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.