The History, Justification, and Purpose of Mental Health Law

Chapter 2 examines the historical development of mental health law in England (which is similar to the rest of the common law world, including America, Canada, and Australia) and uses that history to consider the justification, purpose, and need for mental health law from Ancient Greece to the present. Contrary to the claims of abolitionists that mental health law has essentially always stayed the same, it demonstrates a history of continuous legal and systemic reform in mental health law. Rather than an over-zealous and interfering state keen to exercise social control over persons with mental impairment, it instead depicts a state which for the most part reluctantly only became involved in the care of persons with mental health problems when informal care by family and friends failed or was non-existent, to prevent abuses by private operators, and as an incident of its administration of the criminal law. When set against the background of the fashions, cycles, and recurring themes of mental health law, the call of abolition can be conceptualized as simply the latest fad in its evolution. Further, many of the issues which arise from mental health problems will continue to exist even without mental health law. Mental health law can be positive and negative, including defining and protecting rights and allocating resources. The chapter cautions against being too optimistic about the promises of sweeping revolutionary changes which have never really delivered (deinstitutionalization or the ‘abolition’ of the asylum being the most poignant example), in favour of solid incremental change.

The Interpretive Framework and the Reform (as opposed to the Abolition) of Mental Health Law

Having rejected the abolition of mental health law in Chapters 4 to 7, Chapter 8 explores the possibility of the reform of mental health law. It explains the Mental Capacity with Support and Support Except Where There is Harm models. It applies the interpretive compass of inherent dignity (including autonomy), equality, and participation to both models and compares them to the Abolition with Support model. It argues in favour of the Mental Capacity with Support model as being compatible with the CRPD (despite the contrary arguments from abolitionists) and more transparent than Abolition with Support. It proposes improvements to the Mental Capacity with Support model. It discusses wider reforms to the mental health system, social reforms, and how reform is possible without abolishing mental health law first.

Conclusion

Chapter 9 summarizes the arguments in each chapter, discusses my conceptual framework and methodology, and brings together all of the issues discussed in the book to a focussed and practical conclusion. It justifies why I argue that contrary to the arguments of abolitionists, mental health law should not be abolished, but be reformed by decreasing coercion and increasing social support to persons with mental impairments to maximize their dignity (including autonomy), equality, and participation in accordance with the overall object and purpose of the CRPD.

The Case for the Abolition of Mental Health Law

Chapter 3 traces the history of opposition to mental health law including anti-psychiatry and the emergence of the disability rights movement explaining where the call for the abolition of mental health law has come from and why it has emerged in international human rights law now. It argues that the call for abolition is more than just a reaction to historically poor treatment, but is a qualitatively different basis for understanding mental impairment. It explains the Abolition with Support model and sets out the key arguments for the abolition of mental health law being that mental health law is a form of social control of non-conformists, that it is discriminatory and a denial of legal capacity, that free and informed consent is integral to the right to health, that it is an unjustified interference with liberty, that it is an unjustified interference with the integrity of the person, that it is a form of torture and cruel, inhuman, and degrading treatment and punishment, that it is inconsistent with the right to independent living, that it is ineffective and un-therapeutic, that there are better non-coercive alternatives, that it undermines the ‘dignity of risk’ of persons with mental impairment, and that mental health law is too ‘easy’ and creates a culture of coercion throughout the entire mental health system. While I ultimately argue against the abolition of mental health law in favour of substantial reform, I argue that it is important to listen to and properly understand abolitionists’ concerns in order to improve mental health law and include persons with mental impairment in the policy-making and health-care decision-making process.

The ‘Interpretive Compass’ of the CRPD: The Theory of Dignity

Chapter 4 explains the ‘interpretive compass’ and examines the first limb being the theory of dignity in international human rights law and as a core value of the CRPD. It explores the meaning of dignity in the disability context and breaks it into its key components being that dignity involves recognition of inalienable intrinsic human worth, the relationship between dignity and equality, that dignity requires people to behave with dignity, that dignity requires a person to be treated with dignity, that the state should organize itself to support dignity, and the relationship between dignity and autonomy.

The Interpretive Compass Part 2: Theories of Equality and Non-Discrimination

Chapter 6 explains the second limb of the interpretive compass—equality and non-discrimination. The concepts of equality and discrimination are highly complex and contested in law, politics, and philosophy. This Chapter argues that the text of the CRPD is based on a wide-ranging, eclectic, and under-developed conception of equality and discrimination which is prone to inherent tensions, especially in relation to the proposed abolition of mental health law. That is, it notes conflict between formal equality in abolishing mental health law to treat everyone the same and achieving substantive equality which is sufficiently sensitive to difference, as well as conflict between direct and indirect discrimination. I describe all of the different types of equality and non-discrimination which underpin the model of equality and non-discrimination in the CRPD. I argue in accordance with my overarching contention that a meaning of equality and non-discrimination which is consistent with the overall purpose of the CRPD to ensure the enjoyment of all of the rights of persons with mental impairments is to be preferred. That is, in accordance with international human law, all rights are seen as ‘universal, indivisible, interdependent and interrelated’. I propose a holistic vision of equality in which persons with disabilities are able to live a meaningful life with housing, education, employment, family, and leisure taking into account their impairments and where realization of one right should not be at the cost of sacrificing others.

Introduction

Chapter 1 introduces the key question asked by the book: whether mental health law should be abolished or reformed and defines all the key terms (e.g. mental health law, mental impairment, involuntary detention and treatment, voluntary treatment, abolition and reform, etc). It puts mental health law into its wider social context pointing out that while at least 20 per cent of the community in any given year and 50 per cent in their lifetime have a mental health problem, mental health law only applies to a relatively small number of persons with severe mental health problems who are medically assessed to be at risk of harming themselves or others. It sets out the background to the fierce controversy about the future of mental health law during the United Nations Convention on the Rights of Persons with Disabilities (CRPD) negotiations and since its entry into force in 2008. It explains the conceptual framework for the book being human rights treaty interpretation and the jurisprudential or ethical analysis consistent with Ronald Dworkin of three core CRPD and human rights concepts—dignity (including autonomy), equality, and participation—to create the ‘interpretive compass.’ It discusses the social model of disability, the medical model, the human rights model, and the interactive model. It defines the scope of the book in that it excludes consideration of mental health specific criminal law doctrines like fitness to plead and the insanity defence and clarifies that the focus is on mental health law rather than other forms of substitute decision-making like guardianship. It explains the structure of the book.

Application of Inherent Dignity to the Abolition with Support Model

This chapter argues that inherent dignity is more than an abstract concept and must be understood within its social and political context. It applies the concept of inherent dignity in the disability context and to the Abolition with Support model. I argue that dignity is relevant to mental health in two ways. First, it relates to the loss of dignity that persons with mental impairment may experience by reason of their impairment itself and secondly by the way in which persons with mental impairment have historically been treated by the mental health system and society more generally. I consider the meaning of autonomy and the tensions between the concepts of dignity and autonomy. I argue that the meaning of dignity is wider than the legal recognition of autonomy. On a balanced and holistic reading of the CRPD which gives effect to all human rights, dignity may at times be given priority over autonomy, which could provide a human rights justification for limited detention and psychiatric treatment, rather than the abolition of mental health law. Nonetheless, the loss of dignity that is caused by the mental health system must also be addressed and provides a strong basis for significant systemic and legal reform.

Difficulties with the Meaning of Equality, Non-Discrimination and Participation in the CRPD, and their Application to the Abolition with Support Model

Chapter 7 considers the difficulties with the meaning of equality and non-discrimination in the CRPD and what this means for the call for the abolition of mental health law. These difficulties include determining the equality of what, equality with respect to whom and finding an appropriate comparator, determining whether involuntary detention and treatment is a benefit or detriment, and how to address the difference and sameness of persons with mental impairments. Specifically, whether the difference between persons with and without mental impairments is real and whether supported decision-making is sufficient to make persons with mental impairments equal to those without disabilities. It also introduces and discusses the third limb of the interpretive compass, the right to participation. It argues that the right to participation is a right for persons with disabilities and their organizations to be consulted with in good faith about policy and individual health decisions and for their views to be taken seriously. It does not mean that States Parties have to do everything persons with disabilities want, nor is it a power of veto. That said, States Parties should probably implement the wishes of persons with disabilities unless there is a good reason not to. Even so, the right to participation raises a number of difficulties in determining whether disabled persons organizations are sufficiently representative of their constituents and all persons with disabilities generally, including those with intersecting identities.