A realistic approach to assessing mental health laws' compliance with the UNCRPD.

International Journal of Law and Psychiatry 40 (2015) 70–79

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International Journal of Law and Psychiatry

A realistic approach to assessing mental health laws' compliance with the UNCRPD John Dawson ⁎ Faculty of Law, University of Otago, Dunedin, New Zealand

a r t i c l e

i n f o

Available online 13 May 2015 Keywords: CRPD Discrimination Capacity Mental health legislation Involuntary treatment

a b s t r a c t This article argues that a more realistic view should be taken of the implications of the Convention on the Rights of Persons with Disabilities for mental health law than the view taken by the UN monitoring committee, in its General Comment on Equal Recognition Before the Law, in 2014. This more realistic interpretation would not forbid reliance on the concept of mental capacity in the law. Nor would it forbid legislation that authorises substitute decisionmaking or involuntary treatment. Less radical reforms, it is suggested, could promote Convention compliance. These reforms would shift mental health law away from reliance on over-broad concepts like “mental disorder” or “mental disability”, but would still permit use of legal standards that rely on specific impairments in mental function that are relevant to a person's capacity to make particular decisions or perform specific tasks. Strong efforts would be required to promote supported decision-making, and respect advance directives, but substitute decision-making and treatment without consent would be permitted in exceptional circumstances, subject to appropriate safeguards and independent review. Under this interpretation, those measures would not constitute discrimination in the law on the ground of disability, or denial of equal recognition before the law. This approach, it is argued, is more likely to generate positive responses from state parties in terms of law reform. © 2015 Elsevier Ltd. All rights reserved.

The United Nations Convention on the Rights of Persons with Disabilities1 (the Convention) undertakes the important and demanding task of promoting the human rights of persons with disabilities throughout the world. One way the Convention might perform this task is by providing state parties with a clear yardstick against which to measure the adequacy of their laws, with an eye to reform. This article argues that the Convention is failing to perform this function adequately, at least with respect to mental health laws. It is failing due to ambiguities and inconsistencies in the Convention's text, and – more importantly – due to the range of questions left begging by a radical interpretation of that text offered by the body that monitors states' compliance with the Convention – the UN Committee on the Rights of Persons with Disabilities (the Committee) – in its General Comment No 1 on Equal Recognition Before the Law (the General Comment), released in mid-2014. The Convention is open to a range of plausible interpretations that might resolve some of the ambiguities and inconsistencies in its text, but crucial aspects of the interpretation offered by the Committee, in the General Comment, are not at all plausible – for reasons given

below – and there is no evidence that state parties have any intention of following the Committee's more radical suggestions as to what is required in reform of their mental health laws. Several state parties, foreseeing the potential problems, entered reservations, on ratifying the Convention, that rejected in advance aspects of the interpretation later offered by the Committee,2 and other state parties, in their periodic reports to the Committee, continue to cite without apparent embarrassment aspects of their mental health laws, as evidence of compliance with the Convention, that are quite incompatible with the Committee's published views.3 This article therefore considers certain weaknesses in the Convention, and especially certain problems with the Committee's interpretation of the Convention published in the General Comment. A case is then made for a more conservative interpretation of what the Convention demands. It is argued that this interpretation – being more realistic and workable – generates more useful standards against which to assess the adequacy of state parties' mental health laws. I concede that this more conservative interpretation contradicts a number of the Committee's arguments in the General Comment, particularly because it would require continued reliance, in the law, on the notion of impairment in specific mental functions. Such reliance would be required

⁎ Tel.: +64 3 4798909, fax: +64 3 479 8855. E-mail address: [email protected]. 1 United Nations Convention on the Rights of Persons with Disabilities, 13 December 2006, 2515 UNTS 3, entered into force 3 May 2008 (hereafter the Convention).

2 For the text of all reservations to the Convention, see https://treaties.un.org/Pages/ ViewDetails.aspx?src=TREATY&mtdsg_no=iv-15&chapter=4&lang=en baccessed 8 August 2014N; see especially the reservations of Australia, Canada and Norway. 3 See, for instance, the country reports of Australia: CRPD/C/AUS/1 (7 June 2012), at paras 76, 96; Sweden, CRPD/C/SWE/1 (18 September 2012), at paras 137, 140; Denmark: CRPD/C/DNK/1 (7 May 2013), at paras 142–147; and New Zealand: CRPD/C/ NZL/1 (1 October 2013), at paras 67–69, 83–89.

1. Introduction

http://dx.doi.org/10.1016/j.ijlp.2015.04.003 0160-2527/© 2015 Elsevier Ltd. All rights reserved.

J. Dawson / International Journal of Law and Psychiatry 40 (2015) 70–79

when decisions must be made about whether a person's autonomy should be respected, or whether – in contrast – the state is entitled to intervene, in certain circumstances, in a person's life without their consent. In the General Comment, the Committee specifically prohibits use of functional tests of mental capacity in legal contexts, saying that would constitute discrimination against people with disabilities within the law. In contrast, this article argues that functional tests of mental capacity should be used in mental health law, and their use would reflect a more balanced interpretation of the Convention as a whole. The final section of the article uses this more conservative interpretation to assess the degree of compliance with the Convention shown by the current or proposed mental health legislation of four different jurisdictions. The overall purpose is to demonstrate that the approach advocated here constitutes a more useful guide to law reform than the arguments offered by the Committee in the General Comment. 2. The problems with the Convention The Convention affirms certain central values that must be guaranteed to all persons with disabilities. These values are human dignity and equality, freedom from discrimination, individual autonomy, fair access to resources and support, and full social participation and inclusion. These values underpin the Convention's bold statements of rights, and state parties commit themselves, on ratifying the document, to respect these values in their laws (article 4). Nevertheless, the Convention presents numerous problems of interpretation. One problem is ambiguity. Another problem is reconciling potential inconsistencies between the different rights affirmed. A third problem is reconciling the general (and strong) terms in which many rights are affirmed, in specific articles of the Convention, with exceptions to those rights listed in subsequent parts of the same article. Many indicators that would usually be present in well-drafted legislation to show how different aspects of a code fit together seem deliberately omitted from the Convention to avoid controversy between those holding incompatible views in the drafting process (Kampf, 2010; Lawson, 2007; Sabatello & Schulze, 2013). That approach has the great disadvantage of failing to clarify central aspects of the Convention's meaning — hence the importance of the interpretation of it offered by the Committee. 2.1. The meaning of discrimination The first problem with the Convention – that of ambiguity – is particularly significant when it affects the meaning of its central concept, that of “discrimination on the basis of disability”, and its opposite, treating people with disabilities “on an equal basis with others”. A central question, for current purposes, is what constitutes discrimination against persons with mental disabilities in the law, or in legal reasoning. In particular, does it constitute discrimination in the application of the law to rely on expert evidence that a person is experiencing abnormal mental functioning – associated with a certain condition, such as severe depression – when a decision must be made about aspects of their legal capacity or their treatment without consent. On one view, such reliance would constitute discrimination against a person on the basis of their disability, because the decision would be based on evidence of abnormal mental function associated with their condition, especially if the decision was considered to have adverse consequences for them. On another view, failure to take into account the consequences of the person's condition for their mental functioning would be discrimination, if it led to their being judged – inappropriately – against the standard of a person not so affected, thereby depriving them of some benefit to which they would otherwise be entitled – depriving them of the benefit, for instance, of the insanity defence that would exonerate them of liability for conduct for which they should not be held criminally responsible due to their mental functioning at the time.

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So, is it discrimination to take into account, or not take into account, the effects of a person's condition on their mental functioning when making legal decisions? It might be thought that the answer is that discrimination involves taking the matter into account when it would have adverse consequences for the person, and not taking it into account when it would deprive the person of some advantage otherwise due. Unfortunately, that approach begs the question of what counts as an advantage or a disadvantage for a person – whether, for instance, providing treatment without consent that improves a person's health is an advantage or not – the very nub of the controversy. We cannot fix the meaning of discrimination in this way, therefore, because further, controversial judgments of that kind are required. The Convention, in any case, does not resolve the ambiguity in this central concept of discrimination on the ground of disability. This poses a serious barrier to satisfactory interpretation of the text. 2.2 . Relations between rights and the mediating role of capacity A second, related problem concerns internal inconsistency between various rights, particularly between (what are usually called) negative and positive rights, supported by the Convention. The text leaves considerable uncertainty as to the circumstances in which the negative or positive rights of a person should prevail. In particular, when are the negative rights of a person with disabilities – such as their rights to autonomy, physical and mental integrity, and generally to be free of interference by agents of the state – to prevail over their positive entitlements – to full social inclusion and participation, the highest attainable standard of health, and a minimum standard of living – when those rights conflict? Involuntary psychiatric treatment, for instance, could both limit a person's autonomy and promote their social inclusion, health, and standard of living. Would it therefore violate or promote the person's rights under the Convention as a whole? In many legal systems, a key concept in settling the balance between these competing imperatives or rights is that of capacity (or competence) on the part of the person to take the necessary action or make the relevant decision. If they have the capacity to decide on their own need for treatment, for example, it would usually violate their right to autonomy and integrity to impose treatment without their consent, even if the treatment proposed would assist their health or promote their social inclusion. The balance between those different interests would be for them to decide. If they lacked the capacity to make the relevant decision, on the other hand, the state would have the power (and often the duty) to intervene, to promote their positive entitlements, even if that might require their involuntary treatment. Assessing capacity is not a purely scientific or technical matter. Evaluative elements intrude, especially when deciding on the level at which a person ought to function to be viewed as having capacity in a certain domain. But the concept of capacity is often used, for want of a better alternative, to define the line between two seemingly incompatible obligations of the state – to respect individual autonomy, and to protect the interests of people who are vulnerable. Intentionally, it seems, the Convention does not mention this central balancing concept in its text, despite the key role played by the concept of capacity in most jurisdictions' healthcare law. This produces a quandary for the Convention's interpretation. Is a person who would be judged to lack the capacity to make a certain decision still to be viewed as having the right to make it, as an aspect of their autonomy, or has their lack of capacity removed the ground upon which their autonomy stands? Are they no longer free to act in that domain, so their right to certain positive entitlements (to the best attainable standard of health, for instance) kicks in as the dominant aim? The spare text of the Convention does not indicate how to mediate conflicting rights of this kind. 2.3. General rights and particular exceptions The third difficulty concerns inconsistencies between different propositions within a single article of the Convention — between bold,

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general propositions stated in one clause affirming a right, for instance, and possible exceptions (or qualifications) to the right stated in another. Article 12(2), for example, states the general principle – subsequently explicated at length by the Committee in the General Comment – that states “shall recognize that persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life”. Article 12(3) then requires states to provide “the support” that people with disabilities “may require in exercising their legal capacity”. In addition, Article 12(4) contemplates that states may implement “measures that relate to the exercise of legal capacity” and requires that those “measures” provide: appropriate and effective safeguards to prevent abuse, … respect the rights, will and preferences of the person, are free of conflict of interest and undue influence, are proportional and tailored to the individual's circumstances, apply for the shortest time possible and are subject to regular review by a competent, independent and impartial authority or judicial body. In short, Article 12(4) requires all the safeguards to be in place that would usually surround a process for adjudicating a person's incapacity, in exceptional circumstances, when even provision of adequate support is insufficient to ensure they can genuinely express their will and preferences in the relevant domain (Callaghan & Ryan, 2014; Richardson, 2012). But Article 12 still demands “respect” for “the rights, will and preferences of the person”, and makes no direct reference to the prospect that a person could be found to lack capacity in exceptional circumstances – not even when they are unconscious, or suffering severe cognitive impairment, and have given no prior indication of their views. How is such a confusing cluster of provisions to be read as a whole? As Genevra Richardson puts it, “The ambiguity is there to see” (Richardson, 2012, 346). 3. The Committee's approach in the General Comment The UN Committee's interpretation of Article 12 in the General Comment might have rescued the situation, by providing a balanced reading of the competing provisions. It might have affirmed the need to recognise the legal capacities of persons with disabilities whenever possible, and the need to support them, on occasion, to exercise those capacities and formulate an authentic expression of their views, while reserving the possibility that a person may be found to lack capacity in a certain domain – to drive, for instance, or sell a house, or manage their money – in exceptional circumstances, subject to specified safeguards, including access to a fair process of independent review. That approach would reconcile the different parts of Article 12 and balance the state's duty to respect a person's autonomy to the greatest extent possible against its other duty to ensure vulnerable people who lack the relevant capacity are not exposed to adverse outcomes from taking actions or decisions they are not equipped to complete — in effect, balancing the state's duties to secure both the negative and positive rights of a person with disabilities under the Convention as a whole. Regrettably, no such balanced interpretation of Article 12 emerged from the Committee. In the General Comment, the Committee makes a number of core arguments of particular relevance to mental health and incapacity legislation.4 It declares, first, that “legal capacity is a universal attribute inherent in all persons by virtue of their humanity” (para. 8), and, secondly, that legal capacity is an essential aspect of the right to recognition as a person before the law (para. 14, 15). Thus, says the Committee, to deny a person legal capacity is to deny them “a core human right”. Moreover, no decision about capacity should be taken “simply on the basis of the diagnosis of an impairment”. That would constitute a “status approach” (para. 15). In total, this means, for the Committee, that no person can be denied even a specific form of legal capacity on the basis of 4 Many of these arguments have been endorsed by the Special Rapporteur on Torture (2013).

evidence of mental impairment (or because their “decision-making skills are considered to be deficient” (para. 15)). That “functional approach” to capacity assessment is considered unacceptable – even an approach based on whether a person can perform specific mental functions, such as understanding the nature and consequences of the decision – because, says the Committee, that approach discriminates against people with mental disabilities (who are more likely to fail such a test), and because “it presumes to be able to accurately assess the inner-workings of the human mind” (para. 15). In the view of the Committee, therefore, the concept of mental impairment should be removed completely from legal standards, even when used in combination with other standards, such as those based on risk of harm to self or others. In sum, functional capacity tests should be expunged from legal reasoning — regardless, it seems, of the consequences. No reliance should be placed on functional capacity assessments in application of the law. Instead, support must be provided to ensure people with disabilities can exercise their capacity. That support “should never amount to substitute decision-making” (para. 16), however, and should never involve people making judgments about the “best interests” of another person. Adult guardianship or incapacity legislation that operates on such foundations must be repealed. In future, all decisions to intervene must be based on the “will and preferences” of the person (para. 17), or on the “best interpretation” of their will and preferences where, “after significant efforts have been made, it is not practicable to determine” their actual will and preferences (para. 21). Moreover, all law and policies that “allow or perpetrate forced treatment” or compulsory institutionalisation contrary to a person's will and preferences must be abolished, to give effect to the principle that “decisions relating to a person's physical and mental integrity can only be taken with the free and informed consent of the person concerned” (para. 42). The aims of the Committee in making these arguments are worthy of support.5 The intention is to prevent the unnecessary and prejudicial removal of a person's legal capacities; to avoid paternalistic forms of substitute decision-making that take insufficient account of the views (or likely views) of the person concerned; to support autonomous decision-making; to avoid discriminatory assumptions being made about people's abilities; and to prevent intervention without consent in the lives of people with disabilities in situations where other people would be left free to act in a manner contrary to their own interests. Nevertheless, the Committee's arguments in the General Comment over-shoot these aims, in several important respects.

3.1. The flaws in the General Comment's views on capacity First, the Committee is exaggerating when it conflates denial of specific legal capacities with lack of recognition as a person before the law. The Committee correctly says that recognition as a person, in legal contexts, is an indelible human right, but it does not follow that denial of specific legal capacities, in exceptional circumstances, contravenes that right. A person may be denied a certain capacity under relevant legislation – to drive, or possess a firearm, for instance, when aspects of their mental functioning are acutely affected by mental illness – without that denial affecting their recognition as a person before the law in general, or for other purposes. Despite a selective loss of legal capacity of that kind, the person remains a subject and an agent within the law, for many other purposes. They retain all other civil or human rights. It would still be a crime or civil wrong, for instance, to infringe their liberty or integrity in other ways, without lawful authority or excuse, as it would be for any other person. They would be permitted to take any action not affected by the specific loss of capacity. They may not be permitted to drive, but they could marry, vote, make a contract or will, form a trust or company, and so on. There is no general denial of 5

For a strongly supportive view of the Committee's approach, see Minkowitz (2010).


recognition as a person under the law, only selective (and often temporary) denial of specific forms of legal capacity, for certain purposes, when relevant impairment in mental function occurs. It therefore over-states the case to say that denial of specific legal capacities, for relevant reasons, constitutes denial of recognition as a person before the law. Furthermore, the Committee's argument that impairment in mental function should never be a ground for denial of legal capacity – should never be used, in effect, as the basis for any decision that affects a person's rights – because it constitutes discrimination against a person on the ground of mental disability, is impossible to support in such absolute terms. That approach is contrary to the fundamental principles of virtually any sophisticated legal system, whose doctrines will – rightly – be saturated in mental concepts, such as intention, knowledge, foresight, and the ability to process information. All those concepts operate on the assumption that we can “accurately assess the inner-workings of the human mind” — an assumption, it seems, that the Committee would try to expunge from law. To apply any of those familiar legal concepts may require evidence of a person's mental functioning. Evidence of impairment in such functioning can be highly relevant, and permitting such evidence to be used may be highly advantageous to the person, preventing inappropriate punishment, for example, or triggering entitlements to additional support.6 Only an impoverished legal system could abandon use of such concepts. In the context of the criminal law – to give just one example – abandoning concepts like intention, understanding, or foresight, would seem to require complete reliance on some notion of strict liability, under which a person's responsibility for criminal conduct would be based solely on their observable conduct or omissions, because to use additional mental concepts like mens rea would require “assessment of the inner-workings of the human mind” — a practice the Committee would forbid. That approach to the criminal law would be widely condemned as unjust, and there is virtually no prospect that state parties will abandon the use of such mental concepts in the criminal law, or for assessing legal capacity, or for other legal purposes, and evidence of impaired mental function is bound to be heard when directly relevant to the application of such legal tests. 3.2. The Committee's concept of discrimination Moreover, these errors reveal the Committee's flawed conception of discrimination. Discrimination – and inequality – are highly contested concepts within the law (Dworkin, 2000; Polyviou, 1980; Tribe, 1988). The arguments turn on: what is to be compared to what; what counts as a relevant difference between them; and whether it is a good or bad thing to take that difference into account. Those matters can all be controversial when determining what counts as discrimination on the ground of disability. The Committee rightly says that discrimination against people with disabilities has often taken the form of denial of their legal capacities in situations where some impairment of the person's mental function was not sufficiently relevant to the decision to be made, especially when appropriate support could be offered instead, or reasonable accommodation could be made. It is not plausible for the Committee to suggest, however, that impaired mental function – that may be associated with a disability – can never constitute a relevant difference upon which a legal distinction can be made. It is not discrimination to say that a blind person can be denied the right to drive, under the relevant legislation, when they cannot see. Nor is it discrimination to say that a person's firearms license can be

6 On this last point, the Committee says: “support to exercise legal capacity should not hinge on mental capacity assessments; new, non-discriminatory indicators of support needs are required” — adding no further comment as to what those indicators might be: United Nations Committee on the Rights of Person with Disabilities (2014) at para. 29(i).

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suspended when acute paranoid delusions about their neighbours affect their ability to use a weapon responsibly — even when that decision does involve treating that person differently to others, and does rely on aspects of their mental functioning, that may be associated with a disability, when applying the legal test. Those decisions would not be based on the person's “status”, or purely on a diagnosis. They would be based on relevant distinctions – between the capacities of that person and those of others – to safely perform the particular task. To ignore such impairments in functioning for legal purposes could seriously endanger the interests of that person or others, by blocking necessary preventive action, and it could prevent extra, positive entitlements being conferred on the person to assist. It all depends on what counts as a relevant difference between persons regarding the particular decision or task. Just as blindness – or inability to see – can properly be considered a relevant difference, in some legal contexts, so can impairment in mental function be considered relevant to certain decisions or tasks. We certainly face problems in accurately assessing the inner-workings of the human mind, but only an impoverished legal system would consider it wholly irrelevant to a person's ability to make a will, or take full responsibility for hitting someone, or serve on a jury or as a judge, or continue as a company director, that they currently suffer significant cognitive impairment as a consequence of Alzheimer's disease. The inflexible approach to such matters demonstrated by the Committee in the General Comment cannot deliver the subtle distinctions a legal system needs. Furthermore, the Committee fails to recognise the difficulties that can be involved in determining a person's genuine “will and preferences” when their mental function is severely impaired and they have left no clear expression of their prior views. It fails to clarify when “supported” decision-making becomes “substitute” decision-making, especially when reaching a “best interpretation” of the person's likely views (Callaghan & Ryan, 2014). It does not tell us when a person should be viewed as unable to express their “will and preferences”, despite receiving adequate support. It fails to indicate when or why the safeguards listed in Article 12(4) are required around this process. Finally, the Committee pays no adequate attention in the General Comment to the potentially adverse consequences of the positions it takes. It makes no mention of the prospect, for instance, that, if a person cannot be subject to compulsory treatment or institutionalisation under the civil law, they may be subject to imprisonment or preventive detention instead (Bartlett, 2012), with no advance in human rights terms. In this fashion, the Committee's approach reveals a famous weakness of rights discourse — its non-consequential character. 4. A more realistic interpretation of the Convention What, then, is the alternative? Can a better interpretation be placed on the Convention that would resolve some of its ambiguities, and some of the tensions between its conflicting rights, yet still constitute a useful guide to mental health law reform? A more convincing interpretation can be found. Many of its elements have already been indicated in the criticisms of the General Comment made above. A better interpretation would, I suggest, have four main elements. First, it would permit the use of legal standards that are based on the capacity of a person to perform relevant mental functions or tasks. On this approach, impaired performance against those standards could properly indicate that a person should not be viewed as similarly situated to others when decisions about their position are to be made (especially decisions that might confer significant benefits on them). The relevant legal tests for capacity should not use over-broad concepts like “mental disorder” or “mental disability”, however. Nor should the legal tests refer to apparently disabling conditions or diagnoses, when such conditions are not invariably associated with loss of decision-making capacity. Over-broad approaches of that kind are unnecessarily stigmatising, they are akin to a “status” approach, and they can fairly be viewed as a

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form of discrimination, on the ground of disability, within the law.7 Nor is any reference in the law generally required to cause or aetiology – the “why” – of impairment in mental function, because it is the occurrence, not the cause, of that impairment in function that is usually critical for legal purposes. Moreover, the same tests of mental function can be applied to all persons, regardless of the cause of any associated disability, and, in that sense, the legal tests can be universally applied, producing equal treatment before the law (Szmukler, Daw, & Callard, 2014). This approach – that relies on relevant impairment in the mental functions necessary to perform specific tasks – provides a foundation for a line to be drawn between situations in which it would be improper for the state to intervene in people's lives, and situations in which it would constitute neglect of the interests of people with disabilities not to intervene. It shifts the law as far as possible away from reliance on the concept of mental disability without denying the relevance of certain mental functions to performance of specific decisions or tasks. It would permit a person's legal capacity to be limited in specific domains to which impairment in their mental function was directly relevant, subject to proper safeguards, for a limited period of time, until the matter was reviewed. That should not be viewed as discrimination on the ground of disability in the law. Nevertheless – and this is a second element to the more conservative approach – before any such decision about a person's legal capacities could be taken, adequate support would have to be provided to permit that person to develop and express their own will and preferences on the matter, as the Convention requires, and reasonable accommodation would be needed in the surrounding social or environmental arrangements that could promote that person's capacity to decide. Only if such measures were insufficient would a capacity test be applied, and would others be authorised to make decisions on the person's behalf. But, in those exceptional circumstances, a finding of incapacity could be reached, in a specific domain, and substitute decision-making authorised, even if the substitute decision-maker (SDM) would still be required to follow the “best interpretation” of that person's own will and preferences, in their decisions, on most occasions. That mix of legal arrangements makes the best sense of the full provisions of Article 12 and the Convention as a whole. Richardson argues convincingly, for instance, that the “safeguards” referred to in Article 12(4) could “extend to substitute decision-making in extreme cases”, and that the language of Article 12(4) “appears to allow it”, by specifying the requirements – such as use of proportionate measures and access to regular review – that an adequate substitute decision-making regime must contain (Richardson, 2012, 346). Thirdly, it is necessary to consider the role to be played by any advance directive refusing treatment made at a time when the person retained the relevant capacity. Here, I would argue, a distinction should be drawn, when constructing the law, between “respecting” the will and preferences of a person and “following” their will and preferences on all occasions, regardless of the consequences. Any advance directive refusing treatment needs to be very carefully considered, to show “respect” for a person's will and preferences, as the Convention requires, but, I would argue, it should not always be necessary to “follow” such a directive, on every occasion, regardless of the consequences for that person or others. On one view, “respect” for a person's preferences would always require strict adherence to their clearly expressed prior views, regardless of any later lack of capacity on their part, and despite the consequences. Their “preferences” – expressed in the directive – should simply be followed. The better view is that respecting a person's will and preferences does not always require their views to be followed. Instead, when a person subsequently comes to lack the capacity to make a certain decision, a clear expression of their prior views need not be followed on some rare occasions — when, for instance, it would have serious consequences for the safety of other people, by blocking 7 The original statement of this argument was made by Campbell and Heginbotham (1991).

preventive intervention, or would lead to the imposition of other restrictions on the person's liberties of a more drastic kind, such as imprisonment or prolonged preventive detention, should their prior refusal be followed. Nevertheless, adherence to the Convention would certainly demand very careful consideration of any prior statement of the person's views. Fourthly, a related principle – under this more conservative interpretation – would be that treatment without consent, or compulsory admission to an institution providing appropriate care, would be authorised, in certain circumstances, when a person was found to lack the capacity to make that treatment decision and had issued no prior refusal of that treatment option. Those actions would be authorised when they constituted a “proportionate” response to the person's situation8: notably, when those actions would prevent a serious threat of harm to that person or others, and no less restrictive approach could avert that harm. Following principles of this kind would provide a more balanced interpretation of the Convention as a whole. It permits use of a suitable bridging concept – that of functional capacity – that can mediate the tension between the Convention's guarantees of negative and positive rights. It permits lines to be drawn between the conflicting obligations of state parties — to respect the autonomy of people with disabilities, on the one hand, and not to expose them to unwarranted neglect, or not expose third parties to unnecessary danger, on the other. It would not require states to abandon the use of mental concepts in their criminal codes or elsewhere in their law. It is based on a convincing theory of discrimination: that it is not necessarily improper discrimination to treat people differently when relevant differences exist between their situations even after adequate support has been provided and reasonable accommodation made. It explains why adequate safeguards and proper review mechanisms are required, concerning decision-making by others, by Article 12. It fits the common sense intuition that people in some situations – such as when they are unconscious – cannot express their will and preferences concerning treatment, and may not have done so in advance, and that, in some situations of that kind it would go beyond “supported” decision-making for another person to determine the “best interpretation” of their will and preferences. Finally, it provides a realistic set of guidelines for law reform that are not wholly incompatible with the central concepts of the legal systems of most states who have ratified the treaty, and are therefore much more likely to encourage compliance. On this interpretation, the key parameters for assessing the degree of compliance with the Convention shown by a particular jurisdiction's mental health legislation would be as follows: • whether the standards used to authorise psychiatric treatment without consent rely on a broad concept of “mental disorder”, or, in contrast, use (in some or all situations) a specific test of capacity to consent to such treatment • whether authority to make decisions about a person's psychiatric treatment can be transferred to others, and, if so, whether adequate safeguards exist around that process, to prevent conflicts of interest, for instance, and ensure adequate access to independent review • the degree to which the person's own views about their psychiatric treatment must be considered, including the effect of any valid advance refusal of treatment they have issued.

To illustrate how these parameters would apply, the legislation of China, England and Wales, and Ontario, plus a Draft Bill under consultation in Northern Ireland, will now be considered in this light. The aim is not to provide a complete analysis of the relevant legislation but to

8 On the meaning of “proportionality”, see Clayton and Tomlinson (2009); R v Oakes [1986] 1 SCR 103 (SCC).


provide sufficient analysis to show that the parameters just described constitute a more useful and realistic guide to law reform.

5. Assessing four jurisdictions' legislation 5.1. China's new mental health law The inaugural national mental health legislation for China9 came into force in 2013 (Chunyan, 2014; Zhao & Dawson, 2014). It declares that people with mental disabilities have rights to human dignity, nondiscrimination (art. 5), proper care, privacy, access to medical records, information about their rights during diagnosis and treatment, and other important rights (art. 33) — a significant development in human rights consciousness in China. Chapter 3 of the law sets the standards and procedures for compulsory psychiatric treatment. These standards are based on the concepts of “severe mental disorder” plus risk of harm to self or others (art. 30). “Severe mental disorder” for these purposes is defined partly in functional terms, as a condition “characterized by severe symptoms that result in severe impairments in social adjustment or other types of functioning, an impaired understanding of one's own health status or objective reality, or an inability to cope with one's own affairs” (art. 83(2)). For intervention to be authorised, there is no specific requirement, however, that a person must lack the capacity to determine their own need for mental health care. Nor is there any suggestion that a person under the Act who retains such capacity has the right to refuse psychiatric treatment. There is no requirement that their capacity must be assessed for this purpose, nor any express requirement to consider their views, or respect their advance decisions, when authorising treatment. The law says a person under the Act must be informed about the plan for their treatment, and its aims (art. 39). Their treatment must meet professional standards (arts. 25, 26). Medication administered should be safe, effective and used for proper purposes (art. 41). Psychosurgery on compulsory patients is prohibited (art. 42). Restrictive measures, such as restraint and isolation, may be imposed only when no alternatives exist and the person is at immediate risk of causing harm to themselves, endangering the safety of others, or disrupting the functioning of the hospital (art. 40(1)). Treatment facilities must be monitored by local administrative departments of health (art. 50), and a person's guardian must monitor their treatment in the community (art. 49). Generally, however, the Act seems to confer comprehensive powers on clinicians to treat compulsory patients without their consent, based on the clinician's view of the patient's “best interests”. The law provides compulsory patients with very limited access to independent review of their status before a court or tribunal, (Zhao & Dawson, 2014). Rights to review of involuntary admission are expressed in terms of a right to a re-diagnosis (art. 32), or a further psychiatric evaluation by appointed experts, under a “medical authentication” process. Both of these processes involve a further exercise of clinical judgement, not a system of regular judicial or tribunal review against the ruling legal standards. Moreover, judicial review of those medical evaluations may be available only on the ground of negligence, not misapplication of the law, due to the undeveloped state of Chinese administrative law (Zhao & Dawson, 2014), and due to the strong degree of deference shown to the decisions of external professional bodies and their standards, by Chinese courts (Zhao, 2012). Rules governing the determination of a person's legal capacity for many other purposes, such as managing their property, are provided by China's interim Civil Code.10 Where a person is found to lack capacity, the authority to make the relevant decisions may be transferred to a guardian, who is chosen from a prioritised list stated in the law. This 9 Mental Health Law of People's Republic of China (2012), Standing Committee of the National People's Congress; China; in force, May 2013. For an English translation, see Chen et al. (2012). 10 General Principles of Civil Law of the People's Republic of China (1986), National People's Congress, China.

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list gives preference to close family members, reflecting the important role of the family in Chinese culture. In addition, such guardians have important roles conferred on them by the Mental Health Law. They are authorised to take people to hospital and initiate their involuntary psychiatric assessment (art. 28). They can veto the involuntary hospitalisation of a person who is solely at risk of self-harm, not harming others (art. 31). They can give proxy consent to some forms of psychiatric treatment (art. 43), and they have important rights to receive information, as the Law says information about treatment should be provided to the person “or” their guardian (arts. 37, 39, 43, 47). Those who perform the role of guardian are also exposed to heavy responsibilities, however. They must supervise the community treatment of the person for whom they act (art. 31), ensure they adhere to treatment (art. 49), and assist their rehabilitation (art. 59). If they fail to do so, and anyone is harmed, the guardian can be liable to pay compensation (art. 78). How, then, should this regime be assessed for Convention compliance, against the standards listed above? Clearly, the standards governing compulsory treatment rely on a broad definition of “mental disorder” plus the usual risks of harm. The definition of “mental disorder” has some functional elements, such as “impaired understanding of one's own health status”, but it cannot be called a carefully calibrated test that focuses exclusively on aspects of mental function relevant to capacity to consent to psychiatric care. Nor is a person under the Act, who retains such capacity, given any obvious right to refuse treatment. Under the Act, authority over a person's psychiatric treatment can be transferred to clinicians, or to family members as guardians, with poor protection against conflict of interest within families, and poor access to judicial review of the decision to keep a person under compulsion — illustrating the strong degree of deference shown medical and family authority in China. Overall, the law seems more concerned about the authority of guardians than the autonomy of people under psychiatric care. To be fair to the UN Committee, it made observations of this kind, in 2012, in its formal Response to China's initial report on Convention compliance.11 The Committee concluded that a medical rather than the human rights model of disability remained dominant in China and expressed concern about the scope of the authority conferred on guardians (para. 21). Nevertheless, the Committee recommended that China should “repeal the laws, policies and practices which permit guardianship and trusteeship for adults” and should abolish “the practice of involuntary civil commitment based on actual or perceived impairment” (paras. 22, 26). Those recommendations seem largely unhelpful. They may simply discourage China taking seriously the Committee's more realistic comments on its new mental health law, especially when another UN agency, the World Health Organisation, had previously urged China, for several decades, to pass a national mental health law — to promote human rights (Zhao & Dawson, 2014). 5.2. The pragmatic approach taken to capacity in England and Wales The base criteria for initiating compulsory treatment (or “sectioning”) under the revised Mental Health Act 1983 (UK) (the 1983 Act), that apply in England and Wales, contain no explicit reference to a person's incapacity to consent to treatment (Bartlett & Sandland, 2013; Fennell, 2007; Gostin, Bartlett, Fennell, McHale, & Mackay, 2010; Jones, 2014). Instead, the criteria concern “mental disorder”, need for detention in hospital for the protection of the person or others, and availability of appropriate treatment. “Mental disorder” is defined very broadly (if at all) as “any disorder or disability of the mind” (section 1). These standards do not focus on functional capacity, unlike those in the Mental Capacity Act 2005 (UK),12 and no general rule is established 11

United Nations Committee on the Rights of Persons with Disabilities (2012). These standards focus on a person's ability to understand, retain, use, and weigh in the decision-making process, information relevant to the particular decision they must make, plus their ability to communicate a choice: Mental Capacity Act 2005 (UK), section 3(1). 12

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that a person must lack capacity to consent to psychiatric treatment to be detained or treated without consent under the 1983 Act. The amendments to that Act, passed in 2007, have applied capacity principles pragmatically to use of medication outside hospital under the Community Treatment Order (CTO) regime, and to use of ECT, but people under the Act have no right to refuse medication administered under the direction of their responsible clinician, when in hospital. The Mental Health Act Code of Practice (Department of Health, 2008) says that those exercising powers under the Act must “have regard” to the principle of “respect” for the “needs, values, … wishes and feelings” of those under compulsion (para. 1.4) and to the principle of “participation” (paras. 1.4, 1.5). But these principles must be “balanced” (paras. 1.8, 1.9) against the “purpose principle”, which requires decisions to “be taken with a view to minimising the undesirable effects of mental disorder” (para. 1.2). Regarding treatment under the Act, section 63 of the 1983 Act establishes the position concerning all forms of “medical treatment for the mental disorder” that are not covered by a special legal regime. The position is that: “The consent of a patient shall not be required” for treatment directed by the responsible clinician. This means that medication may be administered without consent to a compulsory patient in hospital, at the direction of the clinician, whether the patient has the capacity to consent or not, provided the medication regime is approved by a second opinion from another appointed psychiatrist when used for longer than three months. So, compulsory patients in hospital are entitled to the benefit of that mandatory peer review regime, for the long-term use of medication, but have no right to refuse. Compulsory patients granted “leave” from the hospital, under section 17 – who remain “liable to be detained” – are covered by the same rule. The position is different for medication administered outside hospital to a patient on a CTO (Dawson, 2010). Here capacity principles apply. So, where such a patient has the capacity to consent, they cannot be treated without their consent, even in an emergency (sections 64B(2), 64C(2)(a)). If they refuse treatment and are considered to need inpatient care, however, they can be recalled to hospital by clinicians (section 17E). Then medication can be administered without their consent.13 Those on a CTO who lack capacity, on the other hand, may be treated outside hospital without their consent (Part 4A), though not where that would contradict a valid advance refusal of the treatment or a decision of their appointed representative (except in an emergency) (sections, 64D, 64G). For ECT (section 58A), if the person is considered to have capacity, that treatment may proceed only with their consent. Where they lack capacity, the treatment must go through the mandatory peer review process and be approved by another psychiatrist (section 58A(5)). ECT cannot be approved, however, when contrary to a “valid and applicable” advance refusal of the person, or contrary to a decision of an appointed representative. This means that lack of consent on the part of a person with capacity, a valid advance refusal, or opposition from the person's representative, may all bar use of ECT. The rules about psychosurgery prohibit any use of such treatment with a person who lacks the capacity to consent (section 57). The effect of an advance refusal, under the 1983 Act, therefore depends on the nature of the treatment proposed. Advance refusals can have a binding effect within the ECT and CTO regimes, but do not block the administration of medication in hospital. Under these arrangements, however, the authority to make treatment decisions is generally transferred to clinicians, not family members or a nominee of the person concerned. A person's Nearest Relative (Keywood, 2010) can bar their compulsory admission (section 11(4)), demand their discharge in certain situations (section 23), initiate reviews (section 66), and must be consulted and given information. But they are not authorised to approve or veto specific treatments, and

the person filling the role of Nearest Relative can be displaced, for conflict of interest, by the review tribunal. Assessing this regime for England and Wales: it uses (a largely undefined) concept of “mental disorder” in the standards governing compulsion, not a functional capacity test. Lack of capacity to consent to treatment is not a precondition for a person's detention under the Act, or for compulsory medication in hospital. But capacity principles are applied – pragmatically – to some treatments of a more intrusive or controversial kind, and advance refusals are made binding in some situations (Richardson, 2001). Agreement between professionals from different disciplines (such as doctors and social workers) is often required for use of compulsory powers. Generally, however, following a person's compulsory admission, the primary authority over their treatment transfers to clinicians, subject to mandatory peer review of some forms of treatment by senior colleagues. Limited authority is conferred on family members, via the role of the Nearest Relative, or on a person's appointed representative. The review tribunal may discharge a person from compulsory status as a whole, and that tribunal's decisions can be reviewed – for error of law or process – in the courts. Compulsory patients in hospital have no right to refuse medication, however, even if they have the capacity to do so, and those on CTOs can be recalled to hospital and medicated there without consent. For closer Convention compliance, therefore, mental health law in England and Wales should move away from reliance on a broad and poorlydefined concept of “mental disorder” and towards the adoption of a functional capacity test, in the criteria for compulsion. It should apply capacity principles to all forms of psychiatric treatment. It is hard to justify a legal regime, on a principled basis, that permits compulsory patients with capacity to refuse ECT, and to refuse medication outside hospital while on a CTO, but not to refuse medication administered during hospital care. To go further, and say complete repeal was required of the involuntary treatment regime established by the 1983 Act, to ensure Convention compliance, would seem to offer no further helpful guidance on law reform. 5.3. Ontario: the detention-treatment split Mental health legislation is enacted at the provincial level in Canada (Gray, Shone, & Liddle, 2008). Under Ontario's Mental Health Act (MHA(Ont)),14 the first test for involuntary hospitalisation is the presence of “mental disorder”. This is said to mean “any disease or disability of the mind” (section 15). In addition, the person must either be suffering “serious deterioration” in their condition (a standard that requires them to lack capacity to consent to psychiatric care) (section 15(1.1)(e)) or they must meet a standard of “dangerousness” to self or others (in which case no capacity test applies). This means that when that “dangerousness” standard is met, a person need not lack capacity to be detained in hospital. With regard to treatment after involuntary admission, the matter is different. Concerning treatment, the person's capacity is determinative, and the rules governing psychiatric treatment (with very few exceptions) are the same as those governing the treatment of any other health condition. These rules are codified in the Health Care Consent Act 1996 (Ontario) (HCCA)15 and apply regardless of the person's legal status (Hiltz & Szigeti, 2005). The central rule is that treatment cannot be provided – even to a person under the MHA – without their consent or that of their SDM. Where a person has the relevant capacity, they must give consent for treatment to proceed. Where they lack capacity, consent must be given by their SDM instead (section 10). In addition, a clear advance refusal of treatment must be honoured.16 It is therefore unlawful to treat a person with capacity without consent, except in an emergency (HCCA, section 25(3)). No exception is made for compulsory psychiatric care. 14

13

This is because the provisions of Part 4 of the 1983 Act, concerning the treatment of patients in hospital, apply following the patient's recall from a CTO: section 56(4).

15 16

Mental Health Act 1990 (Ontario), RSO, chapter M 7. Health Care Consent Act 1996 (Ontario), RSO, chapter 2. Fleming v Reid (1991) 4 OR (3d) 74 (Ont CA).


The HCCA also lists basic rules for Ontario concerning effective consent to health care. It affirms the usual presumption of capacity and sets the relevant capacity test. This test (section 4) focuses on whether “the person is able to understand the information that is relevant to making a decision about treatment … and able to appreciate the reasonably foreseeable consequences of a decision or lack of decision”. The Supreme Court of Canada considered this test in Starson and gave it powerful effect.17 The Court found, for instance, that a person may have the ability to understand and appreciate the relevant matters, even if, in the circumstances, they do not have an actual understanding or appreciation of the treatment proposed.18 Following a person's compulsory admission their capacity must therefore be assessed by treating physicians, who make the initial capacity determination. If they consider the person has capacity to consent to psychiatric treatment, that treatment cannot proceed without consent, except in imminent emergencies when the person cannot be consulted and “there is no reason to believe that the person does not want the treatment” (HCCA, section 25(3)). There is no procedure for appealing or trumping a refusal of treatment by a person with capacity. Detention under the MHA can continue, however, and common law rules about restraint in situations of necessity apply. Section 7 HCCA says: “This Act does not affect the common law duty of a caregiver to restrain or confine a person when immediate action is necessary to prevent serious bodily harm to the person or to others”. Moreover, even “chemical restraints” are contemplated (MHA(Ont), section 53(2)). So detention, observation, intensive nursing, seclusion, and even restraint, may be lawful when a person with capacity refuses treatment while under the Act. If they lack capacity, on the other hand, emergency treatment may proceed while the consent of their SDM is sought, unless the patient is known to have previously rejected the treatment when they had capacity (HCCA, section 26). The person may appeal the physician's determination of their incapacity to the Consent and Capacity Board (the Board), and if the physician knows that appeal has been launched “before the treatment has begun”, treatment cannot proceed, except in an emergency, until the Board resolves the matter (HCCA, sections 18, 25). In practice, only a small proportion of those found to lack capacity seem to seek review by the Board (21% in one study (Kelly, Dunbar, Gray, & O'Reilly, 2002)),19 and the Board almost invariably endorses the physician's determination (98.5% of the time, in that study). The HCCA then lists in order of priority those who can be designated as the SDM for a person lacking capacity to consent to healthcare (section 20). A court-appointed guardian comes first; then an attorney for personal care appointed by the person;20 then a representative appointed by the Board. Next come the person's relatives, in listed priority — spouse, child, parent, siblings, and so on. The SDM is appointed automatically, in that order of priority, following an incapacity finding, unless displaced by the Board in favour of another candidate. Under this process, family members will often be authorised to approve a course of treatment for their relative that has been recommended by a psychiatrist, because a family member will become the SDM who can consent when no guardian, attorney, or appointed representative of the person takes priority over them on the list. Family members might, on occasion, have a conflict of interest with a person under the MHA for whom they make treatment decisions. For example, there might be a history of conflict – even violence – between them. No general conflict of interest provision bars their appointment in such cases. However, any person with capacity can appoint an attorney 17

Starson v Swayze [2003] 1 SCR 722 (SCC). See the opinion of Major J. for the majority at paras 78–81. A person might not attain actual understanding, for example, if they deliberately declined to receive necessary information, though they might have the ability to achieve the necessary level of understanding if they received that information. 19 For a similar study in the USA, see Hoge et al. (1990). 20 Appointments to these two positions are governed by the Substitute Decisions Act 1992 (Ontario), RSO, chapter 30; see Hiltz and Szigeti (2005). 18

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for healthcare in advance, who then takes precedence as SDM over a family member. Moreover, on application, the Board can displace a family member and appoint a new representative when that is in the “best interests” of the person under treatment (HCCA, section 33). The HCCA also requires that SDMs follow certain principles. These reinforce the need to follow the known wishes of the person. If the person's wishes are not known, the SDM “shall act in the incapable person's best interests”, though they must still bear in mind the person's values and views (section 21). If the SDM departs from those principles, their decisions can be reviewed by the Board. Under these arrangements, therefore, compulsory admission (or detention) in a psychiatric facility is based on a broad concept of “mental disorder” plus either “dangerousness” or incapacity to consent and “serious deterioration” in health. Concerning treatment, however, a functional test of capacity is comprehensively applied, based on “understanding” relevant treatment information and “appreciation” of the consequences of treatment decisions. This capacity test is broadly phrased but has been sharpened somewhat in the courts. A hard rule is applied that a person with capacity can refuse treatment even while under the MHA, including refusal by advance directive. Access to the Board is guaranteed for review of decisions about detention or incapacity to consent. But Ontario law does little to regulate specific forms of compulsory treatment. Psychosurgery is strictly regulated (MHA(Ont), section 49), but ECT and lengthy use of medication without consent are not subject to any mandatory peer review process equivalent to that in England and Wales. Generally, these arrangements seem closer to Convention compliance than the laws of China or England and Wales. There is still the question whether detention under the MHA in Ontario should also depend on incapacity to consent to placement in hospital — even when a person meets the “dangerousness” criteria (Appelbaum, 1994; Bartlett, 2003; Solomon, O'Reilly, Gray, & Nikolic, 2008), with the control of people who retain that capacity being left solely to the criminal law, for instance, or to other generally-applicable legal rules about prevention of suicide or self-harm. Plus there is the question whether the rules that deem family members to be SDMs concerning treatment provide adequate protection against conflicts of interest within families, when a person under the MHA must make an application, and a case, before the Board before a family member can be shifted from the role of SDM. In these respects at least, Ontario might still contemplate law reform. 5.4. Northern Ireland's Draft Bill: “fusion” in action A Draft Mental Capacity Bill for Northern Ireland (Draft Bill (NI)) was put out for public consultation in late 2013.21 It proposes that, in future, mental health or incapacity law in Northern Ireland would provide a justification for intervention in a person's life when (and only when) that person lacked the capacity to make decisions about their “care, treatment or welfare”. No distinction would be made between intervention required to provide mental health services and that required to provide other forms of treatment or care. The Draft Bill would therefore enact the (so called) “fusion” proposals advocated by some commentators as a means of reducing discrimination in the law against people with mental disabilities (Dawson & Szmukler, 2006; Szmukler, Daw & Dawson, 2010). It would “fuse” mental health and incapacity (or adult guardianship) legislation into a single statutory scheme, based squarely on capacity principles, with no specific reference to diagnosis or “disorder”.22 Separate mental health legislation would be therefore be abolished. All interventions under the legislation would 21 Northern Ireland Department of Justice (2014). This Draft Bill (NI) adopts many of the proposals made by the Bamford Committee in the law reform process: Bamford Review of Mental Health and Learning Disability (Northern Ireland) (2007). 22 The Draft Bill (NI) says it would be immaterial, when assessing capacity, “whether the impairment or disturbance is caused by a disorder or disability or otherwise”, and that lack of capacity “cannot be established merely by reference to … a condition of the person … which might lead others to make unjustified assumptions”: clauses 2(3), 1(5). Clause 2(2)(b) is to similar effect.

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instead be premised on impairment in the mental functions necessary to make the relevant decisions. This “fusion” approach is not without its critics. It has been attacked on the ground that it would prevent the control of some people who are “mentally disordered” and “dangerous” but retain the relevant capacities (Appelbaum, 2010), and attacked on the ground that it might prevent sustained treatment of some people with a serious mental illness whose capacity fluctuates in the course of their condition (Burns, 2010). In addition, it might expand the use of compulsory powers (or “widen the net”) due to the malleable character of the functional capacity test — though in fact that test seems no more malleable than the vague concepts of mental disorder used in many Mental Health Acts. The Draft Bill for Northern Ireland would adopt the fusion proposal, despite those criticisms. It would apply capacity principles to both detention and treatment under its authority (clause 2(1)), and would define capacity by reference to the ability of a person to understand, retain, appreciate, use, or weigh information relevant to that decision, or to communicate their decision (clause 3(1)). The proposed standards for intervention would still make some reference to mental impairment, however. They would impose the additional requirement that a person's lack of capacity be “because of an impairment of, or disturbance in the functioning of, the mind or brain” (clause 2(1)). This rule seems included to satisfy the concurrent demands of European human rights law (Bartlett, 2012), that requires that a person should only be “deprived of liberty”, in this situation, when of “unsound mind”.23 The standards for intervention, are, nevertheless, based mainly on a functional capacity test. In addition, supported decision-making is actively encouraged, because, the Draft Bill says, a person is not to be “treated as unable to make a decision … unless all practicable help and support” has been given “without success” (clause 1(3). Some indications are given of what supported decision-making involves. It would include providing the person with relevant information and a suitable explanation, raising the matter at the right time and in a suitable environment, and ensuring that other people, who can help the person decide, are involved (clause 4). Nevertheless, where a person is ultimately found to lack capacity to make a certain decision, the Draft Bill justifies intervention by others. Provided the relevant legal standards are met, and specified procedures followed, deprivation of a person's liberty, restraint, “treatment with serious consequences”, and “community residence requirements”, may all be imposed, though a mandatory second opinion regime would continue to apply to the long-term use of medication and to ECT. There would be no general transfer of authority to approve treatment to a single SDM, such as a family member, however, and no automatic involvement of a court or tribunal, in many instances. Instead, the new law would justify the actions of particular individuals who intervene in specific ways without the person's consent. The outcome would be that many decisions could continue to be made by clinicians, as the common law of necessity has previously allowed. 5.4.1. Constraints on decisions to intervene The Draft Bill places important constraints, however, on the way in which these decisions about others' care and treatment should be made. First, the decision-maker must follow certain principles and consultation requirements. Generally, they must act “in the best interests” of the person concerned (clauses 6, 8, 93(4)(a)), but they must “consider all the relevant circumstances”, and take certain steps, including encouraging the person to participate in determining their best interests, and “taking into account” the person's wishes, feelings, beliefs and values (clause 6). They must consult many “relevant people”, especially anyone specified by the person in advance, the current carers, and other 23 See Article 5(1)(e) Convention for the Protection of Human Rights and Fundamental Freedoms, opened for signature 4 November 1950, CETS No 005, entered into force 3 September 1953 (the European Convention on Human Rights).

advocates and representatives. They must consider whether there is any less restrictive way to achieve their aims, and whether failure to intervene “is likely to result in harm to other persons with resulting harm” to the person for whom they act (clause 6(10)). Generally, this means they must balance their own assessment of the person's best interests against that person's own views, before they intervene. Under the proposed law, the decision-maker's choices about the person's care and treatment would still be constrained, in some situations, by an advance refusal of treatment issued by the person, or be constrained by a decision on the matter made by a lasting attorney appointed by the person at an earlier time. The Draft Bill says that, where the person has issued an “effective advance decision to refuse treatment” (clause 10), or has appointed a lasting attorney to make decisions about their care (clause 93), the relevant instructions must be followed.24 As the Bill puts it, no other person is justified in performing an act that “conflicts with” a valid advance instruction or lasting attorney's decision (clause 10(1)(b)) — clearly giving priority here to the “rights, will and preferences” of the person. Nevertheless, there are still certain interventions that could not be vetoed, it seems, by an advance refusal or a lasting attorney. Notably, a person cannot, it seems, veto in advance their own detention, as their advance decisions are only binding on decisions about treatment25 — a concept that seems distinguishable from “detention” under the Draft Bill.26 Similarly, while a lasting attorney can be granted a wide range of authority – over decisions about a person's “care, treatment and personal welfare”, not just their treatment (clause 93(1)(a)) – it cannot extend to decisions that would deprive a person of their liberty or authorise others to detain them (clause 94(4),(5)). Ultimately an attorney must make decisions that are in the “best interests” of the person, and they could be displaced, for failure to do so, by a court. So only a bold attorney would claim, in the face of those provisions, that they had the authority to veto a person's detention when responsible professionals were convinced it was immediately required. Nevertheless, the person's treatment after detention might still be vetoed by advance refusal or a lasting attorney's decision. In total, therefore, the Bill seems to go as far as possible, within the constraints of European human rights law, to remove references to disabling conditions from the law. It establishes a single statute governing treatment without consent of all health conditions. Separate mental health legislation would be abolished. A test of incapacity to perform specific functions necessary to make particular decisions would become the main standard under which others would be permitted to intervene. Supported decision-making, proper consideration of the person's views, and wide consultation, would be required. Advance refusals and decisions of a lasting attorney would take priority regarding treatment, though not necessarily detention. The usual procedural protections would be available, such as review of compulsory status by a tribunal, and mandatory second opinions on some treatments. The Draft Bill therefore complies very closely with the standards explicated earlier in this article for Convention compliance. It would permit decisions to be made by others, when absolutely necessary, while attempting to ensure that both the person concerned and other people were adequately protected from harm. 6. Conclusion This article has tried to express a more balanced – though more conservative –interpretation of the UN Convention than that offered by the 24 Valid decisions of a court-appointed “deputy” are in the same position: Draft Bill (NI), clause 9(3)(b). 25 An “effective advance decision to refuse treatment” is defined in the Draft Bill (NI) as one that would be recognised as effective “under the common law relating to advance decisions”: clause 10(2). The common law may not, however, recognise the efficacy of advance decisions to refuse detention, when serious harm is threatened, and when detention in those circumstances has previously been authorised by mental health legislation. 26 Special rules govern deprivation of liberty and use of restraint, for example.


Committee in the General Comment. On the basis of this interpretation an alternative set of standards was constructed for measuring Convention compliance. These standards were then used to assess the degree of compliance shown by four jurisdictions' current or proposed mental health laws. The aim has been to set realistic goals for law reform and avoid making improbable suggestions whose downstream consequences cannot readily be foreseen. In contrast, the Committee has proposed in the General Comment the total repeal of mental health and adult guardianship legislation without giving any indication of how imminent threats to the safety of a person with significant impairment in mental function, or threats to the safety to others around them, would be handled. Would those situations be managed solely under the criminal law, for instance, or under general legal powers to prevent suicide or self-harm, or under some newly-enacted preventive detention scheme that would apply to all “dangerous” people (and raise further human rights concerns)? The Committee gives no indication of what an adequate legal landscape would look like following the repeal of such laws — one that would protect all people's human rights, including the negative and positive rights of persons with disabilities, under the Convention. The more realistic approach advocated here would not leave such large questions hanging. It would also produce less radical law reform. The reforms advocated here would still be politically challenging for many states, but they would move the law towards Convention compliance. The main reforms suggested are that states should abandon use in their laws of over-broad concepts, like “mental disorder”, in favour of functional capacity tests; they should actively encourage supported decision-making, in situations in which it is possible; and they should give considerable weight to advance refusals of treatment, without giving them full priority regardless of the consequences. Subject to these changes, in carefully defined circumstances, the law should permit the transfer of decision-making authority over treatment, and permit treatment without a person's consent, subject to adequate safeguards and rigorous, independent review. This approach would permit decisions about intervention to be based on evidence of impairment in mental function that is relevant to the particular decision to be made or task to be performed. Reliance on such evidence would not be viewed as improper discrimination in the application of the law. Nor would denial of specific legal capacities, where relevant impairment exists, be conflated with denial of equal recognition as a person before the law. Review of mental health legislation for Convention compliance against these more realistic standards would, I suggest, be more likely to encourage positive law reform. References Appelbaum, P. (1994). Right to refuse treatment with medication: Consent, coercion, and the courts. In P. Appelbaum, Almost a revolution — Mental health law and the limits of change (pp. 114–162). New York: Oxford University Press. Appelbaum, P. (2010). Harnessing the power of fusion? A valiant but flawed effort to obviate the need for distinct mental health law. Journal of Mental Health Law, Special Issue, 25–33. Bamford Review of Mental Health and Learning Disability (Northern Ireland) (2007). A comprehensive legislative framework: Consultation report. Belfast: Department of Health. Bartlett, P. (2003). The test of compulsion in mental health law: Capacity, therapeutic benefit and dangerousness as possible criteria. Medical Law Review, 11, 326–352. Bartlett, P. (2012). A mental disorder of a kind or degree warranting confinement: Examining justifications for psychiatric detention. International Journal of Human Rights, 6, 831–844. Bartlett, P., & Sandland, R. (2013). Mental health law: Policy and practice (4th ed.). Oxford: Oxford University Press. Burns, T. (2010). Mental illness is different and ignoring its differences profits nobody. Journal of Mental Health Law, Special Issue, 34–39.

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