HUMAN RIGHTS AND LAW

Soumitra Pathare, Kunal Kala, Alok Sarin

Soumitra Pathare,MBBS, DPM, MD (Psychiatry), MRCPsych

Consultant PsychiatristRuby Hall Clinic, Pune, India

&Co-ordinator

Centre for Mental Health Law and PolicyIndian Law Society, Pune India

Kunal Kala,MBBS MSc MRCPsych

Consultant PsychiatristAlpha Hospitals NW Limited

Buller StreetBury

BL8 2BS

Alok SarinMBBS, MD (Psychiatry),Consultant Psychiatrist,

Sitaram Bhartia Institute, &Senior Fellow,

Nehru Memorial Museum & Library,Teen Murti House,

New Delhi.

INTRODUCTION

Human rights are basic rights and freedoms based on principles of

equality, autonomy and dignity that all human beings, including

persons with mental disorders, are entitled to by virtue of being

human; these rights cannot be taken away from people and have been

enshrined in a number of formal international declarations and

national legislations.

Persons with mental disorders (PWMD) are a vulnerable section of

society and are subject to many human rights violations. Stigma

against mental disorders has been a prominent feature and remains

evident all over the world. Historically, PWMD have been subject to

derogatory and critical attitudes. In the past, legislation has

focused on safeguarding members of the public from “dangerous and

violent” patients, thereby isolating them from society. In some parts

of the world mental disorders are believed to be caused by ‘spirits’

and patients have been subject to beatings to ‘exorcise’ them, or

have them be chained at religious sites in the anticipation of a

faith cure. Due to these misconceptions PWMD are subject to abuse,

discrimination and social exclusion leading to an unfair denial of

opportunities such as employment, appropriate housing, social

benefits and civil rights for example, the rights to marry, have a

family, vote and own property. In addition, PWMD in psychiatric

institutions and in the community suffer inadequate, degrading and

harmful care and treatment and incidents of physical, psychological

and sexual abuse; it is likely these incidents are under-reported

(National Human Rights Commission, 1999). Although regional

variations exist, degrading treatment and abuse happens in all

countries. A recent BBC undercover documentary revealed widespread

emotional and physical abuse in a care-home for persons with learning

disabilities (BBC News UK, 2011; http://www.bbc.co.uk/news/uk-

13548222) in the UK. In some parts of the world these abuses happen

due to limited resources, but more importantly, in all countries a

lack of political will to address these human rights violations is a

major reason for their continuance.

There are a number of international and regional frameworks that

oblige governments to protect, promote and fulfill the rights of all

persons, including those with mental disorders. Governments have a

responsibility to refrain from infringing rights, prevent violations

by others, and ensure that legislative, judicial and administrative

budgetary measures make available the resources to promote human

rights of persons with mental disorders.

INTERACTION BETWEEN HUMAN RIGHTS AND MENTAL HEALTH

Three main relationships between mental health and human rights have

been described (Gostin 2000): mental health legislation and policy

affects the human rights of patients with mental health problems,

human rights violations adversely affect mental health, and promotion

of mental health and human rights are mutually reinforcing.

Mental health legislation, policies, and programs can lead to

practice that violates the human rights of patients. Mental health

legislation allows professionals to detain PWMD in hospitals and

administer treatment without consent. Although this is justified on

the principle of beneficence, the absence of procedural protections

can lead to human rights violations. Rights violations are

particularly prominent in societies where patients with mental

disorders are viewed as dangerous and violent from whom society needs

to be protected, an objective which is contingent on restriction of

human rights and coercion.

Human rights violations have an adverse impact on mental health; this

is true not just for extreme forms of human rights violations such as

rape, torture, genocide, but also for more insidious violations such

as discrimination and invasion of privacy. Due to discrimination,

lack of available services and limited opportunities, people with

mental disorders may be disproportionately represented in socially

deprived segments of the society. There is a complex relationship

between mental health and poverty. Poverty has been defined as having

insufficient means, including a lack of social and educational

resources (World Health Organization Report 2001). Restrictions in

human rights, such as discrimination, denial of appropriate

employment and other social opportunities can lead to increased risk

of poverty in PWMD. Social exclusion is a relatively new concept

which refers to the extent to which individuals are unable to

participate in key areas of economic, social and cultural life, with

an emphasis on non-participation arising from constraint rather than

choice (Boardman et al 2010).

Finally, there is a mutually reinforcing relationship between human

rights and mental health and both can collaboratively contribute

towards improving the quality of life of persons with mental

disorders and allow them to participate and engage in political and

social life. Promoting mental health allows people to make the most

of the rights that may be available to them, and promoting human

rights is indispensable to provide security, protect from harm, and

promote mental health well being. It has been suggested that a lack

of information and knowledge about human rights can have a negative

effect on rights and provision of mental health services, and that

human rights education can play a significant role in reversing this

situation (Rantala et al, 2010).

Rights based legalism is a term used to describe the process of

devising mental health laws with reference to rights of persons with

mental illness in their provisions. Rights based mental health laws

have been the focus of some research (McSherry & Weller 2010), and

conceptualized as a continuum with individual liberty and autonomy at

one end, to public protection at the other.

INTERNATIONAL HUMAN RIGHTS SYSTEMS

Human rights is the only source of law that makes it possible to

carry out international scrutiny of mental health policies in a

sovereign country; and the fundamental protections afforded by

international human rights law cannot be taken away by the political

process (Gostin & Gable 2004). All international human rights

frameworks apply to PWMD, because they apply to everyone, although

certain instruments make specific reference to PWMD.

International instruments can be divided into legally binding

treaties and non-binding UN standards

a. Internationally binding Conventions and Treaties - they are

binding on countries that have signed and ratified these

Conventions and Treaties.

The International Bill of Rights consists of three major

international human rights instruments. The United Nations

Declaration of Human Rights (UDHR), which was adopted 1984

establishes basic human rights for all humans, including those of

equality, dignity and freedom from torture and cruel, inhuman or

degrading treatment. It also enshrines a right to education,

employment and participation in society. Over years, the UDHR has

come to be regarded as a legally binding instrument on countries and

part of customary international human rights law. The other two

International Covenants: the International Covenant on Civil and

Political Rights (ICCPR) and the International Covenant on Economic

Social and Cultural Rights (ICESCR), were both adopted in 1966 and

entered into force the following year. The ICESCR and ICCPR

corroborate and expand on the same rights found in the UDHR. They

also make special reference to PWMD, for instance Article 12(1) of

the ICESCR of the Covenant recognizes the right of everyone to the

enjoyment of the highest attainable standard of physical and mental

health. Although the three documents are not specifically directed at

PWMD, they are applicable to all human beings and therefore provide

protection of rights of PWMD.

The Convention on Rights of Persons with Disabilities (CRPD) is the

most authoritative human rights instrument aimed at persons with

disabilities. The CRPD includes PWMD as persons with disabilities and

makes them beneficiaries of the Convention based rights. It marks a

paradigm shift in the approach from persons with disabilities being

viewed from a social welfare perspective, as “objects” that require

charity and protection, to a human rights approach as “subjects” with

effective and enforceable rights. The Convention was enthusiastically

adopted and received the highest number of signatories for any human

rights treaty at its opening ceremony in March 2007. The CRPD was

established not to ‘create’ any new rights, but as an implementation

convention, that allows for existing rights to be enforced. It is

suggested that the CRPD has transformative potential for the lives of

the world’s largest minority and is a crucial facilitator of the

disability rights agenda (Kayess & French 2008). The CRPD outlines

rights of persons with disabilities as well as the obligation of

countries (referred to as State Parties in the Convention) to protect

and promote these rights. In addition to preventing violations of

rights, the CRPD requires governments to promote access to health

care and promote social integration.

Other conventions that have relevance for PWMD include the Convention

against Torture (1984), Convention on Elimination of All Forms of

Discrimination against Women (CEDAW, 1979) and Convention on the

Rights of the Child (1989).

The legally binding UN Conventions also have Treaty Monitoring

Bodies. The Committee on Economic, Social and Cultural Rights

oversees the ICESCR, the Human Rights Committee oversees the ICCPR,

and the CRPD will be monitored by the Committee on the Rights of

Persons with Disabilities. Governments that ratify the covenants and

conventions agree to submit regular progress reports to the treaty

bodies outlining steps that they have taken to implement the

convention – through changes in legislation, policy, or practice.

Non-governmental organizations can also submit information for review

by supervisory bodies. Supervisory bodies review both the official

and non-governmental reports and publish their findings, which may

include a determination that governments have not met their

international obligations under the convention. The international

supervisory and reporting process thus provides an opportunity to

educate the public about a specialized area of rights. This process

can also be a powerful way to pressure governments to realize

convention-based rights.

b) Non-binding UN standards

There are international instruments addressing the rights of persons

with disabilities and PWMD, which although not legally binding,

represent a consensus of opinion and can assist in interpreting

binding conventions and treaties.

UN Principles for the Protection of Persons with Mental Illness and

the Improvement of Mental Health Care (1991) (commonly referred to

as MI Principles) – Before the CRPD, the MI Principles were the most

authoritative statement of the human rights of PWMD. The MI

Principles, adopted in 1991 recognize the enjoyment of the highest

attainable standard of physical and mental health as the right of

every human being. The MI Principles highlight standards of care and

treatment, right to treatment, right to consent to treatment,

treatment of minors, treatment of mentally disordered offenders,

review of informal/involuntary admissions, access to medical

information and monitoring of abuses. Due to inherent problems of

psychiatric institutions, treatment in the community and primary care

settings is recommended. The CRPD is a legally binding convention

whereas the MI Principles is UN General Assembly resolution and hence

the CRPD over-rides and supersedes the MI Principles. If there is a

conflict between the two instruments, the CRPD based rights will

over-ride any restriction of rights in the MI Principles. The

articles that are in agreement in both documents allow an in-depth

understanding of the human rights of PWMD.

Standard Rules of the Equalization of Opportunities for Persons with

Disabilities (Standard Rules, 1993) – Although not a legally binding

instrument, the Standard Rules represent moral and political

commitment of governments to achieve equalization of opportunities

for persons with disabilities. They serve as a basis for policy

making, and technical and economic cooperation. The 22 rules

concerning disabled persons consists of four chapters - preconditions

for equal participation, target areas for equal participation,

implementation measures, and the monitoring mechanism; the standards

cover all aspects of life of disabled persons.

c) Technical Standards:

In addition to these UN human rights standards, UN agencies, world

conferences, and professional groups have adopted a range of

technical guidelines and policy statements. These can be a valuable

source of interpretation of international human rights conventions.

As these pre-date the CRPD, they may not always be in agreement with

the provisions of the CRPD; where there is conflict, the CRPD will

supersede.

The Declaration of Caracas (1990) concluded that outdated services

are over-reliant on inpatient psychiatric treatment and isolate

patients from their natural environment. The Declaration promotes

restructuring of existing services and an increase in community-based

mental health services. It states that mental health legislation must

safeguard human rights of PWMD and services should be configured such

that those rights are enforced.

The Declaration of Madrid (1996), adopted by the World Psychiatric

Association (WPA), includes guidelines on standards on professional

behaviour and practice. The Declaration insists on treatment based on

partnership with PWMD, and that involuntary treatment should only be

used in exceptional circumstances. The Declaration of Madrid revised

the ethical guidelines for practicing psychiatry originally outlined

in the Declaration of Hawaii (1983), which was approved by the WPA in

1977.

The Mental Health Care Law: Ten Basic Principles were developed by

the WHO in 1996; these allow for further interpretation of the MI

Principles and act as a guide for countries developing mental health

laws. The Ten Basic Principles are:

1. Promotion of Mental Health and Prevention of Mental Disorders

2. Access to Basic Mental Health Care

3. Mental Health Assessments in Accordance with Internationally

Accepted Principles

4. Provision of the Least Restrictive Type of Mental Health Care

5. Self-Determination

6. Right to be Assisted in the Exercise of Self-Determination

7. Availability of Review Procedure

8. Automatic Periodical Review Mechanism

9. Qualified Decision-Maker

10. Respect of the Rule of Law

d) Role of Special Rapporteurs

The UN Human Rights Commission, which had attracted criticism for

being bureaucratic and ineffective, was replaced by the UN Human

Rights Council in 2006. The Human Rights Council retains the

appointments of Special Rapporteurs, and other independent experts

and working groups to monitor and report on thematic human rights

issues. In 2002 a Special Rapporteur on the right of everyone to the

enjoyment of the highest attainable standard of physical and mental

health was appointed. The Special Rapporteur has observed

discrepancies between international and domestic human rights

obligations and ground realities. The Special Rapporteur on

Disability relates to the implementation of the CRPD.

e) Regional human rights systems

In addition to the above international instruments, there are a

number of regional systems, in Africa (The African Charter on Human

and People’s Rights), America (The Inter-American Convention on the

Elimination of all forms of discrimination against persons with

disabilities) and Europe (European Convention on human Rights).

f) Key Rights Protected in the International Human Rights Documents

Right to Highest Attainable Standard of Physical and Mental Health -

Article 12 ICESCR establishes “the right of everyone to the enjoyment

of the highest standard of physical and mental health”; Article 25 of

the CRPD expands this to: “persons with disabilities have the right

to the enjoyment of the highest attainable standard of health without

discrimination on the basis of disability”. The CRPD and the MI

Principles support the right of PWMD to individualized treatment,

which must also take into account preferences of the individual who

receives treatment.

Right to health can be upheld by ensuring access to appropriate

professional services of good quality. The CRPD makes it contingent

on governments to ensure that services are gender sensitive, aimed at

early identification and intervention, designed to minimize further

disabilities, and led by a multidisciplinary assessment of individual

assessment of individual strengths. MI Principle 9(2) states that

every patient’s treatment should be based on an individually

prescribed plan discussed with the patient, reviewed regularly by a

multidisciplinary team. Under MI Principle 9(1) every individual has

the right to be treated in the least restrictive environment and

Principle 9(4) requires that the treatment of every patient be

directed towards preserving and enhancing personal autonomy.

Article 26 of the CRPD makes it obligatory on States to undertake

measures that maximize the physical, mental, social and vocational

ability thus promoting autonomy. This raises expectations of

comprehensive community services above and beyond inpatient custodial

care. A lack of community services can lead to unnecessary and

prolonged hospitalization. Article 19 recognizes rights of persons

with disabilities to live in the community, receive treatment at

home, supported by professionals in order to maximize social

inclusion.

Legal capacity is fundamental to many of the rights guaranteed under

the CRPD. Article 12 states that people with disabilities have the

right to recognition everywhere as persons with rights and

responsibilities before the law. The Annual Report of the UN High

Commissioner for Human Rights (Human Rights Council A/HRC/10/48,

2009) asserts that having full legal responsibility is incompatible

with current legislation surrounding guardianship, under which

persons with "mental impairments" (this includes persons with mental

disorders) can be declared ‘incapable’ and a guardian who makes

decisions on their behalf, can be appointed by the Court. Instead it

is recommended that persons with disabilities are supported to make

and communicate personal and legal decisions. Regarding criminal law,

the UN High Commissioner for Human Rights goes even further, and

suggests that for PWMD in criminal cases, legal defence based on

negation of criminal responsibility should be abolished.

Alternatively ‘disability-neutral’ doctrines could take into

consideration the subjective element of the crime and the defendant’s

situation. This interpretation of the CRPD and legal capacity is not

as yet, generally accepted. The CRPD is a new Convention and it will

take some time for agreed interpretations to emerge. The Committee of

the Rights of Persons with Disabilities (which is the treaty

monitoring body) is expected to issue guidance on interpretation of

various articles of the Convention in coming years. The proposals

therefore that PWMD will retain full responsibility for a criminal

offence, and the practical implications of such a significant shift

remains to be seen.

The CRPD makes it absolutely clear that individuals with disabilities

must be granted the right to liberty and security on an equal basis

with others, and that the existence of a disability shall in no case

justify a deprivation of liberty (Article 14.1 CRPD). Detention must

be carried out in compliance with laws and procedural protections

along with timely independent reviews of the detention.

Article 5.2 of the CRPD prohibits State parties all discrimination on

the basis of disability. This includes any distinction, exclusion or

restriction on the basis of disability, which can impair the

recognition or exercise of all human rights ad fundamental freedoms.

The Right to protection from torture and cruel, inhuman and degrading

treatment, supported by the ICCPR (Article 7) and CRPD (Article

15.1), is a “non-derogable” provision i.e. it can never be limited,

even at times of a national emergency. Any form of abuse, including

forced labour by PWMD constitutes inhuman or degrading treatment. Any

form of research undertaken on PWMD must ensure that participants

provide free informed consent based on a full disclosure of the risks

and benefits (Article 15.1 CRPD). Interventions such as seclusion and

restraint must only be used to prevent immediate or imminent harm to

the patient or others, and not prolonged beyond the period which is

strictly necessary for this purpose (MI Principle 11).

The Right to privacy is protected by the CRPD (Article 22), which

states that persons with disabilities must not be subjected to

arbitrary, or unlawful interference with their privacy, home,

correspondence, or other types of communication.

THE INDIAN SCENARIO

The National Human Rights Commission (NHRC) project on quality

assurance in mental health (1997) revealed an inadequate physical

infrastructure and living arrangements with gross violations of

rights to respect, privacy and dignity. There was a shortage of

suitable professionals, and an over-reliance on custodial care and

medical treatment, with psychosocial interventions being almost

nonexistent. There was a lack of awareness of human rights and lack

of uniform compliance with the Mental Health Act 1987 (Nagaraja &

Murthy 2008).

This project led to some States beginning to implement the

recommendations; however the real impetus for change did not arrive

until after the Erwady tragedy. On 6th August 2001, in Erwady in the

Ramanathapuram district of Tamil Nadu, a fire killed 26 patients with

mental illness who were chained under a thatched shed. The Supreme

Court took suo moto notice of the incident with a number of public

interest litigations, notices were issued to survey all places where

PWMD may be held in the country, and an assessment of the mental

health needs of each State was commissioned. The Court also directed

that the NHRC recommendations should be implemented, and directed

both Central and State governments to undertake comprehensive

awareness campaigns to educate the public about the rights of PWMD,

that ‘chaining’ of PWMD is illegal and that patients should receive

medical treatment and not sent to religious places such as temples

and dargahs. The NHRC had been involved in investigating reports that

patients were being chained at another dargah in Goripalayam, about

120 kms away from Erwadi, in Tamil Nadu, between 1998 and 2001. In

January 2001, the NHRC had forwarded the findings of a committee

headed by Dr KS Mani of Bangalore, who had recommended that patients

should not be chained, and was awaiting a response from the Tamil

Nadu government when the Erwadi tragedy occurred. Reports suggest

that there have been similar places that have cropped up in this

particular region again in recent times.

Post Erwadi, there have been improvements in the physical

infrastructure of mental hospitals and basic minimum comforts are now

provided. Improvements in funding structures (separate budgets for

psychiatric hospitals) and greater investment by the government

appears to be been the main driving force. Laboratory facilities and

availability of medications has improved, however there remains a

shortage of appropriate trained mental health professionals. Mental

health services are human resource intensive (the average budgetary

spend of the hospitals surveyed was 67% on salaries); therefore this

core need remains unmet. Specialist services such as those for

children, older adults and forensic mental health services remain

almost non-existent. Community services are also sporadic, and there

remains a lack of comprehensive community services that could serve

to prevent or reduce the duration of inpatient hospitalization.

NECESSITY OF MENTAL HEALTH (MH) LEGISLATION - PROTECTING, PROMOTING

AND IMPROVING RIGHTS THROUGH MENTAL HEALTH LEGISLATION

Due to their vulnerability, PWMD and their rights need to be

protected in treatment settings. Further, legislation is needed to

protect them from such stigma and discrimination in the community.

Rights based MH legislation is a valuable tool to prevent the types

of human rights violations that PWMD have suffered in the past and

continue to experience today.

Discrimination can interfere in people accessing not just education,

employment, shelter but also psychiatric services. In the absence of

legislation that actively promotes integration and prevent

discrimination, PWMD experience unnecessary barriers in their ability

to be able to maximize their potential for habilitation, and

integration in the community. Article 26 ICCPR not only prohibits

discrimination, but guarantees everyone equal and effective

protection against discrimination on any ground such as race, colour,

sex, language, religion, political or other opinion, national or

social origin, property, birth or other status.

Cost is a significant factor in delivering good quality care. The

economic impact of mental disorders includes direct (health and

social care needs) and indirect costs (lost employment, reduced

productivity). Direct costs may be low in countries where services

are limited; however this lower direct cost results in a

counterproductive increase in the indirect costs by increasing the

duration of untreated disorders (WHO Report 2001). In many countries

medical insurance excludes cover for mental disorders, counting them

under “pre-existing” conditions. This is discriminatory and can be

dealt rapidly and effectively by legislative reform. The United

States tackled this by the Mental Health Parity Act of 1996, which

was expanded by the Paul Wellstone Mental Health and Addiction Equity

Act 2008, to ensure that mental illness is ‘treated’ no differently

than physical illness. These reforms required that the deductibles,

co-payments and out-of-pocket expenses for mental health and

addiction services be no more stringent that those applied to medical

and surgical services. Better access to treatment for mental

disorders and addictions will lead to an improvement in the economic

productivity of the country and reduce the indirect costs of mental

disorders.

MH Legislation can promote autonomy by ensuring mental health

services are accessible, promote informal/voluntary treatment,

establish clear objective criteria for involuntary hospital

admissions and establish procedures for regular independent reviews

of patients detained in hospital. Family and carers can play a vital

role in the treatment and rehabilitation of PWMD, and legislation can

formalize their role so that supportive structures can be promoted.

For instance the “nearest relative” provisions within the UK mental

health legislation, the Mental Health Act 1983 (as amended 2007)

provide for a structure to nominate a family member (“nearest

relative”) to play an active role in their relatives’ treatment; this

includes making an application to discharge a patient against medical

advice (Section 26 MHA 1983).

PWMD are overrepresented in prisons all over the world. Inadequate

services in the community can result in patients being

inappropriately detained in prisons for minor misdemeanours, petty

criminal behaviour and acts of public disturbance, when they require

treatment for their mental disorder. Lack of meaningful services in

prisons, and the absence of a diversionary system (one that diverts

PWMD away from the Criminal Justice System and into healthcare when

appropriate) results in a situation where significant morbidity goes

unnoticed, undiagnosed and untreated (WHO and ICRC Information Sheet

on Mental Health and Prisons, 2005).

Mental health services, especially good quality inpatient services,

and comprehensive community services are lacking in many parts of the

world. Legislation can support policies aimed at reducing

inappropriate institutionalization, and support the development of

community treatment to allow PWMD to integrate better in the

community.

SUBSTANTIVE CONTENT OF MENTAL HEALTH AND RELATED LEGISLATION

a) Mental health legislation

Mental health legislation covers a number of areas, which are

typically addressed in different sections. A preamble or

introduction, together with the purpose and objective can assist

courts to interpret legislative provisions when there is ambiguity in

the substantive provisions. A section on definitions can provide

meanings of the terms in the statute; different laws have described

common terms such as mental illness, mental disorder, mental

incapacity and unsoundness of mind. There are advantages and

disadvantages of relying on different terms, for instance, a narrowly

defined term such as ‘mental illness’ is well defined and easily

understood by stakeholders, but can reinforce the medical model; a

broader term such as ‘mental disability’ is useful for positive

protection of rights, however it can result in more people being

subject to involuntary treatment. It has been suggested that

legislation may use a broader definition when dealing with rights and

a narrower definition when considering involuntary admission and

treatment (WHO Resource Book on Mental Health 2005).

Principle 1 (Fundamental freedoms and basic rights) and Principle 8

(Standards of care) of the MI Principles are concerned with access to

high quality care. Although legislation does not directly address

funding, it can do so indirectly. A country’s resources will

determine the level of services that can be established; however

legislation can in the least ensure that PWMD receive equitable

services compared to services for medical conditions. In many

countries standards of mental health care lag behind that for

physical health care. Mental health legislation can make additional

funding available; it can redirect funding from pre-existing

structures resulting in a re-organization of services. Legislation

can also be the impetus for establishment of statutory bodies, such

as a mental health review board/tribunal.

Legislation can influence the type of services that are developed in

a region. By promoting the principle that PWMD should receive

treatment in the least restrictive environment, legislation can

assist in developing community-based services and reduce the over-

reliance on custodial and institutional care.

An important area that MH legislation needs to address is that of

mental capacity. Although there is a tendency to use the terms

“capacity” and “competence” interchangeably, capacity is the presence

of the mental abilities to make decisions or engage in a course of

action, whereas competence refers to the legal consequence of not

having capacity. Capacity is therefore a medical concept, related to

individual levels of functioning and competence is related to their

impact on legal and social standing. Capacity is assessed as being

decision and time specific, therefore a person is said to be

incapable of making specific types of decisions at a specific time.

Consent to treatment can be a contentious area in mental health. MI

Principle 11(1) states that no treatment shall be given to patient

without his or her informed consent. According to the MI principles,

the person providing consent must be competent to do so (competence

is assumed unless there is evidence to the contrary), consent must be

provided after adequate information has been provided and alternative

choices have been offered. In order for consent to be valid, it must

be voluntary (provided freely, without any coercion) and continuous

(if the person withdraws the consent, treatment must be

discontinued).

Admission to hospital can be with the free consent

(voluntary/informal) or without consent (informal/involuntary). MI

Principles (16.1,16.3) state that involuntary admission to a mental

health facility must be contingent on two qualified mental health

practitioners certifying the presence of not only a mental illness

(or disorder), but also demonstrate that there is a serious

likelihood of immediate or imminent harm, and that failure to admit

will result in a serious deterioration.

Involuntary admission should be for a brief period, as specified by

domestic legislation for observation and preliminary treatment,

pending review of the admission by an independent review body - MI

Principle 16(2). In order for on-going involuntary admission to be

compliant with human rights legislation and principles, most

countries rely on independent authorities such as a review body,

tribunal, or a court, which can either confirm the decision and

management plan of the treating professionals, or discharge the

patient. Patients and their families should be informed the reasons

of the involuntary admission, and their rights, which includes the

right of the patient/family member/legal representative to appeal

against involuntary admission. Finally, patients should be discharged

from involuntary admission when they no longer fulfill the criteria

for involuntary admission; this may be followed by a period of

voluntary treatment as an inpatient if necessary.

Treatment in the community is not synonymous with voluntary

treatment; in some parts of the world there are provisions that allow

for compulsory treatment for PWMD in the community. Involuntary

community treatment should be considered as an alternative to

involuntary inpatient care, rather than voluntary community care. In

the UK, the 2007 amendments to the Mental Health Act introduced

provisions for supervised community treatment and community treatment

orders (CTO). A CTO can require PWMD in the community to reside at a

specific residence, attend out-patient follow-up, comply with

medication, and comply with a variety of other conditions. These

types of coercive strategies have traditionally only been available

to professionals in inpatient settings. There are human rights

concerns with respect to CTOs (Khurmi, S & Curtice, M 2010); on one

hand they can help support patients to be discharged from inpatient

care and live in the community, thus promoting their right to live in

the community and improve social inclusion, on the other hand if used

inappropriately or include harsh restrictive conditions, they can

restrict rights and impair well-being. CTOs are most effective in

countries where well developed community based mental health services

are in existence. In the absence of community based services, CTOs

can quickly degenerate into institutionalization in the community.

PWMD have the same right to confidentiality as sufferers of any

disorder; information about their medical treatment should not be

revealed to anyone without their consent. Professionals are bound by

a code of conduct and have a duty to prevent any breaches of

confidentiality. Legislation can preserve the right to

confidentiality by imposing sanctions and penalties for unjustifiable

breaches, and specify circumstances under which it may be appropriate

to breach confidentiality (for instance on grounds on risk) and

provide guidelines on how this should be undertaken, documented and

monitored. It can also ensure that PWMD or their representatives have

the right to ask for a judicial review or appeal a decision to breach

confidentiality.

The MI Principles 19(1) and (2) & the ICCPR (Article 19) support the

right of PWMD to free and full access to their clinical information.

This right may be restricted in exceptional circumstances if

revealing the information may put the safety of others at risk or

cause serious harm to that patients’ health. Legislation may outline

the procedures for PWMD, or their personal or legal representatives

to make an application to access their information, and set out

circumstances in which professionals may withhold partial records

(based on grounds of risk).

PWMD can have an impact on people around them including their

immediate family and carers, who often assume significant

responsibility for their health and social care needs. Families often

have a wealth of useful information about patients and can contribute

to the formulation and implementation of treatment plans. Involving

families in the treatment can improve outcomes, although the

involvement of families needs to be balanced against the right to

confidentiality. It is therefore imperative that legislation formally

recognizes the role of families and carers, sets out guidelines for

their involvement in key decisions, such as involuntary admission and

treatment, so that the patients’ wishes can be respected. Legislation

can ensure that families and carers have access to appropriate

information, support and resources to care for PWMD. Involving

families and carers can also play an invaluable role in the

development of mental health policy and legislation.

Appropriate and comprehensive legislation is needed to allow for the

transfer of patients from the criminal justice system to the mental

health care system at various stages of the criminal proceedings

(arrest, charges pressed, trial, sentencing, serving a sentence in

prison). This will aid the detection, prevention and proper treatment

of mentally disordered offenders (WHO and ICRC Information Sheet on

Mental Health and Prisons, 2005).

Legislation has a role to play at various stages of the criminal

proceedings. At the pre-trial stage, legislation or regulation can

assist in deciding whether a person should progress along the

criminal justice system or the healthcare system. At the trial stage,

it is important for the PWMD to be able to effectively and

meaningfully participate in the trial proceedings. This requires an

assessment of whether they can understand the nature and object of

the proceedings, understand the consequences of the proceedings, and

communicate with legal counsel. At trial, the lack of a demonstrable

mens rea points towards at least limited criminal responsibility. PWMD

who have received a conviction may be suitable for a hospital order

in which a Court directs the PWMD to compulsory treatment in a

forensic/secure unit instead of awarding a prison sentence. A

sentenced prisoner who develops a mental disorder should receive

treatment in an appropriate psychiatric facility, as prison is not a

therapeutic environment, and prisoners with mental disorders are

often victimized.

b) Other legislation impacting on mental health

In addition to specific mental health legislation, there are other

areas where legislation can improve the mental health of PWMD and

assist in enforcing their rights. Legislation for subsidized housing

or supported accommodation to provide protection and support for PWMD

in education and employment will ensure that PWMD do not suffer

discrimination or exploitation.

Affirmative Action, the practice of taking positive steps taken to

enhance the status of certain minorities such as people with

disabilities, to correct past injustices is supported by the ICCPR

and the CRPD. Therefore, practices such as quotas designed to

increase the representation of disabled persons in the workplace, are

not prohibited by international law.

PWMD retain the right to exercise all civil, political, economic,

social and cultural rights as recognized in the UDHR, ICESCR, ICCPR

and CRPD. In order for them to be able to exercise these rights,

civil legislation must support them being able to vote, marry, have

children, own property, work, study/education, and choose their place

of residence. They also have the right to health, a fair trial,

engage in financial transactions, and have the freedom to practice

religion they want.

INTERFACE BETWEEN POLICY AND LEGISLATION

Mental health policy and law are intertwined. A comprehensive mental

health policy will address many of the gaps in promoting the mental

health and rights of PWMD by improving access to quality mental

health care by promoting establishment of high quality mental health

services, protect rights, including the right to treatment and

develop robust procedural protections for involuntary treatment.

Policy can also help fight against stigma by promoting awareness and

education about mental disorders, treatment options and reduce

discrimination against PWMD. A policy that undertakes the

establishment of widespread community services can improve

integration of PWMD in society and promote mental health for

everyone.

Mental health law can provide legislative backing and provide a

framework to key components of a mental health policy. Legislation

can establish a system of enforceable rights that protects persons

with mental disorders from discrimination and other human rights

violations by government and private entities, and guarantees fair

and equal treatment in all areas of life. For instance, mental health

legislation which supports the treatment of PWMD being carried out in

the least restrictive setting, perhaps delivered in the person’s own

home or community can encourage the development of community

services. Consequently, the lack of specific legislation supporting

community services can prevent the development of such services

leading contributing to further institutionalization, social

exclusion and stigma.

Policy and legislation are two complementary approaches for improving

mental health care and services; but unless there is also political

will, adequate resources, appropriately functioning institutions,

community support services and most of all, well-trained personnel,

the best policy and legislation will be of little significance.

CONCLUSION

PWMD remain marginalized by society due to lack of progressive

legislation, policies, and political will. All these result in

services that propagate negative stigmatizing attitudes towards

patients and limit their ability to exercise their rights. The CRPD

re-iterates many of the rights previously expressed in international

UN instruments, but does so with a paradigm shift in the way

disabilities are viewed, suggesting that persons with disabilities

are subjects with rights.

The processes that drive change are another area of interest. The

understanding of what human rights are, particularly in specific

situations like mental illness are largely guided both by

international understanding and by specific societal constructs. The

debate between what constitutes personal autonomy and how important

societal and familial interdependence is, will necessarily be

negotiated and resolved differently by different societies. The

otherAnother important aspect of the present legislation and policy

debate both in India and internationally, is the extent to which this

has now become a participative and consultative process. In it’s

present form, it is characterized by suggestion, comment, criticism

and often resistance from the various stakeholders who are involved

in the process. While this may sometimes delay the process and even

make it more fractious, it can also hopefully lead to a more

inclusive way forward.

REFERENCES

1. Annual Report of the United Nations High Commissioner for HumanRights and reports of the office of the High Commissioner and theSecretary-General: Human Rights Council A/HRC/10/48, 26 January2009

2. BBC News UK: Four arrests after patient abuse caught on film.(online). 1st June 2011. Available from: http://www.bbc.co.uk/news/uk-13548222.

3. Boardman J, Currie A, Killaspy H, Mezey G: Social Inclusion andMental Health. London, Royal College of Psychiatrists, 2010.

4. Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment orPunishment. United Nations General Assembly resolution 39/46 of 10th

December 1984: Entered into force 26 June 1987, in accordance witharticle 27(1).(http://untreaty.un.org/cod/avl/ha/catcidtp/catcidtp.html)

5. Convention on the Elimination of All Forms of Discrimination Against Women: Adoptedby United Nations General Assembly resolution 34/180, of 18December 1979. (http://www.un.org/womenwatch/daw/cedaw/)

6. Convention on the Rights of the Child: Adopted by United Nations GeneralAssembly resolution 44/25 of 20 November, 1989. Entry into force2nd September 1990, in accordance with article 49.(http://www2.ohchr.org/english/law/crc.htm)

7. Declaration of Caracas: Adopted on 14 November 1990 by the RegionalConference on the Restructuring of Psychiatric Care in LatinAmerica, convened in Caracas, Venezuela, by the Pan AmericanHealth Organization/WHO Regional Office for the Americas, 1990.(https://apps.who.int/whr/2001/main/en/boxes/box3.3.htm)

8. Declaration of Madrid: Approved by the General Assembly of the WorldPsychiatric Association on 25 August 1996 and amended by theGeneral Assembly in Yokohama, Japan in August 2002.(http://www.wpanet.org/detail.php?section_id=5&content_id=48 )

3

9. Declaration of Hawaii: Approved by the General Assembly of the WorldPsychiatric Association in Vienna, Austria on 10 July 1983.(http://www.wpanet.org/generalinfo/ethic5.html)

10. Gostin LO: Human Rights of Persons with Mental Disabilities.International Journal of Law and Psychiatry 2000; 23:125-159.

11. Gostin L, Gable L: The Human Rights of Persons with MentalDisabilities: A Global Perspective on the Application of HumanRights Principles to Mental Health. Maryland Law Review 2004; 63:20 - 121

12. Kayess R, French P: Out of the Darkness into Light? Introducingthe Convention on the Rights of Persons with Disabilities. HumanRights Law Review 2008; 8: 1-34.

13. Khurmi S, Curtice M: The Supervised Community Treatment and theHuman Rights Act 1998. Advances in Psychiatric Treatment 2010; 16:263-271.

14. McSherry B, Weller P: Rethinking Rights-Based Mental HealthLaws. Oregon, Hart Publishing, Oxford and Portland, 2010.

15. Mental Health Act 1983 (as amended 2007) accessed fromwww.legislation.gov.uk

16. Nagaraja D, Murthy P: Mental Health Care and Human Rights.Bangalore, National Human Rights Commission and National Instituteof Mental Health and Neurosciences, 2008.

17. National Human Rights Commission. Quality assurance in mentalhealth. New Delhi, National Human Rights Commission, 1999.

18. Principles for the Protection of Persons with Mental Illness andthe Improvement of Mental Health Care. UN General AssemblyResolution 46/119 of 17 December 1991 (MI Principles).

19. Rantala RE, Drew N, Pathare S, Funk M: Right to health througheducation: Mental Health and Human Rights. Human Rights Educationin Asia-Pacific, 2010. Available at:http://www.searo.who.int/LinkFiles/Health_and_Human_Rights_-

3

_HHR_WHO_mental_health.pdf

20. The World Health Report: Mental Health: New Understanding, NewHope. Geneva, World Health Organization, 2001.

21. Universal Declaration of Human Rights: Adopted by UN GeneralAssembly Resolution 217 A (III) 0f 10 December 1948 (UDHR).http://www.unesco.org/shs/human_rights/hrbc.htm

22. WHO and ICRC Information Sheet on Mental Health and Prisons:Available from:http://www.euro.who.int/__data/assets/pdf_file/0007/98989/WHO_ICRC_InfoSht_MNH_Prisons.pdf, 2005.

23. WHO Resource Book on Mental Health, Human Rights andLegislation. Geneva, World Health Organization, 2005.

3