coercion. International human rights treaties do not, however, necessarily offer a uniform approach. Different constitutional approaches to such treaties within countries also impact on the national enforceability of treaty requirements. This paper will discuss these challenges and options that are available to states wishing giving effect to their treaty obligations.