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Change and Continuity in Mental Health Law: the Long Road to the United Nations Convention on the Rights of Persons with Disabilities and its Implications for Mental Health and the Law Today

Piers Gooding [1]

ABSTRACT

This article will provide a brief historical background to mental health law in order to gain a greater sense of the significance of international human rights law to civil commitment legislation today. Historical context will help to identify the purpose and objectives of mental health law, which in turn assist in weighing into the major debates currently underway. The United Nations Convention on the Rights of Persons with Disability (CRPD), in particular, has brought major changes to the way mental health law is understood, including strengthening longstanding critiques, and adding novel critical perspectives. Three 'eras' of mental health law are examined: the pre-modern origins of mental health law and 19th century regulation; the 'medicalising' shift of the 20th century; and deinstitutionalisation and 'rights-based legalism'. These distinct periods of thought will help to critically assess what appears to be a new reform era in which international human rights law will set a new agenda for transforming or even abolishing mental health law as it currently stands.

KEY WORDS: mental health law - non-discrimination - United Nations Convention on the Rights of Persons with Disability - history - mental health policy

1. Introduction

Major issues have been raised regarding mental health law since the coming into force of the United Nations Convention on the Rights of Persons with Disabilities (CRPD). [2] The United Nations Committee on the Rights of Persons with Disabilities (CRPD Committee), for example, who is authorised under Article 34 of the CRPD to review the compliance reports of States Parties, [3] has directed States Parties to 'take action to develop laws and policies to replace regimes of substituted decision-making by supported decision-making.' [4] Such efforts, according to the CRPD Committee, would include 'repeal(ing) legislative provisions which allow for the deprivation of legal capacity on the basis of disability, including a psychosocial or intellectual disability.' [5] This directive was reiterated during the CRPD Committee's 8th Session, [6] and in the 10th Session, where, in the strongest terms to date, the CRPD Committee directed Australia to repeal 'legal provisions that authorize commitment of individuals to detention in mental health services, or the imposition of compulsory treatment either in institutions or in the community via Community Treatment Orders (CTOs).' [7] The CRPD Committee echo the comments of the Office of the High Commissioner for Human Rights (OHCHR) and the United Nations Special Rapporteur for Torture. In 2013, the latter called on all countries to:

Impose an absolute ban on all forced and non-consensual medical interventions against persons with disabilities, including the non-consensual administration of psychosurgery, electroshock and mind-altering drugs such as neuroleptics, the use of restraint and solitary confinement, for both long- and short- term application. [8]

This article will focus on the major practical and conceptual concerns of mental health law today-but it will do so by situating the CRPD within the historical development of mental health law and policy.

In order to isolate the questions and dilemmas in current mental health law and to consider the remedial value of the CRPD, it is useful to understand the purposes of mental health law. [9] This in turn requires consideration of the historical development of civil commitment laws and consideration of the CRPD in the historical trajectory of mental health law. The full breadth of such a history would require numerous legal treatises, as have already been published. [10] For the purposes of this article, which aims to contextualise the main functions of mental health law so as to better assess its apparent benefits and shortcomings, the following four broad eras will be outlined:

• the pre-modern origins of mental health law and 19th century regulation;
• the 'medicalising' shift of the 20th century;
• deinstitutionalisation and 'rights-based legalism'; and
• human rights law, the United Nations Convention on the Rights of Persons with Disability (CRPD), and its significance for domestic mental health law.

These areas are chosen to illuminate some of the major issues of mental health law, and to home in on the implications under contemporary international human rights law. They will highlight change and continuity in the function of mental health law, to help consider the potential intervention of the decision-making support approach of the CRPD today.

The scope of this article will be limited to 'Western' developed countries. The term 'mental health law' is understood for the purposes of this paper to refer to civil commitment laws which allow for detention and involuntary mental health treatment of people diagnosed with mental illness in defined circumstances. It should be noted at the outset, that the terms used throughout this article in relation to historic statutes - terms such as 'lunatic', 'idiot', 'mad' and so on - are clearly historically situated. However, it should also be noted that the terms such as 'mental illness' and 'psychosocial disability' (a term commonly used in international disability rights discourse) are not neutral, and are contested terms in their own right. [11] Finally in reviewing the history of mental health law and using such an overview to critique and assess contemporary issues, it is important to note that my interpretation is one among many. Similar investigations might usefully examine the history of legal capacity, or the way mental health issues have been addressed in common law, or the wider jurisprudence of 'non-rational actors.' Instead, I have chosen four areas that convey relevant change and continuity in global trends in mental health law in the light of the CRPD.

2. The Origins of Mental Health Law in Common Law

The basis for modern mental health law can be found in English statutes from the era of the reign of Edward I in the late 13th century. [12] These early laws permitted the Sovereign to intervene in order to protect the private property of those deemed 'of unsound mind,' on the legal basis of parens patriae. [13] The parens patriae power, translating literally as parent of the country, justifies detaining and/or treating a person compulsorily in his or her best interests on the basis of the person not being able to look after his or her own interests. [14] Today, parens patriae is typically identified with family law, when state interventions address abusive or negligent parents or legal guardians, whereby the state acts as the parent of any child or individual needing protection. [15] Another important legal doctrine underpinning mental health law was introduced in the 18th century, with the Vagrancy Act 1744, introducing what Michael Cavadino describes as the 'police powers' of the state to protect against the interference of 'mad' people with the private property of others. [16] The 'police powers' doctrine justifies intervention to protect other people from the person deemed 'mad,' typically from physical violence. In both instances described above, subjects became wards of the Sovereign. Thereafter, the entwinement of the two legal doctrines of parens patriae and the police powers of the state have remained an important feature of mental health law. Indeed, the basis for non-consensual treatment and detention today, of posing 'risk of harm to self or others,' reflects the entwinement of these dual legal doctrines.

Notwithstanding this continuity, noteworthy changes occurred in mental health law throughout modernity. In the 18th and 19th centuries, laws began to reflect a shift in the protective impulse of the state toward treatment and welfare. [17] A paternalistic shift occurred in response to a growing industry of private madhouses and a parallel increase in institutional asylums. [18] The passage of the Madhouses Act 1774 sought to regulate conditions within private madhouses to address abusive treatment and wrongful incarceration within the emerging 'trade in lunacy'. [19] Half a century later, England and Wales developed a regulatory system culminating in the Lunacy Act 1845 and the establishment of the Lunacy Commission. [20] The Lunacy Commission, and its equivalent across Western countries, became a focal point for the bureaucratic regulation of private institutions, as the law stepped in to regulate newly established public asylums and articulate the legal basis for asylum confinement. [21] Theobald argues that two major powers propelled nineteenth century regulatory laws over the following century:

[M]edical men… desired early and easy treatment of persons afflicted with mental disease, and at the same time demanded protection against the risks they ran in certifying persons as lunatics; lawyers… attached more weight to the liberty of the person than to the possibility of a cure by facility for compulsory confinement. [22]

Certainly, the 19th century lunacy acts came under the ire of medical professionals, [23] and Theobald's observation captures a recurring tension between the medical and legal professions along the theoretical lines of the paternalist and libertarian (though a tension which may be overstated, as shall be discussed shortly).

When the Lunacy Laws Amendment Act 1889 [24] was passed (which, a year later, became the Lunacy Act 1890) [25] the United Kingdom had established a legal structure to regulate civil commitment and involuntary treatment. Kathleen Jones has argued that this structure heralded a new era, which she refers to as, 'the triumph of legalism.' [26] The new legal framework introduced the idea of periodic review to regulate detainment while magistrates took an increased role in civil commitment. [27] Fennell proposes that the 'triumph of compromise' might equally describe the Lunacy Act 1890, given that the prime goal of the legislation was '(m)aintaining clinical authority to remove to an institution and treat without consent...' [28] The Lunacy Act 1890 consolidated medical authority in one key respect, following a campaign by the Medico-Psychological Association: it provided asylum superintendents with extensive protection against lawsuits for interventions that would otherwise be classed as assault and false imprisonment. [29] This function reflects a persisting ambivalence as to the extent to which mental health law serves to protect those charged with the treating and detaining, instead of those being treated and detained.

The Lunacy Act 1890 also consolidated the shift to amalgamating laws designed for people with intellectual disabilities (who have been distinguished variously using terms such as 'natural fools' or 'idiots' with 'no prospect of recovery', as compared to 'lunatics' who 'before-times had their wits') [30] into the framework of the lunacy acts. [31] The intertwining of laws designed for people with intellectual, cognitive, and psychosocial disabilities - from coverage under a single statute to their extrication into separate legislative coverage - is a recurring feature of the history of mental health law, as shall be discussed below.

3. The 20th Century and the Medicalising Shift

Patricia Allderidge has characterised the history of mental health law as a pendulum swinging from a preference for legal regulation, on the one hand, to a greater emphasis on clinical discretion to treat and detain, on the other. [32] Thus viewed, the middle of the twentieth century saw a swing from legalism toward clinical discretion in mental health law. [33] The terminology of new statutes is indicative of the decisive endorsement of the medical approach: the Mental Treatment Act 1930 (UK), and later theMental Health Act 1959 (UK). [34] These statutes were replicated in most common law countries. [35]

The Mental Health Act 1959 (UK) saw the abolition of legal proceedings heard by magistrates in matters of detainment and detention which clinicians decided upon. [36] Detention was justified on the basis that a person was so affected by his or her mental illness as to warrant detention to the best interests of his or her health and safety, or for that of others. Lunacy laws conferred consulting psychiatrists with plenary powers, and authority to impose detention. Once admitted, a quasi-judicial body named the Mental Health Review Tribunal, was constituted by the Mental Health Act 1959 (UK) to provide periodic review following the first 28-day period after certification. [37]

However, to suggest the Mental Health Act 1959 (UK) meant the wholesale medicalisation of mental health law would be misleading. After all, social workers were given increased powers at the commitment stage and family members were vested with equal power to apply for certification. [38] Further, the extent of the discretionary powers granted under the Mental Health Act 1959 (UK) was not entirely supported by the Royal Medico-Psychological Association and the British Medical Association, who even sought to limit the scope of the discretionary power granted to clinicians in certain respects. [39]

It is debatable as to why clinical powers were so expanded in legislation. Unsworth has argued that the Mental Health Act 1959 (UK) reflects the State's ideological departure from the classical liberal emphasis on autonomy that drove the Lunacy Act 1890, toward the collectivist and interventionist objective of the post-war, therapeutic welfare state. [40] Joanna Moncrieff is more decisive in her evaluation, arguing that the ambivalence of the psychiatric profession over the medicalisation of the Mental Health Act 1959 (UK) highlights the government impulse to free involuntary commitment from legal and therefore political scrutiny. [41]

Regardless, the legislation expanded the scope and importance of the term 'health' in the justification of detention and treatment, which occurred under the Mental Health Act 1959 (UK) on the basis of detention in the 'the interests of [the person's] own health or safety.' [42] Fennell argues that the term 'health' was broadened to include mental health and the justification for detention and involuntary treatment was moved further along a continuum from 'negative paternalism,' where intervention was justified only to prevent harm, towards 'positive paternalism,' where intervention could be justified, not necessarily to prevent immediate harm, if it brought benefit to the subject. [43] This new health framework in law helped establish the medical model as the dominant model of disability. The United Kingdom Mental Health Act 1959 brought both 'mental illness' and 'mental handicap' (in contemporary terms, psychosocial and intellectual disability) under the one statute. [44]

The Mental Health Act 1959 continued authorising non-consensual treatment once someone was admitted, as had been the case since the Lunacy Act 1845. [45] Since the Lunacy Act 1845, the matter of consent remained largely uncontroversial, even for libertarian commentators, who were typically concerned where falsely diagnosed patients, or 'alleged lunatics', were concerned. [46] The Mental Health Act 1959 maintained its compulsory powers and even voluntary patients were liable for detention and involuntary treatment once admitted, without any need for an order or application by clinicians. [47] Even as the asylum began to decline as the central loci of psychiatric intervention for those deemed unsound of mind, the assumption remained that consent was not required by individuals once they were admitted. Indeed, the notion of informed consent was new to medical practice more generally, and was by no means a predominate aspect of general medical care. [48] Overall, the medicalising shift of early and mid-twentieth century mental health legislation took place in the context of increasing state intervention and social welfare in health policy, one in which the medical model of mental illness was strongly endorsed.

4. Deinstitutionalisation and Rights-Based Legalism

From the late 1970s onward it is generally agreed that mental health laws began shifting toward so-called 'legalism,' which saw the development of greater procedural protections over involuntary treatment and detention. [49] During the latter half of the 20 th century the psychiatric hospital system, which was tied inextricably to the evolution of modern mental health law, was systematically dismantled under the policy of 'deinstitutionalisation.' In its place, the reforms established a diverse mental health services that included general hospital, residential, community and other support services. The number of psychiatric hospital beds gradually declined. In the United Kingdom, for example, the number of psychiatric beds diminished from 150,000 beds in 1954 [50] to, what was recorded in the 2010 consensus count as, 30,533 [51] - which is significant given the associated population increase. In the United States of America, Lamb and Weinberger reported that between 1955 and 2000, the number of state psychiatric beds declined from 339 per 100,000 to 22 per 100,000. [52] New statutes were introduced in the policy context of reforming liberal States in the 1980s and were altered to include the language of rights. [53] Under the Mental Health Act 1986 (Vic), for example, section 4(1)(ac) states that one objective of the act is to '(p)rotect the rights of people with a mental disorder.' [54] Section 4(2)(b) continues by stating that the act should be interpreted so that:

Any restriction upon the liberty of patients and other people with a mental disorder and any interference with their rights, privacy, dignity and self-respect are kept to the minimum necessary in the circumstances. [55]

This trend of using rights vocabularies in mental health law can be seen across common law countries and other Western, developed jurisdictions and is characterised by the expanded review process through mental health review tribunals, or similar bodies. [56] This trend was also characterised by the imposition of certain statutory duties, by which law could ostensibly secure mental health services through the pursuit of identified individual rights, including rights to access services, refuse medical treatment, and review detention and imposed treatment decisions. [57] The aim of 'new legalism' in mental health law was to bolster the dignity and integrity of those who were de-humanised in institutions and marginalised by discriminatory laws.

Bernadette McSherry and Penelope Weller characterise mental health law from this time as 'rights-based legalism' given the precedence granted to the language of rights. [58] Such an approach was adopted to formulate both defensive claims (rights not be interfered with; for example, 'least possible restrictive environment') and to advance positive demands (rights to the provision of quality care; for example, 'effective giving of… care and treatment'). [59] The introduction of new mental health statutes, typified by the Mental Health Act 1983 (UK), sought to constrain professional power and bring greater accountability to their discretion through the legalisation of decision-making processes, combined with quasi-judicial review. New criteria were introduced for involuntary treatment and detention. Section 2 of the Mental Health Act 1983 (UK) is typical, where an application for admission for assessment for involuntary treatment and detention may be made on the grounds that:

1. [the person] is suffering from mental disorder of a nature or degree which warrants the detention of the patient in a hospital for assessment (or for assessment followed by medical treatment) for at least a limited period; and
2. [the person] ought to be so detained in the interests of his [or her] own health or safety or with a view to the protection of other persons. [60]

On top of more specific criteria for detention and involuntary treatment, procedural protections moved closer to that of criminal proceedings. However, laws remained couched in the language of care and treatment and a positive paternalism framework adopting the 'best interests' standard. The power to detain was reframed to occur, as exemplified by the terms of the Mental Health Act 1986 (Vic), in Australia, 'in the least possible restrictive environment and least possible intrusive manner consistent with the effective giving of that care and treatment.' [61]

Another highly relevant change of the rights-based era is the extrication from mental health legislation of adult guardianship powers. In a number of jurisdictions, guardianship and adult capacity law were developed into separate legislation for those found to lack mental capacity. Typical criteria in guardianship and adult capacity law attributed mental incapacity to 'an impairment of, or a disturbance in the functioning of, the mind or brain.' [62] As early as the 1980s, Australia, [63] New Zealand, [64] and Canada, [65] for example, saw substantial reform of adult guardianship laws along a different but parallel trajectory to mental health law. [66] These new statutes created a substituted decision-making regime in step with the transition from large-scale institutions to community-based services.

The differences between the two distinct substituted decision-making regimes, mental health and guardianship laws, are noteworthy. Mental health legislation is characterised by the following:

1. it is meant for those with psychiatric diagnoses;
2. its focus is on crisis intervention, involuntary treatment and detention;
3. the substituted decision-maker is typically the treating clinician, where psychiatrists are granted 'effective decision-making power under (mental health) legislation'; [67]
4. and incapacity is not a necessary criterion for civil commitment powers under most mental health legislation.

By contrast, guardianship is characterised by the following:

1. guardianship law applies to all people with impairments affecting mental capacity;
2. it relies on mental capacity to determine where 'deficits' are relevant to decisions that need to be made;
3. given the previous points, it follows a less restrictive approach than mental health legislation;
4. the substituted decision-maker is (in ideal circumstances) a trusted person appointed by choice, often comprising a family member but could include public officials, such as a public advocate, financial administrator or a public trustee.

Some guardianship laws already follow an informal approach to assessing abilities regarding particular decisions. In this way, many decisions are made under guardianship using the direction of the person's wishes and preference which are prioritised as an element of the 'best interests' standard. [68]

5. The Long Road to the Inclusion of Mental Health and Disability in Human Rights Discourse

From the late 1970s, domestic guardianship and mental health legislation became increasingly influenced by international human rights law. [69] As early as 1983, the European Convention on Human Rights was being used for judicial review as part of Lawrence Gostin's 'new legalism' strategy of mental health law reform. [70] However, Michael Perlin and Eva Szeli argue that the movement in the mental health context toward human rights was slow and hindered by pervasive discrimination against those with mental disabilities, whose human rights were 'ignored for decades by the international agencies vested with the protection of human rights on a global scale.' [71] Theresa Degener has observed that people with disabilities in general were not considered in the foundations of human rights 'as a distinct group vulnerable to human rights violations' unlike other categories, such as race and gender. [72] She writes:

None of the equality clauses of any of the three instruments of (the International Bill of Human Rights), the Universal Declaration of Human Rights (1948), the International Covenant on Civil and Political Rights (1966), and the International Covenant on Economic, Social and Cultural Rights (1966), mention disability as a protected category. [73]

This exclusion is perhaps especially severe for people with psychosocial disability. Clarence Sundram highlights that during the twentieth century in Western developed countries, people with psychosocial disabilities have been subject to arbitrary detention (sometimes for life) without legal process; they have endured forced sterilisation; have been chained and caged; and have been subjected to cruel, inhuman, and degrading treatment, including confinement to squalid conditions in institutions, subjection to the use of painful medicines, unmodified electroconvulsive treatment without anaesthesia, and medical experimentation. [74]

This is not to say, of course, that state, professional and societal interventions have failed at every turn. Stories of success and humanity in mental health systems are well-represented in the literature, as they ought to be. However, it is also true that often where large-scale abuse and prejudice has occurred, the interference has been quite often lawful.

Instances of grievous historical wrongs can be seen to have occurred despite the creation of 24 international human rights conventions in the 20 th Century - conventions adopted by the global community where it appeared mental health law, policy and practice, was regarded as a well-established anomaly to normative human rights. [75] Consider Article 7 of the International Covenant on Civil and Political Rights, which is binding international law for state signatories, which states:

No one shall be subjected to torture or cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation. [76]

Amongst researchers, according to Sundram, this was understood not to apply to persons diagnosed as mentally ill. [77] Human experimentation occurred without consent, even where experiments had no intended benefit for the individual. [78] Researchers published their methods and findings in professional journals with no requirement to regard the human rights of their subjects. [79] Sundram has articulated this systemic exclusion in the following terms:

Generic recognition of human rights for all people has been insufficient to bring people with mental disabilities under the same umbrella because there had been a long history in society of regarding them as a separate class, with separate and lesser rights. Worse, the abuses to which people with mental disabilities have been exposed have generally not been recognized as violations of human rights even by organizations that are engaged in human rights work. [80]

This marginalisation from human rights discourse began to be addressed on the international level in the last two decades of the 20th century.

5.1 Making Mental Health and Disability a Human Rights Concern

The shift can be seen to have begun with the United Nations announcement that 1981 would be the International Year of Disabled Persons. Perlin highlights that significant initiatives ensued, including the United Nations World Programme of Action Concerning Disabled Persons and the appointment by the United Nations Human Rights Commission of two special rapporteurs to investigate the human rights needs of persons with mental disabilities. [81]

Notably, in 1991 the General Assembly adopted the Principles for the Protection of Persons with Mental Illness and for the Improvement of Mental Health Care (or the 'MI Principles,' as they became widely known). [82] Perlin and Szesli have argued that the 'MI Principles established the most comprehensive international human rights standards for persons with mental disabilities, and their adoption was a critical global step in recognizing mental disability rights issues within the human rights arena.' [83] The MI Principles require that services be delivered in the least restrictive manner, using individualised planning, and under the independent and impartial authority of mental health tribunals. [84] Under the MI Principles, the principle of autonomy is elevated, [85] medication is restricted to use for therapeutic purposes, [86] and those with psychosocial disabilities are to be provided for with free and informed consent. [87] However, the principle of informed consent is qualified extensively and involuntary medical treatment is decisively endorsed when a person is considered to lack competence. [88]

Meanwhile, domestic human rights legislation, such as the Human Rights Act 1998 (United Kingdom), brought mental health policy and law in domestic courts closer to the rights advanced in the MI Principles, as did the rising use of regional courts like the European Court of Human Rights (ECtHR) to settle mental health-related matters. [89] The increasing influence of human rights signalled a shift (at least nominally) from seeing people diagnosed with mental illness as an anomaly to human rights law.

However, the effectiveness of some of these human rights instruments in protecting the rights of people with psychosocial disability remains debated. [90] For example, the European Convention on Human Rights (ECHR) has retained a number of caveats providing for specific groups to be detained under domestic legislation, including detention 'of persons for the prevention of the spreading of infectious diseases of persons of unsound mind, alcoholics, drug addicts or vagrants.' [91] The adoption of mental health law by states does not negate their mandate to respect the essence of the right to liberty (which is subject to challenge at the European Court of Human Rights) as well as the EU's Charter of Fundamental Rights prohibition of 'any discrimination based on... genetic features [or] disability' in all areas of EU activity. [92] The EU Charter also states that '(t)he Union recognises and respects the rights of persons with disabilities to benefit from measures designed to ensure their independence, social and occupational integration and participation in the life of the community.' [93] However, those diagnosed with mental illness remain a special exception under the ECHR in defined circumstances. As the relevant ECtHR case law puts it, 'no one may be confined as "a person of unsound mind" in the absence of medical evidence establishing that his [or her] mental state is such as to justify his [or her] compulsory hospitalisation.' [94]

In light of these special provisions, the MI Principles were designed to provide a coherent human rights framework for mental health care. At face value they achieve this task, and commentators have echoed the view that the MI Principles constitute the '"centrepiece" of international human rights law in the field of mental health.' [95]

However, the MI Principles have been strongly criticised on several points. Harding has argued that the MI Principles do not have the status of a formal international treaty; States have no obligation to adopt them as 'minimum standards' and there are no implementation mechanisms, raising questions about efficacy. [96] Second, as Gendreau has argued, the MI Principles uncritically endorse a disease-model approach to mental illness, affecting particularly provisions concerning consent to treatment, which remove patient rights. [97] Disability organisations, such as the World Network of Users and Survivors of Psychiatry have criticised the MI Principles on the grounds that they were crafted without people with psychosocial disabilities and their representative organisations. [98] Finally, and perhaps the source of the strongest criticism, the MI Principles offer weaker protection than other human rights instruments in key respects, and particularly on the issue of consent to treatment, where, according to Harding, 'the Principles remove patients' rights rather than reinforce them.' [99]

5.2 The CRPD and its Implications for Mental Health Law

The difficulties faced by people with psychosocial disabilities in enjoying human rights were shared by other disability groups, leading to a successful campaign to create a distinct international human rights treaty for people with disabilities in the form of the CRPD. [100] With the arrival of the CRPD, disability and impairment associated with mental health were formally brought into the course of the global disability movement. Perlin and Szeli, and others, have identified the CRPD as bringing mental health issues more forcefully into the fold of human rights scholarship and law. [101]

The CRPD represents the culmination of two and a half decades of development in international human rights law aimed at addressing human rights violations experienced by people with disabilities. The purpose of the CRPD is to '…promote, protect and ensure the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities, and to promote respect for their inherent dignity.' [102] The CRPD can be seen as a recent addition to the 'pluralization of human rights', in Megret's terms, to describe the recognition of specific categories within humanity as worthy of specific human rights protection. [103] The CRPD prohibits all discrimination on the basis of disability, requires that all reasonable steps be taken to accommodate mental and physical impairments, and sets out several rights for people with disabilities, including rights relating to employment, education, health services, transportation, access to justice, accessibility to the physical environment, and so on. [104] In setting out these rights, the CRPD is said by diverse commentators to have affirmed or restated existing rights, to have reformulated or modified certain rights to be made specific to the experience of people with disabilities, and even extended existing rights by creating new categories of rights. [105] A principal aim of the CRPD was to shift the focus from, in the words of the then United Nations Human Rights Commissioner, Louise Arbour, a 'view of persons with disabilities as objects of charity, medical treatment and social protection' and to affirm them instead as 'subjects of rights, able to claim those rights as active members of society.' [106]

In contrast to the MI Principles, it is generally agreed that the CRPD was the most participatory international legal instrument ever made, where those typically subject to the human rights violations in question took a leading role in its development. This included people with psychosocial disabilities, as well as their representative organisations.

The CRPD is also unique in its provision for monitoring and implementation by requiring the establishment of monitoring bodies both inside and independent of the government. [107] Michael Stein and Janet Lord have argued that the monitoring mechanisms of the CRPD make it one of the strongest in international human rights given the 'breadth of reporting and investigative procedures' it mandates. [108]

In the short time since coming into force, the CRPD can be seen to have affected the development of mental health law, and mental health scholarship. [109] This has included policy documents and law reform processes, including contribution to new vocabularies and principles being advanced in specific legislative reform, and in debates about repealing mental health law. [110] However, the extent of mental health law reform and the influence of the CRPD varies considerably and is difficult - at this early stage - to generalise.

For the purposes of this article, the most relevant developments brought by the CRPD to mental health law is its authoritative challenge to the notion that unsoundness of mind - or the existence of mental or psychosocial disability - can legitimately serve as a criterion of special exception to normative rights. In contrast with the European Convention on Human Rights, which prohibits 'any discrimination based on... genetic features [or] disability' but which makes special exception for those of 'unsound mind,' the CRPD definition of disability widens to encompass mental or psychosocial disability. [111] Hence, the CRPD challenges the long-established sense that profound distress, mental illness, and the like, constitute a special exception allowing for the suspension of principles of equality and non-discrimination.

6. Discussion

What can this overview of the historical background, purposes and function of mental health law offer for contemporary questions about law and policy? First, it is noteworthy that the function, justification, and (to a lesser extent) procedure of mental health laws over time have remained largely the same. Mental health law continues to authorise the restriction of liberty and the right to refuse medical treatment through interventions that would otherwise be unlawful.

The legal bases for mental health law continues to be based on the doctrine of parens patriae coupled with the police powers of the state to prevent harm to individuals and the community. Protection remains a major driver, both in terms of addressing risk - whether real or imagined - to the broader public, or to people at risk of harm to themselves. [112] So too, there remains an unchanging premise in all domestic mental health statutes that special legal treatment is required for people with apparent or diagnosed mental illness. This position is justified on two grounds: (1) such persons are less responsible causally, and hence legally, for their actions, [113] and (2) those who are diagnosed as mentally ill are more dangerous than others, in ways requiring unique laws, rights, and rules of citizenship. [114] Overall then, mental health laws retain the decades long tension between 'rights' and the 'right to treat'; between principles of autonomy and self-determination, and those of protection and a duty of care. In Bingley and Heginbotham's terms, these dual objectives of the law seek 'to recognise, preserve and enhance the self-determination of individual patients whilst at the same time providing a framework for the care and treatment of those who are genuinely disabled as a result of mental illness.' [115]

This latter point raises another important issue, regarding language. As a general comment, language around mental health law is greatly contested. [116] In particular, ongoing debates in this field have centred around two fluid and disputed topics - namely, 'mental illness' and 'autonomy' (or, in earlier debates, 'insanity' and 'liberty'). Spaulding has argued, that the extent to which 'legalistic' mental health laws are seen to be libertarian, 'depends on one's understanding of the relationship between liberty and mental disorder.' [117] As such, the use of terms such as 'mental illness' and 'autonomy' by authors, without acknowledging their intended meaning, or without noting their fluidity, can result in commentators cloaking the underlying purposes of their use, which remain at best, only vaguely stated. When it comes to analysing the potential value of supported decision-making in mental health law, it will be interesting to consider whether the social model of disability and relational notions of autonomy [118] can more satisfactorily address this persistent conceptual challenge. The continuities outlined above will become important in considering whether major questions about mental health law - including whether it achieves what it aims to, and the specific ways in which it violates international human rights law - can be more satisfactorily addressed by a 'supported decision-making regime' according to the provisions of the CRPD.

In terms of change, the following points can be made. By the end of the 20th century, [119] the picture of mental health law in Western developed states was (and remains) in certain respects far more complex than in the past. The scope of substituted decision-making powers has expanded outside the institution into the 'community,' with compulsory psychiatric intervention occurring (increasingly, in many cases) in people's homes and communities. An apparent contradiction then arises inasmuch that despite the move to rights-based legislation commentators continue to identify an increase in clinical discretion and compulsion via outpatient treatment, indicating a movement toward increased paternalism. For example, the 'Interim Report of the Steering Group on the Review of the Mental Health Act' by the Irish Department of Health found that although '(i)t was anticipated that the introduction in the [Mental Health Act 2001 (Republic of Ireland)] of the statutory "best interests" principle would lead to a new emphasis on the rights of the patient... the reality is that the principle has been interpreted by the Courts in a paternalistic manner.' [120] According to the Steering Group, this interpretation is 'undermining the significant advances in mental health law which the Act was intended to enshrine, and has given rise to concerns that the human rights aspects of the legislation have been diluted and diminished.' [121] It is pertinent to then ask whether the 'best interests' test has increased the rights of those under civil commitment laws, or whether it has further wrested control and choice from them (as I would argue it has).

Just as mental health systems have become more complex, the legal configuration of contemporary mental health laws throughout the world is more complex. Mental health legislation varies considerably between jurisdictions, including, for example, on specificities related to outpatient involuntary treatment, the role of family and informal carers, and the relationship between detention and non-consensual treatment. To provide one example, all states and territories in Australia (each with their own, distinct mental health statute) entwine detention and involuntary treatment, whereby people detained under mental health law are automatically subject to involuntary treatment powers. [122] In Canada, the Ontario Mental Health Act 1990, by contrast, includes powers to detain which do not necessarily extend to powers for involuntary treatment. [123] Instead, capacity to consent to treatment is governed by the provisions of Ontario's Health Care Consent Act 1996. [124] This is just one example to highlight the diversity of mental health laws, which adds an extra layer of complexity when discussing trends in international mental health law.

In terms of changes in mental health law scholarship, some developments are noteworthy. The first is the increasing role of mental capacity in determinations of involuntary status. Peter Bartlett has argued that the idea of using mental capacity-based tests for involuntary treatment has characterised progressive mental health law reform in recent years. [125] This priority partly arises from the question of whether mental capacity should be a central criterion for involuntary treatment in all medical contexts, regardless of whether they relate to 'mental' or 'physical' health. [126] In the past, most libertarian concerns with protecting autonomy and non-interference were directed to those 'falsely accused of mental disorder' whereas recent years have seen consideration paid to equality and non-discrimination in the exercise of patient choice in mental health regardless of diagnosis, particularly for those who retain mental capacity. Questions such as the following arise: 'Should we respect the right of competent patients to refuse psychiatric treatment, given that we respect their right to refuse general medical care, even if they die?' [127] This morally fraught line of enquiry will become particularly pertinent when considering the limits of supported decision-making in law. [128]

For the purposes of this paper, it is important to note that despite mental capacity becoming a key concern in mental health law reform, trends in mental health law are shifting still, particularly since the coming into force of the CRPD. [129] Indeed, Bartlett's appraisal of mental capacity as the concern of recent mental health law reform is followed by the assertion that the CRPD has potentially created a 'significant shift in the legal landscape' away from mental capacity tests and toward evaluating decision-making abilities to determine a person's support requirements. [130] Even this suggestion, of assessing decision-making deficits solely to provide relevant supports (and not to restrict decision-making) is challenged by the CRPD Committee's interpretation of Article 12. The CRPD Committee specifies that the functional assessment of mental capacity cannot be used to determine what supports a person might need in exercising her legal capacity:

The provision of support to exercise legal capacity should not hinge on mental capacity assessments; new, non-discriminatory indicators of support needs are required in the provision of support to exercise legal capacity. [131]

To give a practical sense of this directive consider the following. Instead of a person who needs support with healthcare decision-making being required to have their mental capacity assessed, the CRPD Committee suggests these supports should be provided for the person to avail of at their own discretion. The availability of supports should also be combined with a parallel process to explore the person's will and preference so that the decision the person wishes to make becomes clear. This approach seemingly avoids any need for assessment of mental capacity. Regardless, the push for mental capacity based mental health laws continues, and remains an important feature of current debates in the field of law and mental health. [132]

A second significant change concerning the mental health field is the existence of an expanded range of commentators, and in particular the movement of psychiatric survivors and mental health service users, and people with disabilities more generally themselves, who are contributing to the development of mental health law, policy and practice. [133] The transformation of societal responses to disability and mental health over the past century has brought with it a diversification of the actors engaged in public debates about mental health law.

The fall of the asylum era in the West brought with it a rise in the 'global disability movement,' a diverse group of people who in turn contributed to new theoretical perspectives and the development of law, policy and practice, and for which the introduction of the CRPD was its culmination in international human rights law. [134] The movement included people with mental and/or psychosocial disabilities who have made a significant contribution to the development of the CRPD, and to the practical circumstances of those experiencing mental health crises. [135] The same is true of domestic mental health 'systems,' where the increasing influence of persons with lived experience (including families of people with disabilities) is evident on a small and large scale across law, policy and programming. [136] Amita Dhanda and Thelma Narayan argue that the charter and imperatives of the 'People's Disability Movement' 'require that the stereotypes of mental health law and policy be revisited.' [137] They argue that law and policy are created to suit the values of a society at a particular time, requiring those in the mental health context to 're-examine their implications for social interactions, in therapy, and in clinical decision-making.' [138]

Finally, the cultural shift of the post-carceral era has given rise to alternative vocabularies for thinking about and responding to the issues that mental health law seeks to address. The CRPD appears to propose a 'middle-path' notion of freedom - one determined in close collaboration with persons with lived experience of disability - which draws on a conceptualisation of abuse that spans a spectrum from over-protectionism and excessive-intervention via law at one end, to neglect and relinquishment of government duties to support those in need at the other. The decision-making support framework set out in the CRPD seeks to change the longstanding role of medical expert (and arguably law professionals), [139] away from a tutelary role, and more towards one that is facilitative in providing support to exercise legal capacity, as well as to provide support and treatment in a way that ensures a range of human rights are protected.

7. Conclusion

This article has looked to the past to clarify the purposes and objectives of mental health law today. This overview enhances the capacity of researchers to interrogate the major issues in contemporary mental health law. Since the late decades of the 20th century, mental health law has struggled to balance dual prerogatives of autonomy and protection; seeking to uphold the western legal doctrine of autonomy and other rights of the individual, while also imposing protective measures that mediate collective fears concerning the (real or perceived) danger and vulnerability associated with mental illness. Both historic and contemporary debates inform a central critical issue at the heart of mental health law regarding whether 'unsoundness of mind' ought to operate as a criterion for special exception to rights. An underlying issue behind this proposition is whether there exists a neatly distinguishable border between autonomy and mental impairment; between responsibility and madness. In other words, at the heart of the historical tension between 'rights' and the protection (or the collective 'right to treat the individual') is a question of whether the impairment itself undermines the rationale for informed consent by crucially undermining a person's autonomy.

Mental health law has retained the long-held assumption that mental illness compromises human agency and volition in such a way that the law cannot operate under the same rules as it does for non-mentally ill persons in conferring legal responsibility and competency, regardless of their mental capacity. This assumption underpins the long-established sense that people with psychosocial disabilities are an anomaly to normative rights, and that mental health law may justifiably curtail a person's legal capacity on the basis of disability - an assumption that the CRPD challenges. Having contextualised the purposes and historical development of mental health law, this research can help by providing background information for examining contemporary concerns and issues with mental health law that are raised by scholars and other commentators.