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

AuthorPeter Bartlett
Publication Date01 Sep 2012
DOIhttp://doi.org/10.1111/j.1468-2230.2012.00923.x
The United Nations Convention on the Rights of Persons
with Disabilities and Mental Health Law
Peter Bartlett*
in 2008. This paper discusses a number of f‌lashpoints where the CRPD will require real and
signif‌icant reconsideration of English mental health and mental capacity law.The CRPD intro-
duces a new paradigm into international disability law,relying on the social model of disability.
While that is no doubt a good thing, there is as yet no clear sense as to how that is to be
implemented.After providing an introduction to the Convention,the paper consider s four specif‌ic
areas: mental capacity law (focussing on the provisions of the Mental Capacity Act 2005),
psychiatric treatment without consent, civil detention of people with mental disabilities, and
mental disability in the criminal system (f‌itness to plead, insanity and diminished responsibility).
INTRODUCTION
[F]or 650 million persons around the world living with disabilities,today promises to
be the dawn of a new era – an era in which disabled people will no longer have to
endure the discriminatory practices and attitudes that have been permitted to prevail
for all too long.1
With these words, United Nations Secretary-General Kof‌i Annan greeted the
passage by the General Assembly of the United Nations Convention on the
Rights of Persons with Disabilities (CRPD)2in December of 2006. This cel-
ebratory tone was shared by UN States Parties in the General Assembly, and
the International Disability Caucus, which had been heavily involved in the
negotiations.
Indeed, there is much to celebrate.The impetus for the Convention was that,
whatever the intent of previous human rights treaties,people with disabilities had
not shared equally in the rights created by those treaties;3and the core of the
CRPD is thus the re-articulation of rights found in other treaties in ways that will
*Nottinghamshire Healthcare NHSTrust Professor of Mental Health Law,School of Law and Institute
of Mental Health, University of Nottingham. My thinking about the CRPD and this article in
particular have benef‌itted from the comments of Gabor Gombos, Amanda Keeling, Anna Lawson,
Oliver Lewis,Nell Munro, Mario Oetheimer and Ralph Sandland, as well as the students and teachers
of the MDACSUN summer schools at the Central European University.While they do not necessarily
share the views presented, I am grateful for their insights and ideas.
1 Statement of Kof‌i Annan, United Nations Secretary-General,on the occasion of the passage of the
UN Convention on the Rights of Persons with Disabilities,13 December 2006. Full text available
at http://www.un.org/News/Press/docs//2006/sgsm10797.doc.htm (last visited 16 March 2012).
2 UN General Assembly, A/61/611. Full text available at http://www.un.org/disabilities/default.
asp?id=150 (last visited 15 January 2012).
3 See D. MacKay, ‘The United Nations Convention on the Rights of Persons with Disabilities’
(2006–7) 34 Syracuse J Int’l Law & Com 323.
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© 2012The Author.The Modern Law Review © 2012 The Modern Law ReviewLimited. (2012) 75(5) MLR 752–778
Published by BlackwellPublishing, 9600 Garsington Road, Oxford OX42DQ, UK and 350 Main Street, Malden,MA 02148, USA
make those rights meaningful to people with disabilities.4It adopts a bold new
vision, where non-discrimination (including pervasive requirements for the pro-
vision of reasonable accommodation in both public and private sectors) is a
core value.Disability is ar ticulated not in terms of limitations or impairments of
disabled people, but as f‌lowing from inadequate social responses to the particular
needs of individuals in society.
For all people with disabilities – people with mental disabilities5certainly
included - this has the potential for signif‌icant benef‌its. Developed rights to
non-discrimination in key areas, including employment, housing, education,
health, standards of living and social, political and cultural participation, along
with the right to be free from exploitation, violence and abuse,have the potential,
if effectively implemented, to transform the lives of persons with disabilities.
For people with mental disabilities, the CRPD represents an additional and
highly signif‌icant change. Previously, international regulation had assumed that
control of this group was in some circumstances justif‌ied; the issue was deter-
mining the bounds of permitted compulsion.6The CRPD takes no such starting
point. Indeed,as will be discussed below, the CRPD appears to proceed on the
basis that disability cannot be used as a factor in determining whether compul-
sion may be imposed. For people with mental disabilities, this would be an
extraordinary change. It is not merely that some previous international instru-
ments must be taken as superseded.7It is also that the effects on domestic law
would be profound.The UN High Commissioner for Human Rights has stated
that the CRPD requires the abolition of laws that allow for detention, for the
4 There is dispute in the academic literature the degree to which the CRPD goes beyond this core
function and creates new rights.Thus Kayess and French note that the right to integrity contained
in Article 17 has not been articulated in this way in the past,and Maigret notes that the right to be
free from violence and abuse is not contained in other treaties.On this issue generally,see G. Quinn,
‘Bringing the UN Convention on rights for persons with disabilities to life in Ireland’ (2009) 37
British Journal of Learning Disabilities 245, 247; P. Weller, ‘Suppor ted Decision-Making and the
Achievement of Non-Discrimination:The Promise and Paradox of the Disabilities Convention’in
B. McSherry (ed), InternationalTrends in Mental Health Law (Sydney:Federation Press, 2008) 85, 89;
R. Kayess and P. French,‘Out of darkness into light? Introducing the Convention on the Rights of
Persons with Disabilities’(2008) 8 HR L Rev 1, 29;F.Még ret,‘The Disabilities Convention:Human
Rights of Persons with Disabilities or Disability Rights?’(2008) 30 Human Rights Quarterly 494, 507.
5 People with mental disabilities are, in this article, taken to include people with mental health
problems (now sometimes called psychosocial disabilities) and learning disabilities.
6 See, eg, United Nations Principles for the Protection of Persons with Mental Illness and the
Improvement of Mental Health Care, General Assembly Resolution 46/119 (1991); European
Convention for the Protection of Human Rights and Fundamental Freedoms,Ar t 5(1)(e) and
related jurisprudence; Council of Europe Recommendation of the Council of Ministers R(1999)4
on the Principles concerning the Legal Protection of Incapable Adults; Council of Europe Rec-
ommendation of the Committee of Ministers Rec(2004)10 concerning the Human Rights and
Dignity of Persons with Mental Disorder.
7 This argument is made most frequently regarding previous UN instruments, most notably the
Mental Illness principles of 1991: see, eg, J. Lord, D. Suozzi and A. Taylor, ‘Lessons from the
the Democratic Def‌icit in Global Health Governance’ (2010) Journal of Law,Medicine & Ethics 564,
576; A. Dhanda,‘Constr ucting a New Human Rights Lexicon: Convention on the Rights of
Persons with Disabilities’ (2008) 8 International Journal on Human Rights 43, 45 (available on open
access at http://www.surjournal.org (last visited 22 May 2012)); UN High Commissioner for
Human Rights, Annual Report A/HRC/10/48 (26 January 2009) at [48].
Peter Bartlett
© 2012 TheAuthor.The Moder n Law Review© 2012 The Modern Law Review Limited. 753
(2012) 75(5) MLR 752–778

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