Part I - What Do Human Rights Mean for Mental Health Law?

1 Mental Health Law: Purpose and Procedures

A Introduction

Mental health legislation faces an uncertain future. The UN Convention on the Rights of Persons with Disabilities (‘CRPD’)¹ has bolstered calls to repeal or fundamentally alter laws that allow for involuntary psychiatric intervention. The CRPD also strengthens calls to provide support for people in mental health crises in ways that uphold self-determination, liberty, mental and physical integrity, the right to health, and so on. In order to isolate the questions and dilemmas raised by these proposals, it is useful to identify the function, purpose and procedures of mental health law today.

Elizabeth Farr’s account of her own mental health crisis helps to illustrate the broad aims of mental health law. After years of aural and visual hallucinations, Farr experienced an urgent need to undertake a dangerous act:

I thought the voices came from other worlds. I believed I was approaching an Enlightened State. The voices told me that in order to reach this Enlightened state I would have, at the appropriate moment, to jump from the seventh floor of a building and land on my head in a certain way. This would put me in a cosmic junction whereupon … I would be able to enlighten all mankind.²

The dilemma that arises when people appear to be putting themselves (or others) in grave risk without apparent knowledge of that risk produces no easy answers. At present, mental health legislation provides the principal grounds in law for finding these answers.

Brenda Hale has observed that mental health law perpetually struggles to ‘reconcile three overlapping but often competing goals: protecting the public, obtaining access to the services people need, and safeguarding users’ civil rights’.³ The regulatory role of mental health law places detention in hospital and compulsory treatment in a different category to deprivation of liberty and assault. Monitoring and procedural protections then allow those subject to involuntary interventions to challenge their commitment. From this view, if emergency powers are needed in some circumstances for some mental health crises – which, it can be reasonably assumed, the majority of people agree should be the case – then these powers need to be clearly authorised and regulated. Mental health legislation currently provides this function. It offers procedural protection and safeguards to prevent paternalistic overreach, negligence or inconsistent application of the law.

However, this view has been sharply criticised by a range of commentators, including the UN Committee on the Rights of Persons with Disabilities,⁴ the Office of the High Commissioner and UN Special Rapporteurs for Torture, Disability and Health.⁵ In order to contextualise these criticisms, this chapter will chart the historical development of ‘rights-based’ mental health law. It will ask how an area of law that was widely held to be liberal, humanist and compassionate came to be seen by major UN agencies and human rights commentators today as its opposite – illiberal, cruel and a violation of human rights.

B The Origins of Mental Health Legislation in Common Law

English statutes from the era of the reign of Edward I in the late thirteenth century form the basis of modern mental health law.⁶ Those early laws permitted the sovereign to intervene in order to protect the private property of those deemed ‘unsound of mind’, on the legal basis of parens patriae.⁷ The parens patriae power, translating literally as ‘parent of the country’, justified detaining and/or treating a person compulsorily on the basis that the person was not able to look after his or her own interests.⁸ Today, parens patriae is typically identified with guardianship and family law, where state interventions address abusive or negligent parents or legal guardians, and the state acts as the ‘parent’ of any child or individual needing protection.⁹

Another important legal doctrine underpinning mental health law concerns the ‘police powers’ of the state. In the eighteenth century, powers of this nature were introduced into common law by the Vagrancy Act 1744.¹⁰ Such laws were mostly designed to protect private property from the interference of ‘mad’ people.¹¹ The ‘police powers’ doctrine justifies intervention to protect other people from the person deemed ‘mad’, typically from physical violence. As with parens patriae, subjects became wards of the sovereign.

The entwinement of the legal doctrines of parens patriae and the police powers of the state have remained an important feature of mental health law. Indeed, the basis for non-consensual treatment and detention today, of posing ‘risk of harm to self or others’, reflects the entwinement of these dual legal doctrines.

The eighteenth and nineteenth centuries saw the development of a new role for the state in relation to treatment and welfare.¹² Laws began to reflect what was ostensibly a greater protective impulse. Theobald argues that, in the nineteenth century, two major professional groups propelled the development of ‘lunacy laws’ from then on: ‘[M]edical men … desired early and easy treatment of persons afflicted with mental disease, and at the same time demanded protection against the risks they ran in certifying persons as lunatics; lawyers … attached more weight to the liberty of the person than to the possibility of a cure by facility for compulsory confinement’.¹³ Theobald’s observation captures a recurring tension between the medical and legal professional frameworks along the theoretical lines of the paternalist and libertarian. (However, commentators may have overstated this case, as will be discussed shortly.)

Patricia Allderidge has characterised the history of mental health law as a pendulum swinging between the preference for legal regulation, on the one hand, and a greater emphasis on clinical discretion to treat and detain, on the other.¹⁴ Thus viewed, the middle of the twentieth century saw a swing from legalism towards clinical discretion in mental health law.¹⁵ An indication of the decisive endorsement of the medical approach is captured in the titles of the new statues – for example, the Mental Treatment Act 1930 (UK) and later the Mental Health Act 1959 (UK),¹⁶ which were replicated in most common-law countries.¹⁷

The Mental Health Act 1959 (UK) saw the abolition of legal proceedings heard by magistrates in matters of detainment and detention upon which clinicians decided.¹⁸ Detention was justified on the basis that mental illness so affected a person as to warrant his or her detention in the interests of his or her (or others’) health and safety. Lunacy laws granted consulting psychiatrists plenary powers and the authority to impose detention. Once an individual had been admitted, the Mental Health Review Tribunal, a quasi-judicial body constituted under the Mental Health Act 1959 (UK), provided periodic review of the detention following the first twenty-eight-day period after certification.¹⁹

However, to suggest that the Mental Health Act 1959 (UK) represented a wholesale medicalisation of mental health law would be misleading. After all, social workers gained increased powers at the commitment stage, and family members were vested with equal power to apply for certification.²⁰ Further, the Royal Medico-Psychological Association and the British Medical Association did not entirely support the extent of the discretionary powers granted under the Mental Health Act 1959 (UK); both expressed concern that the discretionary power would delegitimise the profession.²¹

It is debatable as to why legislation expanded clinical powers. Clive Unsworth has argued that the Mental Health Act 1959 (UK) reflects the state’s ideological departure from the classical liberal emphasis on autonomy that drove the Lunacy Act 1890 and its reorientation towards the collectivist and interventionist objectives of the post-war welfare state.²²

Regardless, the legislation expanded the scope and importance of the term ‘health’ in the justification of detention and treatment. Fennell argues that the term ‘health’ was broadened to include mental health and the justification for detention and involuntary treatment was moved further along a continuum from ‘negative paternalism’, where intervention was justified if it brought benefit to the subject, and not necessarily just to prevent immediate harm.²³ This new health framework in law helped establish a medical model as the dominant model of disability. The United Kingdom Mental Health Act 1959 brought both ‘mental illness’ and ‘mental handicap’ (the latter referring, in contemporary terms, to intellectual disability) under the one statute.²⁴

The Mental Health Act 1959 continued authorising non-consensual treatment following admission, as had been the case since the Lunacy Act 1845.²⁵ Even as mainstream hospitals began to replace asylums as the main sites of state psychiatric intervention, it was still assumed that once a person was admitted, consent was not required. It is worth noting that the very notion of informed consent more generally was new to medical practice at this time, and was by no means predominant in general medical care.²⁶ Tom Beauchamp details the emerging acceptance in the 1970s among physicians and biomedical researchers that informed consent was a moral and legal duty for certain procedures.²⁷ Yet even then, in Beauchamp’s terms, ‘[t]hese developments prompted an explosion of largely negative commentary on informed consent in the medical literature of the mid-1970s’, in which ‘[p]hysicians saw the demands of informed consent as impossible to fulfill and, at least in some cases, inconsistent with good patient care’.²⁸ This seems to be an important (and oft-overlooked) feature of medical history and, interestingly, echoes contemporary controversies provoked by the CRPD.²⁹ Beauchamp’s characterisation of clinicians who viewed the ‘demands of informed consent as impossible to fulfill and, at least in some cases, inconsistent with good patient care’ could well summarise the response to the CRPD by some prominent commentators today.³⁰

Overall, the medicalising shift of early and mid-twentieth-century mental health legislation took place in the context of increasing state intervention and social welfare in health policy, one in which the biomedical model of mental health issues was strongly endorsed.

C Deinstitutionalisation and ‘Rights-Based’ Legalism

From the late 1970s, mental health laws began shifting towards so-called legalism, which saw the development of greater procedural protections over involuntary treatment and detention.³¹ In the second half of the twentieth century, deinstutitionalisation saw the dismantling of the stand-alone psychiatric hospital system, a transition tied inextricably to the evolution of modern mental health law. The reforms established a diverse range of mental health services that included general hospital, residential, community and other support services. The number of psychiatric hospital beds gradually declined. In the United Kingdom, for example, the number of psychiatric beds diminished from 150,000 in 1954³² to 30,533 in 2010, as recorded in the 2010 census count,³³ which is considerable given the associated population increase during that time. Governments introduced new statutes in the policy context of reforming liberal states in the 1980s, which included the language of rights.³⁴ Under the Mental Health Act 1986 (Vic), for example, section 4(1)(ac) states that one objective of the act is to ‘Protect the rights of people with a mental disorder’.³⁵ Section 4(2)(b) states that interpretations of the act should consider that: ‘Any restriction upon the liberty of patients and other people with a mental disorder and any interference with their rights, privacy, dignity and self-respect are kept to the minimum necessary in the circumstances’.³⁶

This trend of using rights vocabularies in mental health law can be seen across common-law countries and other Western, high-income jurisdictions and is characterised by the expanded review process through mental health review tribunals or similar bodies.³⁷ Such courts or tribunals today continue to operate within parameters detailed in mental health laws, including review periods and requirements for procedural fairness.³⁸ Statutory duties introduced under mental health law include those designed to secure individual rights, including rights to access services, refuse medical treatment, and review detention and imposed treatment decisions.³⁹

Bernadette McSherry and Penelope Weller characterise mental health law from this time as ‘rights-based legalism’ given the precedence granted to the language of rights.⁴⁰ Such laws formulated both defensive claims (rights not to be interfered with; for example, ensuring ‘least possible restrictive’ interventions) and positive demands (rights to be provided with quality care; for example, ‘effective giving of … care and treatment’).⁴¹ Case law, as illustrated by the US case of Rogers v Okin (1979),⁴² affords the right to refuse medication in non-emergency conditions. One reason for the introduction of new mental health statutes, typified in common-law jurisdictions by the Mental Health Act 1983 (England and Wales), was to constrain professional power and bring greater accountability to clinical discretion through the regulation of decision-making processes, combined with quasi-judicial review. There is some evidence to suggest that this change resulted in lower rates of involuntary psychiatric intervention. For example, a multistate study across the European Union found significantly lower compulsory admission rates in member states that mandated an independent counsel, tribunal or court process.⁴³

Importantly, these ‘legalist’ reformers introduced new criteria for involuntary treatment and detention. Section two of the Mental Health Act 1983 (England and Wales) is typical; applications for assessment of eligibility for involuntary treatment and detention can be made where:

1. (a) [the person] is suffering from mental disorder of a nature or degree which warrants the detention of the patient in a hospital for assessment (or for assessment followed by medical treatment) for at least a limited period; and

2. (b) [the person] ought to be so detained in the interests of his [or her] own health or safety or with a view to the protection of other persons.⁴⁴

Although the added procedural protections of rights-based mental health law moved involuntary treatment closer to of the kind of procedural protections found in criminal proceedings, laws remained couched in the language of care and treatment. A paternalistic framework endured, expressed in the ‘best interests’ standard which guided interventions – either implicitly or explicitly – in mental health law in Canada, New Zealand, Australia, Ireland, the United Kingdom and elsewhere.⁴⁵ The power to detain was reframed to occur, as exemplified by the terms of the Mental Health Act 1986 (Vic), ‘in the least possible restrictive environment and least possible intrusive manner consistent with the effective giving of that care and treatment’.⁴⁶

Such legislation exists, in part, to provide a statutory basis for treatment and detention as a health issue, which might otherwise warrant a charge of assault and detention.⁴⁷ Under most contemporary mental health laws, the principal persons granted power to treat and detain involuntarily are psychiatrists.⁴⁸ In its 1993 ‘Report of the National Inquiry into the Human Rights of People with Mental Illness’, the Australian Human Rights and Equal Opportunity Commission describes psychiatrists as being granted ‘effective decision-making power under the legislation’.⁴⁹ Under the Mental Health Act (1986) (Vic), for example, the following applies: ‘If an involuntary patient refuses to consent to necessary treatment or is unable to consent to treatment for his or her mental illness, consent in writing may be given by the authorised psychiatrist’.⁵⁰

Neil Rees has characterised this power as a form of ‘clinical guardianship’ because ‘the treating doctor becomes the substitute decision-maker for psychiatric treatment’.⁵¹ Decisions under mental health law may regard matters of detention (in seclusion or otherwise) and in some cases may relate to accommodation and other lifestyle choices, such as driving.⁵² However, clinical decisions generally regard medical treatment, typically psychiatric medication, as well as electroconvulsive therapy (‘ECT’), which is commonly known as electric shock treatment, and psychosurgery. ECT refers to an intervention in which clinicians pass an electric current through a person’s brain, stimulating an epileptic fit. ECT and psychosurgery treatments are administered infrequently compared to other involuntary interventions and typically require authorisation by a mental health tribunal or similar statutory body given their invasive nature.⁵³ Mental health tribunals and similar statutory bodies also have effective substituted decision-making power.⁵⁴ In the case of MH2 v Mental Health Review Board,⁵⁵ for example, the Victorian Mental Health Review Board was described as having ‘all the functions of the decision maker … that are relevant to the decision under review’.⁵⁶

1 Involuntary Interventions Outside Hospital: The Rise of Compulsory Psychiatric Interventions in the ‘Community’

Another important development in recent decades is the introduction of non-consensual psychiatric interventions outside the hospital, in people’s residences. These measures are typically referred to as ‘assisted outpatient treatment’ (‘AOT’) in the United States and ‘community treatment orders’ (‘CTOs’) in jurisdictions like England, Wales, Canada, Australia and New Zealand,⁵⁷ and have been introduced in multiple jurisdictions over the past three decades (with the notable exception of jurisdictions like Northern Ireland and the Republic of Ireland). An AOT or CTO authorises the imposition of conditions on a former inpatient following hospital discharge. Conditions typically relate to medication. However, depending on the jurisdiction, conditions can also relate to where the person must live and other lifestyle matters, such as how much alcohol he or she can consume.⁵⁸ If individuals breach conditions, clinicians can recall them to involuntary hospitalisation.

Early on, reformers portrayed AOT and CTOs as middle options on a spectrum between voluntary community support and involuntary hospitalisation.⁵⁹ This claim forms the basis for an account of compulsory outpatient treatment as enhancing autonomy. According to the Australian Human Rights and Equal Opportunity Commission in 1993, for example, CTOs ‘encouraged’ community-based treatment by providing an alternative to detention and involuntary inpatient treatment.⁶⁰ John Dawson conducted interviews with clinical professionals in Victoria, Australia, who tended to see CTOs as being instrumental to the rapid pace of deinstitutionalisation and the associated shift of resources from hospitals to ‘community-based’ services.⁶¹ This hypothesis may be true with respect to CTOs having a role in moving resources. However, the cause is unlikely to be the efficacy of CTOs (and Dawson’s findings are perhaps more indicative of psychiatrists’ increased comfort in allowing patients to leave hospital knowing that they were subject to compulsory treatment in the community). Indeed, since the introduction of CTOs, three large-scale randomised controlled trials and their meta-analyses have failed to support the view that they are effective in achieving their principal aim; that is, lowering hospitalisation rates or protecting individuals subject to them.⁶² Given these results, some prominent early supporters of CTOs in England and Wales, including senior figures in the United Kingdom’s Royal College of Psychiatrists, have called for their repeal;⁶³ human rights bodies today are unlikely to endorse CTOs, particularly given the prohibition of disability-based restrictions on rights in the CRPD (as shall be discussed in detail in the next chapter).

CTOs reflect a paradox in the era of ‘rights-based legalism’, one that might give pause for us to consider whether ‘rights-based legalism’ is the best way to characterise developments in mental health law around the turn of the twenty-first century. Despite the increasing focus on procedural protections in mental health law, the coercive ‘powers’ of clinicians have expanded in certain respects. Roughly one-quarter of US states, and most common-law high-income countries, have adopted outpatient commitment statutes in the past three decades, leading to increased clinical powers for the supervision and non-consensual intervention of people outside hospital.⁶⁴ In the United States, Paul Appelbaum observes that the increase in forced outpatient treatment over the past twenty-five years has meant that legal oversight of clinical activity has diminished, which ‘almost always’ makes it easier for clinical authorities to enforce civil commitment and involuntary treatment.⁶⁵ Reflecting on this period of mental health law, Appelbaum observes that ‘[c]riteria for involuntary hospitalization have been expanded gradually in many jurisdictions, and procedural rigor has been somewhat relaxed’.⁶⁶ Similarly, in England and Wales, according to Molodynski and colleagues, the use of CTOs has ‘substantially outstripped’ official expectations since their introduction in 2008.⁶⁷ In Victoria, Australia, which was one of the first non-US jurisdictions to introduce CTOs, rates of use are the highest per capita in the world.⁶⁸ It also appears likely that a number of jurisdictions, at least in the US, allow preventive compulsory community treatment, even if this is not explicitly promoted in law; that is, if the person is at risk of becoming eligible for civil commitment.⁶⁹

2 Separating Mental Health and Capacity/Guardianship Laws

The separation of adult guardianship laws and mental health legislation is relevant here. Adult guardianship laws (which are sometimes referred to as mental capacity laws)⁷⁰ provide for substituted decision-making for adults deemed to lack mental capacity. Typical legislation attributes mental incapacity to ‘an impairment of, or a disturbance in the functioning of, the mind or brain’.⁷¹ As early as the 1980s, Australia,⁷² New Zealand⁷³ and Canada⁷⁴ saw substantial reform of adult guardianship laws along a different but parallel trajectory to mental health law.⁷⁵ These new statutes created a substituted decision-making regime in step with the transition from large-scale institutions to ‘community-based’ services. Guardianship laws were typically designed for persons with cognitive and intellectual disabilities (who no longer fell under mental health law)⁷⁶ but could apply to anyone found to lack mental capacity, including some persons with psychosocial disabilities.⁷⁷ Typically, guardianship/mental capacity laws authorise a tribunal to appoint a guardian or a ‘deputy’, potentially a relative or close friend, to make decisions regarding healthcare or ‘lifestyle’ choices, or to appoint an administrator to manage financial matters. Public officials may serve as substituted decision-makers and/or financial administrators. Neil Rees has argued that the new wave of guardianship/mental capacity laws from the 1980s onward aimed to ‘operate as a “last resort” option under legislation which promoted autonomy and self-sufficiency, encouraged the appointment of family members rather than representatives of the state as substituted decision-makers, and resulted in limited and reviewable orders’.⁷⁸

To state the differences clearly, mental health legislation is typically concerned with the following:

1. a) people with psychiatric diagnoses or apparent mental disorder – mental incapacity is not used as a grounds for involuntary psychiatric intervention;⁷⁹

2. b) crisis intervention, involuntary treatment and detention; and

3. c) the authorisation of a treating clinician, who is granted primary substituted decision-making power on matters of healthcare and detention.⁸⁰

By contrast, a guardianship/mental capacity law, such as the Mental Capacity Act (2005) (England and Wales), is characterised by the following:

1. a) it is meant for those with a range of impairments that affect cognitive functioning;

2. b) it relies on assessing mental capacity to determine where ‘deficits’ are relevant to decisions that need to be made; and

3. c) the substituted decision-maker is (in ideal circumstances) a trusted person appointed according to the preference of the person, potentially a family member, but also a public official such as a ‘deputy’, public advocate, financial administrator or public trustee.

The idea of ‘supported decision-making’ evolved, in large part, from changes to adult guardianship law. British Columbia in Canada, for example, adopted one of the first legislative models for decision-making assistance from as early as 1996.⁸¹ In the Republic of Ireland, the Assisted Decision-Making (Capacity) Act 2015 is a mental capacity law emerged from reform to the country’s ‘wardship’ system, which may have taken the British Columbian model a step further by providing multiple statutory support options for citizens who may require support to make decisions and exercise legal capacity.⁸² Specific guardianship/mental capacity laws, as well as the general literature on adult capacity law and other mental capacity-related laws, will provide a useful resource throughout this book when examining key issues in the mental health context. The differences and overlap between mental health law and guardianship law will become important later in the book, in the discussion about possible legal frameworks for mental health support in line with the CRPD.

D Discussion: Change and Continuity in Mental Health Law

Before proceeding to outline the implications of the CRPD for mental health law, it is useful to ask what the background in this chapter means for this book. First, it is noteworthy that the function, justification and (to a lesser extent) procedures of mental health laws over time have remained largely the same. Mental health law continues to authorise the restriction of liberty and the right to refuse medical treatment through interventions that would otherwise be unlawful.

The legal basis for mental health law continues to be to prevent harm to individuals and the community by entwining the doctrine of parens patriae with the police powers of the state. Protection remains a major driver, in terms of addressing risk (whether real or imagined) both to the broader public and to unwell individuals.⁸³ So, too, there remains an unchanging premise in all domestic mental health statutes that special legal treatment is required for people with apparent or diagnosed mental disorder. This position is justified on two grounds: such persons are less responsible causally and, hence, legally for their actions,⁸⁴ and they are more dangerous than others.⁸⁵ (The veracity of these claims will be scrutinised in Chapter 3.) Overall, then, mental health laws retain the decades-long tension between the principles of autonomy and protection. In William Bingley and Chris Heginbotham’s terms, these dual objectives seek ‘to recognise, preserve and enhance the self-determination of individual patients whilst at the same time providing a framework for the care and treatment of those who are genuinely disabled as a result of mental illness’.⁸⁶

This latter point – which is deeply contested, as shall be discussed in later chapters – raises another important issue regarding language. As a general comment, language around mental health law is greatly contested.⁸⁷ In particular, ongoing debates in this field have centred around two fluid and disputed topics, namely ‘mental illness’ and ‘self-determination’ (or, in earlier terminology, ‘insanity’ and ‘liberty’). Spaulding has argued that the extent to which ‘legalistic’ mental health laws are seen to be libertarian ‘depends on one’s understanding of the relationship between liberty and mental disorder’.⁸⁸ One person may view untreated mental disorder as a denial of liberty; while another might see forced treatment in the same way. Using terms such as ‘mental illness’ and ‘autonomy’ without acknowledging their intended meaning, or without noting their fluidity and relationship, can result in commentators cloaking the underlying purposes of their use, which remain, at best, only vaguely stated. In analysing how the support framework of the CRPD might reshape the law’s response to mental distress, disorder and disablement, it will be interesting to consider whether the ‘human rights model of disability’ and associated concepts can more satisfactorily address some of these persistent conceptual challenges.⁸⁹

In terms of change, the following points are noteworthy. By the end of the twentieth century, and still today, the picture of mental health law in Western, high-income countries has become more complex. While large-scale stand-alone institutions have largely closed, the scope of substituted decision-making powers has expanded outside hospitals and into the ‘community’. Compulsory psychiatric intervention today occurs in people’s residences. An apparent contradiction emerges: despite the move to rights-based legislation, rates of non-consensual psychiatric intervention appear to be increasing in some respects, particularly regarding involuntary outpatient treatment.

A number of reviews have commented upon the lack of substantive rights brought about by rights-based mental health law. For example, the Irish Department of Health’s ‘Interim Report of the Steering Group on the Review of the Mental Health Act’ found that, although it ‘was anticipated that the introduction in the [Mental Health Act 2001 (Republic of Ireland)] of the statutory “best interests” principle would lead to a new emphasis on the rights of the patient … the reality is that the principle has been interpreted by the Courts in a paternalistic manner’.⁹⁰ According to the Steering Group, this interpretation is ‘undermining the significant advances in mental health law which the Act was intended to enshrine, and has given rise to concerns that the human rights aspects of the legislation have been diluted and diminished’.⁹¹ Alternatively, consider the comment of the Australian Human Rights and Equal Opportunity Commission in 1993, which found that legislative formulations in Australian states are ‘marked by circularity of reasoning and apparently designed to intrude to a minimal degree upon the territory of psychiatrists’.⁹² On the other hand, as noted previously, there is some evidence to show that jurisdictions which mandate tribunal or court processes have significantly lower compulsory admission rates compared to those that do not.⁹³

These paradoxes suggest that, just as mental health ‘systems’ have become more complex, so too have configurations of mental health laws around the world. While general principles are shared, considerable variation occurs in specificities; for example, as relates to compulsory treatment in the community, the role of family and informal carers, and the relationship between detention and non-consensual treatment. To provide one example, the Ontario Mental Health Act 1990 includes powers to detain which do not necessarily extend to powers for involuntary treatment.⁹⁴ Instead, Ontario’s Health Care Consent Act 1996 governs rules of capacity to consent to medical treatment.⁹⁵ In contrast, all Australian states and territories (each with its own distinct mental health statute) entwine detention and involuntary treatment, whereby people detained under mental health law are automatically subject to involuntary treatment powers.⁹⁶ This is just one example highlighting the diversity of mental health laws, which adds an extra layer of complexity when discussing cross-jurisdictional trends.

Some changes in commentary on mental health law are noteworthy. The first is the increasing push to use assessments of mental capacity to activate involuntary psychiatric intervention. Peter Bartlett has argued that the idea of using mental capacity–based tests for involuntary treatment has characterised progressive mental health law reform in recent years.⁹⁷ This priority partly arises from the question of whether mental capacity should be a central criterion for involuntary treatment in all medical contexts, regardless of whether they relate to ‘mental’ or ‘physical’ health.⁹⁸ In the past, most libertarian concerns with protecting autonomy and non-interference were directed to those ‘falsely accused of mental disorder’, whereas recent years have seen an emphasis on equality and non-discrimination in the exercise of patient choice regardless of diagnosis – especially for those who retain mental capacity.⁹⁹ These concerns centre on the question, Should we respect the right of competent patients to refuse psychiatric treatment, given that we respect their right to refuse physical medical care (such as chemotherapy), even if they die?¹⁰⁰ This fraught line of enquiry will become particularly relevant later in Chapter 4 when considering the potential benefits and drawbacks of the support framework of the CRPD. For now, it is important to note that, despite mental capacity becoming a key concern in mental health law reform trends in mental health law are shifting still, particularly since the coming into force of the CRPD.¹⁰¹ Indeed, Bartlett follows his appraisal of mental capacity as a major concern of recent mental health law reform by noting that the CRPD has created a ‘significant shift in the legal landscape’ away from mental capacity tests and towards evaluating a person’s support requirements, and particularly his or her decision-making support needs.¹⁰²

A second major change concerning the mental health field in recent decades is the existence of an expanded range of commentators. In particular, mental health service users and others with psychosocial disability are increasingly contributing to debates and developments in mental health law, policy and practice.¹⁰³ The fall of the asylum era in the West brought with it a rise in the ‘global disability movement’. This diverse group of people with disabilities and their allies have helped change social responses to disability (including mental health) at the local, national and international level. The CRPD reflects this shift in international human rights law, as the next chapter outlines.¹⁰⁴ This broad social movement included persons with psychosocial disability who made a significant contribution to the development of the CRPD.¹⁰⁵ Sheila Wildeman describes the ‘radical challenges to global mental health policy that have gained new legitimacy and momentum through the participation of [disabled people’s organisations] in the CRPD process’.¹⁰⁶ This influence is also evident at the domestic level, where the increasing influence of persons with psychosocial disabilities, as well as family members of this group, is evident on a small and large scale across law, policy and programming.¹⁰⁷

E Conclusion

This chapter has looked to the past to clarify the purposes and objectives of mental health law, providing grounds to interrogate the major issues that the CRPD might address today. Since the latter decades of the twentieth century, mental health law has struggled to balance the dual prerogatives of self-determination and protection. Mental health law outwardly seeks to uphold the Western legal doctrine of autonomy and other rights of the individual, while also imposing protective measures that mediate collective concern and fear about the danger and vulnerability (whether real or imagined) that are associated with mental illness. Historic and contemporary debates centre on a critical issue at the heart of mental health law: should ‘unsoundness of mind’ operate as a criterion for special exception to normative rights? Is this special exception an acceptable cost for the opportunities it affords in protecting other rights (such as the right to life, to dignity and so on)? Mental health law has retained the long-held assumption that profound distress, mental illness, extreme states of consciousness and so on, compromise human agency and volition in such a way that the law cannot operate under the same rules as it does for non-affected persons in conferring legal responsibility and competency.

The CRPD challenges this proposition on a fundamental level. It challenges the long-established sense that mental health issues constitute a special exception that allows for the suspension of principles of equality and non-discrimination. Bernadette McSherry has distilled this challenge into two major questions:

1. (a) whether mental health laws that enable involuntary detention and treatment should be abolished on the basis that they unjustifiably breach human rights; as well as

2. (b) whether such laws can be reformed in the light of human rights principles to ensure respect for individual choices in relation to treatment.¹⁰⁸

Having set out the main function, purpose and procedures of mental health law, it is now useful to turn to the CRPD, to examine in detail the challenges it raises for rules on involuntary psychiatric intervention.

2 Mental Health, Law and the United Nations Convention on the Rights of Persons with Disabilities: New Tools or New Paradigm?

A Introduction

From the late 1970s, international human rights law increasingly influenced mental health legislation.¹ For example, the Convention for the Protection of Human Rights and Fundamental Freedoms (commonly known as the European Convention on Human Rights) was being used for the judicial review of involuntary psychiatric intervention as early as 1983.² However, Michael Perlin and Éva Szeli argue that movement in the mental health context towards human rights was slow and hindered by pervasive discrimination against people with ‘mental disabilities’, whose human rights were progressively ‘ignored for decades by the international agencies vested with the protection of human rights on a global scale’.³ The CRPD⁴ has challenged this exclusion and builds on earlier efforts to bring mental health into the fold of international human rights law.

B The Long Road to Inclusion of Disability and Mental Health in Human Rights Law

Theresia Degener has observed that in the early development of international human rights law, people with disabilities were not viewed ‘as a distinct group vulnerable to human rights violations’.⁵ In contrast, categories such as race and gender were explicitly incorporated into foundational human rights instruments. Yet, ‘[n]one of the equality clauses of any of the three instruments of (the International Bill of Human Rights), the Universal Declaration of Human Rights (1948), the International Covenant on Civil and Political Rights (1966), and the International Covenant on Economic, Social and Cultural Rights (1966), mention disability as a protected category’.⁶ This exclusion is particularly prominent for people with psychosocial disability. Clarence Sundram highlights that during the twentieth century in Western, high-income countries, people with psychosocial disabilities were subject to arbitrary detention without legal process (sometimes for life); endured forced sterilisation; were chained and caged; and were subjected to cruel, inhuman and degrading treatment, including confinement to squalid conditions in institutions and subjection to medical experimentation and the use of painful medicines and unmodified electroconvulsive treatment without anaesthesia.⁷

This is not to say, of course, that state, professional and societal interventions have failed at every turn. Stories of success and humanity in services to support those in mental health crises are well represented in the literature, as they ought to be.⁸ However, it is also true that when widespread practices occurred which are generally considered today to have been abusive and prejudicial, interference of this nature was often lawful.

Throughout the twentieth century, instances of grievous wrongs against persons with disability occurred despite the creation of twenty-four international human rights conventions. Under these conventions, which the global community adopted, in large part it appears that mental health law, policy and practice were regarded as a well-established anomaly to normative human rights.⁹ Consider Article 7 of the International Covenant on Civil and Political Rights, which is binding international law for state signatories and states: ‘No one shall be subjected to torture or cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation’.¹⁰ According to Sundram, researchers simply viewed this rule as inapplicable to persons diagnosed as mentally ill.¹¹ Human experimentation occurred without consent, even where experiments had no intended benefit for the individual¹² (though, as noted in the previous chapter, obtaining informed consent was generally not considered to be the moral and legal duty of doctors performing many procedures across medicine, even up to the 1980s).¹³ Researchers published their methods and findings in professional journals with no requirement to regard the human rights of their subjects.¹⁴ Sundram articulates this systemic exclusion in the following terms:

Generic recognition of human rights for all people has been insufficient to bring people with mental disabilities under the same umbrella because there had been a long history in society of regarding them as a separate class, with separate and lesser rights. Worse, the abuses to which people with mental disabilities have been exposed have generally not been recognized as violations of human rights even by organizations that are engaged in human rights work.¹⁵

The legal text of human rights instruments provides some insight as to why this might be the case. For example, the Universal Declaration of Human Rights confers rights and legal status because humans are endowed with ‘reason’ and ‘conscience’.¹⁶ The European Convention on Human Rights, which prohibits discrimination on ‘any ground such as sex, race, colour, language, religion, political or other opinion’,¹⁷ does not prohibit disability-based discrimination; it makes an exception for those of ‘unsound mind’ – which it equates with ‘alcoholics … drug addicts or vagrants’ and ‘persons [detained] for the prevention of the spreading of infectious diseases’ – to the right to liberty and security of the person.¹⁸ It could be argued that this exception, which is set out in article 5(1)(e), is anachronistically worded and that the European Court of Human Rights has evolved over time. Contrariwise, Lisa Waddington and Bernadette McSherry argue that this is not the case.¹⁹ In their view, Article 5(1)(e)’s provisions – and other ‘exceptions and exclusions’ that appear throughout European human rights law, including those in the Council of Europe Convention on Human Rights and Biomedicine – have meant that only ‘“weak” protection has been afforded to people with psychosocial disabilities by the European Convention on Human Rights and the European Court of Human Rights’ in relation to informed consent for medical treatment.²⁰

In the last two decades of the twentieth century, a range of people began to challenge the marginalisation of persons with psychosocial disability from the substance of international human rights law.²¹ The shift became evident with the UN announcement that 1981 would be the International Year of Disabled Persons. Significant UN initiatives followed, including the World Programme of Action Concerning Disabled Persons and the Decade of Rights of People with Disability, which culminated in 1993 with the publication of the Standard Rules on the Equalization of Opportunities for Persons with Disabilities.²²

Notably, in 1991, the General Assembly adopted the Principles for the Protection of Persons with Mental Illness and for the Improvement of Mental Health Care (or the ‘MI Principles’, as they became widely known).²³ Perlin and Szeli have argued that the ‘MI Principles established the most comprehensive international human rights standards for persons with mental disabilities, and their adoption was a critical global step in recognizing mental disability rights issues within the human rights arena’.²⁴ The MI Principles require the delivery of services in the least restrictive manner, using individualised planning, and under the independent and impartial authority of mental health tribunals.²⁵ Under the MI Principles, the principle of autonomy is elevated,²⁶ medication is restricted to therapeutic use²⁷ and clinicians must ensure that ‘[n]o treatment shall be given to a patient without his or her informed consent’.²⁸ However, the principle of informed consent is qualified extensively, and involuntary medical treatment is decisively endorsed when a person ‘by reason of his or her mental illness … lacks legal capacity’.²⁹ This formulation of legal capacity, as I shall discuss, diverges sharply from the conceptualisation of legal capacity in the CRPD.

Meanwhile, domestic human rights and equal opportunity laws brought mental health policy and law in domestic courts closer to the rights advanced in the MI Principles. In the United States, under the Americans with Disabilities Act of 1990, Congress clearly identified the isolation and segregation of persons with disabilities as a serious and widespread form of discrimination.³⁰ In 2011, the US Supreme Court ruled (by majority) in Brown v Plata that failure to provide adequate health conditions for persons in custodial confinement, and particularly for persons with mental disorder, constituted an abuse of human rights.³¹ Elsewhere, the increased use of regional courts like the European Court of Human Rights in mental health-related matters³² reflected the increasing influence of human rights, and also signalled a shift away (at least nominally) from framing people diagnosed with mental disorders as being – in some way – anomalous to human rights law. (There are also signs that regional human rights bodies in Africa and the Americas are increasingly linking mental health with human rights.)³³ However, the effectiveness of some of these human rights instruments in protecting the rights of people with psychosocial disability is questionable.³⁴ For example, Brenda Hale was reluctant to describe the use of human rights in mental health law in Europe as successful,³⁵ while others have raised concerns that rights-based laws have codified medical discretion rather than upholding the rights of those subject to them.³⁶ The MI Principles provide a good example of why this might be the case.

The authors of the MI Principles aimed to provide a coherent human rights framework for mental health care. At face value, they achieve this task. Commentators around the turn of the twenty-first century echoed Timothy Harding, who viewed the MI Principles as the ‘“centrepiece” of international human rights law in the field of mental health’.³⁷ However, the MI Principles have been strongly criticised on several points. Harding has argued that the MI Principles do not have the status of a formal international treaty; states have no obligation to adopt them as ‘minimum standards’ and there are no implementation mechanisms, thus raising questions about their efficacy.³⁸ Second, as Caroline Gendreau has argued, the MI Principles uncritically endorse a disease model approach to mental health, which particularly affects provisions regarding consent to treatment, including the removal of patient rights.³⁹ Disabled people’s organisations, such as the World Network of Users and Survivors of Psychiatry, have criticised the MI Principles on the basis that the instrument was negotiated to the complete exclusion of service users and other people with psychosocial disabilities and their representative organisations.⁴⁰ Finally, perhaps the strongest criticism is that the MI Principles offer weaker protection than other pre-existing human rights instruments in key respects, particularly on the issue of consent to treatment; according to Harding, ‘the Principles remove patients’ rights rather than reinforce them’.⁴¹

1 The CRPD and Mental Health Law

Broader disability groups, including people with physical, sensory and intellectual disabilities, identified a shared sense of being marginalised from international human rights law.⁴² Cross-disability alliances were formed, which led to a successful campaign to create a distinct international human rights treaty for people with disabilities.⁴³ The CRPD represents the culmination of two and a half decades of development in international human rights law aimed at addressing human rights violations experienced by people with disabilities. The purpose of the CRPD is to ‘promote, protect and ensure the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities, and to promote respect for their inherent dignity’.⁴⁴ The CRPD can be seen as a recent addition to the ‘pluralization of human rights’, in Frédéric Mégret’s terms, to describe the recognition of particular categories within humanity as being worthy of specific human rights protection.⁴⁵

As noted previously, the CRPD offers a de facto definition of persons with disabilities that ‘include[s] those who have long-term physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others’.⁴⁶ The emphasis placed on the interaction between a person’s impairment with attitudinal and environmental barriers draws attention to disabling social and physical factors.⁴⁷ Mike Oliver has described the harms caused by such barriers as the ‘politics of disablement’.⁴⁸ Oliver is a major proponent of the ‘social model of disability’, which greatly influenced CRPD negotiations.⁴⁹ The social model view of disability aims to shift the emphasis away from the individual deficits in persons with disabilities and towards identifying external barriers to their participation on an equal basis with others.⁵⁰ In contrast, the ‘medical model of disability’, which dominated disability law, policy and practice throughout the twentieth century, uses biomedical explanations that locate disability within the individual, in terms of pathology.⁵¹ The social model is premised on a view of disability as arising, once again, from ‘the interaction between persons with impairments and attitudinal and environmental barriers that hinders their full and effective participation in society on an equal basis with others’.⁵² Clearly, the distinction between ‘impairment’ and ‘disability’ is not always clear. The social context is always up for debate. Nevertheless, the social model and, indeed, the CRPD advance an inclusive view of disability, which seeks to avoid diagnostic categorisation and instead shine a spotlight on the external barriers to human flourishing.⁵³

The CRPD potentially introduces a new model of disability, which Gerard Quinn and Theresia Degener have termed the ‘human rights model of disability’.⁵⁴ The human rights model, according to Degener, builds upon the social model in key ways; for example, although the social model holds strong explanatory power in identifying the formation of disability, it does not affirm the inherent human dignity of persons with disabilities and attribute them with the capacity to hold human rights regardless of impairment.⁵⁵ As well as this affirmation, the human rights model offers a more comprehensive framework for achieving social justice, offering not just an explanation, but also a prescription for change.⁵⁶ After all, the CRPD is among the longest and most detailed of all UN human rights conventions, elucidating human rights in the disability context in a wide range of areas of life, including employment, education, health services and transportation, access to justice and access to the physical environment.⁵⁷

For the mental health context, the human rights model raises questions about the relationship and differences between ‘impairment’ and the external barriers which give rise to ‘disability’. Brendan Kelly has queried the extent to which ‘mental disorder’ or ‘mental illness’ falls within the definition of ‘disability’ according to the CRPD.⁵⁸ He writes: ‘it appears likely that some people with mental disorder meet this definition at least some of the time (e.g., a person with chronic schizophrenia) but others do not (e.g., a person with a single phobia)’.⁵⁹ Kelly argues that the question of whether mental health legislation in its current form violates the CRPD ‘depends critically on whether or not the CRPD’s definition of disability includes mental disorder’.⁶⁰ Tina Minkowitz has countered that

While the provision refers only to people with ‘long term’ impairments and does not mention imputed impairment or disability, it is non-exhaustive and should not limit coverage of the Convention where such a result would be counterproductive. In particular, the obligations of non-discrimination cannot be properly implemented if they are to depend on the details of a person’s experience with disability; the mere fact that a person is perceived as having a disability, and accorded adverse treatment as a result, is enough to invoke these provisions.⁶¹

From this view, the question of who is disabled hinges upon adverse treatment on the basis of impairment or disability, thus shifting the emphasis to the substance of mental health law (or any other process) and whether or not it constitutes adverse treatment – which the CRPD Committee, the OHCHR, the Special Rapporteur on Torture and others have indicated it does. Setting aside these concerns, which will be discussed in detail in Chapter 3, it is clear that negotiators of the CRPD agreed that it was unnecessary to spell out a detailed definition of who constitutes a disabled person, and that there are distinct advantages in leaving the application of the definition to be worked out, as far as necessary, on a case-by-case basis.

In its prohibition of all discrimination based on disability, the CRPD requires that States Parties take all reasonable steps to accommodate mental and physical impairments and sets out several rights for people with disabilities, including rights relating to employment, education, health services, transportation, access to justice and accessibility to the physical environment.⁶² In setting out these rights, the CRPD is said by diverse commentators to have affirmed or restated existing human rights, or modified certain rights in a manner specific to the experience of people with disabilities, and even to have extended rights into new areas of life.⁶³

In contrast to the MI Principles, commentators generally agree that the CRPD was the most participatory international legal instrument in history, where those typically subject to the human rights violations in question took a leading role in its development. This included people with psychosocial disabilities, as well as their representative organisations – although, in recent years, some commentators have raised concerns that only a narrow group of persons with psychosocial disability, service users and so on were involved.⁶⁴ Nevertheless, as Perlin and Szeli have stated, the CRPD brought mental health issues more forcefully into the fold of human rights law than ever before.⁶⁵

C The Scope of Protected Rights

The preamble of the CRPD affirms ‘the inherent dignity and worth and the equal and inalienable rights of all members of the human family as the foundation of freedom, justice and peace in the world’.⁶⁶ Acknowledging the ‘inherent dignity’ of people with disabilities emphasises from the outset that people with disabilities are the holders of inherent rights, rather than needing to meet a certain standard – for example, as a rational agent – in order to lay claim to rights. (In contrast, consider Moore’s claim that ‘one is a moral agent only if one is a rational agent’.)⁶⁷ Louise Arbour, the UN High Commissioner for Human Rights when the CRPD was adopted, stated that Article 1 of the CRPD establishes an authoritative challenge to the ‘view of persons with disabilities as objects of charity, medical treatment and social protection’,⁶⁸ instead affirming that they are ‘subjects of rights, able to claim those rights as active members of society’.⁶⁹

The preamble also affirms previous UN instruments, such as the Universal Declaration of Human Rights, which have ‘proclaimed and agreed that everyone is entitled to all the rights and freedoms set forth therein, without distinction of any kind’.⁷⁰ Yet the preamble also notes the failure of previous human rights instruments to prevent, for people with disabilities, ‘barriers in their participation as equal members of society and violations of their human rights in all parts of the world’.⁷¹ The ‘universality, indivisibility, interdependence and interrelatedness of all human rights and fundamental freedoms’ is observed, to which persons with disabilities should be ‘guaranteed their full enjoyment without discrimination’.⁷²

International cooperation is called for to improve ‘the living conditions of persons with disabilities in every country, particularly in developing countries’ – an important point, given that low- and middle-income countries are home to the majority of people with disabilities globally. The preamble highlights material inequality, acknowledging ‘that the majority of persons with disabilities live in conditions of poverty’ and emphasising ‘the critical need to address the negative impact of poverty on persons with disabilities’.⁷³ This point is especially relevant in the mental health context, where the cyclical relationship between poverty and profound mental distress and disorder is well-established.⁷⁴

1 Framing Rights

Articles 1 through 9 establish ‘framing’ rights, offering obligations and principles of general application. Equality, non-discrimination, accessibility and autonomy are key themes, with specific attention paid to women and girls with disabilities.⁷⁵ ‘Disability-based discrimination’ is defined in Article 2 as any distinction, exclusion or restriction on the basis of disability which has the ‘purpose or effect of impairing or nullifying the recognition, enjoyment or exercise, on an equal basis with others, of all human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field’. Importantly, this ‘includes all forms of discrimination, including denial of reasonable accommodation’.⁷⁶

‘Reasonable accommodation’ is an important tool for achieving the equality demands of the CRPD and refers to ‘necessary and appropriate modification and adjustments not imposing a disproportionate or undue burden, where needed in a particular case, to ensure to persons with disabilities the enjoyment or exercise on an equal basis with others of all human rights and fundamental freedoms’.⁷⁷ According to Rosemary Kayess and Phillip French, reasonable accommodation is ‘the most fundamental instrumental element of the convention’.⁷⁸ The provision effectively introduces a duty on states to ensure ‘reasonable’ adjustments as a matter of equality and non-discrimination. This duty creates a positive obligation on States Parties to provide the resources that individuals need in order to exercise their rights (rather than simply a duty to refrain from intruding on individuals’ lives). Almost all national disability discrimination laws have adopted this concept, which has remained a central demand of the global disability movement for many decades.⁷⁹

Article 5 addresses equality and non-discrimination specifically, and directs States Parties to ‘recognize that all persons are equal before and under the law and are entitled without any discrimination to the equal protection and equal benefit of the law’. Article 5 also prohibits disability-based discrimination (paragraph 2); directs States Parties to provide reasonable accommodation (paragraph 3); and permits special measures that are not discriminatory in nature under the terms of the CRPD but are intended to accelerate or achieve de facto equality of persons with disabilities (paragraph 4).⁸⁰

Article 6 recognises ‘that women and girls with disabilities are subject to multiple discrimination’, which may be a useful frame for addressing the consistent patterns of difference between the experiences of men and women with psychosocial disabilities relating to impairment, service use and the application of involuntary psychiatric intervention.⁸¹

Similarly, Article 7 obligates States Parties to ‘take all necessary measures to ensure the full enjoyment by children with disabilities of all human rights and fundamental freedoms on an equal basis with other children’.

Article 8 sets out awareness raising obligations on States Parties ‘regarding persons with disabilities, [including] foster[ing] respect for the rights and dignity of persons with disabilities’. Themes include combating ‘stereotypes, prejudices and harmful practices relating to persons with disabilities’⁸² and promoting ‘awareness of the capabilities and contributions of persons with disabilities’.⁸³ Measures involve ‘[i]nitiating and maintaining effective public awareness campaigns’ that ‘nurture receptiveness to the rights of persons with disabilities’, including through education systems and the media and in workplaces.⁸⁴ Awareness raising is likely to be particularly relevant to the mental health context. Populist fears and stereotypes perpetuate prejudice and discrimination against persons with psychosocial disability throughout the world (and may underpin key justifications for having separate mental health legislation, as the next chapter explores).

Finally, Article 9 requires States Parties to ‘take appropriate measures to ensure to persons with disabilities access, on an equal basis with others, to the physical environment, to transportation, to information and communications, including information and communications technologies and systems, and to other facilities and services open or provided to the public, both in urban and in rural areas’. This includes ‘identification and elimination of obstacles and barriers to accessibility’.⁸⁵ While this article generally appears to relate to physical accessibility measures for persons with physical and sensory disabilities, the reference to ‘other facilities and services open or provided to the public’⁸⁶ could reasonably include mental health services, but could also schools and universities, banks, utility companies and so on. What it means to ‘take appropriate measures’ to ensure accessibility is debatable, and is likely to be refined with reference to specific operative rights, for example, related to education (Article 24), health (Article 25) or employment (Article 27). Measures could reasonably include mental health services improving accessibility for people with intellectual disabilities,⁸⁷ banks or utility companies establishing procedures to work with a person’s preferred supporter, or workplaces allowing flexible working hours where medications affect morning alertness. Article 9 seems to reiterate the call for ‘universalism’, which eschews separate services and facilities for persons with disabilities in favour of accommodation and accessibility measures being built into mainstream services and facilities. Rosemary Kayess and Phillip French define ‘universalism’ as the ‘radical modification of the social norm to reflect human diversity’.⁸⁸

2 Operative Rights

Articles 10 to 30 refer to operative rights, each of which has a more specific focus. Some articles are more relevant to the mental health context than others.

One of the most significant of these is the right to equal recognition before the law set out in Article 12. Article 12(1) establishes that persons with disabilities have the right to be recognised everywhere as persons before the law.⁸⁹ Article 12(2) directs that ‘States Parties shall recognize that persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life’. The meaning of ‘legal capacity’ and its enjoyment ‘in all aspects of life’ has been the subject of considerable debate (which I will discuss in detail in Chapter 4). The right to enjoy legal capacity on an equal basis in Article 12(2) draws upon a formulation of legal capacity comprising two elements: a person’s legal standing (legal personality), but also his or her ability to act on such legal standing (legal agency).⁹⁰ On this point, an immediate issue arises with mental health legislation which clearly restricts a person’s legal capacity, and specifically his or her legal agency.

Article 12(3) sets out States Parties’ obligation to ‘take appropriate measures to provide access by persons with disabilities to the support they may require in exercising their legal capacity’⁹¹ and is often regarded as the locus situ for the obligation on states to provide ‘supported decision-making’.⁹² Article 12(4) sets out safeguards required for all measures related to the exercise of legal capacity.⁹³ These include the principle of proportionality, freedom from conflict of interest, and undue influence on and respect for the rights, will and preference of the person. These safeguards should ensure that the provision of legal capacity support measures ‘apply for the shortest time possible and are subject to regular review by a competent, independent and impartial authority or judicial body’.⁹⁴ Finally, Article 12(5) contains explicit recognition of the importance of the right to legal capacity for persons with disabilities in respect of financial and property matters.⁹⁵ Overall, Article 12 sets out a commitment by States Parties to uphold the legal standing of people with disabilities and to ensure that they act in this respect on an equal basis with others. (I will discuss the implications of Article 12 for mental health law in detail in Chapter 4 and 5.)

Article 14 sets out provisions on the liberty and security of the person, which are among the most important and controversial for the mental health context. Article 14(1)(b) requires States Parties to ensure that people with disabilities, on an equal basis with others, ‘[a]re not deprived of their liberty unlawfully or arbitrarily, and that any deprivation of liberty is in conformity with the law, and that the existence of a disability shall in no case justify a deprivation of liberty’. This subsection of Article 14(1) was the subject of considerable debate during the drafting negotiations.⁹⁶ Some States Parties, including Australia, advocated strongly for the narrow view that Article 14 forbade detention solely based on disability, but not detention based on disability in combination with another justification or multiple justifications.⁹⁷ On this view, detention because of disability along with other factors is justifiable; this would include, for example, preventing harm to self or others, as per mental health legislation. However, the CRPD Committee adopted a broader interpretation, stating that Article 14 ‘prohibits the deprivation of liberty on the basis of actual or perceived impairment even if additional factors or criteria are also used to justify the deprivation of liberty’.⁹⁸ It states that:

legislation of several states party, including mental health laws, still provide instances in which persons may be detained on the grounds of their actual or perceived disability, provided there are other reasons for their detention, including that they are dangerous to themselves or to others. This practice is incompatible with article 14 as interpreted by the jurisprudence of the CRPD Committee.⁹⁹

This reading may come as a surprise to governments that have signed and ratified the CRPD, especially those that explicitly stated reservations, understandings and interpretative declarations,¹⁰⁰ such as Canada and Australia, which interpret Article 14(1) to permit substituted decision-making under mental health law.¹⁰¹ Interestingly, the UN Human Rights Committee issued a General Comment that contradicts the view of the CRPD Committee on this point.¹⁰² The Human Rights Committee stated that ‘the existence of a disability shall not in itself justify a deprivation of liberty’, but must be combined with ‘the purpose of protecting the individual in question from serious harm or preventing injury to others’.¹⁰³ This tension, even within human rights treaty bodies, is perhaps indicative of tensions between the CRPD and approaches to disability in previous human rights instruments. Alternatively, the relative youth of the CRPD may mean that normative interpretations and theoretical coherence are still being established.

Article 15 directs that ‘no one shall be subjected to torture or cruel, inhuman or degrading treatment or punishment’, and Article 16 promotes ‘freedom from exploitation, violence and abuse’. Article 16(3) includes a provision for monitoring, whereby ‘States Parties shall ensure that all facilities and programmes designed to serve persons with disabilities are effectively monitored by independent authorities’, and directs States Parties to ‘take all appropriate measures to promote the physical, cognitive and psychological recovery, rehabilitation and social reintegration of persons with disabilities who become victims of any form of exploitation, violence or abuse, including through the provision of protection services’. Recovery and reintegration practices ‘shall take place in an environment that fosters the health, welfare, self-respect, dignity and autonomy of the person and takes into account gender- and age-specific needs’.¹⁰⁴ Effective remedies must be created by States Parties, ‘to ensure that instances of exploitation, violence and abuse against persons with disabilities are identified, investigated and, where appropriate, prosecuted’.¹⁰⁵

Article 17 states: ‘Every person with disabilities has a right to respect for his or her physical and mental integrity on an equal basis with others’. Those subject to involuntary psychiatric intervention clearly face interference with their mental and physical integrity. Again, commentators are likely to contest definitions. Proponents of compulsory, non-consensual treatment could argue that involuntary intervention restores mental and physical integrity in certain circumstances, which is an argument made by some people who have personally experienced such interventions.¹⁰⁶ Australia, upon ratification of the CRPD, made an interpretative declaration in respect of Article 17 that explicitly positions mental health legislation as complying with the CRPD.¹⁰⁷ In contrast, the UN Special Rapporteur on Torture, with reference to Articles 15, 16 and 17, stated that ‘the more intrusive and irreversible the treatment, the greater the obligation on States to ensure that health professionals provide care to persons with disabilities only on the basis of their free and informed consent’.¹⁰⁸ This comment was directed at the use of forced psychosurgery and electroconvulsive therapy (ECT), but the rapporteur also stated that forced intervention, including psychiatric medication, ‘needs to be closely scrutinised’ and ‘warrants greater attention’, as it may constitute ‘a form of torture or ill-treatment’.¹⁰⁹

Article 19 regards ‘living independently and being included in the community’ and ‘recognize[s] the equal right of all persons with disabilities to live in the community, with choices equal to others, and shall take effective and appropriate measures to facilitate full enjoyment by persons with disabilities of this right and their full inclusion and participation in the community’.¹¹⁰ Article 19 is one of the few articles with no real precedent in pre-CRPD human rights law. Its genesis appears to be the harm caused by institutionalisation and other forms of exclusion, which is clearly relevant to the mental health context. Thomas Hammarberg, Council of Europe Commissioner for Human Rights, has highlighted the positive obligation on States Parties to provide resources to persons with disabilities for securing independent living and community inclusion:

Article 19 of the CRPD embodies a positive philosophy, which is about enabling people to live their lives to their fullest, within society. The core of the right, which is not covered by the sum of the other rights, is about neutralising the devastating isolation and loss of control over one’s life, wrought on people with disabilities because of their need for support against the background of an inaccessible society. ‘Neutralising’ is understood as both removing the barriers to community access in housing and other domains, and providing access to individualised disability-related supports on which enjoyment of this right depends for many individuals.¹¹¹

Measures for achieving these aims are set out in the Article 19 subsections. These include ‘the opportunity to choose … where and with whom [persons with disabilities] live on an equal basis with others’ and ‘access to a range of in-home, residential and other community support services, including personal assistance necessary to support living and inclusion in the community, and to prevent isolation or segregation from the community’.¹¹² These provisions remain highly relevant in the mental health context, given that ‘persons with mental health conditions or psychosocial disabilities, in particular persons using mental health services, may be subject to, inter alia, widespread … social exclusion and segregation, unlawful or arbitrary institutionalization’.¹¹³

Article 25 sets out the right to health, directing that States Parties shall ‘[r]equire health professionals to provide care of the same quality to persons with disabilities as to others, including on the basis of free and informed consent’. Such services must be available to ‘persons with disabilities with the same range, quality and standard of free or affordable health care and programmes as provided to other persons’.¹¹⁴ This provision may be useful for those wishing to challenge unequal fiscal spending between physical and mental health services. Article 25(b) directs States Parties to provide health services ‘needed by persons with disabilities specifically because of their disabilities, including early identification and intervention as appropriate, and services designed to minimize and prevent further disabilities’. The governments considered in this book have, at times, emphasised early-stage support for people experiencing mental health issues.¹¹⁵ For example, the Australian Mental Health Commission promotes policy that ‘shifts groups of people towards “upstream” services (population health, prevention, early intervention, recovery and participation) and thereby reduces “downstream”, costly services ([emergency department] presentations, acute admissions, avoidable readmissions and income support payments)’.¹¹⁶ This ‘downstream’ list could also include involuntary psychiatric intervention. Article 25(d) broadens the promotion of free and informed consent to include an obligation on States Parties to raise ‘awareness of the human rights, dignity, autonomy and needs of persons with disabilities through training and the promulgation of ethical standards for … health care’, which links to obligations set out in Article 8, and to prominent proposals for the integration of a human rights perspective in mental health law and policy.

Other articles are relevant to the mental health context, even as they may not be directly relevant to civil commitment legislation. For example, justice-related provisions remain relevant. Article 13 obliges States Parties to ensure that persons with disabilities ‘enjoy access to justice on an equal basis with all others’, which includes ‘the provision of procedural and age-appropriate accommodations’ and training for judicial staff.¹¹⁷ Article 13 may help address the reported overrepresentation of persons with psychosocial disability as victims of crimes, in imprisonment rates and so on, and in creating justice systems that are more responsive to disability-related need; for example, in policing practices, courtroom modifications or prison reform.¹¹⁸ Particular areas of criminal law which are more closely related to mental health legislation include laws on unfitness to plead and the ‘insanity defence’. Such ‘special defences’ create disability-based exceptions to typical legal processes. Justifications for mental health legislation – such as the view that ‘there really is something special about mental illness’¹¹⁹ – reappear where laws are predicated on the view that impairment can compromise legal capacity to the extent that a person cannot have representative capacity (unfitness to plead laws) or be held culpable for a particular act (the ‘insanity defence’/defence of mental impairment). As with mental health legislation, this view is seemingly challenged by the CRPD directive guaranteeing the legal capacity of all people, regardless of disability, in all areas of life. After all, in order to enforce a person’s legal rights against another, or for the person to defend himself or herself in legal proceedings, the individual must be recognised as the holder of legal rights, with the associated legal agency to exercise those rights.¹²⁰

Other CRPD articles relevant to mental health issues include those related to ‘comprehensive habilitation and rehabilitation services and programmes, particularly in the areas of health, employment and social services’;¹²¹ employment and the right ‘to work on an equal basis with others’;¹²² an ‘adequate standard of living and social protection’;¹²³ ‘political rights and the opportunity to enjoy them on an equal basis with others’;¹²⁴ and the rights of ‘participation in cultural life, recreation, leisure and sport’.¹²⁵ Anyone with an interest in mental health policy and practice is likely to see the immediate relevance of these rights, particularly given the widespread social, political and economic marginalisation of persons with psychosocial disability.

3 Implementation, Monitoring and the Optional Protocol

Articles 31 to 40 are concerned with implementation and monitoring, where States Parties are required to establish monitoring bodies both inside and independent of the government.¹²⁶ Michael Stein and Janet Lord have argued that the monitoring mechanisms of the CRPD make it one of the strongest in international human rights, given the ‘breadth of reporting and investigative procedures’ it mandates.¹²⁷ These provisions are designed to help translate CRPD provisions into hard domestic laws, policies and good practices.

Article 33 provides for the operation of independent national-level monitoring mechanisms. According to the Office of the UN High Commissioner for Human Rights, the CRPD ‘is the first human rights treaty that contains detailed provisions on the establishment and functioning of national monitoring and implementation frameworks’.¹²⁸ The incorporation of such provisions moves beyond merely offering specific remedies for what ought to be, to developing the institutional preconditions necessary to ensure realisation of the rights of the CRPD.¹²⁹

The CRPD does not contain a judicial enforcement system. However, Article 34 establishes a committee of experts, the CRPD Committee, to monitor implementation at the international level. Article 34 authorises the CRPD Committee to review the compliance reports of States Parties.¹³⁰

The CRPD also has an ‘Optional Protocol’, which can be signed and ratified separately. The Optional Protocol allows the CRPD Committee to ‘receive and consider communications from or on behalf of individuals or groups of individuals subject to its jurisdiction who claim to be victims of a violation by that State Party of the provisions of the Convention’.¹³¹ The Optional Protocol remains an important avenue for individuals or groups wishing to claim that a rights violation has taken place.

D New Tools or New Paradigm?

Key concepts of the CRPD, such as ‘supported decision-making‘, ‘support to exercise legal capacity‘ and independent living and being included in the community, hold promise for addressing major issues in the mental health context. Do they herald a new paradigm or simply offer more tools for responding to these issues? Penelope Weller has argued that the main promise of the CRPD for people with psychosocial disability is the development of supported decision-making processes in mental health-related laws, policies and programming.¹³² Brendan Kelly more cautiously forecasts ‘significant issues regarding the CRPD’s implications for systems of supported decision-making in national mental health legislation, among other areas’.¹³³ Taking a somewhat different approach, McSherry and Andrew Butler caution against a narrow focus on supported decision-making, because it risks pushing debate back to the vexing issue of involuntary psychiatric intervention.¹³⁴ Instead, they argue, the focus could turn to what it means to ensure voluntary access to the highest attainable standard of mental health services and community care, or what it means to be supported to ‘exercise legal capacity‘, which goes beyond decision-making.¹³⁵ McSherry and Butler write:

Endeavours to provide both informal and more formal supports for those with mental and intellectual impairments to make their own decisions should be welcomed. However, in the mental health field, the major drawback to the current law reform focus on Article 12 and matters of capacity is that it serves to keep attention on compulsory detention and treatment, rather than viewing the CRPD as an opportunity to find new ways of ensuring voluntary access to the highest attainable standard of mental health services and community care.¹³⁶

These concerns about the role of supported decision-making and support to exercise legal capacity highlight the intertwined demands of the CRPD for civil and political rights on the one hand, and social, economic and cultural rights on the other. Civil and political rights (or so-called first-generation rights) typically emphasise non-interference by the state, such as the freedom to associate, the right to free speech and so on. In contrast, social, economic and cultural rights (so-called second-generation rights) tend to require material resources to enjoy; for example, resources for education, employment opportunities or cultural observance. The CRPD as a whole combines these two categories of rights.¹³⁷ This is a point to which I will return throughout the book, particularly regarding the duties and responsibilities of States Parties to provide resources for persons with disabilities to exercise their rights.

Yet as McSherry and Butler observe, recent debates about mental health and human rights have tended to revert to a focus on whether compulsory interventions should be abolished. As noted, UN treaty bodies have tended to fall on the side of abolition. The OHCHR, for example, has expressed the view that mental health legislation is unjustly discriminatory against people with psychosocial disability, because it systematically uses mental illness/disorder as a criterion to limit legal capacity.¹³⁸ In 2009, the OHCHR made the following statement:

Legislation authorizing the institutionalization of persons with disabilities on the grounds of their disability without their free and informed consent must be abolished. This must include the repeal of provisions authorizing institutionalization of persons with disabilities for their care and treatment without their free and informed consent, as well as provisions authorizing the preventive detention of persons with disabilities on grounds such as the likelihood of them posing a danger to themselves or others, in all cases in which such grounds of care, treatment and public security are linked in legislation to an apparent or diagnosed mental illness.¹³⁹

The CRPD Committee echoed this view. In ‘concluding observations’ made to China, the CRPD Committee recommended ‘the abolishment of the practice of involuntary civil commitment based on actual or perceived impairment’.¹⁴⁰ In ‘concluding observations’ to Australia, the CRPD Committee called for the repeal of ‘legal provisions that authorize commitment of individuals to detention in mental health services, or the imposition of compulsory treatment either in institutions or in the community via Community Treatment Orders’.¹⁴¹ It is worth citing in full Paragraph 42 of the General Comment 1 of the CRPD Committee, which states:

As has been stated by the Committee in several concluding observations, forced treatment by psychiatric and other health and medical professionals is a violation of the right to equal recognition before the law and an infringement of the rights to personal integrity (art. 17); freedom from torture (art. 15); and freedom from violence, exploitation and abuse (art. 16). This practice denies the legal capacity of a person to choose medical treatment and, is therefore, a violation of article 12 of the Convention. States parties must, instead, respect the legal capacity of persons with disabilities to make decisions at all times, including in crisis situations; must ensure that accurate and accessible information is provided about service options and that non-medical approaches are made available; and must provide access to independent support. States parties have an obligation to provide access to support for decisions regarding psychiatric and other medical treatment. Forced treatment is a particular problem for persons with psychosocial, intellectual and other cognitive disabilities. States parties must abolish policies and legislative provisions that allow or perpetrate forced treatment, as it is an ongoing violation found in mental health laws across the globe, despite empirical evidence indicating its lack of effectiveness and the views of people using mental health systems who have experienced deep pain and trauma as a result of forced treatment. The Committee recommends that States parties ensure that decisions relating to a person’s physical or mental integrity can only be taken with the free and informed consent of the person concerned.¹⁴²

The CRPD Committee directs States Parties to replace mental health law with a ‘supported decision-making regime’.¹⁴³

Similarly, the UN Special Rapporteur on the rights of persons with disabilities, Catalina Devandas-Aguilar, and on the right of everyone to the enjoyment of the highest attainable standard of health, Dainius Pûras, made an appeal in 2016 for states to ‘do away with all forms of non-consensual psychiatric treatment’:

Locked in institutions, tied down with restraints, often in solitary confinement, forcibly injected with drugs and overmedicated, are only few illustrations of the ways in which persons with disabilities, or those perceived to be so, are treated without their consent, with severe consequences for their physical and mental integrity.

Globally, persons with developmental and psychosocial disabilities face discrimination, stigma and marginalization and are subject to emotional and physical abuse in both mental health facilities and the community. And every year, the rights and dignity of hundreds of thousands of people across the world are violated as a consequence of non-consensual psychiatry [sic] interventions.¹⁴⁴

I will discuss the views of UN treaty bodies and the implications of the CRPD for mental health law in detail in Chapter 3.¹⁴⁵

No government appears willing – at least at this stage – to adhere to the directive to abolish ‘mental health laws that permit forced treatment’,¹⁴⁶ and some, such as Canada and Australia, have even refuted that the CRPD requires as such.¹⁴⁷ Nevertheless, in the short time since coming into force, the CRPD can be seen to have affected the development of domestic law, including mental health law.¹⁴⁸ For example, the judiciary in England and Wales appear increasingly mindful of the state’s CRPD obligations and the philosophy that underpins them. Lady Hale stated in P v Cheshire West [2014]:

The rights set out in the European Convention are to be guaranteed to ‘everyone’ (article 1). They are premised on the inherent dignity of all human beings whatever their frailty or flaws. The same philosophy underpins the United Nations Convention on the Rights of Persons with Disabilities (CRPD), ratified by the United Kingdom in 2009. Although not directly incorporated into our domestic law, the CRPD is recognised by the Strasbourg court as part of the international law context within which the guarantees of the European Convention are to be interpreted.¹⁴⁹

The focus of governments has typically turned to reforming mental health legislation in efforts to secure CRPD compliance. The CRPD appears to have informed a number of mental health law reform initiatives at the domestic level. For example, two states in Germany have seen certain powers under mental health legislation invalidated for violating the country’s obligations under the CRPD.¹⁵⁰ In Argentina, public officials have interpreted the National Mental Health Law 2010¹⁵¹ with reference to the CRPD to provide support measures for people in mental health crises, including with consideration of the harm caused by involuntary treatment.¹⁵² In Australia, as Sascha Callaghan and Chris Ryan note, ‘all but one of eight Australian jurisdictions have undertaken substantial reviews of their mental health laws’, wherein all ‘reviewing authorities have acknowledged the impact of the CRPD and, to varying degrees, have sought to make amendments that would improve compliance with human rights obligations, and particularly the central challenge established in article 12’.¹⁵³ To provide one example from Australia, the Mental Health Act 2015 of the Australian Capital Territory contains a clear reference to the CRPD.¹⁵⁴ Section 6(d) states: ‘a person with a mental disorder or mental illness has the right to have the person’s will and preferences, to the extent that they are known or able to be known, taken into account in decisions made about treatment, care or support’.¹⁵⁵ Internationally, key concepts behind the CRPD have appeared in policy documents and law reform processes, contributing to new ideas and practices, including rethinking mental health law altogether.

However, the influence of the CRPD on legislative reform varies considerably and is difficult at this early stage to generalise. (Arguably, it is easier to see the impact of the MI Principles, with which typical mental health legislation appears to comply; this is surprising given the MI Principles are a non-binding international legal instrument.)

In summary, the major implications of the CRPD for mental health law relate to the potential to bolster calls for more responsive support, and additional support where required, as well as calls to restrict coercive intervention. In some areas, such as strengthening demands for access to services, CRPD provisions will be uncontroversial. In other areas, namely involuntary psychiatric intervention, controversy will continue for the foreseeable future. Kelly argues that certain provisions of the CRPD ‘appear to be incompatible with certain aspects of mental health legislation in England, Wales, Scotland, Northern Ireland and Ireland [to which could be added Canada, Australia, New Zealand and so on], and certain other provisions are, at best, unclear’.¹⁵⁶ In certain respects, he writes, these laws ‘diverge clearly and significantly from the CRPD’.¹⁵⁷ Key challenges in mental health law, policy and practice, which are relevant here, centre upon questions that require clarification, namely:

• What does the positive obligation of the CRPD to provide ‘support to exercise legal capacity’ (Article 12) or the right to highest attainable health (Article 25) or the right to ‘live independently and be included in the community’ (Article 19) require? What is the relationship between these provisions, and what do ‘community-based’ services that secure human rights look like?

• How can mental health legislation be reconciled with the CRPD, particularly the directive that the ‘existence of disability shall in no case justify a deprivation of liberty’? At present, mental health legislation clearly links detention and involuntary treatment with a diagnosis of mental disorder/illness and risk.

• How can current approaches to non-consensual psychiatric interventions be reconciled with the CRPD directive to replace a ‘best interests’ approach to substituted decision-making (not including children)¹⁵⁸ with supported decision-making based on a person’s ‘will, preference and rights’? Under typical mental health legislation, the ‘best interests’ formulation governs clinical substituted decision-making. This formulation appears either explicitly or implicitly in relevant legislation in England and Wales,¹⁵⁹ Canada,¹⁶⁰ Scotland,¹⁶¹ Ireland,¹⁶² Northern Ireland,¹⁶³ New Zealand,¹⁶⁴ Australia¹⁶⁵ and so on.

These are among the major questions relevant here which remain unanswered, and which form the basis for the investigations conducted throughout the rest of the book.

E Conclusion

New ideas have emerged in the ‘post-carceral era’ about mental health law and the issues it is meant to address. According to Gerard Quinn, the CRPD offers a means to escape the ‘imprisoning logic’ in debates about rights-based legalism in mental health law, which led to a breakdown of meaningful dialogue:

Some civil libertarians would hesitate to use an argument for a legal right to treatment (no matter how meritorious) lest the need for treatment might be used to justify an undue encroachment on liberty. Contrariwise, some professionals in the field who have the responsibility to deliver services, would hesitate to embrace liberty-enhancing arguments lest it interfere too much with their capacity to deliver a substantive right to treatment – with their professional prerogatives.¹⁶⁶

The extent to which the CRPD might offer a way out of this impasse may depend on how far States Parties are willing to go to meet their positive obligations to provide support. The ‘expressive, educational and proactive’ role of the CRPD, to use Oliver Lewis’s terms, can also help change mindsets.¹⁶⁷ Importantly for mental health law, policy and practice, the support framework set out in the CRPD seeks to change the long-standing status of medical expert from one that is tutelary to one in which experts facilitate access to support resources in ways that secure a range of human rights. The CRPD may also encourage people to request and provide accommodations, to reconfigure existing services to promote participation, to seek ways to alter communities to improve ‘accessibility’ or to use the law to claim rights. The CRPD appears to propose a ‘middle-path’ notion of freedom, one determined in close collaboration with persons with disability in which abuse is seen to span from excessive state intervention and protectionism at one end to neglect and relinquishment of government duties to support those in need at the other.

3 Major Criticisms of Mental Health Law

A Introduction

Mental health laws codify non-consensual psychiatric treatment and involuntary hospitalisation, and regulate the powers of those given charge to do so. This function is largely unchanged since the nineteenth century, when private ‘madhouses’ and asylums began proliferating in the West.¹ Contemporary mental health laws in high-income common-law jurisdictions appear to reflect concerns associated with deinstitutionalisation; that is, the shift from large-scale stand-alone psychiatric institutions to a more diffuse set of ‘community-’ and hospital-based services. Today, according to Bernadette McSherry, the law is integral to the functioning of mental health systems.² Such systems exert a powerful influence over people’s lives. Lawrence Gostin catalogues some of the effects in legal terms.³ He writes that the law continues to empower the medical profession to ‘limit individual liberty … bodily integrity … privacy … and capacity to act’, as well as to arbitrate special rules of citizenship.⁴ These limitations primarily take the form of compulsory admission and involuntary treatment.

By imposing such restrictions, it can be argued that mental health law operates to protect individuals and create opportunities for social justice⁵; they provide a framework for civil rights protection and procedural due process for those subject to civil commitment. Such laws have undoubtedly achieved a great deal of good: helping individuals avoid harm, providing much-needed access to assistance, creating procedures to prevent arbitrary incarceration and raising standards by which governments (and public officials) use coercive measures to prevent injury to individuals and communities. Certainly, the rights-based legalistic approaches that shaped contemporary mental health legislation were advanced by well-meaning legal and medical professionals who were humanist, liberal and compassionate.

However, there are other ways of seeing mental health law. Despite the hard-won gains and achievements of reformers seeking to improve upon earlier legislation, mental health law has been the subject of wide-ranging criticism, with some commentators charging that it creates more problems in today’s world than it solves.⁶ Various commentators have described mental health law as counter-therapeutic, ineffective on its own terms and discriminatory. In this sense, mental health law can be seen as an emancipatory tool to protect communities and individuals affected by extreme mental health crises, or a veil to legitimise the prejudicial control and exclusion of a confusing and objectionable minority.

These concerns reflect deep and lasting tensions in debates about mental health law. Deep political convictions about how the individual should be valued in relation to the collective give rise to competing answers to the question, How wide should the individual sphere of liberty be before the collective will can impose upon that sphere, whether for public safety or for the safety of the individual? This is essentially a question of political science and moral philosophy. Its consideration in law draws attention to the complex interplay between important and frequently competing principles of freedom, protection and fairness. This dynamic is complicated further by disputed premises regarding the impact of mental disorder upon a person’s ability to make ‘autonomous’ decisions. Willis Spaulding has described this conceptual controversy as arising from competing ‘understanding(s) of the relationship between liberty and mental disorder’.⁷ These concerns populate the background of current mental health law, which this chapter seeks to bring to the fore. The CRPD has offered an opportunity to navigate an alternative path through long-standing debates.⁸ Before focusing on the corrective potential of the CRPD support framework, it is useful to list the major practical and conceptual dilemmas in mental health law today.

In her meta-analysis of mental health law, Jill Peay noted that it is difficult to locate key issues, as there are so many,⁹ a view echoed by the Health and Consumer Protection Directorate-General of the European Commission.¹⁰ Nonetheless, a diverse array of commentators view the current era of mental health law as wanting in key respects, and have identified specific concerns.¹¹ The strident directives of the CRPD Committee and other UN agencies have amplified these concerns.

Although the theoretical lens of this book is human rights-based, pragmatic arguments are also relevant and include matters of resourcing, the internal coherence of mental health law and comparative analysis of evidence regarding its success and shortcomings. The purpose of articulating these issues is to assist in weighing the costs and harms of specific civil commitment laws, and to tease out some of the major practical and conceptual concerns relevant to a human rights analysis. In assessing these costs and benefits, it is perhaps as easy to give mental health law too much blame for the costs as too much credit for the benefits. One possibility is that the potential downsides of mental health law arise when it is distorted or misapplied. Another possibility is that any benefits of mental health law are overwhelmed by other powerful forces in society,¹² such as wealth inequality and resource distribution.¹³

In evaluating the main issues in mental health law, therefore, researchers must isolate and assess these causes and effects as carefully as possible. For the purposes of this chapter, it should be noted that most of the arguments are listed as concisely as possible, even at the risk of seeming overly polemical. The intention here is to explore a range of critical issues in order to evaluate which issues the CRPD support framework may or may not address, as the case may be. Finally, even if the costs of mental health law were established, it would still be necessary to evaluate them alongside the very real accomplishments of mental health law reform in recent decades.

B Rights-Based Arguments

1 Mental Health Law Is Discriminatory

Mental health law can be seen to be unjustly discriminatory, as it only applies to people with apparent or diagnosed mental illness/mental disorder. Mental health law constitutes an entrenched anomaly in a legal system that traditionally privileges and protects individual autonomy and routinely upholds the right to refuse treatment in general healthcare.¹⁴ Core Western legal values of equality and non-discrimination are compromised where powers of mandatory detention and compulsory medical intervention only apply to those with an apparent or diagnosed mental illness in certain circumstances.¹⁵ The authorisation of powers that circumscribe the right to refuse medical treatment, even when individuals retain mental capacity, remains an exception to ethical standards in general medicine. Judy Laing argues that ‘[c]oercive care remains predominant in the treatment of mental ill health’, making it ‘distinctive as one of the very few areas of medical practice where overtly paternalistic traditions still dominate, and patients can be admitted compulsorily to hospital and forcibly treated, irrespective of their mental capacity or individual autonomy’.¹⁶ There are some exceptions to this broad observation; for example, a number of Australian jurisdictions have authorised competent refusal of psychiatric treatment, as is generally the case with other medical treatments.¹⁷ However, these remain largely the exception and, as Chapter 4 will detail, continue to fall shy of ‘harder’ readings of the CRPD, where a number of UN agencies have called for the abandonment of mental capacity assessments because they discriminate in effect (even as they remain formally non-discriminatory) against persons with disabilities.

General medical law has seen a major shift in the past fifty years towards patient autonomy and away from traditional medical paternalism.¹⁸ Medico-legal standards today provide that doctors who treat patients contrary to their expressed wishes breach the following principle: ‘An adult patient … has an absolute right to choose whether to consent to medical treatment, to refuse it or to choose one rather than another of the treatments being offered …’¹⁹ To breach this principle leaves doctors liable for battery under tort law and defies ethical codes of practice.²⁰ This liability applies throughout the common-law world.²¹ Again, mental health law remains an exception to this principle.

It is true that even medical law has limits to respecting patient autonomy when weighed against majoritarian interests and competing human rights. Exceptions include matters of public risk (for example, when epidemics require quarantining and treatment), immediate crises (for example, emergency intervention following severe physical trauma) and specific restricted decisions (such as the selling of organs, or end-of-life treatment when patients express the wish to die). However, these exceptions at the ethical boundaries of medical law, even as they differ between jurisdictions, are generally applicable. By contrast, mental health law applies on an unequal basis to a specific group of people in both principle and application. Even as mental health law applies specifically in certain circumstances, particularly where risk to self or others exists, it is only applicable to those with an apparent or diagnosed mental illness. This creates inconsistency with other areas of medicine where patients deemed ‘mentally capable’ are entitled to make personal health choices, even where such choices result in a risk of death.

The criticism that mental health law is unjustly discriminatory is not new. In 1977, Stephen Morse concluded a journal article with what remains a powerful argument today:

Mental disorder is not an efficient and adequate threshold criterion for social and legal regulation of the behaviours regulated by mental health law. Mental health laws often deprive citizens of liberty, autonomy, and dignity without sufficient justification for doing so. Justifications based on disease or on the differences of crazy persons are terribly over- and under-inclusive. Most people with mental disorders, even severe ones, are not different enough from normal persons to warrant special treatment … Conversely, for example, many normal persons behave dangerously or incompetently, and there is good reason to believe they have as little or as much control over their behaviour as crazy persons.²²

Tom Campbell has argued that mental health law leads to ‘institutional discrimination’ by establishing, at law, ‘the idea that there is something about “mental illness” itself which invites a system of control and coercion’.²³ As a result, he suggests, medical treatment and social control become dangerously entangled, promoting stereotyped prejudice and compromising therapeutic support.²⁴ George Szmukler and John Dawson have even intimated that separate mental health legislation is discriminatory against mental health professionals by virtue of their being obliged under law to intervene on prejudicial grounds,²⁵ a view consonant with Joanna Moncrieff’s argument that mental health law unfairly positions psychiatrists as agents of social control at the cost of therapeutic duty.²⁶

The imposition of involuntary psychiatric intervention and restrictions on legal capacity can have secondary effects, some of which are counter to therapeutic support. Stephen Rosenman has argued:

Once they have qualified for compulsory hospitalisation, patients lose their autonomy and personal standing. Not only treatment but all facets of the patient’s personal life fall completely under the power of the hospital staff. However benevolent the staff may be, patients resent staff who are at once their custodians and carers. Such resentment discourages the development of collaboration in treatment.²⁷

Abridging or restricting fundamental rights can inflict profound psychic damage, arguably undermining the healing benefits those restrictions seek to bring about. Bruce Winick has argued that labelling someone as ‘incompetent’ induces feelings of helplessness and leads to non-participation in decisions that are central to living a full life.²⁸ Incompetency labelling can impede the basic human need for self-determination and self-actualisation.²⁹ Michael Bach, Jane Anweiler and Cameron Crawford have argued that placing limitations on legal capacity – in the sense of restricting a person from making decisions based on values and a reasonable availability of meaningful choices – diminishes personhood and citizenship.³⁰ This, in turn, reduces a person’s status in society, contributing to social exclusion and potentially increasing powerlessness and vulnerability to abuse.³¹

2 Mental Health Law Violates International Human Rights Law

As the previous chapter outlined, the CRPD has added weight to arguments that mental health legislation violates a range of human rights.³² Particular sections of the CRPD will create ongoing challenges to the operation of mental health legislation. Laws that discriminate on the grounds of disability can be seen to violate fundamental principles of the CRPD, particularly with regard to ‘[r]espect for inherent dignity, individual autonomy including the freedom to make one’s own choices, and independence of persons’, ‘non-discrimination‘ and ‘equality of opportunity’.³³ Article 5(2) prohibits all forms of discrimination based on disability, while Article 14 specifically states that ‘the existence of a disability shall in no case justify a deprivation of liberty’.³⁴ Article 17 states that ‘[e]very person with disabilities has a right to respect for his or her physical and mental integrity on an equal basis with others’.³⁵ Article 25 directs that States Parties shall ‘[r]equire health professionals to provide care of the same quality to persons with disabilities as to others, including on the basis of free and informed consent’.³⁶ Finally, Article 12 directs that States Parties shall not place restrictions on legal capacity based on disability,³⁷ which mental health legislation clearly does. (I will discuss Article 12 in detail in Chapters 4 and 5.)

As noted previously, UN treaty bodies have elaborated on legal arguments that involuntary psychiatric intervention under current mental health legislation violates the CRPD.³⁸ For example, the CRPD Committee commented:

As has been established in numerous concluding observations, forced treatment by psychiatric and other health and medical professionals is a violation of the right to equal recognition before the law and an infringement upon the rights to personal integrity (Article 17), freedom from torture (Article 15), and freedom from violence, exploitation and abuse (Article 16). This practice denies the right to legal capacity to choose medical treatment and is therefore a violation of Article 12. States Parties must, instead, provide access to support for decisions about psychiatric and other medical treatment. Forced treatment has been a particular problem for persons with psycho-social, intellectual, and other cognitive disabilities. Policies and legislative provisions that allow or perpetrate forced treatment must be abolished. This is an on-going violation in mental health laws across the globe, despite empirical evidence indicating its lack of effectiveness as well as views of people using mental health systems who have expressed deep pain and trauma as a result of forced treatment. The Committee recommends that State parties should ensure that decisions that involve a person’s physical or mental integrity can only be taken with the free and informed consent of the person with disability concerned.³⁹

Setting aside the veracity of these claims, which I will discuss throughout this chapter, the CRPD Committee directs States Parties to replace mental health law with a ‘supported decision-making regime’.⁴⁰ The nature and feasibility of this directive will be the subject of Part II of this book.

3 Mental Health Law May Lead to Cruel, Inhuman or Degrading Treatment or Punishment

The UN Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, Juan Méndez, reported in 2013 ‘that involuntary treatment and other psychiatric interventions in health-care facilities are forms of torture and ill-treatment’, and urged the ‘revision of domestic legislation allowing for forced interventions’.⁴¹ Méndez submitted his report to the UN Human Rights Council, which examined the nexus between the torture prevention mandate, the CRPD and the right to health. Concerns about the detention and treatment of persons with psychosocial disabilities formed the majority of the report. Controversially, recommendation 89(b) directed states to:

Impose an absolute ban on all forced and non-consensual medical interventions against persons with disabilities, including the non-consensual administration of psychosurgery, electroshock and mind-altering drugs such as neuroleptics, the use of restraint and solitary confinement, for both long- and short-term application. The obligation to end forced psychiatric interventions based solely on grounds of disability is of immediate application and scarce financial resources cannot justify postponement of its implementation.⁴²

Likewise, Minkowitz calls for the ‘immediate cessation of forced psychiatric interventions’ and the abolition of mental health law.⁴³ While Minkowitz does not identify the exceptions to substituted decision-making, Méndez makes exceptions for life-threatening emergencies ‘in which there is no disagreement regarding absence of legal capacity’, at which point ‘a health-care provider [may] proceed without informed consent to perform a life-saving procedure’.⁴⁴

As this last comment indicates, the report is somewhat conflicted, here endorsing what appears to be a functional mental capacity approach (which accepts that an absence of legal capacity can be agreed upon), although elsewhere in the report suggesting that legal capacity is held by all people regardless of impairment.⁴⁵ The special rapporteur’s comments on risk of harm also appear to be inconsistent. Earlier in the report, he comments that ‘the State must … show that detention (based on mental illness) is necessary to protect the safety of the person or of others’.⁴⁶ Interestingly, however, Méndez revised this position in a statement accompanying the submission of the report to the Human Rights Council, in which he stated, ‘I believe the severity of the mental illness cannot justify detention nor can it be justified by a motivation to protect the safety of the person or of others’.⁴⁷ While the UN Special Rapporteur on Torture directed that the treatment of those with psychosocial disabilities must only be consensual, his inconsistent commentary does leave open an argument that some form of coercive intervention may be justified in some circumstances, namely where interventions are based on a sufficient risk of harm or the ‘absence of legal capacity’. Some countries will endorse the focus of the special rapporteur on mistreatment in healthcare settings, while others may charge that the statement fell outside his mandate, or that the statement did little to provide alternative solutions or concrete recommendations, such as alternative models for ‘supporting legal capacity’. Clearly, as with the views of the CRPD Committee, the task of developing alternatives is left up to States Parties. What is also clear is that an emerging consensus has formed within parts of the UN that the discriminatory nature of mental health legislation justifies its abolition rather than reform, with some notable exceptions.⁴⁸ The special rapporteur endorses what he describes as the ‘very explicit’ directive of the CRPD Committee, which ‘call[s] for the prohibition of disability-based detention, i.e. civil commitment and compulsory institutionalization or confinement based on disability’.⁴⁹

4 ‘Special Measures’: Can Lawmakers Justify Differential Treatment?

Both proponents and opponents of mental health law acknowledge that it subjects people with psychosocial disabilities to different rights – or, at the very least, a substantially different calculus for applying competing rights. Where controversy does arise is in whether such restrictions constitute discrimination in the sense of unjust prejudicial treatment of one group, or whether ‘special measures’ are justified due to the unusual nature of mental illness and the distinct issues it raises.⁵⁰ ‘Special measures’ are typically understood to refer to an acceptable departure from the principle that people are entitled to equal protection of the law and should not be subject to discrimination on the grounds of a certain attribute.⁵¹ Tom Burns writes: ‘Coercion in psychiatry is only justified if you accept that there really is something special about mental illness, that people are not their normal selves when acutely ill. Without such a view, compulsory treatment is indefensible and any analysis of the experience of coercion without acknowledging it strikes me as incomplete’.⁵² The special-case argument rests on a number of critical claims. Jillian Craigie and Lisa Bortolotti summarise the many justifications for the use of psychiatric diagnosis as grounds for involuntary intervention, which range from claims about

impaired insight in mental disorder; to mental disorder removing autonomous control; to the association of mental illness with global irrationality; and to the idea that mental disorder undermines personal identity or diachronic agency. Whatever the underlying assumptions, law that bases interference on the presence of mental disorder – the so-called ‘status’ approach – holds that a psychiatric diagnosis eliminates the need to assess the person’s decision-making ability. The diagnosis alone is taken to mean that the person is not in a position to decide for themselves, at least in relation to psychiatric treatment …⁵³

Three major justifications for distinct legal rules for persons with an apparent or diagnosed mental illness emerge. First, such persons are unusual legal actors who may be unable to make decisions and thus require unique laws in certain circumstances. Second, certain types of mental illness create public risks that necessitate involuntary interventions. Third, emergency interventions in mental health crises require specific regulations and safeguards, which is substantively different from other forms of emergency intervention. I will consider these justifications in turn.

a The Incompetence Claim

The first claim holds that persons with psychosocial disabilities are less responsible causally, and therefore legally, for their actions. Hence, their ability to give or withhold consent for treatment cannot occur to the same extent or in the same manner as for persons with physical disorders.⁵⁴ This view, according to Paul Appelbaum and Thomas Grisso, rests on ‘premises concerning the degree to which persons with mental illness manifest impairment of their decision-making abilities’.⁵⁵ Perhaps the most significant of these premises is the widely held assumption that people who meet the criteria for civil commitment under mental health law generally lack mental capacity.

However, the MacArthur Treatment Competence Study (MAC Study), the largest study to compare the mental capacity of patients admitted to psychiatric institutions with that of general medical patients, found that the majority of research subjects admitted to psychiatric institutions had the mental capacity to make decisions.⁵⁶ Further, more than half of the inpatients in the study were found to have similar mental capacity levels to their counterparts in physical health care.⁵⁷ The study did identify significant differences in ‘decision-making abilities’ between people ‘with and without mental illness, especially when the comparisons focus on patients with schizophrenia’.⁵⁸ The authors caution that such variance ‘may justify differences in the ways in which consent to treatment for mental illness and for [physical] illness are handled’.⁵⁹ They refer to practices for gaining informed consent that accommodate the needs of mental health inpatients as compared to general health inpatients and conclude that overall, the findings disprove the commonly held assumption that people with severe mental health conditions automatically lack mental capacity.⁶⁰ On this basis, mental health law that enables treatment without consent should not be based on a presumption of mental incapacity. While mental capacity is not typically used as a criterion for civil commitment,⁶¹ with an increasing number of exceptions,⁶² the commonly held correlation between mental illness and incompetence may premise claims that mental health law ought to be viewed as a special measure.

b The Public Risk Claim

Another major premise behind seeing persons with psychosocial disabilities as sufficiently unique to justify separate mental health laws is that they pose a significantly higher risk to others than those without such disabilities.⁶³ Indeed, preventing public risk is posed in authoritative accounts as a principal justification for the unusual powers of mental health law; that is, police powers are required in the interest of protecting the community.⁶⁴ (The issue of ‘risk to self’ will be discussed in the section on efficacy, where it is noted that a significant body of research has brought into question the ability of clinicians to predict the likelihood of self-harm.)⁶⁵ However, the risk-of-harm criterion can be criticised as being discriminatory in its application to only those with psychosocial disabilities, whilst other groups at high risk of harming others do not face involuntary treatment and preventive detention.⁶⁶

In part, this special treatment is based on the hypothesis that untreated symptoms of mental illness are the main source of criminal behaviour for offenders with psychosocial disability, and that linkage with psychiatric services is the solution.⁶⁷ However, Jillian Peterson and colleagues have argued that a growing body of evidence is challenging this ‘widely embraced explanation’ which ‘drives much contemporary policy related to offenders with mental illness’.⁶⁸ Their own study analysed the offence patterns of 220 parolees in the United States, 111 of whom had a ‘serious mental illness’ and 109 of whom did not. The findings suggest that substance abuse has a much stronger correlation with violence than solely mental health problems.⁶⁹ A series of American studies support the view that a small subgroup of those diagnosed with severe mental illness may be arrested because their hallucinations or delusions lead to violence or they may cause public disturbances.⁷⁰ Yet Mary Donnelly argues that the correlation between psychosocial disability and acts of violence is less significant than is widely perceived, especially when compared to other factors such as age, history of violence, gender, substance abuse and family breakdown.⁷¹ The broad perception of a connection between mental illness and violence is likely to have been reinforced consistently by the media in the countries considered in this book.

In a series of studies, Paul Mullen and colleagues found that the highest rates of violence occurred where substance abuse coexisted with mental illness.⁷² Mullen has argued that, while most people with a diagnosis of mental illness will never commit an act of violence, people with untreated psychotic illness (and particularly those involved in substance abuse) are more likely than the average person on the street to be seriously violent.⁷³ However, Mullen has argued that ‘there is a correlation between having a schizophrenic syndrome and increased rates of antisocial behaviour in general and violence in particular’, and that ‘the evidence that such associations are not just statistically but clinically and socially significant is now overwhelming’.⁷⁴ Mullen qualifies this assertion by noting that this small fraction of at-risk individuals (about 10 per cent of those with the schizophrenia diagnosis, who themselves are only one portion of those placed under civil commitment orders) are identifiable and can be assisted with a ‘structured programme in which the … behavioural factors, substance misuse and social dislocation are managed together with the active symptoms of the disorder [to] prevent the progress to violence’.⁷⁵

In what appears to be the largest study to date on the correlation between schizophrenia diagnosis and rates of violent crime, 8,003 people diagnosed with schizophrenia were compared with general population controls (n = 80,025) in respect of criminal convictions for violent crimes.⁷⁶ For the vast majority of those with a diagnosis who had committed a violent crime, the acts were attributed to drug use.⁷⁷ Where other factors were controlled, those diagnosed with schizophrenia who had not abused drugs were only 1.2 times more likely to have committed at least one violent crime than the control group.⁷⁸ However, where drug use was a contributing factor, and where unaffected siblings were used as controls, the comparison showed that the subject’s ‘substance abuse comorbidity was significantly less pronounced … suggesting significant familial (genetic or early environmental) confounding of the association between schizophrenia and violence’.⁷⁹

Nonetheless, ‘risk of harm to others’ has remained a strong focus of mental health law despite the modest correlation of psychosocial disability causing violent crime, particularly when compared to other factors such as drug and alcohol abuse. This skewed focus has arguably contributed to prejudice and discrimination towards people with psychosocial disabilities. There have been long-standing calls to abandon the risk criterion in mental health legislation, which have been reiterated in recent years.⁸⁰ These concerns stem from claims that the test is prejudicial (as it only applies to people with psychosocial disability), misguided (as a diagnosis of mental illness per se is a marginally significant indicator of the likelihood of violence being perpetrated) and largely ineffective, as discussed in the next section. Having considered the two major premises behind the claim that people diagnosed with mental illness require certain exceptions from human rights and non-discrimination standards, I will now examine the second major justification for the unique suspension of rights in mental health law.

c Regulating Treatment and Emergency Powers

Another major claim justifying separate mental health law as a ‘special measure’ (and perhaps the most compelling) is its power to respond to extreme mental crises with urgency, and to regulate those responses. Even some critics of separate mental health legislation acknowledge this benefit. George Szmukler, Rowena Daw and John Dawson, for example, have appraised emergency powers under civil commitment in the following terms:

A major strength of non-consensual treatment schemes that are based on incapacity principles [as compared to civil commitment schemes] is the respect shown for the autonomy of those patients who retain their capacity; but these schemes are, nevertheless, often weak on the regulation of emergency treatment powers, detention in hospital, and forced treatment. These are the areas, in contrast, in which civil commitment schemes are strong. The use of force, and the detention and involuntary treatment of objecting patients, is clearly authorised and regulated by mental health legislation.⁸¹

Regulation through mental health legislation ensures that such interventions can be authorised and monitored. In other words, if emergency powers are needed for some mental health crises, then these powers need to be clearly authorised and regulated – a function that is best provided by mental health legislation.

Michael Perlin has argued that comprehensive mental health legislation can serve the dual function of ensuring that (1) individuals can access independent counsel and judicial review mechanisms,⁸² and (2) their treatment and living conditions, especially those in highly marginalised settings, can be regulated and monitored.⁸³ Perlin points to examples of states that have failed to regulate mental health services and address inhumane treatment in institutional settings.⁸⁴ Mental health legislation can assist by establishing legal protection to persons with psychosocial disability in order to prevent such abuse, as exemplified in the MI Principles.⁸⁵

Procedural mechanisms in mental health law arguably safeguard those subject to intervention powers. The Victorian Law Reform Commission (‘VLRC’) evaluated mental health law in its review of guardianship laws and commended its accountability processes, noting that ‘[t]here is clearly a great need for transparent decision-making processes and appropriate external review when the law authorises public officers to deprive people of their liberty and to provide them with compulsory psychiatric treatment’.⁸⁶ The VLRC was responding to a proposal to ‘fuse’ mental health law with guardianship law in order to create one overarching substituted decision-making law. In its report, the VLRC argued that (Victorian) mental health legislation accommodates the aforementioned transparency, while guardianship law, in contrast, has few mechanisms to ‘review a decision to deprive someone of their liberty and provide treatment without consent’.⁸⁷ Under Victoria’s Guardianship and Administration Act 1986, for example, there is no review process for individual decisions made by either tribunal-appointed or personally appointed guardians.⁸⁸

Another added procedural protection in mental health law is the external review process, which is a central feature of contemporary mental health laws.⁸⁹ Mental health tribunals and other bodies empowered under mental health law have a range of powers to review clinical decisions. Under typical guardianship laws, the delegation of decision-making powers to single individuals does not afford as much oversight. Again, on this view, if intervention in some mental health crises is going to occur without the consent of the individual, then it must be appropriately regulated with adequate procedural protection and safeguards against paternalistic overreach.

However, it could also be argued that earlier access to services and support might prevent the very crises for which involuntary intervention is lawfully required. On the need for coercive powers, a wide range of commentators agree that mental health law has failed most specifically in its function to provide access to support services.⁹⁰ (I will discuss this apparent failure shortly.) If this is indeed the case, then the push for improved procedural protections may be the outcome of a troubling circular logic; that is, mental health law increases the need for involuntary treatment by contributing to the failure to address access to voluntary support at an early stage of the crisis. As a consequence of this failure, increased procedural protections are required for those treated involuntarily. The focus on procedural protections dominates debates on mental health justice, and therefore commands disproportionate institutional attention and resources. While the procedural protections under current mental health law are the result of hard-won gains by reformers, the question remains as to whether this institutional and political focus occupies commentators in the mental health field to the point of making other, more constructive, strategies less available.

It is also worth noting that although policymakers designed mental health laws to safeguard the rights of people subject to involuntary treatment, this very cohort was excluded from the development of these laws. The term ‘cohort’ here refers to people subject to involuntary treatment and detention, but this would also reasonably include all persons with psychosocial disability whose rights to liberty and consent in (mental) healthcare are, according to the terms of mental health law, held to a different standard to other citizens. Yet, as Perlin has commented, ‘[t]here is little evidence that these groups are taken seriously either by lawyers or academics’.⁹¹ If it were the case that safeguarding users’ civil rights was the most compelling function of mental health law, it would seem logical that the development of such safeguards and rights protections should occur with input from those subject to them. For this reason, perhaps, existing procedural mechanisms do not appear to satisfy prominent disabled people’s organisations⁹² or UN human rights agencies⁹³ that have commented on the issue, even as the mechanisms appear to satisfy most policymakers and professional bodies.

Having discussed the principal human rights concerns relating to mental health law, as well as some of the principal justifications for its ‘special measure’ status as an exception to certain human rights standards, it is now appropriate to consider the effectiveness of mental health law.

C Efficacy Arguments: That Mental Health Law Is Ineffective on Its Own Terms

Mental health law is ineffective on its own terms; there is limited evidence to support its success in relation to three of its primary functions. This is essentially a utilitarian line of enquiry. While the human rights-based criticisms of mental health law might provide sufficient grounds for law reform efforts, it is the aim of this book to consider the full range of major conceptual and practical issues arising from mental health law. Further, efficacy concerns are particularly relevant to policymakers given the limited resources facing any government.

The purposes of mental health law are well summarised by Hale, who has observed that civil commitment legislation perpetually struggles to ‘reconcile three overlapping but often competing goals: protecting the public, obtaining access to the services people need, and safeguarding users’ civil rights’.⁹⁴ I will consider the evidentiary basis of each of these functions in turn.

1 Lawmakers Cannot Show Mental Health Law Reduces the Risk of Self-Harm

I have already discussed the use of risk-of-harm criteria in relation to the minimal correlative significance of the public risk associated with a diagnosis of mental illness compared to other factors. Perhaps unsurprisingly then, there is limited evidence to support the view that risk assessments conducted under mental health law reduce violent crimes and other risks to the public.⁹⁵ Predicting who will be at risk of harming others is extremely difficult, given the low rate of violence among people with psychosocial disabilities compared with other groups.

Douglas Mossman conducted a meta-analysis of studies looking retrospectively at risk-categorisation criteria in the lead-up to violent acts.⁹⁶ Mossman argued that there was no way to find a satisfactory balance between specificity and sensitivity in identifying risk.⁹⁷ ‘Hindsight’, Mossman concludes, ‘makes “warning signs” clear, but before violent tragedies occur we cannot efficiently distinguish the signs that point to violence from those that will turn out to be false positive signals’.⁹⁸ Indeed, it remains an open question in the literature on legal psychiatric coercion and violence as to whether the range of civil commitment and legal involuntary treatment measures – including those applied by mental health courts, terms of sentencing, and inpatient and outpatient commitment orders – is effective in reducing the risk of violence.⁹⁹

Similarly, there is limited evidence to support the hypothesis that mental health legislation prevents self-harm and suicide. Alex Pokorny’s large-scale study of 4,800 people admitted to a psychiatric hospital in the United States found that there are no reliable methods to predict particular suicides ‘before the fact’.¹⁰⁰ In a case-control study of ninety-two suicides of people who were inpatients, Jimmy Dong, Ting-Pong Ho and Chui-Kwan Kan found that the ‘[m]ajority of in-patient suicides occurred at a time of perceived low risk’.¹⁰¹ More recently, Matthew Large and colleagues conducted a meta-analysis of longitudinal cohort studies where ‘psychiatric patients or people who had made suicide attempts were stratified into high-risk and lower-risk groups for suicide’ and found the following: ‘The strength of suicide risk categorizations based on the presence of multiple risk factors does not greatly exceed the association between individual suicide risk factors and suicide. A statistically strong and reliable method to usefully distinguish patients with a high-risk of suicide remains elusive’.¹⁰² The fact that limited evidence exists to prove the effectiveness of tests assessing risk of harm to self or others brings into question the justification for their use as a criterion for civil commitment.

David Webb even argues that mental health law has the perverse consequence of increasing suicides by compelling patients who seek discharge or fear involuntary commitment to conceal their suicidal thoughts, hence cutting off the potential for supportive intervention.¹⁰³ Darian Leader summarises this line of argument and assigns blame to the culture of risk-aversion in mental health services when he writes: ‘Risk management means lives cannot be lost, and patients learn to hide suicidal thoughts to facilitate discharge … The more you insist that the person can’t kill themselves the more the chances of a suicidal act increase’.¹⁰⁴ While Webb’s and Leader’s argument remains a hypothesis, and one which seems difficult to validate, a number of other commentators have raised similar concerns. David Jobes reportedly stated that ‘[m]uch of what was done in the name of clinical suicide prevention was actually coercive, shaming and controlling’¹⁰⁵ – a conclusion that speaks to the potentially traumatising and disabling responses of services. Susan Stefan, after interviewing and surveying 244 suicide-attempt survivors for her 2016 study on suicide law and policy, concluded that

our policies and practices regarding suicide create an irrational incentive structure where people understand that they have to attempt suicide to get help, help which is of questionable utility, while community-based approaches that are less expensive and work are underfunded. We have a system that doesn’t work for anyone – neither the people who are supposed to be providing help, nor the people who are supposed to be receiving it.¹⁰⁶

Stefan (writing in the US context) notes the resulting frustration of mental health professionals: ‘Mental health professionals in my interviews also sounded powerless and hopeless: asked to do the impossible with ever-dwindling resources, profoundly anxious about liability, genuinely baffled about how to help some of their patients, plagued by insurance demands and paperwork’.¹⁰⁷

Stefan’s view that ‘we have a system that doesn’t work’ is debatable.¹⁰⁸ However, it is generally agreed that there is a remarkable absence of empirical evidence, which demonstrates the effectiveness of involuntary psychiatric intervention in achieving one of its core objectives, reducing self-harm. On the contrary, according to Stefan, her study suggests that ‘involuntary psychiatric detention increases rather than decreases the risk of suicide for many people, while evidence-based treatments that actually reduce suicidality are all community-based’.¹⁰⁹ She concludes: ‘[W]e focus enormous amounts of resources and inflict substantial pain in the form of involuntary commitment and treatment on people who, statistically speaking, are actually at a fairly low risk of suicide’.¹¹⁰

2 Mental Health Law Fails to Facilitate Access to Treatment

Mental health legislation fails to facilitate access to voluntary support during times of crisis. From a rights perspective, mental health law fails to secure substantive rights for people with psychosocial disabilities. The claim that mental health law fails to facilitate access to treatment forms a major critique of the pre-CRPD human rights approaches to mental health law, which have involved a strong focus on negative liberties or so-called first-generation rights. This cluster of rights is based around non-interference and finds expression in mental health law around the ‘rights to liberty and autonomy in relation to the involuntary commitment of individuals with very serious mental illnesses’.¹¹¹ This libertarian push, captured particularly in Gostin’s concept of a ‘new legalism’ in mental health law, saw procedural safeguards increased to regulate the control of psychiatrists and address the misuse of medical power.¹¹²

It is true, however, that the legalistic approach also sought to provide for the right to treatment. However, this goal was arguably the least successful of the ‘new legalism’ framework, a shortcoming which, according to Gerard Quinn, has drawn mental health debates into an ‘imprisoning logic’ and caused a breakdown of meaningful dialogue:

Some civil libertarians would hesitate to use an argument for a legal right to treatment (no matter how meritorious) lest the need for treatment might be used to justify an undue encroachment on liberty. Contrariwise, some professionals in the field who have the responsibility to deliver services, would hesitate to embrace liberty-enhancing arguments lest it interfere too much with their capacity to deliver a substantive right to treatment – with their professional prerogatives.¹¹³

The impasse forms a conceptual tension in mental health law linked to a common critique of ‘new legalism’: it has typically struggled to provide substantive rights to persons with mental impairments in the form of access to healthcare and support. Peay describes the lopsided emphasis on negative rights as the ‘problematic nexus of mental health and law’, where the law has taken a historical role of restraining rather than facilitating access to services.¹¹⁴

Numerous commentators have raised the concern that mental health law exacerbates the inaccessibility of services, especially for individuals in crisis.¹¹⁵ As early as 1985, Nikolas Rose criticised the rights-based approach to mental health law on the basis that it is ‘impotent when it comes to debating or securing positive policy alternatives’.¹¹⁶ Rose argued against a rights-based strategy of mental health reform from the perspective that ‘new legalism’ simply transfers the involuntary powers from doctors to lawyers.¹¹⁷ This transfer occurred somewhat misleadingly, according to Rose, cloaked in the language of a vaguely defined notion of human rights: ‘There might be an argument for the tactical use of the language of rights because of its consonance with the common sense of western social and political thought. But it is clear that such language provides no means of formulating objectives for substantive reforms or for implementing such reforms’.¹¹⁸

Rose was prescient in identifying the difficulty with which a ‘new legalism’ approach could garner appropriate social provisions, conceive and defend ‘freedom’,¹¹⁹ and appraise and alter the powers of expertise over subjects of mental health law.¹²⁰ Rose’s argument is located in a broader critique of the trend to pursue sociopolitical objectives in legal terms¹²¹ – an argument he and others have made against human rights more generally.¹²² Rose’s proposition that a rights vocabulary provides ‘no means of formulating objectives for substantive reforms’ is arguably less prescient in the light of conceptual advances in human rights in the twenty-first century,¹²³ although some commentators remain sceptical of the power of CRPD-based strategies to garner necessary resources (as shall be discussed in Chapter 7).

According to the International Disability Alliance, the narrow focus on civil and political liberties in mental health and adult mental capacity law has often left people with disabilities in a ‘binary system of self-sufficiency versus enforced dependence’.¹²⁴ The tension, then, between the protection of individual rights and the discretionary powers of non-consensual treatment means that mental health law has struggled to address the matter of access to supportive services, except by authorising coercive treatment. As such, there remains a strong call to bolster state duties to provide resources to enhance a range of human rights (for example, the right to enjoy the highest attainable physical and mental health, and the right to autonomy and self-determination), rather than simply inviting non-interference.

3 ‘Involuntary Outpatient Treatment’ Is Ineffective

It is worth considering the efficacy of legal frameworks for involuntary psychiatric intervention outside the hospital, in people’s residences. As noted in Chapter 1, involuntary outpatient treatment, often referred to as community treatment orders (‘CTOs’), was partly designed to promote adherence to medication regimes and reduce rates of hospitalisation.¹²⁵ However, of the three large-scale randomised controlled trials to consider its success in achieving these aims, according to Steve Kisely and Leslie Campbell, none could demonstrate that CTOs were effective.¹²⁶ For example, the largest randomised trial of CTOs in England and Wales to date found that ‘the imposition of compulsory supervision does not reduce the rate of readmission of psychotic patients’.¹²⁷ The authors of the study, Tom Burns and colleagues, ‘found no support in terms of any reduction in overall hospital admission to justify the significant curtailment of patients’ personal liberty’.¹²⁸ Following the study, Burns, formerly a major proponent of CTOs, reportedly stated simply that CTOs ‘don’t work’.¹²⁹

Similarly, a 2011 Cochrane Review by Steve Kisely, Linda Campbell and Nick Preston examined the ‘effectiveness of compulsory community treatment for people with severe mental illness’ by systematically reviewing all relevant randomised controlled clinical trials.¹³⁰ Overall, they concluded that the trials ‘provided little evidence of efficacy on any outcomes such as health service use, social functioning, mental state, quality of life or satisfaction with care’.¹³¹ According to the authors, the studies faced challenges of data availability: there were no reliable data for assessing cost and ‘unclear presentation of data made it impossible to assess the effect on mental state and most aspects of satisfaction with care’.¹³² However, the findings generally supported an earlier review by the same researchers that could not demonstrate that CTOs achieved their aims.¹³³ Likewise, Andrew Molodynski and colleagues reported on the general ‘absence of convincing evidence that [CTOs] improve clinical or social outcomes or reduce hospital use’.¹³⁴ Pointing out a troubling methodological issue in assessing CTOs more generally, Light and colleagues observe that even if CTOs were found to be effective, ‘it is not clear whether any benefit is due to their compulsory nature or simply a result of the intensity of treatment that they facilitate’.¹³⁵

Steven Segal and Phillip Burgess have challenged claims that the current evidence base provides grounds to dismiss the utility of CTOs. Segal and Burgess undertook two studies which found that in certain circumstances, CTOs were associated with reductions in bed-days¹³⁶ and mortality rates.¹³⁷ But despite these claims, Sonia Johnson has argued that ‘the case for urgent review’ of legislation permitting involuntary outpatient treatment, ‘both at government level and within the professions involved in CTO use, is now strong’.¹³⁸ Reinhard Heun, Subodh Dave and Paul Rowlands, who are members of the Executive Committee of the Faculty of General Adult Psychiatry of the Royal College of Psychiatrists in the United Kingdom, went a step further, calling for an end to the use of CTOs in their current form.¹³⁹ The authors referred to the existing evidence base and argued that ‘[u]nder these circumstances, no clinical procedure would have any support from any regulatory institution. The use of coercion without or even against scientific evidence may be seen as unethical and might violate the patients’ human rights. These circumstances may increase the stigma against psychiatry’.¹⁴⁰

4 Mental Health Law Codifies Medical Discretion, Control and Regulation

Phil Fennell has argued that mental health law’s rights-based rhetoric contradicts the lack of substantive rights protection that the law offers in practice, and instead codifies medical authority to treat and detain.¹⁴¹ This is despite policymakers designing mental health law to provide special rights and improve the freedom of a group whose rights to liberty and healthcare decision-making were previously subject to almost unfettered medical discretion. Despite the rights-based framework of mental health law, coercive ‘powers’ held by clinicians have increased in certain respects.¹⁴² Weller queries whether rights-based legalism better protects substantive rights, given that discretionary power remains with medical authorities who retain a privileged status as expert witnesses.¹⁴³ Similarly, Appelbaum concluded his 1994 treatise on mental health law in the United States thus:

Although patients’ right to refuse treatment in general is frequently endorsed, it is rare for courts to uphold the refusal of any given patient. The nearly uniform consequence of a court hearing is treatment against the patient’s will. The levels at which discretion can be applied to thwart the narrow limits of mental health law are manifold. In civil commitment, for example, family members and mental health professionals have considerable scope in framing their allegations of a patient’s committability; attorneys appointed to represent respondents can vary the vigor with which they contest commitment petitions; and judges can elect to apply broader or narrower interpretations of commitment standards … The effectiveness of mental health law in most contexts depends on the willingness of those who gather information and make decisions – often operating with low visibility – to conform to the dictates of the law. When the law seems wrongheaded, however, unless incentives can be provided for their cooperation or sanctions imposed for their resistance, they will often respond according to their own lights.¹⁴⁴

In Australia, the Human Rights and Equal Opportunity Commission Report of 1993, which was influential in the development of Australian mental health policy, found that legislative formulations in Australian states are ‘marked by circularity of reasoning and apparently designed to intrude to a minimal degree upon the territory of psychiatrists’.¹⁴⁵

D Pragmatic Concerns

A number of pragmatic issues arise in mental health law relevant to this investigation. While many of the issues identified below are corollary to human rights and efficacy concerns, they warrant separate consideration for the sake of a clearer and more complete analysis.

1 Mental Health Law Fails to Protect against the ‘Tyranny of the Majority’

Mental health legislation provides poor protection for people with psychosocial disabilities (and potentially even medical practitioners) in the face of malign public attitudes. Given the discretionary power of typical mental health legislation, and in the absence of strong laws against mental health- or disability-based discrimination, the majority of public fears concerning mental health, no matter how irrational their basis, could pressure policymakers, mental health tribunals and professionals to broaden the operation of mental health laws. Abuse of the authority to treat may occur, particularly when powerful sources apply sporadic pressure (for example, politicians or media who tap populist fears and push for greater control of feared groups).

Moncrieff has argued that mental health legislation allows broader society to abrogate responsibility for people in distress and crisis, and instead wield authority over a marginalised population.¹⁴⁶ She argues that governments aim to contain and isolate problematic groups by compelling clinicians to use their unusual powers to ‘treat’.¹⁴⁷ Appelbaum points to involuntary outpatient treatment laws in almost half of US states as an example of public scandals resulting in laws with questionable effectiveness (and constitutionality).¹⁴⁸ A more recent example is US gun control law reform. Following extreme acts of gun violence, reform proposals have resulted in expanded criteria for involuntary treatment and additional duties on psychiatrists to report suspect persons.¹⁴⁹ Peay discusses the potential for such scandals to generate public pressure on legislators and clinicians, particularly where violent crimes have been committed by persons with a diagnosis of mental illness, in this case personality disorder:

The existence of a vocal and seriously injured section of the public may in turn combine with a further significant proportion of the wider public who may live in fear, justified or not, of becoming victims. And this fear may be inappropriately fed by … common lay misunderstanding … This can create a momentum for those very legislators and policymakers to act, and for clinicians to respond.¹⁵⁰

Peay’s observation was specific to personality disorder and particular political issues in England and Wales at the time. Yet her observations seem applicable more broadly. Crimes committed by people with a psychiatric diagnosis often act as a precursor to greater incursions upon the civil rights of persons with psychosocial disabilities – mental health law, despite ostensibly being aimed at upholding the rights of people with psychosocial disability, seemingly offers little to prevent such systemic discrimination, and can even be seen to facilitate such incursions.

These concerns bring to the forefront the tension between the majoritarian principle of democratic rule and the humanitarian principle of protecting excluded and marginalised minorities. In seeking to achieve that fine balance, it is questionable whether mental health law is currently achieving this aim.

2 ‘Voluntarism’ in the Shadow of Compulsion

Mental health law creates a ‘gap’ between voluntary admission and involuntary psychiatric intervention in which compulsion becomes a threat. The threat of being placed on an involuntary order means voluntary service users can be coerced into agreeing to unwanted treatment, in order to avoid legal compulsion and the associated stigma, discrimination and loss of rights.¹⁵¹ Consider the following illustrative case:

A man voluntarily admitted himself to a hospital’s psychiatric inpatient unit. At no time was the man given information regarding his rights as a voluntary patient, and there was a failure to provide him with services for his pre-existing diabetes. The man became concerned that his ‘treatment’ involved only medication and not a referral to a social worker, psychologist, or community counselling service, despite the psychiatrist recommending this. Although the issue was raised with hospital staff, no action was taken. The man notified staff of his intention to discharge himself (which was within his rights as a voluntary patient), however he was warned his status would be changed to ‘involuntary’ should he attempt to discharge himself. The man then attempted to leave the ward, and was subsequently reclassified as an involuntary patient and put into seclusion for 6½ hours, and stripped of his clothing. The man was not provided with an explanation of his change of patient status to involuntary or the reason for being placed in seclusion.¹⁵²

This case was presented in Australia’s 2012 ‘shadow report’ to the CRPD Committee, which was compiled by People with Disabilities Australia in partnership with multiple law and human rights organisations.¹⁵³

The issue of unregulated coercion via threats of civil commitment was raised as far back as 1964.¹⁵⁴ Rachel Bingham has argued that the issue is systemic rather than an unusual instance of distorted process or ‘bad’ practice.¹⁵⁵ Bingham refers to the ‘common clinical scenario’ in which a person ‘acquiesces to continued admission to a mental health unit primarily because he or she believes he or she will otherwise be formally detained’.¹⁵⁶ Some mental health services have produced guidelines and patient information materials addressing informal patients.¹⁵⁷ For example, the 2015 Mental Health Act Code of Practice for England and Wales makes clear that ‘[t]he threat of detention must not be used to coerce a patient to consent to admission to hospital or to treatment (and is likely to invalidate any apparent consent)’.¹⁵⁸ However, according to Bingham, ‘[u]nfortunately, in many ways this sort of information simply makes explicit the original predicament: you will be “allowed” to exercise your rights, “unless …”’ with the implication being that treatment refusal or leaving a hospital will be sufficient to activate coercive powers.¹⁵⁹

Anne Rogers has examined coercion in British psychiatric inpatients settings, including surveying in 1990 412 psychiatric patients who had experienced at least one period of hospitalisation.¹⁶⁰ Her research suggested that ‘a substantial number of nominally voluntary patients reported coercive aspects of their hospitalisation’,¹⁶¹ which ‘was found to produce a more rejecting attitude towards psychiatric services’.¹⁶² Certainly, there is evidence that clinicians have explicitly drawn on the threat of coercion. Consider the following quite extraordinary statement from Tim Lambert, Bruce Singh and Maxine Patel about people subject to CTOs:

Arguably, CTOs are most successful when patients perceive (if erroneously) that they can be treated against their wishes outside the hospital setting. This remains a form of coercion over and above the legislation itself. Hence, CTOs may serve to ‘persuade the persuadable’, in the hope that the patient does not test the resolve of the community teams to rescind the CTO for breaches relating to non-adherence.¹⁶³

Even as certain methods have been introduced to address this issue (transparency about the legal situation of voluntary patients, clearer information for voluntary patients and so on), the gap between genuine consent and legal safeguards will always exist where there is recourse to detention and involuntary treatment on the partial basis of a diagnosis of mental disorder. This is more likely where the threshold for intervention is lower than for life-threatening emergencies.

3 Coercion Interrupts the Development of Decision-Making Skills

Where legal coercion takes away decision-making control from individuals, the development of their decision-making skills is potentially disrupted. Webb has argued that mental health legislation can lead to disempowerment when the decision of a psychiatrist with substituted decision-making power conflicts with the relevant person’s views about treatment.¹⁶⁴ His argument echoes those of intellectual disability advocates, who suggest that substituted decision-making can stifle decision-making learning, which, in turn, gives the false impression that a person’s decision-making difficulties are ‘natural’.¹⁶⁵

In the mental health context, Gunvant Patel has argued that the widespread use of CTOs in Victoria, Australia, which reportedly has the highest rate of CTO use per capita in the world,¹⁶⁶ produces a similar effect: ‘[W]ith CTOs, learning and growth through experiencing the adverse consequences of one’s actions is sabotaged (developmentally a particularly crucial step for young adults). Relapse prevention and risk management (often poorly assessed and addressed by use of ad hoc untested locally developed measures) are reified instead’.¹⁶⁷ Patel continues to argue that the ‘over-emphasis on positive symptom control over longer term concerns’ prevents clinical staff from being able to ‘engage in a long term relational-based approach to enhancing compliance and engagement’.¹⁶⁸ He argues that clinical staff are negatively affected by the ease with which they have recourse to CTOs, where the

[a]brogation of responsibility for finding alternative and creative solutions is too easily supported. Pejorative terms come into being to both exclude undesirable elements and evade responsibility for tackling difficult to hold patients or parts of them that are difficult to manage. The classic example is the re-labelling of challenging behaviours as ‘behavioural’ or ‘personality’ and thus legitimizing rejection, particularly when resources are limited.¹⁶⁹

Patel further argues that the coercive aspect of CTOs leads to clinicians having ‘the unconscious and at times conscious tendency … to perceive the client as having less human value than ourselves’.¹⁷⁰ Concerns that psychiatric coercion diminishes the ability of individuals to exercise autonomy are especially relevant in the light of mounting evidence that CTOs are ineffective.¹⁷¹

Patel’s arguments are reminiscent of service-user activist Peter Campbell’s description of the effect of stand-alone psychiatric institutions in the United Kingdom. He argues that the old asylums fostered a ‘double dependency’: ‘On the one hand the users of existing services [were] bred to accept dependency as a characteristic of relationships. On the other, the caring team based their operations on this inequality’.¹⁷² He noted the dehumanising result of long-term institutionalisation, and the constant iterations of difference: ‘[a]t times, it is hard work not to believe we are a separate branch of humanity’.¹⁷³

There is some empirical support for the view that coercive powers undermine the development of effective voluntary services during emergency mental health crises. In Germany in 2011 and 2012, several landmark decisions by the Constitutional Court and Federal Supreme Court restricted the imposition of involuntary psychiatric treatment.¹⁷⁴ The restriction narrowed the grounds for intervention to ‘life-threatening emergencies’ only.¹⁷⁵ The court restrictions were based on Germany’s constitutional obligations as a signatory to the CRPD. According to Martin Zinkler, the resulting legal provisions led to ‘examples where clinicians put an even greater emphasis on consensual treatment and did not return to coercive treatment’.¹⁷⁶ There is some evidence that the changes resulted in lower rates of coercive treatment, although the study was small-scale.¹⁷⁷ Despite these findings, some adverse effects were reported, including a possible increase in ‘violent incidents’ at some services, which potentially increased the use of physical and mechanical restraint.¹⁷⁸ There is current evidence from mental health services that substituted decision-making by clinical staff occurs in general services, even outside the context of civil commitment. A study by Marion Freidl and colleagues, for example, examined how 588 patients experience decision making in community-based mental health services in six European countries.¹⁷⁹ The study investigated the ‘relationship between decision topic and involvement in the decision, satisfaction with it, and its subsequent implementation from both staff and patient perspectives’.¹⁸⁰ The researchers stated that service users ‘reported poorer involvement, satisfaction, and implementation in regard to treatment-related decisions’, and concluded that ‘clinicians may need to employ different interactional styles for different types of decisions to maximize satisfaction and decision implementation’.¹⁸¹ It is not clear whether lawful coercion in inpatient and outpatient settings contributes to a broader culture of informal substituted decision-making in service provision. Yet civil commitment law could reasonably be seen to have numerous flow-on effects and consequences for individuals, including stymied decision-making skills, delayed recovery, passivity, learned helplessness and an increased dependence on services, all of which have significant individual and public implications.

4 The Competing Aims of Mental Health Law Blurs Decision-Making Processes

Mental health law is an unsound mechanism for distinguishing the reasons for and processes of substituted decision-making following emergency mental health crises. According to Moncrieff, the entwinement of the legal doctrines of police powers and parens patriae in mental health law, which have distinct ends, creates a destructive tension – the policing mandate presents a conflict of interest against the therapeutic role of the clinician.¹⁸² The competing aims may also create confusion as to the rationale for substituted decision-making. The punitive or protective role of the authorised clinician or mental health tribunal adds yet another aim (preventive detention) to an already confusing decision-making process, where clinicians must make single decisions that also include consideration of resource constraints, access needs, treatment advice and individuals’ rights. For clinicians, the constituent motives for clinical decision-making can be exceedingly complex. John Brayley has argued that this motivational confusion often results in clinicians (and other service providers) prioritising risk-reduction for the service above the interests of the individual.¹⁸³ Decision-making processes become unclear with the blurring of resource concerns and support needs, thus generating confusion about which decisions are being made and for what reasons. In the guardianship context, Brayley argues that the confusion of decision-making motives creates a gap at the point where law meets policy, and the interests of the individual are potentially undermined because decision-makers are limited by the narrow set of service delivery options open to them.¹⁸⁴ This argument could be reasonably applied to mental health law.

5 The Medical Model Dominates in Mental Health Law

Mental health law gives precedence to the neurobiological model of mental health at the expense of other strategies for addressing mental health issues. The competing epistemological (and professional) responses to mental illness are important to consider. Throughout history, differing approaches to regulating coercive measures have related not just to cultural or legal traditions, but also to the variety of concepts and structures of professional intervention.¹⁸⁵ The medical model tends to view the problems facing people in crisis in individual, medicalised terms, rather than from a ‘systems perspective’, including where a person sits in the social context. A strong medical focus thus tends to concentrate attention upon isolated individuals, rather than on social and economic policies that enhance the capacity of communities, families and individuals to respond to mental health crises.

This is illustrated by the rise in the use of psychopharmacological treatment, which is an important feature of the curtailment of legal capacity in mental health law.¹⁸⁶ In Australian mental health law, Ian Freckelton and John Lesser have identified a ‘heavy emphasis on pharmacological management of serious mental illnesses’.¹⁸⁷ In relation to CTO use in the United States, Simon Stefan has characterised forced medication as the ‘core of outpatient commitment’,¹⁸⁸ and Marvin Schwartz and Chris Constanzo propose that outpatient commitment ‘already has or will become synonymous with forced medications’.¹⁸⁹ The side effects of neuroleptic drugs are well-documented.¹⁹⁰ Research indicates that side effects range from anticholinergic and antiadrenergic to neurologic (including endocrine disturbances), all of which can have serious and negative impacts on a person’s quality of life.¹⁹¹ Many neuroleptic medications have permanent and serious possible side effects, including docility, passivity, diabetes, Parkinson’s-type symptoms, dental pathology, weight gain, and salivation and elocution problems.¹⁹²

The vocabulary of the medical model has implications for realising justice. As noted previously, it can draw the focus from collective responsibility by individualising issues of disability. The centrality of diagnosis in the operation of mental health law is important to consider, particularly given expanding categories of diagnosis in the past century. In 1952, the original American Psychiatric Association Diagnostic and Statistical Manual (‘DSM’) had 106 diagnoses.¹⁹³ The second edition of the DSM-IV in 2000 included 360.¹⁹⁴ Controversy surrounding the creation of the DSM-IV went beyond the expansion of diagnostic categorisation and included the well-documented influence of pharmaceutical corporations.¹⁹⁵ The latest iteration, DSM-5, has faced similar criticisms.¹⁹⁶ For example, the British Psychological Society’s division of clinical psychology has criticised the manual and called for abandoning its diagnostic categories altogether.¹⁹⁷ Lucy Johnstone, who co-authored the response by the division of clinical psychology, argued that ‘[t]here is now overwhelming evidence that people break down as a result of a complex mix of social and psychological circumstances – bereavement and loss, poverty and discrimination, trauma and abuse’.¹⁹⁸

The implications of a biomedical conceptualisation of extreme mental stress affect the operation of law. In a 2007 World Health Organisation study into mental health policy and practice across Europe, the authors argued that ‘[f]ar too much confidence has been placed in the brain disease model, which may compound rather than challenge the stereotypes of dangerousness and, particularly, incompetence’.¹⁹⁹ When the focus is narrowed to ‘risk’ at an individual level, the emphasis turns to personal responsibility and individual behavioural change, and relies on traditional coercive powers of public and mental health. Bernadette McSherry has written that ‘a simplistic, reductionist account of the causes of mental impairments brings with it the dangers of sanism and discrimination’.²⁰⁰ Endorsement of a strong biological account of mental distress in mental health law may therefore impose further legal barriers to effective support.

6 Family, Friends, Partners and Other Informal Supporters Are Sidelined

Although there is a general lack of research into the effects of mental health law on interpersonal relationships,²⁰¹ there is some evidence to suggest that current legal and policy frameworks effectively exclude family members and other supporters. Most of the literature on families is medical in nature and centres on assessing the ‘burden of care’ placed on families, as well as the effectiveness of family interventions for treating mental illness.²⁰² In contrast, literature on contact between family and clinicians and on the effects of mental health law on informal supporters is limited. Notable exceptions suggest that families and other informal supporters often experience mental health law within a more general sense of being devalued and ignored in the mental health ‘system’.²⁰³ Fleur Beaupert and Alikki Vernon examined the ‘role of carers in mental health tribunal processes and systems of mental health care’ in different Australian jurisdictions.²⁰⁴ They found that ‘[f]oremost among concerns expressed by carers was the experience of being marginalized in the mental health care system’ as a whole.²⁰⁵

Provisions in mental health law relating to families and other supporters differ in each jurisdiction and can have a significant impact on the supporter and service-user relationship.²⁰⁶ For example, Lesser argued in 2004 that the Victorian Mental Health Review Boards were under no obligation to provide information to informal supporters of those subject to its decisions, and he identified a number of legal and practical barriers that prevent the board from involving supporters in hearings in meaningful ways.²⁰⁷ The Victorian Law Reform Commission’s review of Victorian guardianship law noted that ‘some families have felt forced to apply for Guardianship Orders in order not to have mental health services exclude them from the treatment and care of their family member, and to have their role as advocates recognised’.²⁰⁸

On the other hand, there remain legitimate concerns that individuals may require legal protection to prevent the unwanted involvement of family members and other informal supporters through, for example, provisions relating to privacy and confidentiality. The rights of those subject to mental health law may sometimes give rise to tension with the interests (and even rights) of families and other supporters.²⁰⁹ However, in general, reports from people with psychosocial disabilities, and families and supporters, indicate that informal support networks are often overlooked by clinical substituted decision-makers who may not seek their counsel in decision-making processes or take into account the effect of particular treatment decisions upon those relationships.²¹⁰ Relationships are compromised between individuals and those in their support network where significant psychiatric interventions, regulated by mental health law, are decided upon without consideration of those relationships. Further, these relationships can be significantly affected where supporters are placed in coercive roles which effectively impose legal obligations on them to assist in implementing involuntary orders and engage in substituted decision-making.²¹¹

7 Perverse Incentives to Use Coercive Mechanisms

Mental health law may inadvertently skew the distribution of institutional resources towards coercive mechanisms by focusing solely on the parameters for involuntary detention. This can result in compulsion becoming synonymous with much-needed access to support in a sector often beset by resource shortages. Clinicians may be faced with situations in which compulsion becomes the quickest avenue for necessary resource allocation. This has been a particular concern regarding the use of CTOs.²¹²

Community service providers and support agencies that wish clients to receive acute care services may also be inclined to exaggerate reporting to improve their chances for involuntary admission. Family, friends and other supporters may also be presented with similar incentives, where compulsion enables the supported person to access resources that would otherwise be unavailable to voluntary service users. Accounts such as the following appear regularly in the literature on family and other supporters concerned with civil commitment:

We weren’t so worried about actually making an order against D, we were wanting to make an order against the system. We wanted them to say: ‘The system must provide this man with some help’. And that was the major outcome we were after … You can’t just keep on letting this guy out of jail, not provide him with any supports and services, and not expect a bad thing to happen.²¹³

Where voluntary services are not available, interpersonal problems may arise when informal supporters seek out coercive care for their parent, friend, sibling, partner, adult son or daughter, and so on. Possibly this is an issue to be resolved by policy (and particularly budgetary considerations) and not law. Yet it could be argued that the law is creating an unintended negative consequence, which undermines its original intention to provide responses to worst-case scenarios.

E Conclusion

As previously noted, the listing of issues in this chapter is not exhaustive. Other concerns that could be listed include the increasing number of first-person accounts of trauma caused by coercive interventions; reports of sexual assault, harassment and other forms of abuse that people, especially women, experience in acute settings;²¹⁴ the situations of those who admit themselves who lack the ‘mental capacity’ to consent to admission and treatment and thus become de facto detained without procedural oversight (the so-called Bournewood gap);²¹⁵ and the overrepresentation of persons with psychosocial disabilities as victims of violence and abuse, for which mental health law offers little protection.²¹⁶ Instead, I have chosen to discuss major issues along the lines of rights, efficacy and other pragmatic matters, in order to investigate the potential contribution of the CRPD support framework.

The notion of ‘wise constraints’ has long been advanced by liberal philosophers such as John Locke as a means to enhance human freedom.²¹⁷ Locke’s idea captures the essential logic of those who defend the unusual coercive powers of mental health legislation: civil commitment can augment autonomy through prudent intervention to restore people to their normal selves, or it can restrict autonomy rights in order to uphold other rights – the right to life, to health, to physical and mental integrity. Where interventions are undertaken for public safety purposes, mental health law provides the ‘best of the worst’ ways to reduce harm caused by the peculiar consequences of mental illness, mental impairment, ‘madness’ and so on.

In other words, for doctors and lawmakers who endorse the need for separate, mental health-specific legislation, the ends of mental health law appear to justify the means. On this view, the suspension of principles of autonomy and non-discrimination are viewed as acceptable costs in the pursuit of timely treatment, procedural safeguards and public protection. Mental health law provides for the emergency powers needed to intervene during extreme mental health crises – emergency powers that have been refined over decades of trial and error, and developed through entrenched infrastructure for the regulation and oversight of coercive intervention. This view has been adopted by governments in all jurisdictions considered by this book, irrespective of the apparent divergence between the CRPD and mental health law.

However, even if the human rights issues identified in this chapter are set aside, can it be said that society as a whole is better served by the powers of mental health law? Is greater protection for citizens achieved by restrictions under mental health law on the movement and decisions of certain individuals who may pose harm to others? The claim that such powers are necessary appears to rest on justifications that have been challenged by a growing body of evidence. Indeed, the literature suggests that the public protection measures contained in mental health law are overblown, ineffective and unreasonable, particularly when tied to a diagnosis of mental disorder. This would suggest that the ‘risk of harm to others’ justification is informed by disability-based prejudice, or ‘sanism’ as Perlin has termed it.²¹⁸ As for the protection of people from themselves, can it be said that the present legal system is actually protecting people with psychosocial disability from harming themselves, even in acute crisis?²¹⁹ Again, the literature does not support this view. Therefore, even if one accepts that at least some crises warrant coercive intervention of some kind, the aim of preventing the risk of harm to self or others appears to be ill-served by mental health legislation.

The second primary function of mental health law identified at the beginning of this chapter, ensuring access to support, returns even more troubling results. On this point, the literature is unequivocal: mental health law does not effectively ensure timely voluntary access to support for those in crisis. The lopsided focus on ‘negative rights’ in rights-based legalism – or the narrow application of ‘positive rights’ to involuntary intervention only – appears to hinder this function of mental health law. The impasse then contributes significantly to the common experience of people with psychosocial disabilities, who see themselves as being stuck in a ‘binary system of self-sufficiency versus enforced dependence’.²²⁰ This ‘binary system’ can be explained not just by a lack of resources, but by the design of mental health legislation itself.

The third and final major function of mental health law discussed here is the need to ensure procedural safeguards for persons subject to civil commitment. Arguably, the push for improved procedural protections is compromised from the outset by the apparent failure of the first two major functions of mental health law. Such safeguards appear to command disproportionate attention and resources, and detract from a focus on substantive rights and the provision of (voluntary) treatment and support more generally. Consider the significant costs of administering and regulating CTOs, a cost that could be reinvested in achieving positive rights, for example, via personal advocacy services.²²¹ Nevertheless, the regulatory function of mental health law continues to provide perhaps the most compelling case to a range of academics, service providers, lawyers, government agencies and others on the need to retain it. It is noteworthy that this justification does not appear to be shared by prominent commentators with lived experience of mental health issues or by representative service user and survivor organisations,²²² as well as prominent UN human rights agencies. Indeed, existing safeguards and rights protections were not developed with the active participation of those whose rights are deemed to need safeguarding. Instead, it appears that in all of the jurisdictions considered by this book, it is clinicians, lawyers and service providers who have taken a more prominent role in developing procedural safeguards than service users themselves.²²³

The concerns outlined above paint a general picture of some of the drawbacks to current mental health law. It seems obvious, when reflecting on the major issues in mental health law overall, that there is clearly a need for a practical and conceptual evaluation of any proposed change to such law, with as much consideration as possible given to the full range of potential downsides or negative flow on effects. Appelbaum concluded his treatise on the history of mental health law reform in the second half of the twentieth century by observing that ‘[i]f generalization is possible across these very disparate areas of law, our conclusion must be that the consequences of reform were much more limited than partisans on either side anticipated’.²²⁴ In a similar vein, Brendan Kelly observed that many of the deficits in securing the rights of persons with disabilities

relate not to the content of declarations of rights (such as the CRPD) or to the specific provisions of legislation (such as mental health and capacity legislation), but to a profound failure to observe laws, implement policy and realise agreed principles in the day-to-day lives of persons with disabilities and mental disorder, resulting in systematic denial of rights, social exclusion and political disempowerment.²²⁵

Or consider Tom Burns’s (quite extraordinary) statement about the way practicing psychiatrists engage with mental health law: ‘[F]ew, if any, clinicians ever read the details of legislation. Most familiarise themselves “on the job” with the mechanics of those parts of the Act they regularly use. They learn what they have to sign and complete in order to achieve what they have already clinically decided on’.²²⁶ This is not to disparage law reform efforts. Instead, these observations suggest that it is important to be circumspect about our expectations of what law reform can deliver, or to consider the mechanisms required to ensure the effective implementation of law. Further, acknowledging the limitations of past reform efforts encourages the careful evaluation of new ideas for promoting substantive equality for persons with psychosocial disability, including the support framework of the CRPD itself.