Full download test bank at ebook ebookmass.

com

Mental Health Law : Abolish or

Reform? Kay Wilson

CLICK LINK TO DOWLOAD

https://ebookmass.com/product/mental-health-
law-abolish-or-reform-kay-wilson/

ebookmass.com
More products digital (pdf, epub, mobi) instant
download maybe you interests ...

Mental Health Disorders Sourcebook Angela Williams

https://ebookmass.com/product/mental-health-disorders-sourcebook-
angela-williams/

Mental Health Services: A Public Health Perspective –

Ebook PDF Version

https://ebookmass.com/product/mental-health-services-a-public-
health-perspective-ebook-pdf-version/

Mental Health Disorders Sourcebook (Health Reference),

8th Edition Kevin Hayes

https://ebookmass.com/product/mental-health-disorders-sourcebook-
health-reference-8th-edition-kevin-hayes/

Child Mental Health in Primary Care Dawkins

https://ebookmass.com/product/child-mental-health-in-primary-
care-dawkins/
Mental Health Disorders Sourcebook 7th Edition
Omnigraphics

https://ebookmass.com/product/mental-health-disorders-
sourcebook-7th-edition-omnigraphics/

Neeb’s Mental Health Nursing 5th Edition, (Ebook PDF)

https://ebookmass.com/product/neebs-mental-health-nursing-5th-
edition-ebook-pdf/

Listening Visits in Perinatal Mental Health 1st Edition

https://ebookmass.com/product/listening-visits-in-perinatal-
mental-health-1st-edition/

Lippincott CoursePoint+ for Videbeck’s Psychiatric-

Mental Health Nursing

https://ebookmass.com/product/lippincott-coursepoint-for-
videbecks-psychiatric-mental-health-nursing/

24 Self-Help Books for Mental Health Headway

https://ebookmass.com/product/24-self-help-books-for-mental-
health-headway/
Mental Health Law
Mental Health Law
Abolish or Reform?

KAY W I L S O N
Melbourne Social Equity Institute
University of Melbourne

1
 3
Great Clarendon Street, Oxford, OX2 6DP,
United Kingdom
Oxford University Press is a department of the University of Oxford.
It furthers the University’s objective of excellence in research, scholarship,
and education by publishing worldwide. Oxford is a registered trade mark of
Oxford University Press in the UK and in certain other countries
© Kay Wilson 2021
The moral rights of the author have been asserted
First Edition published in 2021
Impression: 1
All rights reserved. No part of this publication may be reproduced, stored in
a retrieval system, or transmitted, in any form or by any means, without the
prior permission in writing of Oxford University Press, or as expressly permitted
by law, by licence or under terms agreed with the appropriate reprographics
rights organization. Enquiries concerning reproduction outside the scope of the
above should be sent to the Rights Department, Oxford University Press, at the
address above
You must not circulate this work in any other form
and you must impose this same condition on any acquirer
Crown copyright material is reproduced under Class Licence
Number C01P0000148 with the permission of OPSI
and the Queen’s Printer for Scotland
Published in the United States of America by Oxford University Press
198 Madison Avenue, New York, NY 10016, United States of America
British Library Cataloguing in Publication Data
Data available
Library of Congress Control Number: 2020952992
ISBN 978–​0–​19–​284325–​8
DOI: 10.1093/​oso/​9780192843258.001.0001
Printed and bound by
CPI Group (UK) Ltd, Croydon, CR0 4YY
Links to third party websites are provided by Oxford in good faith and
for information only. Oxford disclaims any responsibility for the materials
contained in any third party website referenced in this work.
 Preface

This book contains my PhD dissertation with minor modifications which I completed
part-​time at Melbourne Law School, University of Melbourne, Victoria, Australia be-
tween 2013 and 2019. I have been working and studying in the fields of mental health,
disability, and human rights law for over ten years part-​time. I began as research assis-
tant for Professor Bernadette McSherry at the Centre for the Advancement of Law and
Mental Health (CALMH) at Monash University for four years and later for two years
when Professor McSherry became the foundation director of the Melbourne Social
Equity Institute (MSEI) where I worked on a seclusion and restraint reduction pro-
ject for the National Mental Health Commission with a team of interdisciplinary re-
searchers. I am also currently an honorary fellow of MSEI.
I obtained a combined Bachelor of Arts/​Bachelor of Laws degree with first class
honours from Monash University graduating in 2000 and I am a qualified lawyer
who in a previous life practiced commercial law at a major Australian law firm and in
corporate law for a statutory authority in the energy sector. However, my interest in
mental health and disability law arises from my undergraduate and honours degree
in psychology which sparked my interest in understanding human behaviour and two
publications in psychology based on my honours thesis (noted below). My interest is
also personal as I have the lived experience of supporting many persons with mental
health and disability issues among my own circle of family and friends, including my
father who is a Vietnam War veteran diagnosed with anxiety, depression, and post-​
traumatic stress disorder, and children who are on the autism spectrum. While I have
no intention of turning my book into an autobiography as I would rather rely on the
published research, I would like to say that I know people with mental impairments
who are very dissatisfied with their experiences of involuntary detention and treat-
ment, but I also know others who are only still alive because of mental health law, or
who have suffered enormously (and caused people around them to suffer) because
they have been unable to obtain the mental health care they needed when they needed
it. I have also seen the positive difference that psychiatric care can make in improving
some people’s lives and allowing them to chase their dreams. So while I am very sym-
pathetic to abolitionists and I agree that their contribution to the debate is very impor-
tant, I cannot accept that their views on mental health law are the one and only truth
or that they are the only stakeholders and rights-​holders in this field.
Carer-​led research is rare in the mental health and disability field probably because
caring is often thankless, exhausting, gendered work which leaves little time for re-
search. Nonetheless, such perspectives add an important dimension to the litera-
ture, especially since all proposals for providing support for legal capacity regardless
of whether mental health law is abolished or reformed assume a large, selfless, and
unpaid role for carers (even if the use of professional supporters is also envisaged).
My lived experience also informs my research in that I am well aware of some of the
vi Preface

practical difficulties of trying to implement supported decision-​making, even if I view

it as an exciting development which is worthy of further research. For instance, there
are times where after much time and effort I have been given a clear ‘no’ only to be told
a few minutes later ‘I wanted that why aren’t you giving it to me?’ This is usually in rela-
tion to everyday issues such as what to have for lunch, rather than serious and complex
questions about potentially life-​saving medical treatment. It also underscores my con-
cern that the strong British Social Model of Disability and the abolitionist approach
may not appropriately reflect the realities of those living with mental and cognitive
impairment.
In addition to writing this book, I have published a number of journal articles on
my own and with Bernadette McSherry and Penelope Weller and I have given a few
conference papers, some of which I draw on in various parts of this book. I set out de-
tails of those papers below.

Publications
Kay Wilson, ‘The Convention on the Rights of Persons with Disabilities and Mental Health: the
Conflict about Abolition, Dilemmas of Implementation and Untapped Potential’ Disability
Law and Human Rights: Theory and Policy (Pan MacMillian) (forthcoming).
Kay Wilson, ‘The COVID-​19 Pandemic and the Human Rights of Persons with Mental and
Cognitive Impairments Subject to Coercive Powers in Australia’ (2020) 73 International
Journal of Law and Psychiatry 101605.
Kay Wilson, ‘The Abolition or Reform of Mental Health Law: How Should the Law Recognise
and Respond to the Vulnerability of Persons with Mental Impairment?’ (2020) 28(1) Medical
Law Review 30–​64.
Kay Wilson, ‘The Call for the Abolition of Mental Health Law and the Right to Life: The
Challenges of Suicide and Accidental Death,’ (2018) 18(4) Human Rights Law Review 651–​88.
Bernadette McSherry and Kay Wilson, ‘The Concept of Capacity in Australian Mental Health
Law Reform: Going in the Wrong Direction?’ (2015) 40 International Journal of Law and
Psychiatry 60–​69.
Melbourne Social Equity Institute, Seclusion and Restraint Project Report (University of
Melbourne, 2014) ‘The Regulatory Framework for Seclusion and Restraint’ (Chapter 2).
Kay Wilson, ‘Law Reform or Systemic Reform? Stakeholder’s Perceptions of Resource
Constraints in Mental Health in Australia, New Zealand and Canada’ (2013) 20(4) Psychiatry,
Psychology and Law 553–​77.
Bernadette McSherry and Kay Wilson, ‘Detention and Treatment Down Under: Human Rights
and Mental Health Laws in Australia and New Zealand’ (2011) 19(4) Medical Law Review
548–​80.
Kay Wilson and Penelope Weller, ‘Benevolent Paternalism or a Clash of Values: Motherhood
and Refusal of Medical Treatment in Ireland’ (2011) Journal of Mental Health Law 108–​19.
Kay Wilson and Eleonora Gullone, ‘The Relationship between Personality and Affect over the
Lifespan’ (1999) 27 Personality and Individual Differences 1141–​56.
Kay Wilson, Eleonora Gullone, and Simon Moss ‘The Youth Version of the Positive and Negative
Affect Schedule: A Psychometric Validation’ (1998) 15(3) Behaviour Change 187–​93.
 Preface vii

Travelling Fellowships
Transnational Law Summer Institute 2016, ‘Transnational Lawyering and Judging’, King’s
College London, 21–​30 July 2016, including paid accommodation, meals and tuition (fellow-
ship awarded on a competitive basis).
John Harber Phillips Travelling Fellowship to the Greek/​Australia International Law and
Medical Conference, Thessaloniki, Greece, 31 May–​6 June 2015 (academic prize included
paid flights, accommodation and tours and the opportunity to give my award-​winning con-
ference paper, noted below).

Teaching Fellowship
Teaching Fellowship 2017, Melbourne Law School, University of Melbourne, Human Rights
and Global Justice.

Conferences
Kay Wilson, ‘The Future of Mental Health Law and the Disputed, Competing and Unknown
Facts about Mental Impairment.’ Melbourne Doctoral Forum on Legal Theory, Melbourne
Law School, December 2018.
Kay Wilson, ‘Reckoning and Reconciliation: The Equality of Persons with Mental Impairments
under the United Nations Convention on the Rights of Persons with Disabilities.’ Melbourne
Doctoral Forum on Legal Theory, Melbourne Law School, December 2016.
Kay Wilson, ‘A Celebration of Law and Medicine’: Law and Medicine Working Together to
Reduce Seclusion and Restraint in Health-​Settings’ Greek/​Australia International Law and
Medical Conference, Thessaloniki, Greece, June 2015.
Kay Wilson, ‘The Evolution of the Concept of Legal Capacity: A New Vision of Persons with
Disabilities’ Endeavour Foundation Symposium, Brisbane, Australia, June 2014.
 Acknowledgements

As feminists and disability theorists have pointed out, while we often think of achieve-
ment as something that belongs to the individual, it usually does not happen without
the right support. While I have always been a fairly self-​directed student, since starting
my PhD I have learnt that it actually takes three people to write a thesis (which now
forms this book with minor amendments). I am deeply indebted to the guidance and
intelligent and useful advice I’ve always had from Professors Bernadette McSherry
and Dianne Otto. I have found that even the smallest of their suggestions can make a
significant difference to my work. There are also times where a few words of encour-
agement have gone a long way to keep me focussed and to press on in my PhD journey.
The other woman in my life who deserves acknowledgement is my mother Adriana
Wilson, who has always been very supportive, especially in helping me to care for my
children Caitlin and James. Her belief in me and her practical assistance have made
this PhD possible.
I would also like to thank Professors Genevra Richardson and John Dawson who
examined my PhD dissertation for their generous praise, the valuable contribution
of the anonymous reviewers of this book, and the editors, production staff, and aca-
demic board at Oxford University Press. This research has been made possible by an
Australian Government Research Training Program Scholarship and the James and
Valarie McNiff Top-​Up Scholarship 2015 and 2017.
 Table of Contents

List of Abbreviations  xv

1. Introduction  1
1.1 Introduction  1
1.2 What is Mental Health Law?  4
1.3 What is the Call for the Abolition of Mental Health Law,
Where Has it Come From, Why Has it Emerged Now, and
Why Does it Matter?  6
1.3.1 What is the Call for the Abolition of Mental Health Law?  6
1.3.2 Where Does the Call for the Abolition of Mental Health
Law Come From? Why Has it Emerged Now?  7
1.3.3 Why Does the Call for the Abolition of Mental Health Law Matter?  13
1.4 How Will I Determine Whether Mental Health Law
Should be Abolished or Reformed?  16
1.4.1 The CRPD and International Human Rights Law as My
Conceptual Framework  17
1.4.1.1 The Vienna Convention on the Law of Treaties (VCLT)  19
1.4.1.2 Beyond the VCLT: Social and Political Aspects Including
the Social and Human Rights Models of Disability  20
1.4.1.3 Applying the Principles of Human Rights Treaty
Interpretation to the CRPD  24
1.4.2 A ‘Jurisprudential’ or ‘Ethical’ Approach  30
1.5 Scope  30
1.6 Terminology  32
1.7 Conclusion  33
2. The History, Justification, and Purpose of Mental Health Law  34
2.1 Introduction  34
2.2 Before the First Specific Stand-​Alone Mental Health Law  36
2.3 The First Specific Stand-​Alone Mental Health Act  41
2.4 The Medicalization of Mental Health Law  43
2.5 The ‘New Legalism’ and the Mental Health Act 1983  48
2.6 Conclusion  51
3. The Case for the Abolition of Mental Health Law  53
3.1 Introduction  53
3.2 The Emergence and Development of the Call for Abolition  54
3.3 The Arguments Supporting the Case for Abolition  62
xii Table of Contents

3.3.1 Mental Health Law is a Form of Social Control of

Non-​Conformists  63
3.3.2 Mental Health Law is Discriminatory  64
3.3.2.1 Having a Separate Mental Health Law is
Discriminatory  65
3.3.2.2 Risk Criteria are Discriminatory  66
3.3.2.3 Denial of Legal Capacity is Discriminatory  67
3.3.3 ‘Free and Informed Consent’ is Integral to the
‘Right to Health’  70
3.3.4 Mental Health Law is an Unjustified Interference
with Liberty  72
3.3.5 Mental Health Law is an Unjustified Interference
with the Integrity of the Person  74
3.3.6 Involuntary Detention and Treatment is Torture or Cruel,
Inhuman, or Degrading Treatment or Punishment  76
3.3.7 Mental Health Law is Inconsistent with the Right to
Independent Living  80
3.3.8 Mental Health Law is Ineffective and Un-​therapeutic  83
3.3.9 There are Other Better Non-​Coercive Alternatives  85
3.3.10 The ‘Dignity of Risk’  87
3.3.11 Mental Health Law is ‘Too Easy’ and Creates a Culture of Coercion
throughout the Entire Mental Health System  87
3.4 Conclusion  89

4. The ‘Interpretive Compass’ of the CRPD: The Theory of Dignity  91

4.1 Introduction  91
4.2 Inherent Dignity in the CRPD  92
4.2.1 Inherent Dignity Requires Recognition of Inalienable
Intrinsic Human Worth  99
4.2.2 Inherent Dignity must be Equal  101
4.2.3 Behaving with Dignity  101
4.2.4 Inherent Dignity Requires a Person to be Treated with
Dignity  103
4.2.5 The State should be Organized to Support Inherent Dignity  104
4.2.6 Inherent Dignity Involves Respect for Autonomy  104
4.3 Conclusion  107

5. Application of Inherent Dignity to the Abolition with

Support Model  109
5.1 Introduction  109
5.2 Can Inherent Dignity Act as a Limit on Autonomy?  111
5.2.1 The Concept of Autonomy  111
5.2.2 The Limitation of Autonomy by Inherent Dignity  118
5.3 Conclusion  125
 Table of Contents xiii

6. The Interpretive Compass Part 2: Theories of Equality and

Non-​Discrimination  126
6.1 Introduction  126
6.2 The Eclectic Model of Equality and Non-​discrimination
in the CRPD  132
6.3 Conclusion  139
7. Difficulties with the Meaning of Equality, Non-​Discrimination and
Participation in the CRPD, and their Application to the Abolition with
Support Model  140
7.1 Introduction  140
7.2 Equality of What?  140
7.3 Equality with Respect to Whom? The Problem of Finding an
Appropriate Comparator  144
7.4 Is Involuntary Detention and Psychiatric Treatment
a Detriment or a Benefit?  147
7.5 Addressing the Sameness and Difference of Persons
with Mental Impairment  148
7.5.1 Is the Difference Between Persons With and Without Mental
Impairment Real?  148
7.5.2 Can Supported Decision-​Making Make Persons with Mental
Impairment Equal with Persons without Mental Impairment?  152
7.6 Participation  162
7.7 Conclusion  165
8. The Interpretive Framework and the Reform (as opposed
to the Abolition) of Mental Health Law  167
8.1 Introduction  167
8.2 General Comments about the Different Approaches  169
8.3 The Mental Capacity with Support Model  171
8.3.1 What is the Mental Capacity with Support Model?  171
8.3.2 Dignity including Autonomy  178
8.3.3 Equality and Non-​Discrimination  180
8.3.3.1 Direct and Indirect Discrimination and
Disability Neutrality  181
8.3.3.2 Assessing Mental Capacity: A Value Neutral
Functional or Substantive Approach?  185
8.3.4 Participation  191
8.3.5 Improving the Mental Capacity with Support Model  192
8.3.5.1 Assigning Responsibility for the Provision of Support  192
8.3.5.2 Training and Diversification of Workforce  192
8.3.5.3 Consideration of the Likely Outcome of Involuntary
Detention and Treatment  192
8.3.5.4 Reform of Court Applications  192
8.3.5.5 Judicial Oversight  193
xiv Table of Contents

8.3.5.6 Judicial Meetings with Persons with Mental

Impairment Mandatory  193
8.4 Support Except Where There is Harm Model  194
8.4.1 Dignity and Autonomy  196
8.4.2 Equality and Non-​Discrimination  197
8.4.3 Participation  198
8.5 General Systemic and Social Reforms  198
8.6 Conclusion  202
9. Conclusion  203

Bibliography  207
Articles/​Books/​Reports  207
Cases  228
Legislation  229
Treaties  229
Other  229
Index  231
 List of Abbreviations

AIHW Australian Institute of Health and Welfare

ALRC Australian Law Reform Commission
Art Article
CEDAW Convention on the Elimination of Discrimination Against Women
CERD Convention on the Elimination of Racial Discrimination
Ch Chapter
CRPD Convention on the Right of Persons with Disabilities
DPOs Disabled Persons Organizations
ECHR European Convention on Human Rights
ECT Electroconvulsive therapy
ed editor
ICCPR International Covenant on Civil and Political Rights
MCA Mental Capacity Act
MHA Mental Health Act
MHRSA NT Mental Health and Related Services Act
n note
NDIS National Disability Insurance Scheme
s section
tr translated by
UN United Nations
VCLT Vienna Convention on the Law of Treaties
VLRC Victorian Law Reform Commission
 1
Introduction

1.1 Introduction

This book explores a single overarching question: should mental health law be abol-
ished or reformed? While I explain in detail what I mean by mental health law in sec-
tion 1.2 below, in short, I mean the legal power to detain in hospital and treat persons
with mental impairment without their consent. I have chosen this topic because since
the entry into force of the United Nations Convention on the Rights of Persons with
Disabilities (CRPD) in 20081 and over a decade of international debate about the fu-
ture of mental health law, it remains an important, multifaceted, and perplexing ques-
tion which needs further research and rigorous scholarly attention. The abolition or
reform of mental health law is an issue which has attracted interest from a wide range
of interdisciplinary scholars, policy-​makers, law reformers, and disability and human
rights activists past and present, so I am not on my own. However, few have examined
the question of whether mental health law should be abolished or reformed as directly,
deeply, or as broadly as I do. As Peter Bartlett points out, now that the CRPD ‘party’2 is
over and we are working out what the CRPD means and how to implement it, ‘proper
and detailed theoretical analysis matters’.3
While my research question assumes that mental health law should be abolished or
reformed, rather than be left untouched, it would only be the most superficial reading
of the CRPD which could conclude that existing mental health law is already CRPD
compliant and does not require any further reform.4 Indeed, as set out in section 1.3
below and in Chapter 3, the CRPD Committee, some scholars, and disability and
human rights advocates (whom I collectively refer to as ‘abolitionists’) have put forth a
compelling critique of mental health law that I believe deserves serious consideration,
even if I do not agree with all of their solutions. Further, the contention that the CRPD
requires at least some reform is supported by the actual behaviour of States Parties
many of which have already engaged in a number of reviews and reforms to mental
health law post-​CRPD (see section 1.3.3 below), even if they have not contemplated
actual abolition. The CRPD has also influenced case law in many domestic judicial de-
cisions and in regional human rights courts.
However, in order to understand my ‘big’ overarching question about whether
mental health law should be abolished or reformed and then to begin to answer it

1 Convention on the Rights of Persons with Disabilities, open for signature 30 March 2007, UNTS 2515 (en-

tered into force 3 May 2008) (hereafter CRPD).

2 Peter Bartlett, ‘The United Nations Convention on the Rights of Persons with Disabilities and Mental

Health Law’ (2012) 75(5) MLR 752, 777 (hereafter Bartlett UN Convention).
3 ibid 778.
4 ibid 754.

Mental Health Law. Kay Wilson, Oxford University Press. © Kay Wilson 2021. DOI: 10.1093/​oso/​9780192843258.003.0001
2 Mental Health Law

I need to break it up into a series of smaller, more manageable, questions. First, what
do I mean by mental health law? Second, what is the abolition of mental health law,
where has the call for abolition come from, why has it emerged now, and why should
anyone take it seriously? Third, how will I determine whether mental health law
should be abolished? In other words, given I am asking what is essentially a norma-
tive question, what are my conceptual framework, methodology, and scope? Fourth,
if I conclude that mental health law should not be abolished (which I do), then how do
I propose it should it be reformed?
It is the answers to these four complex and inter-​linked questions which form the
basic structure of my introduction and my overall contention that:

mental health law should NOT be abolished, but be reformed by decreasing coer-
cion and increasing social support to persons with mental impairments to maximize
their dignity (including autonomy), equality, and participation in accordance with
the overall object and purpose of the CRPD.

I argue that the CRPD demands a ‘package’ of systemic, social, and legal reforms and
that the effectiveness of changes in mental health law is often dictated more by re-
source constraints than abstract legal principles.5 In my view it is indisputable that
the principle of reciprocity—​that those whom society compels to accept mental
health care also have a right to actually receive high quality dignified care in a safe
environment—​ought to underpin mental health law.6 However, resources for those
undergoing involuntary treatment should not come at the expense of bolstering the
voluntary mental health system, access to services, and the provision of supports to
persons with mental impairments to actually enable real ‘choice’.7 I, along with many
other scholars, have also become increasingly interested in the way in which the avail-
ability of a range of high quality services, as well as alternatives to traditional psychi-
atry, and wider social changes could be used to reduce the use of involuntary detention
and psychiatric treatment and possibly even to try to avoid the need for mental health
law altogether.8 However, as a lawyer my primary focus in this book is on whether,
when, and how legal compulsion should ever be permitted in relation to persons with

5 Kay Wilson ‘Law Reform or Systemic Reform? Stakeholder Perceptions of Resource Constraints in

Mental Health in Australia, New Zealand and Canada’ (2013) 20(4) Psychiatry Psychol & L 553 (here-
after Wilson, ‘Law Reform or Systemic Reform?’); Bernadette McSherry and Kay Wilson, ‘The Concept
of Capacity in Australian Mental Health Law Reform: Going the Wrong Direction?’ (2015) 40 Int J Law
Psychiatry 60–​69, 66 (hereafter McSherry and Wilson, ‘Capacity’).
6 Report of the Expert Committee, Review of the Mental Health Act 1983 (November 1999), [3.2] (here-

after ‘Richardson Report’).

7 McSherry and Wilson, ‘Capacity’ (n 5) 66.
8 McSherry and Wilson, ‘Capacity’ (n 5). Kay Wilson, ‘The Call for the Abolition of Mental Health

Law: The Challenges of Suicide, Accidental Death and the Equal Enjoyment of the Right to Life’ (2018)
18(4) Hum Rights Law Rev 651, 686 (hereafter Wilson, ‘Right to Life’); Kay Wilson, ‘The Abolition
or Reform of Mental Health Law: How Should the Law Recognise and Respond to the Vulnerability or
Persons with Mental Impairment?’ (2020) 28(1) Med Law Rev 30 (hereafter Wilson, ‘Vulnerability’); Jillian
Craigie and others, ‘Legal Capacity, Mental Capacity and Supported Decision-​Making: Report from a Panel
Event’ (2019) 62 Int J Law Psychiatry 160, 166 (hereafter Craigie, ‘Panel Event’); Piers Gooding and others,
Alternatives to Coercion in Mental Health Settings: A Literature Review (Melbourne Social Equity Institute,
University of Melbourne 2018) (hereafter Gooding, ‘Alternatives to Coercion’).
 Introduction 3

mental impairment under the CRPD, an issue which can still stand on its own even if
it is closely related to, and is often dependent on, the wider systemic and social con-
text.9 Nonetheless, I emphasize the importance of mental health resources and socio-​
economic rights in my holistic approach to interpreting the CRPD set out below.
To support my arguments, I have developed what I call the ‘interpretive compass’ of
the CRPD by which I have explored the meaning and scope of dignity (including au-
tonomy), equality, and participation as key values that underpin the objects and pur-
pose of the CRPD and as an aid to interpretation of what I argue is an ‘incompletely
theorized agreement’. I compare what I have identified as the three main legal models
(although I accept that there may be others) which have emerged in the mental health
literature in the wake of the CRPD.10 The first is the complete abolition of mental
health law and its replacement with a support model (‘Abolition with Support’). The
second is to bring mental health law into line with general medical law by changing
the civil commitment criteria from a harm-​based to a mental capacity-​based model
and to combine that with a support model (‘Mental Capacity with Support’). The
third model is to provide persons with mental impairment with support in the first
instance and to only use coercion as a last resort if a person’s decision-​making is un-
clear and they are at risk of harming themselves or others (‘Support Except Where
There is Harm’). Within each of the three models there are different variations put
forward in legislation and by different scholars and law reformers, which I explore
throughout the book, but especially in Chapter 3 and Chapters 4 to 8. There is also
some overlap between the three models. All models use the provision of support
in various ways to assist persons with mental impairments to make decisions and
thereby each aims to reduce legal compulsion to various extents. However, only the
Abolition with Support model requires the absolute banning of involuntary deten-
tion and psychiatric treatment. Of these three main approaches, I argue in Chapter 8,
that at present the Mental Capacity with Support model is the most consistent with
what I see as the overall vision of the CRPD which is to improve the lives (especially
the dignity, autonomy, equality, and participation) of persons with mental impair-
ments and disabilities generally.
I understand that the arguments which make up the book are multi-​layered and
multi-​textured, rather than being the straightforward exposition of a single idea, but
I argue that the debate about the future of mental health law demands the embra-
cing of complexity and nuance. While one of the key strengths of the Abolition with
Support model is its apparent simplicity, there is a difference between advocacy which
is best framed by a clear political demand and scholarship which involves the explo-
ration of knowledge without necessarily being driven by a particular ideology or out-
come. In fact, I criticize the Abolition with Support model for being too simplistic in
responding to the actual and varied needs of persons with mental impairments.
To further explain my approach to answering my overarching research question,
and to set out the background that sits behind it, I address each of my four sub-​
questions in turn.

9 Particularly resource constraints. See Wilson, ‘Law Reform or Systemic Reform?’ (n 5).
10 Wilson, ‘Right to Life’ (n 8) 655–​61; Wilson, ‘Vulnerability’ (n 8).
4 Mental Health Law

1.2 What is Mental Health Law?

Mental health law authorizes what would otherwise be illegal: the involuntarily de-
tention and psychiatric treatment of persons with severe mental impairment (usually
thought to be at risk of harming themselves or others), thereby, legitimating psychi-
atric power.11 At the same time, mental health law limits the scope of this authority12
and provides persons who are involuntarily detained and treated with legal protec-
tions and safeguards well beyond what is available to ‘voluntary’ or ‘informal’ patients
under general medical law.13 As Clive Unsworth observes ‘law actually constitutes the
mental health system, in the sense that it authoritatively constructs, empowers, and
regulates relationships between the agents who perform mental health functions’.14
Given the ‘negative and positive function’15 of mental health law in both author-
izing and controlling involuntary detention and psychiatric treatment, it is not sur-
prising that it has been conceptualized in a number of different ways. These range from
being seen as a form of parens patriae (or as offering protection to the vulnerable),16
risk management,17 a therapeutic tool,18 a system of social control,19 a preventive de-
tention regime,20 an exercise of tutelary authority,21 and more recently a substitute
decision-​making regime22 and a form of torture.23
While Genevra Richardson observes that ‘mental health law’ broadly defined re-
fers to the entire body of laws that pertain to persons with mental impairment,24 in
this book I refer to mental health law in the literal sense. That is, as the power of the

11 Tina Minkowitz, ‘Abolishing Mental Health Laws to Comply with the Convention on the Rights of

Persons with Disabilities’ in Bernadette McSherry and Penelope Weller (eds), Rethinking Rights-​Based
Mental Health Laws (Hart Publishing 2010) 151, 151 (hereafter Minkowitz, ‘Abolishing Mental Health
Laws’).
12 ibid.
13 For instance, the Mental Health Act 2014 (Vic) is almost exclusively drafted for the involuntary patient.

That said, the position of a ‘voluntary’ patient is beginning to be regarded as closer to that of an ‘involuntary’
psychiatric patient, than a general patient: Rabone v Pennine Care NHS Foundation Trust [2012] UKSC 2
[27]–​[34] (hereafter Rabone v Pennine Care NHS Foundation Trust).
14 Clive Unsworth, The Politics of Mental Health Legislation (Claredon Press 1987) 5 (hereafter Unsworth,

Politics of Mental Health).

15 ibid.
16 See Chapter 2.
17 See Chapters 2 and 3.
18 David B Wexler, Mental Health Law: Major Issues, Perspectives in Law and Psychology (Plenum Press

1981) (hereafter Wexler, Mental Health).

19 Michael Cavadino, Mental Health Law in Context: Doctor’s Orders? (Dartmouth Publishing Company

1989) 11 (hereafter Cavadino, Doctor’s Orders).

20 Bernadette McSherry, Managing Fear: The Law and Ethics of Preventive Detention and Risk Assessment

(Routledge 2014) (hereafter McSherry, Managing Fear).

21 Philip Fennell, ‘Institutionalising the Community: The Codification of Clinical Authority and the

Limits of Rights-​Based Approaches’ in Bernadette McSherry and Penelope Weller (eds), Rethinking
Rights-​Based Mental Health Laws (Hart Publishing 2010) 13, 23 (hereafter Fennell, ‘Institutionalising the
Community’).
22 Committee on the Rights of Persons with Disabilities ‘General Comment No 1 (2014) Article 12: Equal

Recognition before the Law’ (11 April 2014) UN Doc CRPD/​C/​GC/​1 (hereafter ‘General Comment 1’).
23 UNHCR, ‘Report of the Special Rapporteur on Torture and other Cruel, Inhuman or Degrading

Treatment or Punishment, Juan E. Méndez’ (1 February 2013) UN Doc A/​HRC/​22/​53, [89(b)] (hereafter
Mendez, ‘Torture Report’).
24 Genevra Richardson, ‘Reforming Mental Health Law: Principle or Pragmatism’ (2001) 54 Curr Leg

Probl 415, 415 (hereafter Richardson, ‘Principle or Pragmatism’).

 Introduction 5

state to detain and treat persons with severe mental health problems without their
consent whether or not that power is found in a specific Mental Health Act, or is scat-
tered across general legislation.25 I describe this power as ‘involuntary detention and
psychiatric treatment’ rather than ‘compulsory’ or ‘forced’ as I believe that ‘involun-
tary’ more accurately describes both the situation where people are unable to make
decisions for themselves, as well as where people are detained or treated against their
express will and preferences. I explore the different ways in which mental health law is
conceptualized, how it has developed and its core functions, purposes, and justifica-
tions in Chapter 2. In my understanding of mental health law, as discussed in section
1.5 below which sets out the scope of this book, I do not include criminal doctrines
such as fitness to be tried and the insanity defence, which are very complicated topics
in themselves deserving of their own volume.
At this juncture, I want to point out that while the numbers of persons against
whom mental health law is invoked are significant, the majority of persons with
mental impairments receive treatment either on a voluntary basis or no treatment at
all.26 For example, the Australian Institute of Health and Welfare has reported that
about 8.5 million people (around 45 per cent) from 16 to 85 suffer from mental health
problems during their lifetime with around 20 per cent of the Australian population
suffering from a mental health problem per year, with similar proportions occurring
in other comparable western nations.27 Of these, about 4 million Australians received
mental health prescriptions in 2016–​201728 whereas only about 41,197 people experi-
enced involuntary hospital admission for psychiatric treatment in 2011–​2012.29 In ad-
dition, a further group received involuntary treatment in the community. For example,
in Victoria alone about 5,000 people per year (or 98.8 per 100,000) are on Community
Treatment Orders, the highest in Australia.30 In England the rate of persons detained
in hospital under mental health law was 115.7 per 100,000 in 2015–​2016 (or 49,551
in 2017–​2018) and has more than doubled since 1984.31 In England the rate of CTOs
was 4,784 in 2017–​2018, that is, 10.8 per 100,000 for males and 6.4 per 100,000 for fe-
males.32 It is also well documented that some people who voluntarily agree to hospital

25 OECD, Making Mental Health Count: The Social and Economic Costs of Neglecting Mental Health Care

(OECD Health Policy Studies, OECD Publishing 2014) 216–​17 (hereafter OECD, ‘Making Mental Health
Count’).
26 McSherry and Wilson, ‘Capacity’ (n 5) 66.
27 Australian Institute of Health and Welfare, Mental Health Services in Australia 2018, <https://​www.

aihw.gov.au/ ​ reports/​ mental-​ health-​ s ervices/​ mental-​ health-​ s ervices-​ i n-​ australia/​ report-​ c ontents/​
summary-​ of-​
mental-​health-​services-​in-​australia> (last accessed 25 October 2019) (hereafter AIHW,
‘Mental Health 2018’); ‘Law Reform or Systemic Reform?’ (n 5) 555.
28 AIHW ‘Mental Health 2018’ (n 27).
29 Australian Institute of Health and Welfare, Admitted Patient Mental Health Related Care, <https://​

www.aihw.gov.au/​getmedia/​71900b8a-​fe09-​4a6b-​9b3c-​350698cc82c9/​Mental-​health-​related-​admitted-​
patient-​care-​2011-​12.pdf.aspx> (last accessed 25 October 2019) (hereafter AIHW, ‘Admitted Patient’).
30 Edwina M Light and others, ‘Community Treatment Orders in Australia: Rates and Patterns of Use’

(2012) 20(6) Australas Psychiatry 478, 480 (hereafter Light, ‘CTOs’).

31 Patrick Keown and others, ‘Changes in the use of the Mental Health Act 1983 in England 1984/​85 to

2015/​16’ (2018) 213 Br J Psychiatry 595, 596 (hereafter Keown, ‘Changes in Use of MHA’); NHS Digital
Mental Health Statistics Annual Figures 2017–​2018 (9 October 2018) https://​files.digital.nhs.uk/​34/​
B224B3/​ment-​heal-​act-​stat-​eng-​2017-​18-​summ-​rep.pdf (last accessed 6 May 2019) (hereafter NHS,
‘Digital’).
32 NHS Digital (n 31).
6 Mental Health Law

admission and treatment do so to avoid coercion under mental health law, whereas
due to resource constraints some voluntary patents end up being detained under
mental health law in order to be able to access treatment, so there is some overlap
between the voluntary and involuntary categories. The application of mental health
law is also influenced by a number of non-​legal factors. For example, comparisons of
involuntary detention and treatment indicate differences between different countries,
cultures, and even mental health facilities as well as demographic factors such as the
type of mental impairment a person has as well as race, gender, and ethnicity.33
Nevertheless, even though any use of legally sanctioned coercion is always a matter
of human rights concern and carries with it the prospect of abuse, it should also be re-
membered that mental health law only applies to a relatively small proportion of per-
sons who suffer from mental health problems and an even smaller proportion of the
general community. That is, persons involuntarily detained and treated under mental
health law are not the ‘norm’ and there are millions of persons with mental impair-
ment globally who are voluntarily choosing mental health treatment, presumably be-
cause they believe it provides them with some benefits. It is true, as Sascha Callaghan
and colleagues point out, that not all persons with mental impairment who are invol-
untarily detained and treated are thankful for the intervention in retrospect.34 But, it
is estimated that a substantial proportion (between 40 and 80 per cent) are grateful,
especially if they perceived the admission procedures to be fair35 and the treatment
was successful in causing mental capacity to be regained.36 There are also a significant
number of persons with unmet need who have difficulty accessing any treatment at all,
or who would like to access treatments which are not currently offered.37

1.3 What is the Call for the Abolition of Mental Health

Law, Where Has it Come From, Why Has it Emerged Now,
and Why Does it Matter?

1.3.1 What is the Call for the Abolition of Mental Health Law?

By ‘the call for the abolition of mental health law’ I mean the repeal of mental health
law and with it the removal of any form of legal compulsion for hospital admission
or psychiatric treatment in any and all circumstances.38 Instead, abolitionists pro-
pose that persons with mental impairment would be offered various formal and in-
formal supports to assist them in considering their situation and in ascertaining their

33Gooding and others, ‘Alternatives to Coercion’ (n 8).

34Sascha Callaghan and others, ‘Risk of Suicide Is Insufficient Warrant for Coercive Treatment of Mental
Illness’ (2013) 36 Int J Law Psychiatry 374, 383 (hereafter Callaghan, ‘Risk of Suicide’).
35 Stefan Priebe and others, ‘Patients’ Views and Readmissions 1 Year After Involuntary Hospitalisation’

(2009) 194 Br J Psychiatry 49, 53 (hereafter Priebe, ‘Patients’ Views’).

36 Gareth S Owen and others, ‘Retrospective Views of Psychiatric In-​Patients Regaining Mental Capacity’

(2009) 195 Br J Psychiatry 403, 405 (hereafter Owen, ‘Retrospective Views’).

37 Emmanuel Umama-​Agada and others, ‘Variations in Involuntary Admission Rates at Three Psychiatry

Centres in Dublin Involuntary Admission Study (DIAS). Can the Differences Be Explained?’ (2018) 57 Int J
Law Psychiatry 17 (hereafter Umama-​Agada, ‘Variations in Involuntary Admission’).
38 General Comment 1 (n 22) [28], [42].
 Introduction 7

individual will and preferences.39 In rare cases where a person’s will and preferences
cannot be determined, a supporter or facilitator may need to make a decision for the
individual in accordance with ‘the best interpretation of his or her will and prefer-
ences’.40 More recently, abolitionists have become divided between whether the aboli-
tion of mental health law means the absolute banning of legal coercion of any kind,41
or whether some forms of legal coercion may be permitted by the CRPD provided it
does not discriminate against persons with disabilities, that is, so called ‘disability neu-
trality’ although most still oppose involuntary detention and treatment.42 I explain the
Abolition with Support model in detail in Chapters 3 and 4 to 7.
While the ‘fusion model’ in Northern Ireland could be claimed to be the ‘abolition’
of mental health law as it abolishes separate stand-​alone mental health legislation,
it still permits substituted decision-​making in the best interests of persons who lack
mental capacity and to this extent is only a change in form, rather than substance.43 It
has been widely criticized by abolitionists as being non-​compliant with the CRPD,44
and in my view is better characterized as a ‘reform’ of rather than the ‘abolition’ of
mental health law (see my discussion of the Mental Capacity with Support model
in Chapter 8). While the repeal of mental health law would mean that persons with
mental impairments would be governed by general medical law, that is, the Mental
Capacity with Support model, most abolitionists would require the abolition of com-
pulsion with respect to persons lacking mental capacity as well. However, some leg-
islation regulating supported-​decision making and spelling out suitable safeguards
would probably be required by abolitionists.

1.3.2 Where Does the Call for the Abolition of Mental Health
Law Come From? Why Has it Emerged Now?

Given that mental health law is a form of state-​sanctioned coercion and has always
been controversial, it is hardly surprising that calls for the abolition of mental health

39 Piers Gooding, A New Era for Mental Health Law and Policy: Supportive-​Decision Making and the

UN Convention On the Rights of Persons with Disability (Cambridge University Press 2017) 118 (hereafter
Gooding, A New Era).
40 General Comment 1 (n 22) [26]; Anna Arstein-​Kerslake and Eilionoir Flynn ‘The General Comment

on Article 12 of the Convention on the Rights of Persons with Disabilities: A Roadmap for Equality Before
the Law’ (2016) 20(4) Int J Hum Rights 471, 477 (hereafter Arstein-​Kerslake and Flynn, ‘Article 12’).
41 See for example, Tina Minkowitz, ‘CRPD and Transformative Equality’ (2017) 13 Int J Law Context

77 (hereafter Minkowitz, ‘Transformative’); Amita Dhanda, ‘From Duality to Indivisibility: Mental

Health Care and Human Rights’ (2016) 32 S Afr J Hum Rights 438 (hereafter Dhanda, ‘From Duality to
Indivisibility’).
42 Jill Stavert, ‘Paradigm Shift of Paradigm Paralysis? National Mental Health and Capacity Law and

Implementing the CRPD in Scotland’ (2018) 7 Laws 26, 28 (hereafter Stavert, ‘Paradigm Shift’); Piers
Gooding and Eilionoir Flynn, ‘Querying the Call to Introduce Mental Capacity Testing to Mental Health
Law: Does the Doctrine of Necessity Provide an Alternative?’ (2015) 4 Laws 246, 261 (Gooding and Flynn,
‘Mental Capacity Testing’); Eilionoir Flynn and Anna Arstein-​Kerslake, ‘State Intervention in the Lives of
People with Disabilities: The Case for a Disability-​Neutral Framework’ (2017) (13) Int J Law Context 39, 57
(hereafter Flynn and Arstein-​Kerslake, ‘State Intervention’).
43 Mental Capacity Act 2016 (Northern Ireland).
44 Ad Hoc Joint Committee on the Mental Capacity Bill ‘Report on the Mental Capacity Bill’ 25 January

2016 (NIA 353/​11-​16), [23], [29]–​[34] (hereafter ‘Northern Ireland Bill Report’).
8 Mental Health Law

law are not new. I set out a detailed history of where the call for the abolition of mental
health has come from in Chapter 3. However, the most recent iteration of the call for
the abolition of mental health law emerged after the negotiation and entry into force
of the CRPD in 2008. Since then, mental health law has been increasingly criticized
on the grounds that it is discriminatory and is an unnecessary interference with in-
dividual liberty and bodily integrity. While it may not yet be a mainstream view, the
abolition of mental health law and other substitute decision-​making regimes (which
allow a third party to make decisions contrary to the will and preferences of the person
with disabilities) has for the first time been articulated by abolitionists as a clear polit-
ical goal.45
The CRPD is unique among international human rights treaties in that it was ne-
gotiated between States Parties with strong involvement from civil society, especially
Disabled Persons Organizations (DPOs). While there are different accounts of the
negotiation of the CRPD from various people who participated in it,46 what is clear is
that the negotiations with respect to the abolition of mental health law, particularly
the right to legal capacity in Article 12, were especially fraught, at one point even
threatening to derail the whole convention.47 Unfortunately, the status of involun-
tary detention and psychiatric treatment was left deliberately unresolved, as states
refused to agree to abolish mental health law and disability advocates decided that
the CRPD should not mention the issue at all for fear of giving the retention of mental
health law legitimacy.48 While Amita Dhanda has claimed victory for abolitionists
in that the CRPD does not contain a positive right permitting States Parties to use
involuntary detention and psychiatric treatment,49 this seems rather hollow given
that most states already have a mental health law of some kind, making the issue of
abolition rather than permission key to implementation. In the circumstances, the
concept of a strategically motivated ‘negotiated silence’ on the future of mental health

45 For example, Minkowitz, ‘Abolishing Mental Health Laws’ (n 11); Amita Dhanda, ‘Universal Legal

Capacity as a Universal Human Right’ in Michael Dudley, Derrick Silove, and Fran Gale (eds), Mental
Health and Human Rights: Vision, Praxis and Courage (Oxford University Press 2012), 177 (here-
after Dhanda, ‘Universal Legal Capacity’); Kristen Booth Glen, ‘Changing Paradigms: Mental Capacity,
Legal Capacity, Guardianship, and Beyond’ (2012) 44 Colum Hum Rts L Rev 93 (hereafter Booth Glen,
‘Changing Paradigms’); Eilionoir Flynn and Anna Arstein-​Kerslake, ‘Legislating Personhood: Realising
the Right to Support in Exercising Legal Capacity’ (2014) 10(1) Int J Law Context 81 (hereafter Flynn and
Arstein-​Kerslake, ‘Legislating Personhood’); Mary Keys, ‘Article 12 [Equal Recognition before the Law]’ in
Valentina Fina, Rachele Cera, and Giuseppe Palmisano (eds), The United Nations Convention on the Rights
of Persons with Disabilities: A Commentary (Cham: Springer 2017) 263 (hereafter Keys ‘Article 12’); Theresa
Degener, ‘Disability in a Human Rights Context’ (2016) 5 Laws 35 (hereafter Degener ‘Disability’); General
Comment 1 (n 22).
46 For example, Anna MacQuarrie and Connie Laurin-​ Bowie, Our Lives, Our Voices: People with
Intellectual Disabilities and Their Families (University of Pennsylvania Press 2013) (hereafter MacQuarrie
and Laurin-​Bowie, Our Lives, Our Voices); Richard M Duffy and Brendan D Kelly, ‘Rights, Laws and
Tensions: A Comparative Analysis of the Convention on the Rights of Persons with Disabilities and the
Who Resource Book on Mental Health, Human Rights and Legislation’ (2017) 54 Int J Law Psychiatry 26, 28
(hereafter Duffy and Kelly, ‘Rights, Laws and Tensions’).
47 Craigie, ‘Panel Event’ (n 8) 165.
48 Rosemary Kayess and Phillip French, ‘Out of Darkness into Light? Introducing the Convention on the

Rights of Persons with Disabilities’ (2008) 8(1) Hum Rights Law Rev 1, 30 (hereafter Kayess and French,
‘Out of Darkness’).
49 Dhandra, ‘From Duality to Indivisibility’ (n 41) 444.
 Introduction 9

law, as advocated by Annegret Kämpf seems to be a more accurate description of

what occurred.50
Nonetheless, post-​CRPD abolitionists argue that collectively the general principle
of non-​discrimination (Article 4) and the rights to equality (Article 5), legal capacity
(Article 12), liberty (Article 14), bodily integrity (Article 17), independent living
(Article 19), health (Article 25), and the ban on torture and cruel and unusual punish-
ment (Article 15), all require the abolition of mental health law. As Melvyn Freeman
and colleagues have remarked ‘countries that originally ratified the CRPD are facing
intense pressure to implement far reaching changes that challenge fundamental prin-
ciples of mental health care and treatment hitherto widely accepted as reflecting a
human rights perspective . . .’.51
The abolition of mental health law has been repeatedly and consistently ad-
vocated by the CRPD Committee, the international human rights body respon-
sible for interpreting and monitoring the implementation of the CRPD, in its
concluding observations to states’ reports,52 General Comment No 1 (Article 12,
Equal Recognition before the Law),53 the Guidelines on the Right to Liberty and
Security of Persons with Disabilities,54 and recently in General Comment 6 (Article
5, Equality and Non-​Discrimination).55 In particular, in General Comment No. 1,
which is probably the clearest and most pointed instruction to states to abolish
mental health law, the CRPD Committee has unequivocally and controversially
stated:

State parties’ obligation to replace substitute decision-​making regimes by supported

decision-​making requires both the abolition of substitute decision-​making regimes
and the development of supported decision-​making alternatives. The development
of supported decision-​making systems in parallel with the maintenance of substitute
decision-​making regimes is not sufficient to comply with article 12 of the Convention
[equality before the law/​legal capacity];56

50 Annagret Kampf, ‘Involuntary Treatment Decisions: Using Negotiated Silence to Facilitate Change?’

in Bernadette McSherry and Penelope Weller (eds), Rethinking Rights-​Based Mental Health Laws (Hart
Publishing 2010) 129, 144–​46 (hereafter Kampf, ‘Negotiated Silence’).
51 Melvyn Colin Freeman and others, ‘Reversing Hard Won Victories in the Name of Human

Rights: a Critique of the General Comment on Article 12 of the UN Convention on the Rights of Persons
with Disabilities’ (2015) 2 Lancet Psych 844, 844 (hereafter Freeman, ‘Reversing Hard Won Victories’).
52 For example, Committee on Rights of Persons with Disabilities, ‘Concluding Observations on the

Initial report of Australia, adopted by the Committee at its tenth session’ (2–​13 September 2013) CRPD/​C/​
AUS/​CO/​1 (hereafter ‘Concluding Observations Australia’) [34], and more recently, Committee on Rights
of Persons with Disabilities, ‘Concluding Observations on the United Kingdom’ (3 October 2017) CRPD/​
C/​GBR/​CO/​1) [31] and [55] (hereafter ‘Concluding Observations UK’); George Szmukler reports that the
CRPD Committee has called for the abolition of all substitute decision-​making regimes in over twenty state
reports: George Szmukler, ‘Compulsion and “Coercion” in Mental Health Care’ (2015) 14 World Psych 259,
260 (hereafter Szmukler, ‘Compulsion and “Coercion” ’).
53 General Comment 1 (n 22).
54 CRPD Committee, Guidelines on Article 14 of the Convention on the Rights of Persons with

Disabilities: The Right to Liberty and Security of Persons (14th Session, September 2015), [6]‌and [10]
(hereafter ‘CRPD Guidelines’).
55 CRPD Committee, General Comment 6: Equality and Non-​ discrimination (Article 5), 9 March
2018, [30].
56 ibid [24] (hereafter ‘General Comment 6’).
10 Mental Health Law

and

State parties must abolish policies and legislative provisions that allow or perpetuate
forced treatment, as it is an ongoing violation found in mental health laws across the
globe, despite empirical evidence indicating its lack of effectiveness and the views of
people using mental health systems who have experienced deep pain and trauma as a
result of forced treatment.57

Similarly, the United Nations Special Rapporteur on Torture, Juan E. Méndez, has
called for ‘an absolute ban on all forced and non-​consensual medical interventions
against persons with disabilities’58 including those with mental impairments, al-
though he has subsequently indicated that this call may not apply where there is a risk
of harm to self or others.59 The call for the abolition of mental health law has also been
recently endorsed by Dainius Puras, the Special Rapporteur on the Right of Everyone
to the Enjoyment of the Highest Attainable Standard of Physical and Mental Health,60
an independent expert who reports to the United Nations Human Rights Committee.
He has stated that:

Considering that the right to health is now understood within the framework of the
Convention on the Rights of Persons with Disabilities, immediate action is required
to radically reduce medical coercion and facilitate the move towards an end to all
forced psychiatric treatment and confinement. In that connection, States must not
permit substitute decision-​makers to provide consent on behalf of persons with dis-
abilities on decisions that concern their physical or mental integrity; instead, support
should be provided at all times for them to make decisions, including in emergency
and crisis situations.61

Notably, rather than call for the immediate abolition of mental health law, the Special
Rapporteur has instead proposed that States Parties take steps towards the abolition
of mental health law, such as developing mainstream alternatives to coercion in policy
and practice, developing a plan to reduce with a view to eliminating coercive med-
ical practices in consultation with persons with mental impairment, increasing invest-
ment in research, and sharing good practices between countries.62 Nevertheless, the
abolition rather than the reform of mental health law is the ultimate aim.
The call for the abolition of mental health law, emerging as a result of the so-​called
‘paradigm shift’ of the CRPD, has also spawned a growing literature.63 Abolitionists
use their individual involvement in and the voices of disabled persons’ organizations

57 ibid [38].
58 Mendez, ‘Torture Report’ (n 23) [89(b)].
59 Gooding, A New Era (n 39) 78.
60 UNHRC, ‘Report of the Special Rapporteur on the Right of Everyone to the Enjoyment of the Highest

Attainable Standard of Physical and Mental Health’ (28 March 2017) A/​HRC/​35/​21, [63]–​[66].
61 ibid [65].
62 ibid [66].
63 For example (n 45).
 Introduction 11

in the negotiation and implementation of the CRPD to give their arguments moral
force.64
However, Australia, Canada, and a number of other jurisdictions, have made inter-
pretive declarations that they do not interpret the CRPD as requiring the abolition of
substituted decision-​making, although substitute decision-​making is only permitted
on a limited basis, such as where it is a ‘last resort’ and subject to safeguards, which is
still a high standard.65 Notably, the United Kingdom did not make any such declara-
tion. Mary Donnelly speculates that the reason was ‘not because of a plan to abolish
compulsory treatment’,66 but because it was never seriously contemplated that the
CRPD could require the abolition of mental health law.67 This is confirmed by the UK
Office of Disability Issues which has taken the view that the Mental Health Act 1983
(UK) and Mental Capacity Act 2005 (UK) are compliant with the CRPD, despite pro-
viding for substitute decision-​making.68 Further, the most recent independent review
of mental health law in the United Kingdom by Simon Wellesley has rejected the aboli-
tion of mental health law advocated by the CRPD Committee as both undesirable and
as unnecessary to recognize the United Kingdom’s human rights obligations under the
European Convention on Human Rights (ECHR) and the CRPD, although he pro-
poses a series of reforms (see Chapter 8 section 8.4).69 Since the CRPD has come into
force, no state has abolished mental health law, although substitute decision-​making
has been recently abolished with respect to guardianship law in Columbia and Peru.
Language barriers make it difficult for me to evaluate the Columbian and Peruvian
legislation, although I note that Antonio Martinez-​Pujalte argues that the Peruvian
legislation has gone too far in granting autonomy to persons with disabilities in re-
spect of making them responsible for arranging their own supports.70 While it will
be interesting to see whether the abolition of substitute decision-​making with respect
to guardianship in Columbia and Peru really does result in significant benefits and
freedom for persons with disabilities in those jurisdictions, mental health contains
some unique challenges such as the effects of episodic illness, delusions, self-​harm,
suicide, and how to deal with persons in acute crises which may explain why States
Parties are reluctant to abolish mental health law. As Oliver Lewis observes, it is ‘un-
precedented in international human rights law for a treaty body to articulate as a norm
something that is not reflected in a law anywhere’.71

64 For example, Flynn and Arstein-​Kerslake, ‘State Intervention’ (n 42) 39, 42; Dhanda, ‘From Duality to

Indivisibility’ (n 41) 448.

65 CRPD, declarations and reservations, <http://​treaties.un.org/​Pages/​ViewDetails.aspx?src=TREATY&

mtdsg_​no=IV-​15&chapter=4&lang=en> (13 October 2013) (hereafter ‘CRPD Interpretive Declarations’).

66 Mary Donnelly, Healthcare Decision-​Making and the Law (Oxford University Press 2010) 2 (hereafter

Donnelly, Healthcare Decision-​Making).

67 ibid.
68 Office of Disability Issues, UK Initial Report on the UN Convention on the Rights of Persons with

Disabilities (2011) 1, 40–​41 (hereafter ‘Office of Disability Issues Report’).

69 Independent Review of the MHA 1983, ‘Modernising the Mental Health Act: Increasing Choice,

Reducing Compulsion’ (UK Government, Final Report, December 2018) (hereafter ‘Wellesley Report’).
70 Antonio Martinez-​ Pujalte, ‘Legal Capacity and Supported Decision-​Making: Lessons from Some
Recent Legal Reforms’ (2019) 8 Laws 4, 17 (hereafter Martinez-​Pujalte, ‘Legal Capacity’).
71 Craigie (n 8) 165.
12 Mental Health Law

Further, not all international and regional human rights bodies have demanded the
abolition of mental health law. For example, the Human Rights Committee, which
monitors the International Covenant on Civil and Political Rights (ICCPR), noted in
General Comment 35, contradicting the CRPD Committee, that the deprivation of li-
berty of persons with disability may be justified in some circumstances:

the existence of a disability shall not in itself justify a deprivation of liberty but rather
any deprivation of liberty must be necessary and proportionate, for the purpose
of protecting the individual in question from serious harm or preventing injury to
others. It must be applied only as a measure of last resort and for the shortest appro-
priate period of time, and must be accompanied by adequate procedural and substan-
tive safeguards established by law.72

The Subcommittee on the Prevention of Torture and Other Cruel, Inhuman and
Degrading Treatment and Punishment has also interpreted the CRPD as not only al-
lowing involuntary detention and psychiatric treatment where persons lack mental
capacity and are at risk of harming themselves or others, but points out that a failure to
do so may also be a form of discrimination and cruel, inhuman, and degrading treat-
ment and punishment.73
Similarly, the European Convention on Human Rights (ECHR) permits states to
deprive persons of ‘unsound mind’ of their liberty where it is warranted due to med-
ical necessity.74 Under the ECHR involuntary detention and psychiatric treatment
must also be subject to fair and speedy review procedures, a person must be held in
a suitable facility (a hospital not a prison) and it must be proportionate.75 While the
European Court of Human Rights has considered the CRPD as being relevant, it has
not joined the call for the abolition of mental health law.76 In fact, the abolition of
mental health law conflicts with jurisprudence on the right to life from the European
Court of Human Rights and the English courts that the state has a heightened posi-
tive operational obligation to take reasonable steps to prevent the suicide of persons
who are under the control of the state: prisoners,77 administrative detainees,78 mil-
itary conscripts,79 voluntary and involuntary psychiatric patients in hospital,80 and

72 UN Human Rights Committee, General Comment 35 Article 9 (Liberty and Security of the Person) 16

December 2014, CCPR/​C/​GC/​35 (hereafter ‘General Comment 35’).

73 Subcommittee on the Prevention of Torture and Other Cruel, Inhuman, or Degrading Treatment

or Punishment, Approach of the Subcommittee on Prevention of Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment regarding the rights of persons institutionalized and treated medically
without informed consent CAT/​OP/​27/​2 26 January 2016, [14]–​[15] (hereafter ‘Torture Subcommittee 2016
Report’).
74 Article 5(e), European Convention on Human Rights, opened for signature 1950 (entered into force 1

June 2010) (hereafter ‘ECHR’).

75 John Dawson and Annagret Kampf, ‘Incapacity Principles in Mental Health Laws in Europe’ (2006)

12(3) Psychol, Psych and Law 310, 316 (hereafter Dawson and Kampf, ‘Incapacity Principles’)
76 N v Romania App No 59132/​08, 28 November 2017, [141]–​[147] (hereafter N v Romania).
77 Keenan v United Kingdom App No 27229195, 3 April 2001 (hereafter Keenan v UK).
78 Slimani v France App No 57671/​00, 27 October 2004 (hereafter Slimani v France).
79 Perevedentsevy v Russia App No 39583/​05, 13 October 2014 (hereafter Perevedentsevy v Russia).
80 Savage v South Essex Partnership NHS Foundation Trust [2008] UKHL 74 (hereafter Savage v South

Essex Partnership NHS Foundation Trust).

 Introduction 13

vulnerable persons in the community.81 Such reasonable steps include a duty to invol-
untarily detain and treat persons with mental impairment who are at risk of suicide in
certain circumstances.82 Not surprisingly, those states which have conflicting obliga-
tions under the ECHR and the CRPD have tended to give precedence to their ECHR
obligations, which are usually more embedded in domestic law.83 Further, the ECHR
and its jurisprudence is based on a reliance on the power of medical expertise and
ethics that is well entrenched in western societies.84
In addition, the call for the abolition of mental health law has divided scholarly
opinion. Some scholars, especially those involved in drafting the CRPD and the CRPD
Committee, argue that the Abolition with Support model is the only way to implement
the ‘paradigm shift’ in accordance with the letter and the spirit of the CRPD.85 Others
like me are more cautious and critical.86 While they see some merits in the Abolition
with Support model, as I explain below, they believe that the CRPD does not go that far
and prefer significant legal and systemic mental health reform to complete abolition.
Still others, such as Paul Appelbaum, do not believe that the abolitionists have wrongly
interpreted the CRPD at all (despite States Parties never agreeing to the Abolition with
Support model), but are critical of the CRPD itself and believe that the CRPD rather
than the Abolition with Support model is what needs to be undone.87

1.3.3 Why Does the Call for the Abolition of

Mental Health Law Matter?

Given that States Parties are unlikely to abolish mental health law as a political reality,
(and it is my argument that mental health law should not be abolished), why then does

81 Mammadov v Azerbaijan App No 4762/​05, 17 March 2010 (hereafter Mammadov v Azerbaijan).

82 Rabone v Penine Care NHS Foundation Trust [2012] UKSC 2 (hereafter Rabone v Penine Care NHS
Foundation Trust); Reynolds v United Kingdom App No 2694/​08, 13 March 2012 (hereafter Reynolds v
United Kingdom).
83 For example, Northern Ireland Bill Report (n 44) para 23.
84 Philip Fennell and Urfan Khaliq, ‘Conflicting or Complementary Obligations? The UN Disability

Rights Convention, the European Convention on Human Rights and English Law’ [2011](6) EHRLR 662,
671–​72 (hereafter Fennell and Khaliq, ‘CRPD and ECHR’).
85 For example, n 41, n 42, and n 45.
86 For example, Wilson, ‘Right to Life’ and ‘Vulnerability’ (n 8); Gavin Davidson and others, ‘An

International Comparison of Legal Frameworks for Supported and Substitute Decision-​Making in Mental
Health Services’ (2016) 44 Int J Law Psychiatry 30, 31 (hereafter Davidson ‘International Comparison’);
Matthew Burch, ‘Autonomy, Respect, and the Rights of Persons with Disabilities in Crisis’ (2017) 34(3) J App
Philos 389; Matthe Scholten and Jakov Gather, ‘Adverse Consequences of Article 12 of the UN Convention
on the Rights of Persons with Disabilities for Persons with Mental Disabilities and an Alternative Way
Forward’ (2017) 44 J Med Ethics 1 (hereafter Scholten and Gather, ‘Adverse Consequences’); Katrine Del
Villar, ‘Should Supported Decision-​Making Replace Substituted Decision-​Making? The Convention on
the Rights of Persons with Disabilities and Coercive Treatment under Queensland’s Mental Health Act
2000’ (2015) 4 Laws 173 (hereafter Del Villar ‘Supported Decision-​Making’); David Bilchitz, ‘Dignity,
Fundamental Rights and Legal Capacity: Moving Beyond the Paradigm Set by the General Comment on
Article 12 of the Convention on the Rights of Persons with Disabilities’ (2016) 32(3) S Afr J Hum Rights 410
(hereafter Bilchitz ‘Dignity, Fundamental Rights and Legal Capacity’).
87 Paul S Appelbaum, ‘Protecting the Rights of Persons with Disabilities: An International Convention

and Its Problems’ (2016) 67(4) Psychiatr Serv 366, 368 (hereafter Appelbaum, ‘Protecting the Rights of
Persons with Disabilities’).
14 Mental Health Law

the call for the abolition of mental health law matter? In this book, I argue that the
call for the abolition of mental health law is important for five reasons. First, as dis-
cussed below, the CRPD is one of the most widely adopted conventions in the world
and is regarded as the leading international human rights instrument governing the
rights of persons with disabilities. Therefore, the views of the treaty body responsible
for interpreting and monitoring the CRPD, while not binding on States’ Parties, have
weight and cannot be simply dismissed out of hand.
Second, the call for the abolition of mental health law brings into the debate about
the future of mental health law the voices of a sub-​group of persons with mental im-
pairment who often call themselves ‘psychiatric survivors’ (although I contend they
are not representative of all persons with mental impairment).88 I also believe that
the call for the abolition of mental health law amplifies the voices of all persons with
mental impairment (regardless of whether they agree with abolition or not) which
is necessary to include persons with mental impairments in policy-​making and to
honour the dignity, equality and participation of all persons with mental impairments.
The call for the abolition of mental health law also provides a valuable critique of
mental health law: it draws attention to the weaknesses of mental health law in theory
and practice and how it might be improved. It is, however, important to acknowledge
that for some ‘patient advocate groups upholding rights to refuse treatment . . . is not
a negotiating position’89 and that for them anything less than the abolition of mental
health law will not suffice.
Third, while radical ideas like the abolition of mental health law may never come to
fruition, they often have the effect of shifting the ground of the entire debate, making
ideas which were once rejected as extreme seem more plausible (such as, the Mental
Capacity with Support model), and have a role in opening up discussion of new al-
ternatives and reforms. For instance, the call for the abolition of mental health law
has inspired a number of alternative interpretations of the CRPD which stop short of
calling for the abolition of mental health law, but which aim to reduce coercion and
to support more persons with mental impairment to make their own healthcare deci-
sions. What all of these approaches have in common is a new emphasis on recognizing
and respecting the subjective will and preferences of the individual, albeit to different
extents. That is, since the adoption of the CRPD the development of the law has shifted
away from the traditional model of care, welfare, and protection as reflected in mental
health law towards liberty, autonomy, self-​determination, and non-​discrimination. In
addition, the CRPD may be influencing the development of the ‘best interests’ test in
general medical law which, in recent English cases, has begun to give greater weight
to individual wishes and preferences, at times over a person’s objective medical best
interests.90

88 Anne Plumb, ‘UN Convention on the Rights of Persons with Disabilities: Out of the Frying Pan into the

Fire?’ in Jill Anderson and Bob Sapey Helen Splander (eds), Madness, Distress and the Politics of Disablement
(Policy Press 2015) 184, 187 (hereafter Plumb, ‘Out of the Frying Pan’).
89 Alan Rosen and others, ‘The Human Rights of People with Severe and Persistent Mental Illness: Can

Conflicts between Dominant and Non-​Dominant Paradigms be Reconciled?’ in Michael Dudley, Derrick
Silove, and Fran Gale (eds), Mental Health and Human Rights: Vision, Praxis and Courage (Oxford
University Press 2012) 297, 306 (hereafter Rosen ‘Severe and Persistent Mental Illness’).
90 For example, X NHS Trust v B [2015] EWCOP 60 (hereafter X NHS Trust v B).
 Introduction 15

Fourth, the call for the abolition of mental health law and the CRPD has sparked
widespread mental health and guardianship law reform activity. For instance,
in Australia, Tasmania,91 Victoria,92 Western Australia,93 the Australian Capital
Territory,94 and Queensland95 have all enacted new mental health laws post-​CRPD
and New South Wales96 and South Australia97 have conducted reviews and reforms to
their mental health laws. The Australian Law Reform Commission has also completed
a report on Equality, Capacity and Disability in Commonwealth Laws in November
2014.98 As Sascha Callaghan and Christopher Ryan observe, each of these reviews
and reforms were prompted by the CRPD to make domestic legislation more com-
pliant with human rights.99 Internationally, there have also been a number of post-​
CRPD reviews and reforms. As noted above there has been an Independent Review100
of mental health law in England and Northern Ireland has adopted a ‘fusion model’
which will abolish stand-​alone mental health law, but still permit substitute decision-​
making in the best interests of persons who are assessed to lack mental capacity.101 The
CRPD has led to supported decision-​making legislation being enacted in Ireland.102
In Canada, the CRPD has prompted provinces that did not already have supported
decision-​making, such as Newfoundland and Labrador and Prince Edward Island to
create such systems, influenced the development of disability jurisprudence, and been
part of various reviews, reports, and programmes.103 In New Zealand, the compat-
ibility of the Mental Health (Compulsory Assessment and Treatment Act) 1992 with
the CRPD was reviewed as part of the Disability Action Plan 2014–​18104 and a recent
inquiry into mental health and addiction proposes reform to bring mental health law
into line with the CRPD (although it appears not go so far as abolition).105

91 Mental Health Act 2013 (Tas) (hereafter MHA Tas).

92 Mental Health Act 2014 (Vic) (hereafter MHA Vic).
93 Mental Health Act 2014 (WA) (hereafter MHA WA).
94 Mental Health Act 2015 (ACT) (hereafter MHA ACT).
95 Mental Health Act 2016 (Qld) (hereafter MHA Qld).
96 Mental Health Amendment (Statutory Review Act) 2014 (NSW) amending Mental Health Act 2007

(NSW) (hereafter MHA NSW).

97 Mental Health (Review) Amendment Act 2016 (SA) amending Mental Health Act 2009 (SA) (hereafter

MHA SA).
98 Australian Law Reform Commission, Equality, Capacity and Disability in Commonwealth Laws

(Australian Government 2014) (hereafter ‘ALRC Report’).

99 Sascha Callaghan and Christopher Ryan ‘An Evolving Revolution: Evaluating Australia’s Compliance

with the Convention on the Rights of Persons with Disabilities in Mental Health Law’ (2016) 31(2) UNSWLJ
596, 597 (hereafter Callaghan and Ryan, ‘An Evolving Revolution’).
100 Wellesley Report (n 69).
101 Mental Capacity Act 2016 (Northern Ireland) (hereafter MCA NI).
102 Assisted Decision-​ Making (Capacity) Act 2015 (Ireland) (hereafter ‘Assisted Decision-​ Making
Ireland’).
103 Steven Hoffman and others, ‘Is the UN Convention on the Rights of Persons with Disabilities

Impacting Mental Health Laws and Policies in High-​Income Countries? A Case Study of Implementation
in Canada’ (2016) 16(28) BMC Int Health Hum Rights <https://​www.ncbi.nlm.nih.gov/​pmc/​articles/​
PMC5105274/​> accessed 24 November 2020 (hereafter Hoffman, ‘Implementation of CRPD on MHL in
Canada’).
104 <https:// ​ w ww.health.govt.nz/​ our-​ work/​ m ental-​ h ealth-​ and-​ a ddictions/​ m ental-​ h ealth/​ m ental-​

health-​and-​human-​rights-​assessment> accessed 24 November 2020 (hereafter ‘NZ Mental Health Review’).

105 Government Inquiry into Mental Health and Addiction ‘He Ara Oranga: Report of the Government

Inquiry into Mental Health and Addiction’ (Crown, 2018) <https://​mentalhealth.inquiry.govt.nz/​inquiry-​

report/​he-​ara-​oranga/​> accessed 24 November 2020 (hereafter ‘NZ Mental Health and Addiction Inquiry’).
16 Mental Health Law

Fifth, while many scholars and law reformers have since claimed that certain models
of mental health law reform are ‘CRPD-​compliant’, the issue of what a ‘human rights
model’ of mental health law looks like remains highly contested. Therefore, even if
mental health law is not abolished two questions remain: how should the CRPD be in-
terpreted and what does the CRPD require states to do with mental health law? These
two questions inform my conceptual framework, methodology, and scope, discussed
in the next section.

1.4 How Will I Determine Whether Mental Health Law

Should be Abolished or Reformed?

There are, of course, many different ways of answering my overarching research

question of whether mental health law should be abolished or reformed. A common
approach has been to list and analyse all of the arguments for and against the aboli-
tion and reform of mental health law and to argue a position one way or the other.106
However, this has resulted in the division of the literature into ‘camps’ for and against
the abolition of mental health law, which loosely resemble the three models I have
identified above, and has done little to resolve the current impasse between abolition-
ists and States Parties. To be able to break the deadlock, it is necessary to gain a deeper
understanding of the problem and what is driving the arguments for and against the
abolition of mental health law, as I do in Chapters 2 and 3, rather than to skip ahead to
defend a particular solution. However, in attempting to chart a middle course through
such contested territory, I find myself being at once too conservative and too radical,
and in danger of being attacked from all sides. I realize that by arguing against the ab-
olition of mental health law, I am, as John Dawson puts it, arguing ‘somewhat against
my legal training’.107 But, like John Dawson I argue for a vision of disability rights
which goes beyond non-​interference and negative liberty, to intervention that may
empower individuals to maximize their positive liberty using both medical and social
support to live full lives.108
Despite such a risk I rely on the strength of the breadth and depth of my research
and the rigour of my reasoning to support my arguments. It is also necessary to ana-
lyse the problem using an appropriate conceptual framework. I have chosen the CRPD
and international human rights law as my conceptual framework which I have used to
develop ‘the interpretive compass’, based on dignity (including autonomy), equality,
and participation. However, my approach to considering whether mental health law
should be abolished or reformed is not purely doctrinal. Instead I have used what
might be called a ‘jurisprudential’ or ‘ethical’ approach by exploring the deep princi-
ples or values which underpin the CRPD and international human rights law, namely
those I have selected for my ‘interpretive compass’ dignity (including autonomy),
equality, and participation. I explain each of my approaches below.

106 See, for example, n 45 and n 86.

107 John Dawson, ‘Concepts of Liberty in Mental Health Law’ (2009) 12(1) Otago LR 23, 23 (hereafter
Dawson, ‘Concepts of Liberty’).
108 ibid 29.
 Introduction 17

1.4.1 The CRPD and International Human Rights Law

as My Conceptual Framework

Whether the CRPD is the ‘paradigm shift’ it is widely claimed to be, or simply the
latest ‘fad’ in the ‘fashions and cycles’109 of mental health law, the use of the CRPD
as my conceptual framework can be justified on legal, political, and moral grounds.
From a legal perspective, the CRPD is a core international human rights treaty that is
legally binding on Australia in international law with 161 signatories and 177 ratifica-
tions.110 The CRPD is also widely regarded as the leading international human rights
instrument governing the rights of persons with mental impairment. From a political
perspective, the CRPD is the primary political tool that is being used to advance the
rights of persons with mental impairment and is being taken seriously by Australian
governments who have referred to it in the National Disability Insurance Scheme,111
National Disability Strategy,112 the ALRC enquiry, and the law reforms outlined in
section 1.3.3 above. Finally, from a moral perspective, the CRPD in furthering the
core human rights values of human dignity, equality, non-​discrimination, freedom,
universality, and human diversity has a strong moral weight in shaping a new vision of
persons with disabilities as active participants in their own lives and society.
However, given the discord surrounding the negotiation of the CRPD explained
above, it was not possible to achieve more than a fragile consensus, making the in-
terpretation of the CRPD unusually difficult and contested. Djeffal Christian has re-
marked, ‘at high level diplomatic discussions the law is sometimes left in a fuzzy state
for the sake of achieving agreement’.113 The result is that many international human
rights treaties, including the CRPD, can be conceptualized as ‘incompletely theorized
agreements’, especially where there is a key issue which is not directly addressed in
the text of the convention and on which the parties vehemently disagree. As noted by
Rosemary Kayess and Philip French, ‘the CRPD, like all international instruments,
is ultimately a negotiated text. It is therefore unrealistic to expect it to reflect a fully
coherent or comprehensive exposition of disability rights’.114 John Dawson also ob-
serves that ‘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’.115
In addition, interpretation during treaty implementation is often conceived of as an
ongoing process, as parties work together to develop the meaning of the treaty and to

109 Michael D Kirby ‘Law Reform, Politics and Mental Health’ (1983) 17(1) Aust NZ J Psychiatry 39

(hereafter Kirby, ‘Law Reform’).

110 United Nations, Enable, <http://​www.un.org/​disabilities/​> accessed 4 June 2019 (hereafter ‘CRPD

signatories and ratifications’.

111 National Disability Insurance Scheme Act 2013 (Cth) s 3(a) (hereafter NDIS Act).
112 Council of Australian Governments, National Disability Strategy 2010–​ 2020 (2011) 16 (hereafter
‘Disability Strategy’).
113 Djeffal Christian, Static and Evolutive Treaty Interpretation (Cambridge University Press 2015)

7(hereafter Christian, Treaty Interpretation).

114 Kayess and French, ‘Out of Darkness’ (n 48) 33.
115 John Dawson, ‘A Realistic Approach to Assessing Mental Health Laws Compliance with the UNCRPD’

(2015) 40 Int J Law Psychiatry 70, 71 (hereafter Dawson, ‘A Realistic Approach’).

18 Mental Health Law

translate it into reality.116 As Sandra Fredman puts it, human rights are no more than ‘a
value pre-​commitment to which society as a whole is bound’117 which ‘anchors rather
than concludes discussion’.118 Therefore, the meaning of a treaty is not an objective
artefact but must be forged and reforged as part of the deliberations of the relevant ‘in-
terpretive community’. As Oliver Lewis has observed, ‘the CRPD is inspiring not be-
cause it codifies a pre-​existing reality, but because it articulates a shared reality which
has yet to be explained’.119 Indeed, the CRPD expressly contemplates that persons with
disability will participate in that process of treaty implementation and monitoring,120
and as I set out in Chapter 7 section 7.6, participation is an important principle in its
own right and is part of recognizing the dignity and equality of persons with disability.
It also means that my interpretation of the CRPD, being formulated without direct
consultation with persons with disability (although after reviewing materials that have
been produced by disability organizations and the CRPD Committee), can only be re-
garded as at best provisional, as ‘an’ interpretation, rather than ‘the’ interpretation. To
do more than that would be to go beyond what the treaty drafters themselves were able
to achieve. However, despite this inevitable limitation it is my intention (and hope)
that my interpretation will provide some useful insights to all of those who have an in-
terest in this debate, even if they do not agree with all of my conclusions.
While I have adopted the CRPD as my conceptual framework, I nonetheless reject
the abolitionist interpretation set out above that the CRPD requires the abolition of
mental health law. I argue that it relies on a narrow and selective reading of the human
rights and fundamental freedoms the CRPD guarantees for persons with disabilities
based on what is often called the ‘strong interpretation’ of the social model of disa-
bility. That is, the abolitionist interpretation may be viewed as being based on a ‘shop-
ping list’ of rights which have been selected to support a particular outcome, rather
than an integrated interpretation of the CRPD and what it seeks to achieve for persons
with disabilities in its entirety. While treaty interpretation has long been described as
an ‘art’ rather than a ‘science’121 and there is no doubt that it is a burgeoning and tech-
nical field, it is not my intention to engage in an exhaustive explanation of it or to pro-
vide a new theory of treaty interpretation. Instead, I argue that the CRPD needs to be
interpreted using a more holistic approach in accordance with the tools and conven-
tions of international human rights law, particularly the text of the CRPD and Articles
31 and 33 of the Vienna Convention on the Law of Treaties and the interactive model of
social disability. I note that this methodology has also been recently used by Andrea

116 Oliver Lewis, ‘The Expressive, Educational and Proactive Roles of Human Rights: An Analysis of

the United Nations Convention on the Rights of Persons with Disabilities’ in Bernadette McSherry and
Penelope Weller (eds), Rethinking Rights-​Based Mental Health Laws (Hart Publishing 2010) 97, 105–​106
(hereafter Lewis, ‘Expressive, Educational and Proactive Roles’).
117 Sandra Fredman, Human Rights Transformed: Positive Rights and Positive Duties (Oxford University

Press 2008) 110 (hereafter Fredman, Human Rights Transformed).

118 ibid 106.
119 Lewis, ‘Expressive, Educational and Proactive Roles’ (n 117) 100.
120 CRPD, Art 33(3).
121 Ulf Linderfalk, ‘Is Treaty Interpretation an Art or a Science? International Law and Rational Decision-​

Making’ (2015) 2(1) EUR J Int Law 169, 170 (hereafter Linderfalk ‘Is Treaty Interpretation an Art or
Science?’)
 Introduction 19

Broderick122 and Francesco Seatzu123 to interpret the CRPD, especially the meaning of
equality, and my book also relies and expands upon the methodology.

1.4.1.1 The Vienna Convention on the Law of Treaties (VCLT)

As a starting point, it is impossible to ignore Articles 31 to 33 of the Vienna Convention
on the Law of Treaties (VCLT)124 which are widely assumed to reflect customary inter-
national law and which have been praised for their flexibility in providing a process,
rather than a prescription for interpretation. As Daniel Rietiker remarks ‘while they
avoid taking a firm stand on any of the great doctrinal debates on interpretation, it is
hard to think of any approach to interpretation that would be totally excluded from
Articles 31–​33.’125 Articles 31 to 33 of the VCLT have also been recognized as pro-
viding a delicate balance between the objective (textual), subjective (intention of the
drafters), and teleological (object and purpose) approaches to interpretation.126 The
primary provision is Article 31(1) which provides:

A treaty shall be interpreted in good faith in accordance with the ordinary meaning
to be given to the terms of the treaty in their context and in light of its object and
purpose.

There are four key concepts here: ‘good faith’, ‘ordinary meaning’, ‘context’, and ‘ob-
ject and purpose’. The first concept of good faith is self-​explanatory. It requires hon-
esty, fairness, and reasonableness in the process of interpretation and a result that is
‘not manifestly absurd or unreasonable’.127 The ‘ordinary meaning to be given to the
terms of the treaty’ puts the focus of the interpretation firmly on the text which is
presumed to be a faithful representation of the intentions of the parties. It gives an
objective meaning to the treaty and means that words must be given their plain and
natural meaning in general usage, unless the parties can prove that they intended a
special meaning. While there may be more than one ‘ordinary meaning’, the principles
of interpretation favour the ‘ordinary meaning’ that best fits the ‘context’ and ‘object
and purpose’ of the treaty. The ‘context’ of the treaty includes the entire text of the
treaty including any preamble and annexures. In circumstances where the ordinary
meaning is ‘unclear or ambiguous’ or where the result is ‘manifestly absurd or unrea-
sonable’ reference to preparatory materials is permitted.128 The context also includes

122 Andrea Broderick, The Long and Winding Road to Equality and Inclusion for Persons with

Disabilities: The United Nations Convention on the Rights of Persons with Disabilities (Intersentia 2015),
Chapter 1 (hereafter Broderick, The Long and Winding Road to Equality).
123 Francesco Seatzu, ‘The Convention on the Rights of Persons with Disabilities and International

Human Rights Law’ (2018) 7 Int Hum Rights Law Rev 82, 83 (hereafter Seatzu ‘CRPD and IHRL’).
124 Vienna Convention on the Law of Treaties, opened for signature 23 May 1969, 1155 UNTS 331 (en-

tered into force 27 January 1980) (hereafter VCLT).

125 Daniel Rietiker, ‘The Principle of “Effectiveness” in the Recent Jurisprudence of the European Court

of Human Rights: Its Different Dimensions and Its Consistency with Public International Law—​No Need
for the Concept of Treaty Sui Generis’ (2010) 79 Nord J Int Law 245, 253 (hereafter Rietiker, ‘The Principle
of “Effectiveness” ’).
126 ibid.
127 Oliver Dorr, ‘Article 31’ in Oliver Dorr and Kirsten Schmalenbach (eds), Vienna Convention on the

Law of Treaties: A Commentary (Springer 2012) 559, 588 (hereafter Dorr, ‘Article 31’).
128 VCLT (n 125) Art 32.
20 Mental Health Law

the circumstances at completion, any related agreements at and post-​completion,129

and consistency with the general principles of public international law.130 The ‘object
and purpose’ of the treaty redirects the parties back to their shared goals and reasons
for entering into the treaty which can be evident from the title, preamble, and entire
text. As Birgit Schlűtter argues:

the interpretation of a treaty in light of its object and purpose is probably the most
important rule of article 31(1) of the VCLT, both in general international law and in
human rights law. In contrast to the literal and contextual method, an interpretation
following the object and purpose touches on the very content of the rule, and, in the
human rights context, on the values enshrined in it.131

The object and purpose can refer to the treaty as a whole and to the object and purpose
of specific provisions.132 Each of the four concepts in Articles 31–​33 of the VCLT are
of equal weight and operate in combination with each other, rather than hierarchically
and I will use them that way in interpreting the CRPD.

1.4.1.2 Beyond the VCLT: Social and Political Aspects Including the Social and
Human Rights Models of Disability
While the VCLT codifies the international customary law on treaties, it is not the ex-
clusive source of law on treaty interpretation in international law and it is not without
its limitations. For example, the ‘rule of effectiveness’ posits that treaties should be
interpreted to give the fullest effect to all of their articles which is an independent rule
of international law, even if the rule of effectiveness could also be interpreted as being
part of ‘good faith’ and the ‘objects and purpose’ of the treaty under Article 31(1) of
VCLT.133 Other relevant principles include the rule of law,134 and the presumptions of
rational interpretation. For example, there are presumptions that the special should
be given precedence over the general (lex specialis derogate legi speciali) and that later
agreements should be given precedence over earlier ones (lex posterior derogate legi
priori).
Further, the meaning of a human rights convention is not static, but can change
over time both as a matter of treaty interpretation and of treaty implementation. First,
‘evolutive’ or dynamic theories of treaty interpretation in which treaties are conceptu-
alized as a ‘living instrument’ have been influential in human rights jurisprudence and
scholarship.135 However, ‘evolutive’ interpretation is unlikely to be of great relevance
to the CRPD at present, as it has only relatively recently been negotiated (coming into
force on 3 May 2008) and there has been little time for legal and social changes to

129 ibid Art 31(2).

130 ibid Art 31(3)(c).
131 Birgit Schlutter, ‘Aspects of Human Rights Interpretation by the UN Treaty Bodies’ in Helen Keller

and Geir Ulfstein (eds), UN Human Rights Treaty Bodies: Law and Legitimacy (Cambridge University Press
2012) 278 (hereafter Schlutter, ‘UN Treaty Bodies’).
132 ibid 281.
133 Rietiker, ‘The Principle of “Effectiveness” ’ (n 125) 253.
134 Schlutter, ‘UN Treaty Bodies’ (n 131).
135 Christian, Treaty Interpretation (n 114); Rietiker,‘The Principle of “Effectiveness” ’ (n 125) 263.
 Introduction 21

occur since completion that would alter its meaning. Further, as Andrea Broderick
argues ‘it is also important to bear in mind that the interpretation of the CRPD should
not be overly dynamic, in the sense that it should not be based on wishful thinking’.136
It should also be noted that the meaning of key human rights concepts such as dignity,
equality, and discrimination (Chapters 4 to 7) have evolved over time. Secondly, ref-
erence can be given to ‘subsequent agreements’ and ‘subsequent practice’ (including
inaction in implementing the treaty terms) to determine the current understanding
of the parties of the meaning of the agreement.137 David McGrogan argues that ‘the
monitoring practice of human rights treaty bodies can itself be conduct constitutive
of subsequent practice, provided the necessary criteria are met: that the conduct is in-
tended to be interpretive, that it is concordant, common and consistent, and that there
is no disagreement’.138 The implications of ‘subsequent practice’ may partly explain
the unwavering insistence of abolitionists on the abolition of mental health law post-​
CRPD and the continuing deadlock with States Parties.
Human rights treaties are also often argued to have a ‘special character’ as they
are not entered into as a reciprocal agreement between states, but involve the state
undertaking to the international community that they will abide by the princi-
ples of international human rights law for the benefit of the individuals in their
own and other jurisdictions.139 This has given rise to the pro persona principle
that human rights treaties should be interpreted for the benefit of the individ-
uals intended to be protected, rather than to preserve state sovereignty. That said,
the issue with respect to the abolition of mental health law is not so much about
eroding state sovereignty as how all the rights of the CRPD should be interpreted
to provide the most benefit to persons with mental impairments where exactly
what is beneficial is unclear.
In the disability context, the VCLT has been criticized for reducing interpreta-
tion to an entirely ‘juridical exercise’ in an effort to retain exclusive legal control over
meaning. As Teodor Mlandenov argues:

The extent to which such juridical meta-​rules can effectively arrest the dynamics of
meaning and cope with “ambiguity and obscurity” is a matter that needs to be re-
solved on a case-​by-​case basis. Notwithstanding concrete cases though, interpre-
tation always involves a social and political aspect that cannot be effaced through
purely juridical means.140

By focussing on the ‘social and political’ aspects of attributing meaning, Teodor

Mlandenov characterizes the VCLT as ‘juridical meta rules’ and conceptualizes the

136 Broderick, The Long and Winding Road to Equality (n 123) 9.

137 VCLT (n 125), Art 31(3)(a) and (b).
138 David McGrogan, ‘On the Interpretation of Human Rights Treaties and Subsequent Practice’ (2014)

32(4) Netherlands Q Hum Rights 347, 363 (hereafter McGrogan, ‘Interpretation of Human Rights’).
139 Frederic Megret, ‘Nature of Obligations’ in Daniel Moeckli and others (eds), International Human

Rights Law (Oxford University Press 2014) 97 (hereafter Megret, ‘Nature of Obligations’).
140 Teodor Mlandenov, ‘The UN Convention on the Rights of Persons with Disabilities and its

Interpretation’ (2013) 7(1) ALTER Eur J of Disability Research 69, 74 (hereafter Mlandenov, ‘CRPD and
Interpretation’).
22 Mental Health Law

principles of legal interpretation as being embedded within language and the wider
socio-​political context. He notes that:

in a number of areas crucial for disability equality—​for example, with regard to ‘rea-
sonable accommodation’, ‘independent living’ or ‘legal capacity’—​the CRPD can
only invite certain responses and open up possibilities for the deployment of certain
meanings and practices, but it cannot determine these responses, meanings and prac-
tices. Neither is it possible to fix them through legal instruments such as the VCLT.141

One of the ‘social and political’ aspects of interpretation Teodor Mlandenov identi-
fies is the significant time and resource constraints that are experienced by the CRPD
Committee and which have a negative impact on its ability to provide in-​depth inter-
pretation.142 The other important socio-​political factor is the need to understand the
CRPD within the conceptual framework of the social model of disability. The social
model of disability refers to a range of approaches which focus on the structural and
social barriers and environment including, laws, policies, and social attitudes, which
effectively ‘disable’ persons with various kinds of impairment.143 It involves the whole-
sale rejection of the medical model in which the source of disability is conceptualized
as an individual biological impairment where people are offered medical treatment
and therapy and are expected to live with and struggle to overcome their inevitable
limitations. Rannveig Traustadottir has identified three different social models of dis-
ability. First, the ‘political’ British social model of disability, or ‘strong interpretation’
of the social model of disability, in which disability is seen as the failure of an op-
pressive society to support and enable persons with disability.144 Second, the less rad-
ical Nordic Relational Approach which understands disability as a ‘poor fit’ between
persons with impairment and their environment and third, the North American
Minority Group Approach which conceptualizes disability as a civil rights issue and
persons with disability as part of a socially disadvantaged minority group.145 The so-
cial model of disability has been extremely influential as a theoretical foundation for
the emergence of critical disability studies, as a simple and effective strategy in disa-
bility advocacy and politics, and in motivating disabled persons themselves who ‘do
not need to be ashamed of “being abnormal” or feeling sorry for themselves, instead
they . . . [can] . . . be angry at society for discriminating against them’.146 By conceptu-
alizing disability as a form of social injustice, the social model of disability demands
social change.147 However, the theory that personal characteristics are ‘socially

141 ibid 75.

142 ibid 76.
143 Tom Shakespeare and Nicholas Watson, ‘Defending the Social Model’ (1997) 12(2) Disabil Soc 293,
293 (hereafter Shakespeare and Watson, ‘Defending the Social Model’).
144 Rannveig Traustadottir, ‘Disability Studies, the Social Model and Legal Developments’ in Oddny Mjoll

Arnadottir and Gerard Quinn (eds), The UN Convention on the Rights of Persons with Disabilities: European
and Scandinavian Perspectives (Martinus Nijhoff Publishers 2009) 3, 9, 12, and 14 (hereafter Traustadottir,
‘Disability Studies’).
145 ibid.
146 ibid 10.
147 Linda Barclay, ‘Justice and Disability: What Kind of Theorizing Is Needed?’ (2011) 42(3) J Soc Philos

273 (hereafter Barclay, ‘Justice and Disability’).

 Introduction 23

constructed’ and create social disadvantage is not unique to persons with disability,
but has also been used by other groups to claim human rights and social inclusion by
demonstrating that gender, race and sexuality are also ‘socially constructed’.148 To this
extent, the ‘paradigm shift’ that arises from the social model of disability may not be as
radical as is often claimed.
While the political success of the social model of disability is undisputed, within
the discipline of disability studies many disability scholars are concerned that it is not
a realistic representation of disability.149 Specifically, it has been argued that the social
model puts too much emphasis on social barriers and ignores the actual effect of and
lived experience of impairments.150 That is, it overlooks the impact of pain, deterio-
ration, and limited functioning that is caused by impairments; it falsely assumes that
social change is always preferable to medical intervention; and that designing a society
that does not disadvantage somebody may not be possible.151 In the mental health con-
text, the social model of disability has also been criticized by Anne Plumb as being de-
rived from the needs of persons with physical impairments without being sufficiently
developed to be able to properly apply to the unique experiences and needs of persons
with mental impairments.152 The CRPD needs to apply to persons with all types, com-
binations of, and levels of severity of impairments some of whom may have significant
support needs. While this may be a criticism of the disability rights movement and the
CRPD itself—​that it is not sufficiently sensitive to individual differences—​I argue that
it is also an issue for interpretation. Even though express reference to the social model
of disability never appears in the treaty text, it can be seen in the separation between
the concepts of ‘impairment’ and ‘disability’ and the focus of the CRPD on elimin-
ating social and environmental barriers.153 Therefore, the social model of disability is
used as an ‘interpretive device in commentaries and guidelines that seek to clarify the
meaning of the CRPD’s principles and provisions’.154
Nevertheless, it is the British social model of disability and the radical social con-
structionist view of disability that have been most influential in the conceptualiza-
tion of disability in the CRPD by abolitionists. The effect of this is that the CRPD is
a wholesale rejection of the formerly dominant ‘medical model’ and according to
Rosemary Kayess and Philip French the drafting by civil society was ‘most influenced
by an uncritical, populist, understanding of the social model of disability’.155 More re-
cently, scholars such as Theresia Degener and Francesco Seatzu have argued that the
CRPD has moved away from both the medical and social models of disability and has
instead produced the ‘human rights model’ of disability.156 The ‘human rights model’

148 I discuss the cross-​fertilization between different movements in Chapter 3. See also, Ryu P Cheng,

‘Sociological Theories of Disability, Gender, and Sexuality: A Review of the Literature’ (2009) 19 J Hum
Behav Soc Environ 112 (hereafter Cheng, ‘Sociological Theories’).
149 Christopher A Riddle, ‘Defining Disability: Metaphysical Not Political’ (2013) 16 Med Health Care

Philos 377, 379 (hereafter Riddle, ‘Defining Disability’).

150 Traustadottir, ‘Disability Studies’ (n 145) 3, 10–​12.
151 Barclay, ‘Justice and Disability’ (n 148) 276.
152 Plumb, ‘Out of the Frying Pan’ (n 89) 184.
153 CRPD, Art 1.
154 ibid 74.
155 Kayess and French, ‘Out of Darkness’ (n 48) 33.
156 Degener, ‘Disability’ (n 45); Seatzu, ‘CRPD and IHRL’ (n 124) 87.
Another random document with
no related content on Scribd:
accessible by the widest array of equipment including outdated
equipment. Many small donations ($1 to $5,000) are particularly
important to maintaining tax exempt status with the IRS.

The Foundation is committed to complying with the laws

regulating charities and charitable donations in all 50 states of
the United States. Compliance requirements are not uniform
and it takes a considerable effort, much paperwork and many
fees to meet and keep up with these requirements. We do not
solicit donations in locations where we have not received written
confirmation of compliance. To SEND DONATIONS or
determine the status of compliance for any particular state visit
www.gutenberg.org/donate.

While we cannot and do not solicit contributions from states

where we have not met the solicitation requirements, we know
of no prohibition against accepting unsolicited donations from
donors in such states who approach us with offers to donate.

International donations are gratefully accepted, but we cannot

make any statements concerning tax treatment of donations
received from outside the United States. U.S. laws alone swamp
our small staff.

Please check the Project Gutenberg web pages for current

donation methods and addresses. Donations are accepted in a
number of other ways including checks, online payments and
credit card donations. To donate, please visit:
www.gutenberg.org/donate.

Section 5. General Information About Project

Gutenberg™ electronic works
Professor Michael S. Hart was the originator of the Project
Gutenberg™ concept of a library of electronic works that could
be freely shared with anyone. For forty years, he produced and
distributed Project Gutenberg™ eBooks with only a loose
network of volunteer support.

Project Gutenberg™ eBooks are often created from several

printed editions, all of which are confirmed as not protected by
copyright in the U.S. unless a copyright notice is included. Thus,
we do not necessarily keep eBooks in compliance with any
particular paper edition.

Most people start at our website which has the main PG search
facility: www.gutenberg.org.

This website includes information about Project Gutenberg™,

including how to make donations to the Project Gutenberg
Literary Archive Foundation, how to help produce our new
eBooks, and how to subscribe to our email newsletter to hear
about new eBooks.