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

This chapter begins with the historical developments that put mental health and capacity law into context, then moves on to the relationship to other areas of law. It describes the principles, and the roles of professionals and relatives. It goes on to explain the procedures for using civil powers, and civil admission for treatment. Consent to treatment, leave from hospital, civil community treatment, and after-care. The chapter then details police powers under mental health law, court-ordered pre-sentence assessment and sentence of treatment, alongside other court orders. Transfer from prison to treatment is included, with restriction orders, then appeals against treatment and detention is outlined. The subsequent section outlines human rights law, the European Convention of Human Rights, misuse of mental health law, and finishes with mental capacity laws.

Through critical analysis of the law's traditional response to mental disorders in mental health and mental capacity law, it will be argued that a medicalised model of disability has been predominant, and still permeates jurisprudence in this area. It will be suggested that insights from the social model and relational understandings of rights can highlight the ways in which wider contextual and structural relations can impact upon the lived experience of mental impairment. Moreover, an understanding of the various dimensions of mental illness can help elucidate how the law can respond effectively to structural, institutional, and contextual factors in order to facilitate the enjoyment of purported rights and values. In light of this, it will further be argued that the lingering precedence given to a narrow, medical view of cognitive impairment is outmoded given the more richly textured understanding of cognitive impairments which has recently emerged. The United Nations Convention on the Rights of Persons with Disabilities (UNCRPD) has harnessed the insights from the social model of disability and the capabilities approach to justice, and will be presented as the legal articulation of such understandings. This article seeks to build upon these understandings of disability and social justice and argue for the need for a more responsive state and judiciary in addressing the concerns highlighted by the UNCRPD and embedding these into judicial discourse.

The Convention on the Rights of Persons with Disabilities (CRPD) requires a reconceptualised approach to rights enjoyment by persons with mental disabilities promoting equality through support, institutional and environmental adjustments, and envisaging ‘protection’ in terms of all rights enablement and not rights restriction. Mental health and capacity law has tended to focus exclusively on authorizing and regulating non-consensual interventions, contrary to the CRPD message. Scotland’s current mental health and capacity law is no different. The terms of reference of the 2019–22 independent review of this law included making recommendations on CRPD realization. The resultant recommendations sought to strengthen the voice of persons with mental disabilities, reduce psychiatric coercion, and secure the enjoyment of all rights whilst providing an aspirational but workable basis for achieving CRPD alignment. It proposed a new model for mental health and capacity law, centred on reconceptualising mental health and capacity law to take account of realization of all categories of human rights, equality in the enjoyment of such rights, and reduction of non-consensual measures. This article will consider the practical and conceptual CRPD implementation challenges faced by Scotland and other countries, and the Review’s recommendations, seeking to address them in their wider context.

Unified mental health and capacity law: Creating parity and non-discrimination?

Mental health and capacity law can often feel complex and bewildering. They are governed by a range of different legal frameworks, including (but not limited to) the Mental Health Act 1983 (MHA), the Mental Capacity Act 2005 (MCA), and the Human Rights Act 1998 (HRA). Each legal framework comes with its own unique set of legal principles and ideological baggage, and is also subject to the constant ebb and flow of case law. Last year alone saw major judgments handed down on, for example, the interface between the MHA and MCA,1 the zone of parental responsibility in relation to 16 and 17 year olds,2 and deprivation of liberty in intensive care settings.3 The legal frameworks are also subject to frequent legislative reform; most recently the Police and Crime Act 2017, which reformed police powers under sections 135 and 136 of the MHA and the duties of coroners to investigate the deaths of people who were subject to the Deprivation of Liberty Safeguards (DoLS). Even the judiciary and specialist legal practitioners struggle to keep abreast of the changes. However, mental health and mental capacity law is not ‘lawyers’ law’, in the sense that it is not primarily played out in the courtroom. It is written overwhelmingly for front-line health and social care professionals (and in the case of the MCA, family and other unpaid carers), most of whom will have had no formal legal training. The question, therefore arises, how can busy professionals become and remain fully conversant with these complex and fluctuating legal frameworks?

The island of Ireland is partitioned into Northern Ireland and the Republic of Ireland. In both jurisdictions, there have been important developments in mental health and mental capacity law, and associated policies and services. This includes an emphasis on developing more comprehensive approaches to collecting data on outcomes and so there is an opportunity to align these processes to enable comparison and shared learning across the border. This article explores: legal and policy developments; international approaches to mental health outcomes; and the type of data that would be helpful to collect to better understand the use of mental health and mental capacity laws. It is argued that an inclusive strategy to developing a comprehensive, integrated and aligned approach to collecting and analysing data would benefit citizens, policy makers and professionals.

The increasingly complex interface between the Mental Health Act 1983 and the Mental Capacity Act 2005 has been discussed in this column over the last three months. The boundaries between the two statutes is becoming increasingly blurred with the Court of Protection, a specialist court that considers cases about people lacking decision-making capacity, commonly being asked to make decisions on mental health law as well. Northern Ireland is proposing to resolve the interface problem by repealing its mental health laws and replacing them with a single statutory framework for mental capacity law. If passed, it will give all adults with capacity the right to consent to or refuse any form of treatment. Physical and mental conditions will be on an equal footing and there would be no compulsory detention or treatment of adults with capacity. For those whose lack capacity, treatment will be available in their best interests with arrangements in place to authorise situations where the care arrangements amount to a deprivation of liberty. In this article Richard Griffith considers the new proposals for Northern Ireland and wonders where these proposals point the way for the other devolved nations to develop their mental health and mental capacity law for a 21st century Britain.

In this article, I explore how the mental health and mental capacity laws in England and Wales can be used for suicide prevention. I criticise the use of compulsion for persons diagnosed with a mental disorder who nonetheless retain decision-making capacity and argue for a greater reliance upon capacity as a distinguisher between autonomous decision-making about the end of life and the risk to life posed by symptoms of mental illness. The label of 'suicide' is also criticised as an outdated legal notion carrying pejorative meaning. Although focused on the law in England and Wales, the arguments apply much more broadly to all jurisdictions seeking to reconcile the demands of respect for life and respect for autonomy.

Capacity and incapacity: An appropriate border for non-consensual interventions?

In Northern Ireland, the current main legal framework for compulsory intervention is the Mental Health (Northern Ireland) Order 1986. It is a traditional mental health law which enables detention in hospital if mental disorder and risk criteria are met. However, under Article 3(2), it states that people should not be detained "by reason only of personality disorder". There has been a process of law reform in Northern Ireland to create a non-discriminatory, comprehensive legal framework for all. This resulted in the Mental Capacity Act (Northern Ireland) 2016. The Act, when fully implemented, will replace the Order for everyone aged 16 and over, which is in contrast to most other countries where there are both mental health and mental capacity laws. Under the new Act there are no specific exclusions so, if a person is unable to make the relevant decision, including if the cause of impairment relates to issues associated with personality disorder, then compulsory intervention is allowed as long as the proposed intervention is in the person's 'best interests'. The Act was partially implemented in 2019 and currently is only used when the Order does not apply. This article explores: the development of this new legal framework; the implementation of the Act; and some of the ongoing debates, and practice complexities, related to services for people with a diagnosis of personality disorder.

This article started with a question from one academic wearing an editor’s hat to another academic wearing an academic service user’s hat: conversing about a conference both had attended, the question asked was about the features that make conferences ‘good’ from a service user perspective. The question led to the comments that form Part II of this article. We then decided that we should combine resources and examine what the Convention on the Rights of Persons with Disabilities 2006 (CRPD) has to say about the matter, identifying the normative framework of rights in the context of academic conferences that belong to those who attend in the context of experiencing psychosocial/mental impairment which in interaction with attitudinal and environmental barriers cause them to experience disability; and the corresponding obligations on conference organisers and/or those who regulate the situation and so might be required to impose obligations on conference organisers. This material, in Part III, is followed by some final reflections and thoughts as to good practice.The context in which our arguments are framed is academic conferences on mental health and mental capacity law. Although our reference to ‘service user’ is therefore limited, some of our contentions can no doubt be applied to people experiencing other forms of disability and to conferences of a different type. These wider points are not a concentration in this article, but only because it was conceived and written with a more specific focus. Naturally, we are not suggesting that persons experiencing psychosocial or intellectual disabilities will only be interested in conferences on mental health and mental capacity matters, or that people experiencing other forms of disability will not have an interest in such conferences.

This article considers the hard-earned lessons that New Zealand might draw from developments in English mental capacity law that should inform a comprehensive review of New Zealand’s equivalent adult guardianship legislation, the Protection of Personal and Property Rights Act 1988. The United Nations Convention on the Rights of Persons with Disabilities, and the shift towards supported decision-making, requires State parties to rethink domestic laws and engage with the key concepts of this important human rights convention. The most significant development under the Mental Capacity Act (England and Wales) 2005 is the identification of the so-called ‘Bournewood gap’ and the realization that the common law doctrine of necessity provides inadequate procedural safeguards for people with impaired capacity who are unable to consent or object to their healthcare and living arrangements. In addition, the ‘best interests’ standard for decision-making in English law has evolved with a greater emphasis on support for the exercise of a person’s legal capacity into this standard. This article argues that these developments should influence reform of New Zealand’s mental capacity law.

The CRPD and mental health law reform in Scotland

Mental health and capacity laws in Northern Ireland and the COVID-19 pandemic: Examining powers, procedures and protections under emergency legislation

When compared with the Mental Capacity Act (MCA) 2005, the Mental Health Act (MHA) 1983 seems an outlier. It authorises compulsory treatment of mental disorders on the basis of P’s risks. English law, therefore, discriminates between mental and physical disorders. Following the UK’s ratification of the Convention on the Rights of Persons with Disabilities (CRPD), the MHA probably also violates international law. Against this backdrop, one might expect that decisions contingent on risk are confined to the MHA and have no relevance elsewhere. This article argues that the opposite is true: risk-based decision-making has colonised MCA processes and plays a key role in determining the nature of P’s interaction with health services. These ‘continuities’ of risk are most notable in the Deprivation of Liberty Safeguards (DOLS), where assessments of risk are implicitly significant for best interests and eligibility determinations. Using governmentality theory as an explanatory model, this article claims that the DOLS can be reconstructed as part of a wider legal apparatus for the regulation of the risks of harm associated with mental disorders. The article also argues that the Law Commission’s recent proposals to introduce a new ‘protective care’ scheme and expand the remit of the MHA hint at a ‘rehabilitation’ of risk as an integral component of mental health and capacity law. The article concludes that the concept’s stigmatising potential, lack of definition, and conflict with the CRPD cast doubt on its capacity to reconcile English mental health law with the era of autonomy, capacity, and non-discrimination.