The United Nations Convention on the Rights of Persons with Disabilities and Mental Health Law

Modern Law Review

Volumn 75, Issue 5, 2012, Pages 752-778

  Bartlett, Peter ^a  

^a UNIVERSITY OF NOTTINGHAM   (United Kingdom)

Author keywords

Convention on the Rights of Persons with Disability; CRPD; Disabilities Law; Mental Capacity Law; Mental Health Law

Indexed keywords

EID: 84866241898     PISSN: 00267961     EISSN: 14682230     Source Type: Journal    
DOI: 10.1111/j.1468-2230.2012.00923.x     Document Type: Article

References (89)

1. Statement of Kofi Annan, United Nations Secretary-General, on the occasion of the passage of the UN Convention on the Rights of Persons with Disabilities, 13 December 2006. Full text available at http://www.un.org/News/Press/docs//2006/sgsm10797.doc.htm (last visited 16 March 2012).
2. UN General Assembly, A/61/611. Full text available at http://www.un.org/disabilities/default.asp?id=150 (last visited 15 January 2012).
3. See D. MacKay, 'The United Nations Convention on the Rights of Persons with Disabilities' (2006-7) 34 Syracuse J Int'l Law & Com 323.
4. There is dispute in the academic literature the degree to which the CRPD goes beyond this core function and creates new rights. Thus Kayess and French note that the right to integrity contained in Article 17 has not been articulated in this way in the past, and Maigret notes that the right to be free from violence and abuse is not contained in other treaties. On this issue generally, see G. Quinn, 'Bringing the UN Convention on rights for persons with disabilities to life in Ireland' (2009) 37 British Journal of Learning Disabilities 245, 247; P. Weller, 'Supported Decision-Making and the Achievement of Non-Discrimination: The Promise and Paradox of the Disabilities Convention' in B. McSherry (ed), International Trends in Mental Health Law (Sydney: Federation Press, 2008) 85, 89; R. Kayess and P. French, 'Out of darkness into light? Introducing the Convention on the Rights of Persons with Disabilities' (2008) 8 HR L Rev 1, 29; F. Mégret, 'The Disabilities Convention: Human Rights of Persons with Disabilities or Disability Rights?' (2008) 30 Human Rights Quarterly 494, 507.
5. People with mental disabilities are, in this article, taken to include people with mental health problems (now sometimes called psychosocial disabilities) and learning disabilities.
6. See, eg, United Nations Principles for the Protection of Persons with Mental Illness and the Improvement of Mental Health Care, General Assembly Resolution 46/119 (1991); European Convention for the Protection of Human Rights and Fundamental Freedoms, Art 5(1)(e) and related jurisprudence; Council of Europe Recommendation of the Council of Ministers R(1999)4 on the Principles concerning the Legal Protection of Incapable Adults; Council of Europe Recommendation of the Committee of Ministers Rec(2004)10 concerning the Human Rights and Dignity of Persons with Mental Disorder.
7. This argument is made most frequently regarding previous UN instruments, most notably the Mental Illness principles of 1991: see, eg, J. Lord, D. Suozzi and A. Taylor, 'Lessons from the Experience of the U.N. Convention on the Rights of Persons with Disabilities: Addressing the Democratic Deficit in Global Health Governance' (2010) Journal of Law, Medicine & Ethics 564, 576; A. Dhanda, 'Constructing a New Human Rights Lexicon: Convention on the Rights of Persons with Disabilities' (2008) 8 International Journal on Human Rights 43, 45 (available on open access at http://www.surjournal.org (last visited 22 May 2012)); UN High Commissioner for Human Rights, Annual Report A/HRC/10/48 (26 January 2009) at [48].
8. UN High Commissioner for Human Rights, Annual Report ibid at [45], [47], [48]. These views will be considered at length below.
9. Office for Disability Issues, UK Initial Report on the UN Convention on the Rights of Persons with Disabilities (London: ODI, 2011).
10. While the issues in this paper apply equally to the other parts of the UK, for practical reasons of length the paper refers directly only to the legislation in force in England and Wales.
11. See CRPD, Art 35.
12. For Tunisia, see UN, Committee on the Rights of Persons with Disabilities, Concluding observations of the Committee on the Rights of Persons with Disabilities: Tunisia, CRPD/C/TUN/CO/1 (13 May 2011); for Spain see UN, Committee on the Rights of Persons with Disabilities, Concluding observations of the Committee on the Rights of Persons with Disabilities: Spain, CRPD/C/ESP/CO/1 (19 October 2011).
13. See website of UN Enable, http://www.un.org/disabilities/default.asp?id=150 (last visited 22 December 2011). As of that date, its optional protocol, which allows for individual complaints concerning alleged violations of the conventions, had been signed by 90 countries and ratified by 63, again including the United Kingdom.
14. This is substantially similar to the concept of reasonable 'adjustments' in the Equality Act 2010 previously, the Disability Discrimination Act 1996, but extends to all areas covered by the CRPD.
15. On the drafting process regarding Article 17, see A. Lawson, 'The United Nations Convention on the Rights of Persons with Disabilities: New Era or False Dawn?' (2006-7) 34 Syracuse J Int'l Law & Com 563, 608-610; P. Weller, 'The Convention on the Rights of Persons with Disabilities and the social model of health: new perspectives' [2011] (Spring) Journal of Mental Health Law 74.
16. See, in the context of European jurisprudence, Herczegfalvy v Austria (1992) 15 EHRR 437 (ECHR). See also P. Bartlett, '"The Necessity must be Convincingly Shown to Exist": Standards for Compulsory Treatment for Mental Disorder under the Mental Health Act 1983' (2011) 19 Medical LR 514; P. Bartlett, 'Re-Thinking Herczegfalvy: The ECHR and the Control of Psychiatric Treatment' in E. Brem (ed), Mainstreaming Diversity: Rewriting Judgments of the European Court of Human Rights (Cambridge: CUP, forthcoming 2012).
17. Lord etal argue that sparseness of language will allow considerable interpretive scope not merely regarding Article 17, but also the rights regarding mental capacity in Article 12, perhaps in both cases undermining the progress that had been made controlling the use of compulsion in instruments such as the MI Principles: see J. Lord, D. Suozzi and A. Taylor, 'Lessons from the Experience of the U.N. Convention on the Rights of Persons with Disabilities: Addressing the Democratic Deficit in Global Health Governance' (2010) Journal of Law, Medicine & Ethics 564, 576.
18. See CRPD, Art 33(3).
19. G. de Burca, 'The European Union in the negotiation of the UN Disability Convention' (2010) 35 European Law Review 174, 175.
20. See, in general, Quinn, n 4 above, 247; Lawson, n 15 above, 575; Weller, n 15 above.
21. See CRPD, Art 4(2).
22. On the drafting history, see Lawson, n 15 above, 593-595.
23. On the move to the social model of disability, see D. MacKay, 'The United Nations Convention on the Rights of Persons with Disabilities' (2006-7) 34 Syracuse J Int'l Law & Com 323, 328; Lawson, ibid, 571; UN High Commissioner for Human Rights, Annual Report, A/HRC/10/48 (26 January 2009) at [35]; Dhanda, 'Constructing a New Human Rights Lexicon: Convention on the Rights of Persons with Disabilities' n 7 above, 45; Kayess and French, n 4 above 5.
24. See, eg, M Oliver, 'A sociology of disability or a disablist sociology?' in L. Barton (ed), Disability and Society (Harlow: Longman, 1996).
25. Kayess and French, n 4 above, 7.
26. CRPD, Art 16(1). For a discussion of these competing values in the context of decisions relating to consent to sexual activity, see S. Doyle, 'The Notion of Consent to Sexual Activity for Persons with Mental Disabilities' (2010) 31 Liverpool Law Review 111.
27. nd ed, 2011).
28. The right to education in Article 24 includes the right to be educated in the general education system, in schools located in their community. Sadly, the UK Government issued reservations on both these aspects of the right, so that special schools can remain in the United Kingdom, and students with disabilities may be sent to them even if they are not in the local community.
29. Regarding employment, see National Mental Health Development Unit, Work, Recovery and Inclusion (London: NMHDU, 2009). According to this source, only 13.5 per cent of people with a mental illness, and 3 per cent per cent of people receiving secondary mental health services, are employed for 16 hours per week or more, compared 72.5 per cent of the population as a whole: figure 2. Regarding homelessness, see Homeless Link, Survey of Needs Provision 2011 (London: Homeless Link, 2011); S. Rees, Mental Ill Health in the Adult Single Homeless Population: A Review of the Literature (London: Crisis/PHRU, 2009).
30. On reasonable adjustments/accommodation, see A. Lawson 'People with Psychosocial Impairments or Conditions, Reasonable Accommodation and the Convention on the Rights of Persons with Disabilities', in McSherry (ed), n 4 above 62.
31. For discussion of the negotiations, see A. Dhanda, 'Legal Capacity in the Disability Rights Convention: Stranglehold of the Past or Lodestar for the Future?' (2006-7) 34 Syracuse J Int'l Law & Com 429.
32. Regarding issues of capacity and guardianship, see the reports of the Mental Disability Advocacy Center on Serbia, Russia, Kyrgyzstan, Hungary, the Czech Republic and Bulgaria, available at http://www.mdac.info (last visited 29 June 2012). See also Shtukaturov v Russia (Application no 44009/05) 27 June 2008 (ECtHR).
33. UN High Commissioner for Human Rights, Annual Report, A/HRC/10/48 (26 January 2009) at [43-45].
34. For an interpretation that the CRPD sets no bounds to legal capacity, see T. Minkowitz, 'The United Nations Convention on the Rights of Persons with Disabilities and the Right to be Free from Nonconsensual Psychiatric Interventions' (2006-7) 34 Syracuse J Int'l Law & Com 405, 411.
35. See, eg, J. Dawson and G. Szmukler, 'Fusion of mental health and incapacity legislation' (2006) 188 British Medical Journal 504, N. Rees, 'The Fusion Proposal: A Next Step?' in B. McSherry and P. Weller (eds), Rethinking Rights-Based Mental Health Laws (Oxford: Hart, 2010), and the papers in J. Horne and G. Richardson (eds), A model law fusing incapacity and mental health legislation - is it viable; is it advisable? special issue 20 Journal of Mental Health Law (2010). A significantly enhanced role for capacity was proposed by the Richardson Committee on reform of the Mental Health Act 1983: Department of Health, Review of the Mental Health Act 1983: Report of the Expert Committee (London: DOH, 1999). This enhanced role was ultimately rejected by the Government.
36. UN High Commissioner for Human Rights, Annual Report, A/HRC/10/48 (26 January 2009) at [45].
37. MCA 2005, s 2(2).
38. See Law Commission, Mental Incapacity (LawCom 231) (London: Queen's Printer, 1995) at [3.8] and Department of Health, Explanatory Notes to the Mental Capacity Act (London: Queen's Printer, 2005) at [22].
39. See, eg, D. Carson, 'Disabling Progress: The Law Commission's Proposals on Mentally Incapacitated Adults' Decision-making' (1993) Journal of Social Welfare and Family Law 304.
40. Department of Constitutional Affairs, Mental Capacity Act 2005 Code of Practice (London: TSO, 2005) at eg, [4.9] and [4.12].
41. See the differential treatment by the MCA 2005 of mental incapacity and drunkenness in its amendment of s 3(2) of the Sale of Goods Act 1979: MCA 2005, sch 6, para 24. This removes the jurisdiction of the Sale of Goods Act over decisions made by people lacking capacity to contract, but leaves it in place for people who are drunk. This would make no sense if incapacity caused by drunkenness were meant to be within the scope of the MCA 2005.
42. See MCA 2005, s 3(1).
43. As there is no requirement under the MCA 2005 to notify anyone when decisions are made on behalf of persons lacking capacity, judicial oversight of these decisions will be inconsistent. One academic study suggests that best interests determinations are frequently collapsed into determinations of capacity (the 'concertina effect') and that, in roughly 10 per cent of cases, best interests determinations are made with no assessment of capacity at all. It was further unclear the degree to which the wishes, feelings, beliefs and values of the person lacking capacity were taken into account: see V. Williams etal, Making Best Interest Decisions: People and Processes (London: Mental Health Foundation, 2012).
44. Kayess and French, n 4 above, 7.
45. Before proceeding, a linguistic shift should be recognised. Traditionally, incapacity law has drawn a dichotomy between best interests decision-making, where an individual makes a decision on behalf of a person lacking capacity according to the objective best interests of that individual whether or not it is what that individual would have chosen, and substitute decision-making, where the decision-maker endeavours to reach the decision that the incapable individual would have made if he or she were capable. The language in the academic literature surrounding the CRPD is rather different. 'Substitute' decision-making is taken to mean decision-making by someone other than the person with disability. It would seem generally to be based on an objective best interests of the individual rather than what that individual would have chosen, and is thus similar to the 'best interests' approach in the old language. It is generally viewed as anathema to the Article 12 approach. 'Supported' decision-making means helping the individual reach his or her own decision, even when the required support is considerable. It does not appear that there is a category in the CRPD literature for an individual making a decision on behalf of the disabled person, but endeavouring to reach the decision he or she would have made - the old 'substitute' approach.
46. F. Mégret, 'The Disabilities Convention: Human Rights of Persons with Disabilities or Disability Rights?' (2008) 30 Human Rights Quarterly 494, 511.
47. Regarding the debate in the drafting history on this point, see Lawson, n 15 above, 596; Dhanda, n 31 above, 453-454; A. Kanter, 'The Promise and Challenge of the United Nations Convention on the Rights of Persons with Disabilities' (2006-7) 34 Syracuse J Int'l Law & Com 289, 301.
48. On these issues, see J. Lord, D. Suozzi and A. Taylor, 'Lessons from the Experience of the U.N. Convention on the Rights of Persons with Disabilities: Addressing the Democratic Deficit in Global Health Governance' (2010) Journal of Law, Medicine & Ethics 564, 573; Dhanda, 'Constructing a New Human Rights Lexicon: Convention on the Rights of Persons with Disabilities' n 7 above; Dhanda, 'Legal Capacity in the Disability Rights Convention: Stranglehold of the Past or Lodestar for the Future?' n 31 above, 441; T. Minkowitz, 'Abolishing Mental Health Laws to Comply with the Convention on the Rights of Persons with Disabilities' in McSherry and Weller (eds), n 35 above, 156-158.
49. M. Bach and L. Kerzner, A New Paradigm for Protecting Autonomy and the Right to Legal Capacity (Toronto: Law Commission of Ontario, 2010) 30 (parentheses in original), available at www.lco-cdo.org/disabilities/bach-kerzner.pdf (last visited 22 May 2012). Bach and Kerzner's work is the most extended and considered attempt to date to devise a pragmatic programme of implementation for Article 12. Sadly, space does not permit an extended discussion of it here.
50. CRPD, Art 12(4).
51. See MCA 2005, s 1(3).
52. MCA 2005, s 4(6).
53. MCA 2005, s 4(2).
54. See Williams etal, n 43 above.
55. See Minkowitz, n 48 above, 157-158; Bach and Kerzner, n 49 above 91-95.
56. See Representation Agreement Act, R.S.B.C. 1996, c 405.
57. This is discussed in A. Dhanda, 'Legal Capacity in the Disability Rights Convention: Stranglehold of the Past or Lodestar for the Future?' n 31 above 434-435.
58. For a detailed proposal on a CRPD-compliant system, see Bach and Kerzner, n 49 above. Space does not permit a detailed discussion of it here, whatever its considerable intellectual merits, as yet, their proposed system has nowhere been put into effect.
59. MCA, s 5-6.
60. Office for Disability Issues, n 9 above at [102]-[117]. This line of argument is particularly inadequate in the case of Northern Irel where it would seem that there is currently no legislation covering personal decision-making by people lacking capacity, although law reform in this regard is in the works.
61. See n 35 above.
62. Ad Hoc Committee, Report of the Seventh Session, A/AC.265/2006/2 (13 Feb 2006).
63. On the drafting history, see Lawson, n 15 above, 609; Kayess and French, n 4 above, 30.
64. Kayess and French, ibid, 30.
65. UN, Committee on the Rights of Persons with Disabilities, Concluding observations of the Committee on the Rights of Persons with Disabilities: Tunisia, CRPD/C/TUN/CO/1 (13 May 2011) at [29]; UN, Committee on the Rights of Persons with Disabilities, Concluding observations of the Committee on the Rights of Persons with Disabilities: Spain, CRPD/C/ESP/CO/1 (19 October 2011) at [37-38].
66. UN, Committee on the Rights of Persons with Disabilities, Concluding observations of the Committee on the Rights of Persons with Disabilities: Tunisia, CRPD/C/TUN/CO/1 (13 May 2011) at [30]
67. Weller, n 15 above, 81-82. Weller refers to the Interim report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, General Assembly A/63/175 (28 July 2008).
68. That is, electro-convulsive therapy provided without the use of anaesthetics and muscle relaxants. Unmodified ECT is not practised in the United Kingdom.
69. For an interpretation of Article 15 of the CRPD, including consideration of the Special Rapporteur's report, see Minkowitz, n 34 above, 413-426. While the report does raise matters of concern in the UK context (eg, the continued availability of non-therapeutic sterilisation of people with mental disabilities, albeit following a court order), it generally couches its language in terms of areas where violations may occur depending on the circumstances, rather than areas where violations are clear. The application of the report in a UK context is therefore a significantly larger debate than can be accommodated in this paper.
70. The most significant exceptions are psychosurgery (which may only be given with consent and a second opinion), and electro-convulsive therapy (which may not be given if the patient either offers a competent refusal of the treatment, or has made an advanced refusal of the treatment when competent): see MHA 1983, s 57 and 58A.
71. MHA 1983, s 58.
72. For an extended discussion of these provisions, see Bartlett, n 16 above.
73. Mental Health Act Commission, Coercion and consent: monitoring the Mental Health Act 2007-9, being the thirteenth biennial report of the Mental Health Act Commission (The Stationery Office, 2009) figure 50.
74. Office for Disability Issues, n 9 above.
75. Lawson, n 15 above, 609, discussing the drafting history of Article 17.
76. UN High Commissioner for Human Rights, Annual Report, A/HRC/10/48 (26 January 2009) at [48].
77. UN, Committee on the Rights of Persons with Disabilities, Concluding observations of the Committee on the Rights of Persons with Disabilities: Tunisia, CRPD/C/TUN/CO/1 (13 May 2011) at [24-25]; UN, Committee on the Rights of Persons with Disabilities, Concluding observations of the Committee on the Rights of Persons with Disabilities: Spain, CRPD/C/ESP/CO/1 (19 October 2011) at [35-36].
78. UN High Commissioner for Human Rights, Annual Report, A/HRC/10/48 (26 January 2009) at [48].
79. For a discussion of this Article, see C. Parker and L. Clements, 'The UN Convention on the Rights of Persons with Disabilities: a new right to independent living?' [2008] 4 EHRLR 508. Somewhat surprisingly, while advocating the demise of institutional care particularly when people are able to be cared for in their own homes (see, eg, 521), Parker and Clements make no mention of Article 14.
80. Regarding the interrelation between the CRPD and ECHR, see P. Fennell and U. Khaliq, 'Conflicting or complementary obligations? The UN Disability Rights Convention, the European Convention on Human Rights and English law' [2011] EHRLR 662.
81. ECHR, Art 5(1)(e).
82. The ECHR does appear to allow some preventive detention under Article 5 in a criminal context: M v Germany (2010) 51 EHRR 41. When Germany attempted to implement this decision, however, if found it necessary to use the concept of mental disability: see K. Drenkhan etal, 'What is in a name? Preventive Detention in Germany in the Shadow of European Human Rights Law' [2012] Crim LR 167. It is precisely the move to the use of that concept that is contrary to the CRPD, however.
83. Office for Disability Issues, n 9 above at [134].
84. UN High Commissioner for Human Rights, Annual Report, A/HRC/10/48 (26 January 2009) at [47].
85. It would seem that roughly half of prisoners have primary or secondary mental health needs upon admission: see Her Majesty 's Inspectorate of Prisons, The mental health of prisoners (London: HM Inspectorate of Prisons, 2007) at [1.14].
86. See, eg, Mental Disability Advocacy Center (MDAC), 'Liberty Denied: Human Rights Violations in Criminal Psychiatric Detention Reviews in Hungary' (Budapest: MDAC, 2004).
87. Office for Disability Issues, n 9 above.
88. See amendments to Homicide Act 1957, s 2, introduced by the Coroners and Justice Act 2009. Regarding the justifications for these changes, see Law Commission, Partial Defences to Murder LC 290 (London: Law Commission, 2004).
89. Law Commission, Unfitness to Plead Consultation Paper No 197 (London: Law Commission, 2010).