Compulsory Mental Health Interventions and the CRPD: Minding Equality

This book delineates the scope of permissible compulsory mental health interventions under the Convention on the Rights of Persons with Disabilities (CRPD). The initial impetus for this study was provided by a conflict between two competing positions within the current debate over the future of coercive psychiatry. According to one position, defended by the CRPD Committee, among others, compulsory mental health care necessarily violates the prohibition of discrimination. According to the competing position, supported by the vast majority of states, compulsion is sometimes necessary to protect health and life and, if coupled with appropriate legal safeguards, it is lawful under such circumstances. This book disputes both positions and argues that the scope of permissible compulsory care can be identified using proportionality reasoning. Drawing on the work of Robert Alexy, it develops a framework for proportionality assessments within the context of non-discrimination. The framework can assist decision-makers to design principled and evidence-based mental health care regimes. This book thus provides a new way forward for states parties looking to reform their mental health care regimes and to improve compliance with the CRPD. It will appeal to academics and practitioners engaged in mental health reform in the post-CRPD era.

Table of Contents:
Introduction I. To Intervene or not to Intervene? II. Methodological Remarks III. Vocabulary and Key Concepts IV. A Roadmap for this Book 1. The Convention’s Approach to Mental Health Care I. A New Approach to Mental Health Care II. Article 12 and the Right to Enjoy Legal Capacity III. Article 14 and the Right to Liberty IV. Article 17 and the Right to Respect for Physical and Mental Integrity V. Article 25 and the Right to Consent VI. The Enjoyment of Legal Capacity, Liberty and Integrity ‘on an Equal Basis with Others’ A. The Prohibition of Discrimination B. The Objective and Reasonable Standard VII. The CRPD’s Approach to Mental Health Care in Brief 2. Putting Mental Health Laws to the Test I. Applying the Objective and Reasonable Standard II. Domestic Mental Health Legislation III. Do Compulsory Interventions Serve Legitimate Aims? IV. Are Compulsory Interventions Based on Objective Criteria? A. The Protection of the Health of the Person Concerned B. The Protection of the Life of the Person Concerned C. The Protection of Others V. Are Compulsory Interventions Reasonable? VI. Conclusions on the Objectivity and Reasonableness of Domestic Regimes 3. Proportionality Reasoning I. A Way Forward? II. Theoretical Underpinnings III. The Rudiments of Proportionality Assessment A. Legitimate Aim(s) B. Suitability C. Necessity D. Proportionality in the Narrow Sense IV. Compatibility with the Objective and Reasonable Standard V. Assessing and Weighing Arguments A. Abstract Weights B. Degrees of Infringement VI. Dealing with Epistemic Uncertainty A. Empirical Uncertainty and Discretion B. Normative Uncertainty and Discretion VII. The Advantages and Disadvantages of Proportionality Reasoning A. The Legal Soundness of Classification Choices B. Too Much Discretion? C. Structure and Precision 4. Proportionality and Non-discrimination I. The Focus on Distributive Justice II. Proportionality Assessments Tailored to Non-discrimination Norms A. Legitimate Aim: Excluding Offensive Policies B. Suitability: Excluding Ineffective Policies C. Necessity: Excluding Excessive Policies D. Proportionality: Excluding Inconsistent Policies and Policies with Unreasonable Disadvantageous Effects III. Applying the Consistency Requirement A. Compulsory Intervention to Protect Health B. Civil Detention to Protect Life C. Civil Detention to Protect Others D. The Value of a Consistency Requirement IV. The Role of Equality-specific Harm in Balancing A. The Compulsory Mental Health Care of Persons with Psychosocial Disabilities B. The Compulsory Care of Everyone Who Lacks Decision-making Ability V. The Value of Structured Proportionality Assessments in the Non-discrimination Context VI. A Framework for Evaluating Domestic Systems of Compulsory Mental Health Care Conclusion I. To Intervene or Not to Intervene? A Difficult Question II. The Long Answer to the Question A. The Limits Set by the Treaty Text B. The Limits Set by Discrimination Analysis C. CRPD-compliant Compulsory Mental Health Interventions to Protect the Health and Lives of Patients III. Concluding Remarks on the Future of Mental Health Law and Policy