United Nations Convention on the Rights of Persons with Disabilities and its implications for compulsory treatment and mental health nursing

Abstract

The United Nations Convention on the Rights of Persons with Disabilities (UNCRPD) is an international treaty that gives effect to a broad set of human rights for people with disabilities. In this Editorial, we focus on the challenges that the UNCRPD poses to the mental health sector, particularly in relation to the common practices of detention and treatment without consent. The wider implications of the UNCRPD for addressing discrimination faced by people with mental illness are also considered. Adopted by the General Assembly of the United Nations in December 2006, the UNCRPD has since been signed by 158 countries, and ratified by 141 (United Nations 2014). New Zealand ratified the UNCPRD in 2007 and Australia in 2008. The UNCPRD is based on a social model of disability. The term ‘disability’ is given an inclusive meaning, which incorporates all forms of physical, psychosocial, and learning disabilities. Although several other United Nation treaties also aim to protect individual rights, these rights have not always been extended to people with mental illness and other disabilities. A specific treaty was considered necessary to protect those rights. Some of the real force of the UNCRPD lies in the Optional Protocol, an additional agreement that allows the Committee on the Rights of Persons with Disabilities to examine complaints from individual citizens of signatory countries. So far, 92 countries have signed the Optional Protocol, and 79, including Australia, have ratified it. The overall goal of the UNCRPD is to ensure that people with mental illness are not subject to discrimination because of that mental illness. Although the UNCRPD's scope in terms of people with mental illness is not tightly defined, it is clear that it has direct implications for people who currently meet criteria for compulsory treatment, whether in inpatient or community settings. In the latter decades of the 20th century, most Western countries revised their mental health legislation to reflect the human rights concern that people should not be treated without consent solely because clinicians believe that to be in their best interests. Instead, treatment without consent was based on a dual set of criteria: mental illness (defined in various ways) and some criteria of risk or dangerousness. Following a recent decision by the UNCRPD, many jurisdictions, whose current mental health legislation uses a dual set of criteria, find themselves at odds with the UNCRPD, as such definitions are held to be discriminatory. Already legislators in some jurisdictions have moved to amend legislation towards a capacity-based standard, so that any treatment without consent is justified on a common set of criteria across different health conditions (Callaghan & Ryan 2012). An alternative, non-discriminatory model of legislation has been proposed based on decision-making capacity, rather than category of illness or diagnosis (Dawson & Szmukler 2006). The proposed ‘fusion’ legislation would apply across the health sector, creating a common standard for treatment without consent based on decision-making capacity. Under the fusion model, decision- making capacity is seen as a functional attribute, and is not linked to diagnosis or category of disability (Szmukler et al. 2013). These authors note that much practical and conceptual work remains to clarify exactly how such a model would operate in practice. The fusion model represents a significant step forward in eliminating the legal distinction between mental and physical illness. It only addresses, however, one aspect of the UNCPRD, namely Article 12's equal recognition before the law. To fully comply with the non-discriminatory intent of the UNCRPD, equal recognition would need to be matched by other initiatives to address discrimination in areas, such as housing, employment, equality of health care, quality of life, and access to justice. Mental health or other legislation that is exclusively focused on criteria for coercion will not advance the positive rights of people with mental illness (Kaiser 2009). Beyond challenges to the existing basis of mental health legislation, the elements of the UNCPRD reflect fundamental tenets of nursing philosophy and theory. These tenets include, for example, the view that decisions about individuals should be consistent with the person's beliefs, values, and expressed wishes; their cultural beliefs; and any advance statement of treatment preferences. Where the UNCRPD requires a departure from existing practice is in applying a subjective (patient-centred) test of best interests, rather than best interest as judged by clinicians. Nurses working in clinical practice, education, and research will need to be familiar with the scope of the UNCRPD in order to review their current ethical frameworks for the justification of compulsory treatment. The presence of mental illness, even when linked to criteria of dangerousness, will not be enough; indeed, it will be held to be discriminatory. The proposed fusion legislation offers at least a framework that is common to all forms of illness, and so in that sense, is not discriminatory, but if the criterion of capacity is applied differently to people with mental illness, the spectre of discrimination might remain. We urgently need to explore non-coercive alternatives to compulsion in all forms, and to address the social conditions and consequences of mental illness.