Minding Equality: Compulsory Mental Health Care and the CRPD
My research project concerns how international and national law seeks to balance interests of autonomy and self-determination with interests of health and safety in legal frameworks concerning mental health care. Should people with psychosocial disabilities be decision-makers in their own lives, or should decision-making in some cases be left to a third party with the former person’s best interests in mind? This question has been at the heart of debates concerning the design of mental health care regimes over the last decades, and it permeated negotiations of the Convention on the rights of Persons with Disabilities (CRPD) Even though the treaty’s answer to the question is ambiguous and calls for further interpretation, that is new and revitalising. Previous human rights instruments explicitly legitimized compulsion within the mental health context. The European Convention on Human Rights is the most obvious example where the treaty text provides for civil detention of people of “unsound minds”. At face value, the CRPD is radically different. It categorizes compulsory mental health interventions as prima facie discriminatory, and explicitly states that the existence of a disability cannot justify liberty restrictions.
The purpose of this study is to analyse the normative content of the CRPD as regards the lawfulness of compulsory interventions within the mental health context. Applying customary legal rules of treaty interpretation, it provides an account of the state obligations laid down in the Convention. This analysis leads to the conclusion that the precise scope for lawful use of compulsion within the mental health context cannot be settled through treaty interpretation. After delineating the room for interpretative discretion, I suggest a way forward. My study offers a framework for assessing the lawfulness of compulsory mental health interventions at the national level. The framework builds on Robert Alexy’s model for proportionality assessments, with appropriate adjustments to fit the non-discrimination context. It specifies the criteria to be met, and the rules that governs the final decision, and thereby enables judicial review of national mental health laws, as well as scrutiny of compulsory interventions in individual cases. Though it is developed and discussed in relation to compulsory mental health interventions, the framework has a formal structure and high level of abstraction. It may hence be applied in discrimination analysis outside the mental health field.