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An end to psychiatric detention? Implications of the United Nations Convention on the Rights of Persons with Disabilities

  • Brendan D. Kelly (a1)
Summary

The United Nations Convention on the Rights of Persons with Disabilities is a welcome articulation of the rights of the disabled. However, as its definition of disability appears to include mental illness, the UK appears to violate it by linking mental illness with detention. Clarity and, possibly, change are needed.

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References
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1 United Nations. Convention on the Rights of Persons with Disabilities. United Nations, 2006.
2 Kelly, BD. Structural violence and schizophrenia. Soc Sci Med 2005; 61: 721–30.
3 United Nations High Commissioner for Human Rights. Annual Report of the United Nations High Commissioner for Human Rights and Reports of the Office of the High Commissioner and the Secretary General: Thematic Study by the Office of the United Nations High Commissioner for Human Rights on Enhancing Awareness and Understanding of the Convention on the Rights of Persons with Disabilities. United Nations, 2009.
4 Office for Disability Issues. UK Initial Report on the UN Convention on the Rights of Persons with Disabilities. HM Government, 2009.
5 Committee on the Rights of Persons with Disabilities. Concluding Observations of the Committee on the Rights of Persons with Disabilities: Spain. United Nations, 2011.
6 Expert Committee. Review of the Mental Health Act 1983. Department of Health, 1999.
7 Kelly, BD. Mental health legislation and human rights in England, Wales and the Republic of Ireland. Int J Law Psychiatry 2011; 34: 439–54.
8 Fennell, P. Mental Health: The New Law. Jordan Publishing Limited, 2007.
9 Kallert, TW, Rymaszewska, J, Torres-González, F. The clinical point of view: comparing differences of legal regulations related to involuntary admission and hospital stay in twelve European countries. In Legislation on Coercive Mental Health Care in Europe (eds Kallert, TW, Torres-González, F): 375400. Peter Lang 2006.
10 Conrady, J, Roeder, T. The legal point of view: comparing differences of legal regulations related to involuntary admission and hospital stay in twelve European countries. In Legislation on Coercive Mental Health Care in Europe (eds Kallert, TW, Torres-González, F): 349–74. Peter Lang 2006.
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The British Journal of Psychiatry
  • ISSN: 0007-1250
  • EISSN: 1472-1465
  • URL: /core/journals/the-british-journal-of-psychiatry
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An end to psychiatric detention? Implications of the United Nations Convention on the Rights of Persons with Disabilities

  • Brendan D. Kelly (a1)
Submit a response

eLetters

New UK legislation or an incomplete consideration of the United Nations Convention on the Rights of Persons with Disabilities?

Daniel M. Bennett, Consultant Forensic Psychiatrist and Honorary Senior Lecturer
28 March 2014

The editorial by Kelly1 was thought provoking for two reasons: the implication that the United National Convention on the Rights of Persons with Disabilities might prevent the detention and treatment of patients who are ill and secondly that there was a "UK" Mental Health Act 1983 modified in 2007.

Fortunately I had not missed a major legislative change. It remains the case that in Scotland the Mental Health (Care and Treatment) (Scotland) Act 2003 is the legislation under which care is given to those with mental disorder. The Mental Health (Northern Ireland) Order 1986 also remains. Thus there is no "UK" mental health legislation. This may appear parochial but is critically important when considering care and treatment in these legislative areas of the UK. As Kelly does not addressthe criteria for detention in Scotland or Northern Ireland his attempt to raise the relevance of the UN convention to UK mental health legislation is undermined: these criteria are considered here.

In Scotland there are broadly five criteria for civil detention: mental disorder; significant impairment of decision-making ability about medical treatment for mental disorder; a significant risk to the health, safety or welfare of the patient or the safety of any other person; it is necessary to detain the patient in hospital and medical treatment is available. There is thus a specific 'mental disorder' criterion which is defined in Section 328 of the Act as any: mental illness; personality disorder or learning disability 'however caused or manifested'. As mentaldisorder is a criterion, the UN convention may require the Scottish Government to remove it in order to be compliant in the same manner as theUK Government would be required to do so for the legislation critiqued by Kelly1.

Similarly in Northern Ireland the criteria for detention, although varying with different 'Forms', include: mental disorder of a nature or degree which warrants detention of the patient in hospital and failure to detain would create a substantial likelihood of serious physical harm to the patient or to other persons. Thus in Northern Ireland the criteria for detention also include a mental disorder criterion which may be considered a disability under the UN convention.

In view of the argument that all of these Acts are non compliant withthe definition of disability in Article 1 of the UN convention could this be used as grounds to challenge detention? At present the Convention is not legally binding on UK domestic legislation but places obligations on the Government to ensure its laws are compliant2. Complaints can be made to the UN commissioner where disabled people feel that the convention is not being appropriately implemented. It was not possible to determine whether any complaints had been received as a result of this definition.

In conclusion, the UK, in the sense of all three legislative areas, may receive a similar criticism to Spain3 from the committee when it reports but it remains to be seen whether this will lead to widespread change in Mental Health Legislation.

References

1 Kelly B.D. An End to psychiatric detention? Implications of the United Nations Convention on the Rights of Persons with Disabilities. British Journal of Psychiatry (2014) 204, 174-175.

2 Office for Disability Issues. UK initial report on the UN Convention on the Rights of Persons with Disabilities. HM Government, 2011

3 Committee on the Rights of Persons with Disabilities. Concluding Observations of the Committee on the Rights of Persons with Disabilities: Spain. United Nations, 2011.

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Conflict of interest: None declared

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Scotland is currently in the UK, and has its own Mental Health Act

James A. T. Dyer, retired psychiatrist, Edinburgh
28 March 2014

Brendan Kelly helpfully points in his editorial to potential conflictbetween mental health legislation and the UN Convention on the Rights of Persons with Disabilities (1). However his article is marred by an error not infrequently encountered in the College and its journals. No less than 4 times in his article he refers to the Mental Health Act 1983 and its 2007 amendment as "UK" legislation, implying that it covers all of the UK.Of course, in virtually all of its provisions, it covers England and Walesonly.

Scotland passed a new Mental Health Act in 2003(2), acclaimed internationally for its respect for human rights. It is based on explicitethical principles and includes as a criterion for civil compulsion that there is significant impairment of decision-making ability about treatment(i.e. a capacity criterion).

It was bad enough that the author contributed to the common fallacy that the UK equals England, but how did such a howler get through the journal's editorial process? May we expect in future a more informed approach to the UK's constitutional arrangements (whatever they may be)?

References:

(1) United Nations. Convention on the Rights of Persons with Disabilities. United Nations, 2006.

(2) Mental Health (Care and Treatment)(Scotland) Act 2003.

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Conflict of interest: None declared

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Psychiatric detention and the UN Convention on the Rights of Persons with Disabilities

George Szmukler
18 March 2014

Brendan Kelly's editorial (1) on the UN Convention on the Rights of Persons with Disabilities (CRPD) is opportune. Like him, I welcome its uncompromising support for the rights of persons with disabilities and itsarticulation of key forms of discrimination.

As he points out, when it comes to persons with a 'mental illness' (or a 'psychosocial disability' in the language of the Convention) there are major challenges. Although there will be debate about who has a 'disability', the majority of those with a mental illness likely to be severe enough to be candidates for involuntary treatment are almost certainly included. Thus a 'disability-neutral' mental health law becomesnecessary. The Mental Health Act 1983 (amended in 2007) does not comply with the terms of the Convention. It fails the test proposed by the UN High Commissioner for Human Rights by having as a necessary criterion the presence of a 'mental disorder' (i.e. a disability). Thus it is taken to violate Art 14: "that the existence of a disability shall in no case justify a deprivation of liberty".

With colleagues, I have argued that mental health law fails to respect the 'autonomy' or right to 'self-determination' of the patient in psychiatry in the same way as capacity-based law does for all other patients (2, 3). Mental health law is thus discriminatory. This discrimination seems to be based on deeply embedded (but clearly false) and persistent stereotypes of mental illness being inextricably linked with incompetence (and dangerousness).

To eliminate the discrimination there must be a generic law covering all persons who lack decision-making capability, whatever its cause (whether it be a psychiatric, medical, surgical or other cause - e.g. a head injury, schizophrenia, dementia, stroke, post-operative confusion) and whatever the setting. The criteria for involuntary treatment under our 'Fusion Law' proposal do not require a diagnosis of a 'disability'. They are based squarely on: first, an impairment of 'decision-making capability' (whether the person has a pre-existing disability or not); andsecond, the treatment must be in the person's 'best interests'. Both criteria are controversial and require elaboration. The concept of 'will and preferences', used frequently in the CRPD, could be helpful. 'Involuntary' (if that remains the right term) interventions could be justified when a person is unable to express their will and preferences; or when their currently expressed will and preferences are not their 'enduring' or 'authentic' will and preferences (as might occur during a confusional state). The appropriate 'best interests' intervention in suchcases would be to give expression to what has been determined to be the person's 'authentic' will and preferences. An advance statement made whenthe patient did have decision-making capability (was able to express his preferences) would provide good evidence of what they would be.

Obviously there will be difficult cases. A 'tick-box', 'objective', or procedural approach will not be adequate to the task. Some form of 'interpretation' (4,5) will be required, but this can be tested by consulting others who know the person's values well, with recourse to a tribunal in the face of disagreements.

1.Kelly BD. An end to psychiatric detention? Implications of the United Nations Convention on the Rights of Persons with Disabilities. The Br J Psychiatry 2014; 204: 174-175.

2.Dawson J, Szmukler G. Fusion of mental health and incapacity legislation. Br J Psychiatry 2006; 188: 504-509.

3.Szmukler G, Daw R, Callard F. Mental health law and the UN Convention on the Rights of Persons with Disabilities. Int J Law Psychiatry 2014;(in press). http://dx.doi.org/10.1016/j.ijlp.2013.11.024 [Epub ahead of print]

4.Banner N, Szmukler G. 'Radical Intepretation' and the assessment of decision-making capacity. J Applied Philosophy. 2014; 30: 379-374.

5.Bach M, Kerzner L. A new paradigm for protecting autonomy and the right to legal capacity. Law Commission of Ontario; 2010: http://www.lco-cdo.org/en/disabilities-call-for-papers-bach-kerzner.

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Conflict of interest: None declared

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