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Sci Tech    H3'ed 8/5/10

Mental Health Human Rights -" Case law in Europe

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Message Janet Parker
When they first confront the mental health system, many do not realize what their rights are under US civil law or under international human right law. There are routine human rights abuses by those entrusted with the care, treatment, and social support to those with mental health disabilities. Persons who are experiencing mental health challenges or who have a mental health disability have difficulty expressing their needs and to bring forth allegations of neglect or abuse. There are several concepts within human rights mental health law that human rights advocates and those who advocate for the disabled should know.

Consent to medical treatment:

There is a general right for all human persons to be free of inhuman treatment and individuals also have the legal right to privacy under international human rights law. International human rights case law supports the concept that individuals do have the legal right to decide whether a proposed medical treatment will be performed on them. The human right to decide one's own treatment does not disappear just because it is more convenient or financially more beneficial for the caregivers or for the family members of the individual to force treatment. This right to decide to refuse treatment is a human right we all enjoy. Mental health treatment under human rights law should be the same as other treatments in regards to consent to treatment.

But it is a sad fact that this right has not necessarily been consistently protected and thus through our mental health systems extended to people with mental disabilities. But because those with mental health disabilities are often detained, this then often automatically leads to forced treatment. This does not necessarily need to happen. It is not theoretically inconsistent with confining someone in a psychiatric facility, but still leaving them with the authority to decide treatment decisions.

For the last 20 years in Canada it has been the practice to allow patients with mental health disabilities who have mental capacity to make treatment decisions, to have the right to make those decisions regardless of whether they are hospitalized or subject to legal confinement.

In regards to the prevention of torture, it has been the opinion of the international courts in Europe, North America and Australia that patients who understand the relevant information be allowed to make treatment decisions. The Committee for the Prevention of Torture (CPT) has stated:

"Patients should, as a matter of principle, be placed in a position to give their free and informed consent to treatment. The admission of a person to a psychiatric establishment on an involuntary basis should not be construed as authorising treatment without his consent. It follows that every competent patient, whether voluntary or involuntary, should be given the opportunity to refuse treatment or any other medical intervention. Any derogation from this fundamental principle should be based upon law and only relate to clearly and strictly defined exceptional circumstances."[i]


The guarantee of liberty is perhaps the most important human right in relation to the detention of mentally disordered people. [ii] In a United Kingdom legal case a patient detained under a restriction order at Rampton Hospital suffered a four year delay between his initial conditional discharge and his absolute discharge. The delay was due to lack of appropriate hostel placement. [iii] This kind of lengthy delay brings up human rights issues. In Belgium case a mentally disordered patient was kept in prison because no hospital bed was available for him. He succeeded in pressing charges of false imprisonment. [iv]Thus according to international human rights case law, in order for the detention of a person of unsound mind to be lawful the following minimum criteria must be met:

* Except in emergency cases, no one can be deprived of liberty unless he or she can be reliably shown to be of unsound mind on the basis of objective medical expertise

* The mental disorder must be of a kind or degree warranting compulsory confinement

* The validity of continued confinement depends on the persistence of the disorder.

Right to speedy review of detention:

When detained, a patient have a legal entitlement to a "speedy" review of detention and release if the detention is not lawful.[v] When the detention is being reviewed by the tribunal, the patient is entitled to the same information provided to other members of the tribunal panel which is reviewing the detention. This means that the patient would have the right to call witnesses and have them cross examined on his or her behalf.

Effects of psychiatric medication:

Although for some patients psychiatric medication has desirable effects, it is also true that these medications have some highly invasive adverse effects, including nerve damage, sexual dysfunction, drooling, nausea, sleep disorder, depression, and others, depending on the medication. Patients can have coherent and valid reasons for refusing medication. Some persons voluntarily take medication and feel that it helps them and restores them to the person they once were. But for others they experience medications as removing the person they think of themselves and often giving a duller and less free person a feeling that the drug is controlling them. Forcing medication on such patients raises serious human rights issues of individual freedom.

Capacity to make treatment decisions:

Patients need to have the intellectual capacity to understand basic information about their diagnosis and proposed treatment. Correspondingly doctor's have a responsibility to communicate the information in terms the patient can understand and to make efforts to be available to answer questions the patient may have. Scepticism by the patient in such circumstances does not mean that the person does not have capacity to make treatment decisions. Even if the patient, due to their disability, cannot believe the doctor's diagnosis that doesn't mean that the patient does not have capacity to make treatment decisions. Essentially, people have the right to make treatment decisions. Principle 19 of the UN's "Principles for the Protection of Persons with Mental Illness" (which are reproduced as Appendix 2 below) mandates that:

Informed consent is consent obtained freely, without threats or improper inducements, after appropriate disclosure to the patient of adequate and understandable information in a form and language understood by the patient on:

(a) The diagnostic assessment;

(b) The purpose, method, likely duration and expected benefit of the proposed treatment;

(c) Alternative modes of treatment, including those less intrusive;

(d) Possible pain or discomfort, risks and side-effects of the proposed treatment.

Paragraph 41 of the standards of the European Committee for the Prevention of Torture state that "consent to treatment can only be qualified as free and informed if it is based on full, accurate and comprehensible information about the patient's condition and the treatment proposed; to describe ECT as "sleep therapy" is an example of less than full and accurate information about the treatment concerned. Consequently, all patients should be provided systematically with relevant information about their condition and the treatment which it is proposed to prescribe for them. Relevant information (results, etc.) should also be provided following treatment."

Judicial hearing for treatment decisions:

No treatment should be provided except in emergency situations until a determination of capacity has been made through a judicial hearing for treatment decisions. The hearing must be by an independent arbiter, and be judicial in character. In addition there must be a right of the patient to return for re-consideration of the situation at regular intervals. A hearing to determine incapacity is required. Persons, who are lacking capacity, are often institutionalized and overmedicated. These psychiatric medications may adversely affect the individual's quality of life and even shorten the person's life expectancy. Thus it is important that overmedication minimized, the views of the patient are considered and the quality of life issues explored. So an effective means of reviewing the treatment plans is important.

These are just some of the basic principles of human rights of persons with a mental health disability.

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