Creating CRPD compliant mental health legislation

Coercion needs to be reduced in mental health care (see eg. previous post). Mahomed et al (2022) promote the development of supported decision making regimes to eliminate substituted decision making and coercion in mental health care. As the article notes, "Some in the clinical community remain doubtful about the practicality of ...  [ such] provisions" (see previous post). It is true that there are situations in which implementation of supported decision making is a challenge.  I agree with the argument of the article that these concerns should be seen as "opportunities for dialogue" rather than a reason for dismissing the replacement of substituted by supported decision making. Change is required in mental health law because of the unacceptably high current prevalence of human rights violations within mental health settings (see previous post).

WHO QualityRights Core Training has a helpful training and guidance tool on 'Legal capacity and the Right to Decide'. There are a course guide and course slides. One of the main aims of the module is to understand article 12 of Convention on the Rights of Persons with Disabilities (CRPD) and the right to legal capacity. The right to legal capacity is guaranteed by Article 12 of the CRPD. 

People with disabilities have rights and responsibilities like anyone else. They have the right to receive support to help them make decisions and when they receive that support they must be protected against abuse. There is a distinction between legal and mental capacity and disabled people should not be denied the right to make a decision merely because other people do not agree with it and attribute it to their disability. How well people make decisions varies and disabled people should not be discriminated against. Flawed use of mental capacity tests has led to the denial of the right to legal capacity (see previous post). 

Article 12 of the CRPD makes clear that the right to legal capacity can never be taken away from a person. A psychosocial, intellectual or cognitive disability can never justify denying someone the right to legal capacity. Having the right to legal capacity at all times does not mean that people never need or want support in making their decisions (see eg. previous post). 

People should have access to the support of people they trust. Support also has to be tailored to the individual. For example, someone in the early stages of dementia may require less support than in later years. It is the need for support that may fluctuate not the right to exercise legal capacity. Formal professional support should not replace informal support provided by the person's social network and community. 

Support must be based on the will and preferences of the person. Best interpretation of will and preferences needs to replace best interests determinations in decision making law. Supported decision making is a completely different approach to decision making which puts the person at the centre of the decision. Independent support advocacy should be available (see eg. previous post). Obtaining informed consent to treatment is essential in respecting the right to legal capacity. People should not be discriminated against on the basis of a disability. 

People with disabilities can only be detained on the same basis (or for the same reasons) as anybody else. Detention can be violent and abusive, which can amount to torture and ill-treatment in violation of articles 15 and 16 of CRPD. People with disabilities have a right to respect for their physical and mental integrity on an equal basis with others under article 17 of CRPD. They have a right to live independently and to be included in the community under article 19. Health care professionals are required to provide care on the basis of free and informed consent under article 25.

Progress needs to be made in the reduction of coercion in mental health services. Treatment of people with mental health problems should not be unjust or prejudicial. Discrimination within mental health law must end.