یک رویکرد واقع بینانه برای ارزیابی انطباق قوانین بهداشت روانی 'با UNCRPD

This article argues that a more realistic view should be taken of the implications of the Convention on the Rights of Persons with Disabilities for mental health law than the view taken by the UN monitoring committee, in its General Comment on Equal Recognition Before the Law, in 2014. This more realistic interpretation would not forbid reliance on the concept of mental capacity in the law. Nor would it forbid legislation that authorises substitute decision-making or involuntary treatment. Less radical reforms, it is suggested, could promote Convention compliance. These reforms would shift mental health law away from reliance on over-broad concepts like “mental disorder” or “mental disability”, but would still permit use of legal standards that rely on specific impairments in mental function that are relevant to a person's capacity to make particular decisions or perform specific tasks. Strong efforts would be required to promote supported decision-making, and respect advance directives, but substitute decision-making and treatment without consent would be permitted in exceptional circumstances, subject to appropriate safeguards and independent review. Under this interpretation, those measures would not constitute discrimination in the law on the ground of disability, or denial of equal recognition before the law. This approach, it is argued, is more likely to generate positive responses from state parties in terms of law reform.

The United Nations Convention on the Rights of Persons with Disabilities1 (the Convention) undertakes the important and demanding task of promoting the human rights of persons with disabilities throughout the world. One way the Convention might perform this task is by providing state parties with a clear yardstick against which to measure the adequacy of their laws, with an eye to reform. This article argues that the Convention is failing to perform this function adequately, at least with respect to mental health laws. It is failing due to ambiguities and inconsistencies in the Convention's text, and – more importantly – due to the range of questions left begging by a radical interpretation of that text offered by the body that monitors states' compliance with the Convention – the UN Committee on the Rights of Persons with Disabilities (the Committee) – in its General Comment No 1 on Equal Recognition Before the Law (the General Comment), released in mid-2014. The Convention is open to a range of plausible interpretations that might resolve some of the ambiguities and inconsistencies in its text, but crucial aspects of the interpretation offered by the Committee, in the General Comment, are not at all plausible – for reasons given below – and there is no evidence that state parties have any intention of following the Committee's more radical suggestions as to what is required in reform of their mental health laws. Several state parties, foreseeing the potential problems, entered reservations, on ratifying the Convention, that rejected in advance aspects of the interpretation later offered by the Committee,2 and other state parties, in their periodic reports to the Committee, continue to cite without apparent embarrassment aspects of their mental health laws, as evidence of compliance with the Convention, that are quite incompatible with the Committee's published views.3 This article therefore considers certain weaknesses in the Convention, and especially certain problems with the Committee's interpretation of the Convention published in the General Comment. A case is then made for a more conservative interpretation of what the Convention demands. It is argued that this interpretation – being more realistic and workable – generates more useful standards against which to assess the adequacy of state parties' mental health laws. I concede that this more conservative interpretation contradicts a number of the Committee's arguments in the General Comment, particularly because it would require continued reliance, in the law, on the notion of impairment in specific mental functions. Such reliance would be required when decisions must be made about whether a person's autonomy should be respected, or whether – in contrast – the state is entitled to intervene, in certain circumstances, in a person's life without their consent. In the General Comment, the Committee specifically prohibits use of functional tests of mental capacity in legal contexts, saying that would constitute discrimination against people with disabilities within the law. In contrast, this article argues that functional tests of mental capacity should be used in mental health law, and their use would reflect a more balanced interpretation of the Convention as a whole. The final section of the article uses this more conservative interpretation to assess the degree of compliance with the Convention shown by the current or proposed mental health legislation of four different jurisdictions. The overall purpose is to demonstrate that the approach advocated here constitutes a more useful guide to law reform than the arguments offered by the Committee in the General Comment.

This article has tried to express a more balanced – though more conservative –interpretation of the UN Convention than that offered by the Committee in the General Comment. On the basis of this interpretation an alternative set of standards was constructed for measuring Convention compliance. These standards were then used to assess the degree of compliance shown by four jurisdictions' current or proposed mental health laws. The aim has been to set realistic goals for law reform and avoid making improbable suggestions whose downstream consequences cannot readily be foreseen. In contrast, the Committee has proposed in the General Comment the total repeal of mental health and adult guardianship legislation without giving any indication of how imminent threats to the safety of a person with significant impairment in mental function, or threats to the safety to others around them, would be handled. Would those situations be managed solely under the criminal law, for instance, or under general legal powers to prevent suicide or self-harm, or under some newly-enacted preventive detention scheme that would apply to all “dangerous” people (and raise further human rights concerns)? The Committee gives no indication of what an adequate legal landscape would look like following the repeal of such laws — one that would protect all people's human rights, including the negative and positive rights of persons with disabilities, under the Convention. The more realistic approach advocated here would not leave such large questions hanging. It would also produce less radical law reform. The reforms advocated here would still be politically challenging for many states, but they would move the law towards Convention compliance. The main reforms suggested are that states should abandon use in their laws of over-broad concepts, like “mental disorder”, in favour of functional capacity tests; they should actively encourage supported decision-making, in situations in which it is possible; and they should give considerable weight to advance refusals of treatment, without giving them full priority regardless of the consequences. Subject to these changes, in carefully defined circumstances, the law should permit the transfer of decision-making authority over treatment, and permit treatment without a person's consent, subject to adequate safeguards and rigorous, independent review. This approach would permit decisions about intervention to be based on evidence of impairment in mental function that is relevant to the particular decision to be made or task to be performed. Reliance on such evidence would not be viewed as improper discrimination in the application of the law. Nor would denial of specific legal capacities, where relevant impairment exists, be conflated with denial of equal recognition as a person before the law. Review of mental health legislation for Convention compliance against these more realistic standards would, I suggest, be more likely to encourage positive law reform.