Transcript Mental Health Law and Systems The Human Rights Perspective

Mental Health Law and Systems
The Human Rights Perspective
Mental Health Research Conference
22nd to 23rd April, 2013
Muzuzu, Malawi
Wamundila Waliuya
Africa Programme Director
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INTRODUCTION
• There are currently widely shared concerns
across all stakeholders about outmoded
approaches to mental health delivery, the
gaps in community-based services and
supports, and the need to secure a stronger
foundation in the world to protect and
promote the rights of mental health users.
These concerns should be addressed and
redressed especially with the principal
leadership of governments.
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• This should ultimately lead to the formulation
of legislation that is user friendly and
promotes a nd upholds the above concerns.
The pieces of legislation to be formulated
should create mechanisms and procedures
that are fully consistent with the provisions
and principles of the United Nations
Convention on the Rights of Persons with
Disabilities (UNCRPD) 2006.
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PREMISE FOR LEGISLATION
• Each person has his or her own pathway to
mental health;
– legal capacity and equal respect for human rights
must be a foundation for each person to find his
or her path; and
• Community-based mental health and social
supports are essential to realizing this aim.
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PRINCIPLES FOR LEGAL
TRANSFORMATION
• Rights to be respected: The principles of equal respect
for dignity, diversity and evolving capacities of all
persons; autonomy and self-determination; and
participation, inclusion and accessibility in society
must guide reform of the mental health system
everywhere.
– Equality and non-discrimination, and to reasonable
accommodation to exercise rights (Article 5);
– Legal capacity on an equal basis with others and to the
supports needed to exercise that capacity (Article 12);
– Liberty and security of the person, and in particular the
right not to be deprived of liberty on the basis of disability
(Article 14);
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– Freedom from degrading treatment (Article 15);
– Mental and physical integrity (Article 17);
– Living independently and being included in the
community, and access to in-home, residential and
other community support services, including personal
assistance necessary to support living and inclusion in
the community, and to prevent isolation or
segregation from the community (Article 19); and
– Free and informed consent in health care decision
making (Article 25).
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• Assuming and realizing full potential: Like anyone else,
children, youth and adults with psychosocial disabilities
(people who live with mental health challenges) should
be respected as full citizens, able to grow, contribute
and belong in their families and communities.
• Legislation should lean towards a Seclusion-Free and
Restraints Free Approach to Mental Health Services.
• Any provisions regarding seclusion and restraint should
not be legislated. There is a strong case to be made for
banning these practices altogether , as the Special
Rapporteur on Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment has recently
recommended.
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• Must not be imposed for the convenience of staff
or for any purpose of punishment;
• Require rigorous monitoring of individuals
subjected to these interventions on a frequent,
documented basis;
• Absolute time limit on their use, which must be
of very short duration; they must not be used
unless a qualified mental health practitioner has
determined they are the least restrictive
interventions possible;
• Procedure for the mental health care user to
challenge their use after the fact)
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Social/human rights aspect of mental
health
• Mental health is not only a medical issue but
also a social/ human rights issue, and mental
health services should be guided by a mission
to remedy harmful patterns of care around
the person rather than focus on changing the
individual alone or mirroring societal
prejudices.
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Community-based services
• There must be shift in emphasis and resources to
community-based mental health from hospitalbased services. An over-reliance on mental
health facilities has limited investment in and
development of primary care and community
mental health services. Policy, legislation and
plans for shifting from institutional services to
community-based mental health and
incorporation of mental health services into
primary care must become a government
commitment.
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Social support services in addition to
medical
• An emphasis must be put on developing
services that go beyond the medical only. A
major factor in attaining independence,
physical, mental, social and vocational ability
and inclusion and participation in the face of a
psychosocial disability is having access to
supports and services in everyday life, such as
in finding a place to live, a job, a support
network in the community, etc.
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Key Concepts for Promoting and
Protecting Human Rights
• Recognition of the right to legal capacity without
discrimination on the basis of psycho-social disability
• Interdependent set of human rights
• Varying capacities to make decisions ‘independently’
• Support to exercise and enjoy the right to legal capacity
• Types of decision-making status to exercise legal
capacity
• Reasonable accommodation in the decision-making
process
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Recognition of the right to legal
capacity
• The CRPD recognizes the right of all persons to
recognition of their legal capacity, without
discrimination on the basis of disability. The
recognition and respect of a person’s ‘legal
capacity’ empowers a person to exercise
control over personal decisions and to
command respect from others of that person’s
decisions.
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• The definition makes clear that legal capacity is
about having the recognized ‘power’ to enter
transactions, contracts and legally-regulated
relationships with others. The report defined
legal capacity this way:
• Legal capacity includes the ‘capacity to act’,
intended as the capacity and power to engage in
a particular undertaking or transaction, to
maintain a particular status or relationship with
another individual, and more in general to create,
modify or extinguish legal relationships.
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Article 12
‘Equal recognition before the law’
• States Parties reaffirm that persons with
disabilities have the right to recognition
everywhere as persons before the law.
• States Parties shall recognize that persons with
disabilities enjoy legal capacity on an equal basis
with others.
• States Parties shall take appropriate measures to
provide access by persons with disabilities to the
support they may require in exercising their legal
capacity.
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• States Parties shall ensure that all measures that relate
to the exercise of legal capacity provide for appropriate
and effective safeguards to prevent abuse in
accordance with international human rights law. Such
safeguards shall ensure that measures relating to the
exercise of legal capacity respect the rights, will and
preferences of the person, are free of conflict of
interest and undue influence, are proportional and
tailored to the person’s circumstances, apply for the
shortest time possible and are subject to regular
review by a competent, independent and impartial
authority or judicial body. The safeguards shall be
proportional to the degree to which such measures
affect the person’s rights and interests.
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• Subject to the provisions of this article, States
Parties shall take all appropriate and effective
measures to ensure the equal right of persons
with disabilities to own or inherit property, to
control their own financial affairs and to have
equal access to bank loans, mortgages and
other forms of financial credit, and shall
ensure that persons with disabilities are not
arbitrarily deprived of their property.
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Interdependent set of rights
• The equal right to legal capacity is founded on
the principles recognized in the CRPD of equal
respect for dignity, diversity and evolving
capacities of all persons; autonomy and selfdetermination; and participation, inclusion
and accessibility in society. Such principles
must also guide reform of the system for
protection and promotion of legal capacity in
the world.
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Support to exercise and enjoy the
right to legal capacity
• Legislation should take its guidance from Article 12(3)
in particular in this regard, and provide for communitybased delivery of supports that should include:
• Individual planning, service coordination and referral;
• Independent advocacy;
• Communication and interpretive assistance;
• Facilitating a supported decision making arrangement;
• Peer support
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• Relationship-building assistance;
• Any other support or accommodation
considered necessary to assist the adult in
exercising control over his or her decisions, or
to provide the adult with the conditions
needed to develop or regain decision-making
capabilities and to exercise his or her right to
legal capacity.
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• mental health is not only a medical issue but
also a social/ human rights issue as already
stated above. So,, in order to resolve problems
surrounding these issues, there is need to take
a human rights approach which is
comprehensive as provides for both the social
and mental wellbeing of the person affected.
It has been proved in many countries that the
integrated primary care for mental health is
the most effective way to address mental
health
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• Community based rehabilitation reduces
stigma and discrimination
• Different countries have used the above
principles differently to integrate mental
health into primary health care.
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• Governments may be challenged by the
potential resource implications of making such
provisions in legislation. However, in
jurisdictions with supported decision-making
most of the supports provided are of an
informal nature from family, friends and
community members. It has been
demonstrated that providing supports to
exercise legal capacity is cost-effective.
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• People who are supported to exercise their
self-determination have higher levels of health
and well-being.
• The cost-savings in acute mental health and
other health care from supporting people to
live independently and be included in the
community and to develop natural supports
will far outweigh the investment in
community capacity to assist people to
exercise their legal capacity.
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• The CRPD recognizes that governments may
‘progressively realize’ implementation of the services
and supports needed to enable people to exercise their
rights, as long as they are undertaking planning to
achieve the relevant policy goals, enhancing
investments in a planned and sustainable manner, and
monitoring and reporting on progress.
• Informal services are provided by peers, family, friends
and community members. Informal care represents a
huge resource to a community-based mental health
system provided that informal supporters have
information, awareness of and respect for human
rights of mental health users, and are linked to
resources in the community to assist them.
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• governments should not take resource burden
as an excuse for not developing legislation
that provides for the promotion and
protection of the rights of mental health
users, with an emphasis on community based
support services.
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Appendix 1
Providing for Exercise of Legal Capacity with
Accommodations and Supports in the Health Care
Setting/Context
• Mental Health Practitioners (MHPs) should ensure
reasonable accommodation is provided, e.g spending
sufficient time to establish a meaningful connection
with the mental health user that enables the individual
to express him or herself and be understood and the
MHP to be understood, and providing information in a
way that can be understood by the mental health user.
• MHPs should also take into consideration the
existence of a legal representative, an advance
directive or a supported decision-making arrangement.
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• MHPs may be empowered to make an initial
assessment about an individual’s capability to
make health care decisions independently,
with support and accommodation as needed
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• If the MHP’s initial assessment is that the
individual is not capable of acting legally
independently even with support, then –
– The MHP should engage a designated community
agency or organization (DCA)
– DCA should assess whether additional supports or
accommodation are needed, and provide such as
required, including:
•
•
•
•
Personal planning support and advocacy
Communication assistance
Service coordination
Other as required
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– If the mental health user is unable to act legally
independently even with the DCA assistance, then
the DCA helps in establishing a supported decision
making arrangement, legal representative or
advance directive .
– In situations where a supported decision making
arrangement cannot be established – because
• there are no other persons willing and able to act as
supporters
• a legal representative or advance directive is not in
place, and
• the person cannot communicate in ways that others
can understand or act upon
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Application to Tribunal
• application is made to the Mental Health
Tribunal to appoint a decision-making
facilitator to make health care treatment
decisions for the mental health user on a
time-limited basis; and
• Legal capacity and support office may be
called upon to provide evidence in this
process.
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• QUESTIONS??
• THANK YOU FOR LISTENING
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