Define acceptable: how can we ensure that treatment for mental disorder in detention is consistent with the UN Convention on the Rights of Persons with Disabilities?

Abstract

Despite the potential for gross human rights violations which arise when individuals are subject to treatment for mental disorder against their will the human rights protections offered by the European Convention on Human Rights has offered only crude procedural safeguards to individuals subject to such practices. This article argues that the Convention on the Rights of Persons with Disabilities indicates a way forward based on a multi-dimensional assessment of the factors that need to be present in order for the practice of medical treatment in detention to be deemed acceptable. It further argues that since people with mental disabilities are rarely empowered to pursue individual complaints, domestic and supranational monitoring bodies have a key role to play in defining standards and ensuring that they are met.

Keywords:

• CRPD
• Committee on the Prevention of Torture
• forced treatment
• mental disability
• mental disorder

Notes

Martin Zinkler and Stefan Priebe, ‘Detention of the Mentally Ill in Europe – A Review’, Acta Psychiatrica Scandanavica 106 (2002): 3–8; Hans-Joachim Salize and Harald Dressing, ‘Epidemiology of Involuntary Placement of Mentally Ill People Across the European Union’, British Journal of Psychiatry 184 (2004): 163–8.

Consent is accorded significance in: European Committee for the Prevention of Torture and Inhuman and Degrading Treatment or Punishment (CPT), ‘CPT Standards’, Council of Europe, 2010, at para. 41; Council of Europe Committee of Ministers, ‘Recommendation 10 Concerning the Protection of the Human Rights and Dignity of Persons with Mental Disorders’, Council of Europe, 2004, at Art. 12(1) and Art. 12(2); United Nations General Assembly, ‘Resolution 46/119 Principles for the Protection of the Persons with Mental Illness and the Improvement of Mental Health Care’ (1991), Principle 11, and in Art. 25(d) UN Convention on the Rights of Persons with Disabilities. The UN principles are endorsed and actively promoted by the World Health Organization, see World Health Organization, Resource Book on Mental Health, Human Rights and Legislation (Geneva: WHO, 2005), 43–4.

Mental Health Act Commission, Coercion and Consent: Mental Health Act Commission 13th Biennial Report (London: TSO, 2009), 3.53.

Rachel Churchill, Gareth Owen, Swaran Singh and Matthew Hotopf, International Experiences of Using Community Treatment Orders (London: Department of Health, 2007), http://www.dh.gov.uk/en/Publicationsandstatistics/Publications/PublicationsPolicyAndGuidance/DH_072730 (accessed February 9, 2012).

Tom Burns et al., ‘Pressures to Adhere to Treatment (“Leverage”) in English Mental Healthcare’, British Journal of Psychiatry 199 (2011): 145–50.

Evelien Joosten et al., ‘Systematic Review of the Effects of Shared Decision Making on Patient Satisfaction, Treatment Adherence and Health Status’, Psychotherapy and Psychosomatics 77 (2008): 219–26.

Tina Minkowitz, ‘Submission to the Committee on the Rights of Persons with Disabilities Day of General Discussion on CRPD Article 12’, World Network of Users and Survivors of Psychiatry, 2009, http://www2.ohchr.org/SPdocs/CRPD/DGD21102009/WNUSP.doc (accessed February 9, 2012). A suggested legislative framework for supported decision-making is offered by Michael Bach and Lana Kerzner, A New Paradigm For Protecting the Right to Autonomy and Legal Capacity (Toronto: Law Commission of Ontario, 2010).

This is the effect of the decision in R v. Collins & Ashworth Hospital Authority, ex parte Brady [2000] Lloyds Medical Reports 355, which held that despite divided medical opinion the forcible feeding of the complainant could be justified on the grounds that it was a treatment for his mental disorder, even though in this instance the complainant claimed that his refusal of food was a legitimate hunger strike launched in protest against a decision to transfer him between wards.

International Disability Alliance, ‘Position Paper on the Convention on the Rights of Persons with Disabilities (CRPD) and Other Instruments’, International Disability Alliance, 2008, http://www.un.org/disabilities/documents/…/IDA%20CRPD%20paper.doc (accessed February 9, 2012).

See, for example, Nigel Short, ‘Feeling Misunderstood’ and Joe, ‘Feeling Humiliated: Experiences of a Black Man’, in Experiences of Mental Health In-patient Care: Narratives from Service Users, Carers and Professionals, ed. Mark Hardcastle, David Kennard, Sheila Grandison and Leonard Fagin (London: Routledge, 2007) 23–26 and 65–66.

Virginia Adige Hiday, Jeffrey W. Swanson, Marvin S. Swartz and H. Ryan Wagner, ‘Patient Perceptions of Coercion in Mental Hospital Admission’, International Journal of Law and Psychiatry 20 (1997): 167–81; Marvin S. Swartz, H. Ryan Wagner, Jeffrey W. Swanson and Eric B. Elbogen, ‘Consumers Perceptions of the Fairness and Effectiveness of Mandated Community Treatment and Related Treatment Pressures’, Psychiatric Services 55 (2004): 780–5.

Care Quality Commission, Monitoring the Use of the Mental Health Act in England and Wales in 2009/10 (London: Care Quality Commission (CQC), 2010), 79.

Jose G.V. Taborda Simon G. Jones, James A. Chamberlain and David J. Castle., ‘Perception of Coercion in Psychiatric and Nonpsychiatric (Medical and Surgical) Inpatients’, International Journal of Law and Psychiatry 27 (2004): 179–92.

See n. 10 above and also Helen Gilburt, Diana Rose and Mike Slade, ‘The Importance of Relationships in Mental Health Care: A Qualitative Study of Service Users’ Experiences of Psychiatric Hospital Admission in the UK’, BMC Health Services Research 8 (2008): 92.

Marlene S.P. Tham, Simon G. Jones, James A. Chamberlain and David J. Castle, ‘The Impact of Psychotropic Weight Gain on People with Psychosis – Patient Perspectives and Attitudes’, Journal of Mental Health 16 (2007): 771–9.

Lauren Rayner, Kerry Kershaw, Dalia Hanna and Robert Chaplin, ‘The Patient Perspective of the Consent Process and Side Effects of Electroconvulsive Therapy’, Journal of Mental Health 18 (2009): 379–88.

Jagjhit Sohel, Ben Clark and Carol Paton, ‘Allergies and Adverse Drug Reactions: Clinical Records Versus Patients’ Perceptions’, Journal of Mental Health 18 (2009): 51–6.

Care Quality Commission, Monitoring the Mental Health Act in 2010/11 (London: Care Quality Commission, 2011), 12.

UN Subcommittee on the Prevention of Torture, ‘Analytical Self-assessment Tool for National Prevention Mechanisms (NPM): A Preliminary Guide by the SPT Regarding the Functioning of an NPM’ (United Nations CAT/OP/12/8, 2011).

See paras 27 and 83 of Herzcegfalvy v. Austria [1992] Application No. 10533/83.

Nevmerzhitsky v. Ukraine (2005) Application No. 54825/00.

CPT, ‘Report to the Bulgarian Government on the Visit to Bulgaria Carried Out By the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) from 16 to 22 December 2003’, Council of Europe CPT/Inf (2004), 23, 14–17.

The reports of the CPT on the home were operative in the ECtHR decision that the conditions of detention there amounted to degrading treatment for the purposes of Art. 3 ECHR. See, Stanev v. Bulgaria, Application No. 36760/06, judgment of 17 January 2012.

S.1 Health Act 2006 prohibited smoking in all public places in England and Wales, including hospitals. This was unsuccessfully challenged by patients detained in Rampton Hospital on the basis that the ban breached their right to private and family life and since it was not extended to care homes or prisons, and as the hospital they were detained in was their home, it was also discriminatory: N, R (on the application of) v. Secretary of State for Health [2009] EWCA Civ 795 (24 July 2009).

Caderyn J. Gaskin, Stephen J. Elson and Brenda Happell, ‘Interventions for Reducing the Use of Seclusion in Psychiatric Facilities’, British Journal of Psychiatry 191 (2007): 298.

Graham Thornicroft and M. Tansella, What Are the Arguments for Community-based Mental Health Care?: Health Evidence Network Report (Copenhagen: WHO Regional Office for Europe, 2003), http://www.euro.who.int/document/E82976.pdf (accessed February 9, 2012). See also Graham Thornicroft and M. Tansella, ‘Components of a Modern Mental Health Service: Overview of Systematic Evidence’, British Journal of Psychiatry 185 (2004): 283.

Jean McHale, ‘Standards, Quality and Accountability – The NHS and Mental Health: A Case For Joined Up Thinking’, Journal of Social Welfare and Family Law 25 (2003): 369–82.

Elizabeth Fisher, ‘Standard Setting in Risk Regulation and the Pursuit of Accountable Public Administration’, Oxford Journal of Legal Studies 20 (2000): 109–30.

European Committee for the Prevention of Torture and Inhuman and Degrading Treatment or Punishment (CPT), ‘CPT Standards’.

Committee of Ministers, ‘Recommendation Rec(2006)2 to Member States on the European Prison Rules’, Council of Europe, 2006. Whilst there is an absence of standards based solely on human rights principles and developed by human rights agencies, there are a plethora of other guidelines available. Perhaps the most relevant in this context is the Quality Indicator for Rehabilitative Care (QUIRC) which was derived from research funded by the European Union and which outlines seven dimensions of good quality care which institutions can use to assess their own performance against. See: Helen Killaspy et al., ‘The Development of the Quality Indicator for Rehabilitative Care (QuIRC): A Measure of Best Practice for Facilities for People with Longer Term Mental Health Problems’, BMC Psychiatry 11 (2011): 35.

CPT Standards, para. 39.

Stanev v. Bulgaria, Application no. 36760/06, judgment of 17 January 2012.