Not as Straight-Forward as that It’s Just ‘An Added Fuss’ – Untangling How Indian Psychiatrists Construe Domestic Human Rights Legislation

After its ratification of the 2006 United Nations Convention on the Rights of People with Disabilities (UNCRPD), the Indian government proceeded to work through a list of laws from various fields – employment, housing, healthcare, personal status – that would need to be amended to guarantee the rights in the UNCRPD. Regarding the healthcare of persons with mental illness, the law-drafters deemed it insufficient to merely amend the existing law and proceeded to draft a new, innovative mental healthcare law. When the Mental Healthcare Act (MHA) was passed in 2017, responses were strongly polarised: On the one hand, it was lauded for staying true to the vision of the UNCRPD (Duffy & Kelly, 2019), while on the other hand, especially psychiatrists heavily criticised that they anticipated the law would adversely affect their ability to treat patients

State of the Reform of Legal Capacity in Chile

The Chilean legal regulation of disability has advanced towards an adequate legal framework for the progressive development of state practices respectful of the rights of people with disabilities. The ratification of the CRPD (2008) has been followed by an increasing amount of legislation directed to the inclusion of people with disabilities. The most important of this new disability regulation is the Law 20422 [on equal opportunities and social inclusion of people with disability]. Chile, in this way, can be regarded as a slow but persistent student of the teachings of the CRPD. Despite these positive developments, certain obligations under the CRPD are still pending, especially clear in the legal regulation affecting mental disability. The controversies surrounding legal capacity and mental health law are probably the most important issues surrounding the hesitation to carry out a reform.

"Adult Incapacity Law: Visions for the Future Drawn from the Unfinished Story of a New Subject with a Long History"

In 1961 Adrian Ward was one of the first intake for the first full-time law degree in Scotland. He was enrolled as a solicitor in 1967 and practised for approximately 50 years. From 1976 he was gradually drawn into the subject of what is now known (in Scotland) as adult incapacity law, in which he became a national and then international expert. As his interest and involvement developed, so did the subject. However, although it is still a new subject, its history in law goes back to Roman law, and concepts from Roman law were central to leading cases in the development of the subject in which Adrian was involved. Attempts to protect the human rights of defined groups go back in Scotland to the 7th century, but there is fundamental conflict between the concept of universality of human rights, and according particular rights to defined groups. Violations of human rights often start with putting people into categories seen as “other”. A deliberately personalised lecture confronted the audience with personally witnessed human rights violations. Of the concepts defined in the UN Convention on the Rights of Persons with Disabilities, “reasonable accommodation”, though it attracts more attention, is always second-best to non-discriminatory solutions offered by “universal design”. Human rights must be translated into law, and law into practice. Existing law should be understood, used to maximum effect, and then if necessary improved. Measures for the exercise of legal capacity can be categorised as voluntary, involuntary, and third party, but need to recognise the reality that “capability” and “incapability” are the extreme ends of a wide spectrum. Such variations, and individual progressions through them, must be accommodated in general provision and in individual measures. Fundamental concepts of human rights and their progressive developments have driven progress to date, and enabled probable future trends to be identified.

Substituted Decision Making and Coercion: The Socially Accepted Problem in Psychiatric Practice and a CRPD-Based Response to Them

Psychiatry has a long tradition of enforcing ‘care’ within mental health settings, through formal and informal coercion, often with little regard to decision-making capacity. Despite scant evidence for the effectiveness of coercive interventions and the wide variation in their application, indicating structural as opposed to health-driven reasons for use, coercive practices continue to be routinely used internationally. This is notwithstanding the recovery model of care that is endorsed on a national public policy level in many countries. Further, the Convention on the Rights of Persons with Disabilities (CRPD) and its Committee make plain that the use of practices of coercion for those who experience disability, including people who experience psychosocial disability, are unacceptable and in breach of their and other international conventions. The CRPD is interpreted as demanding an end to coercion, primarily through substitute decision-making being replaced with supported decision-making. This critical analysis examines the development of coercive practices in psychiatry, how they have become embedded as both common and socially acceptable, and approaches that may help to reduce their use in light of the CRPD. Models of care where changes have been successful in reducing substitute decision-making and promoting supported decision-making are highlighted to challenge some of the inertia to change.

Offenders with a Mental Impairment Under a 'Fusion Law': Non-Discrimination, Treatment, Public Protection

A common criticism of a ‘fusion law’ - a generic law covering all instances where a person’s ability to make a treatment decision is impaired, regardless of the cause, and furthermore which only allows non-consensual treatment if it is in the person’s ‘best interests’ – is that it fails to deal adequately with the protection of the public. This paper examines the implications of a ‘fusion law’ where a person with an ‘impairment or disturbance of mental functioning’ has committed an offence or where the person has been found ‘unfit to plead’ or ‘not guilty by reason of insanity’. It is argued that within the parameters of a fusion law, unfair discrimination towards those with a mental impairment placed on treatment orders by a court - as exists presently in nearly all jurisdictions - can be avoided while at the same time providing satisfactory public protection. This can be achieved through hospital treatment, voluntary or involuntary depending on the person’s decision-making ability and best interests (or best interpretation of ‘will and preferences’), and a form of supervision order in the community that is supportively structured, but includes special conditions to ensure compliance.

The State’s Obligation to Protect Life and Health of Vulnerable Adults: the Order of 26 July 2016 of the German Federal Constitutional Court in the Light of the CRPD and ECHR

The State’s Obligation to Protect Life and Health of Vulnerable Adults: the Order of 26 July 2016 of the German Federal Constitutional Court in the Light of the CRPD and ECHR.