Anna Nilsson, Compulsory Mental Health Interventions and the CRPD: Minding Equality

Abstract

How should we do mental health law? The answer used to depend on how far one thought the law should regulate the compulsory care of persons with mental disorders.1 Should it embrace ‘legalism’ by tightly proscribing the limits of the compulsory powers? Or should it adopt ‘medicalism’ by maximising the discretion of mental health professionals? English mental health law was famously said to have swung like a pendulum between these two approaches.2 Yet both ultimately share a common assumption that involuntary care of persons with mental disorders is a legitimate exercise for which the law must make provision. In 2006, the United Nations (UN) shifted the debate onto an entirely different plane when it adopted the Convention on the Rights of Persons with Disabilities (CRPD).3 Underpinned by the principles of equality and non-discrimination, the CRPD encompassed a ‘social model’ which recast disability as ‘oppression by social structures and practices’.4 This was a radical departure from the individual or medical model, which had located disability within the individual and justified compulsory interventions to care for it. Persons with disabilities—including those with long-term mental impairments5—were therefore reconceived as rights-holders entitled to legal protection on the same terms as everyone else.6