International Principles &       Guidelines       Anselm Eldergill
New legislation & human rights‘Countries that have decided to draft andenact new mental health legislation have tocarry ou...
International agencies     United Nations         World Health Organisation   Council of Europe   European Convention on H...
Important Declarations• The United Nations Declaration on the Rights of  Mentally Retarded Persons, proclaimed by General ...
Important guidance• Mental Health Legislation    and Human Rights (Mental    Health Policy & Service    Guidance Package),...
Determination of mental illness (1)        The protection of persons with mental illness and the improvement        of men...
Determination of mental illness (2)       The protection of persons with mental illness and the improvement       of menta...
‘Hospital’    ‘The approach the Government    has developed … involves the    idea of detention based on the    serious ri...
Self-determination         The protection of persons with mental illness and the improvement         of mental health care...
Restrictions on liberty         The protection of persons with mental illness and the improvement         of mental health...
Involuntary admission (1) Free and informed consent ‘The principle of free and informed consent to treatment should be ens...
Involuntary admission (2)         The protection of persons with mental illness and the improvement         of mental heal...
Involuntary admission (3)  Convention on Human Rights and Biomedicine                Article 1 — Purpose and ObjectEach Pa...
The    When and why?                                     relevant                                                     cond...
The ‘third’ condition  Cases where a patient is    at substantial risk of        All other cases  causing serious harm to ...
Community patientsA community patient’sconsultant may sign a pinkstatutory form, upon thecompletion of which the patientis...
Seclusion and restraint        The protection of persons with mental illness and the improvement        of mental health c...
Protection from harm and abuse        The protection of persons with mental illness and the improvement        of mental h...
Protecting community patients              Human rights of patients treated in the community              ‘… in countries ...
Compliance and inspection      The protection of persons with mental illness and the improvement      of mental health car...
Persons liable to compulsory treatment    PRESENT POPULATION                 ADD NEW POPULATION•   Those liable to be     ...
Where? (Places of compulsion)• Hospitals• Nursing homes• Residential homes• People’s homes• Police stations, prisons• CMHT...
Safeguards    An in    An in-patient’s spouse, partner or child cannot discharge                                    or    ...
TribunalsWhere a person asks for a review of the                                      ofgrounds for their detention, it ca...
Functions — 1• Monitoring the Mental     • When reasonably    Health Act and the          requested to visit    European C...
Functions — 2• Restrictions on the  right to communicate       Possible Functions• Prosecution of          1.             ...
Concluding remarks• ‘In many respects, [the draft  Bill] does not comply with the  European Convention on  Human Rights, o...
END OF THIS PRESENTATION       Alternative Slides
Other rightsThe protection of persons with mental illness and the improvement ofmental health care (United Nations, 1991)
Determinations — the medical component        Mental Health Care Law: Ten Basic Principles (WHO, 1996)3. Mental health ass...
Self-determination         The protection of persons with mental illness and the improvement         of mental health care...
Mental Health LegislationFree and informed consent‘The principle of free and informed consent to treatmentshould be enshri...
Mental Health LegislationHuman rights of patients treated in the community‘… in countries that have adopted communitysuper...
Mental Health LegislationConfidentiality‘The legislation should guarantee to persons withmental disorders that confidentia...
Drafting new legislation‘Countries that have decided to draft and enact new mental healthlegislation have to carry out cer...
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Mental health laws international principles and conventions 2007

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Mental health laws international principles and conventions 2007

  1. 1. International Principles & Guidelines Anselm Eldergill
  2. 2. New legislation & human rights‘Countries that have decided to draft andenact new mental health legislation have tocarry out certain preliminary activities …An important part of these preliminaryactivities involves studying internationalhuman rights and the conventions andstandards associated with them. Countriesthat are signatories to such conventions areobliged to respect, protect and fulfil therights enshrined in them …These humanrights standards … reflect internationalagreement on good practice in the field of Dr Michelle Funkmental health.
  3. 3. International agencies United Nations World Health Organisation Council of Europe European Convention on Human Rights
  4. 4. Important Declarations• The United Nations Declaration on the Rights of Mentally Retarded Persons, proclaimed by General Assembly resolution 2856 (XXVI) of 20 December 1971;• The United Nations Declaration on the Rights of Disabled Persons, Proclaimed by General Assembly resolution 3447 (XXX) of 9 December 1975;• The protection of persons with mental illness and the improvement of mental health care (Universal Declaration of Human Rights, UN Resolution of 1991, No. A/RES/46/119, 75th Plenary Meeting);• The Guidelines for the Promotion of Human Rights of Persons with Mental Health Disorders (WHO/MNH/MND/95.4).• Mental Health Care Law: Ten Basic Principles (WHO/MNH/MND/96.9)
  5. 5. Important guidance• Mental Health Legislation and Human Rights (Mental Health Policy & Service Guidance Package), WHO, 2003;• Advocacy for Mental Health (Mental Health Policy & Service Guidance Package), WHO, 2003;• Chapter 5 (‘The Way Forward’) of WHO’s World Health Report for 2001;• Nations for Mental Health, Final Report, WHO, 2002.
  6. 6. Determination of mental illness (1) The protection of persons with mental illness and the improvement of mental health care (United Nations, 1991)4(1) A determination that a person has a mental illness shall be made in accordancewith internationally accepted medical standards. ‘Mental disorder’ means ‘any disability or disorder of the mind or brain, whether permanent or temporary, which results in an impairment or disturbance of mental functioning.’ .’
  7. 7. Determination of mental illness (2) The protection of persons with mental illness and the improvement of mental health care (United Nations, 1991)4(2) A determination of mental illness shall never be made on the basis of … any …reason not directly relevant to mental health status.4(3) … non-conformity with moral [or] social … values ... shall never be adetermining factor in diagnosing mental illness.4(5) No person or authority shall classify a person as having … a mental illnessexcept for purposes directly relating to mental illness or the consequences of mentalillness. People may be dealt with as mentally disordered by reason solely of promiscuity, immoral conduct, sexual deviancy or dependence on alcohol or drugs.
  8. 8. ‘Hospital’ ‘The approach the Government has developed … involves the idea of detention based on the serious risk such people present to the public.’ ‘Third units’ may be defined as adult secure accommodation of the kind sometimes provided for behaviourally-disturbed children. Anti-social people are mentally disordered. Supervised social interventions are medical treatments. Establishments which detain people under the Act, or provide social care under appropriate supervision, are hospitals.
  9. 9. Self-determination The protection of persons with mental illness and the improvement of mental health care, 19919(4) The treatment of every patient shall be directed towards preserving andenhancing personal autonomy. Mental Health Care Law: Ten Basic Principles (WHO, 1996)5. Consent is required before any type of interference with a person can occur.6. In case a patient merely experiences difficulties in appreciating the implications ofa decision, although not unable to decide, he/she shall benefit from the assistance ofa knowledgeable third party of his or her choice.7. There should be a review procedure available for any decision made by official(judge) or surrogate (representative, e.g. guardian) decision-makers and by healthcare providers.
  10. 10. Restrictions on liberty The protection of persons with mental illness and the improvement of mental health care, 19919(1) Every patient shall have the right to be treated in the least restrictiveenvironment and with the least restrictive or intrusive treatment appropriate to thepatient’s health needs and the need to protect the physical safety of others. Mental Health Care Law: Ten Basic Principles (WHO, 1996)4. Persons with mental health disorders should be provided with health care whichis the least restrictive.
  11. 11. Involuntary admission (1) Free and informed consent ‘The principle of free and informed consent to treatment should be enshrined in the legislation. Treatment without consent (involuntary treatment) should be permitted only under exceptional circumstances.’Involuntary admission the exception‘Involuntary admission to hospital should bethe exception and should happen only invery specific circumstances.’‘Legislation can ensure that involuntaryadmission is restricted to rare situations in Dr Michelle Funkwhich individuals pose a threat tothemselves and/or others and communitybased alternatives are considered unfeasible.’
  12. 12. Involuntary admission (2) The protection of persons with mental illness and the improvement of mental health care (UN, 1991)15(1) Where a person needs treatment in a mental health facility, every effort shallbe made to avoid involuntary admission.16(1) A person may be admitted involuntarily to a mental health facility as a patient… if, and only if, a qualified mental health practitioner authorized by law for thatpurpose determines … that that person has a mental illness and considers:(a) That, because of that mental illness, there is a serious likelihood ofimmediate or imminent harm to that person or to other persons; or(b) That, in the case of a person whose mental illness is severe and whosejudgment is impaired, failure to admit or retain that person is likely to lead to aserious deterioration in his or her condition or will prevent the giving of appropriatetreatment that can only be given by admission to a mental health facility inaccordance with the principle of the least restrictive alternative.
  13. 13. Involuntary admission (3) Convention on Human Rights and Biomedicine Article 1 — Purpose and ObjectEach Party shall take in its internal law the necessary measuresto give effect to the provisions of this Convention. Article 7 — Protection of persons who have mental disorderSubject to protective conditions prescribed by law, includingsupervisory, control and appeal procedures, a person who hasa mental disorder of a serious nature may be subjected, Oviedo, 1997without his or her consent, to an intervention aimed at treatinghis or her mental disorder only where, without such treatment,serious harm is likely to result to his or her health.
  14. 14. The When and why? relevant conditions Three of the ‘relevant conditions’ are common to all statutory examinations: (1) The patient is suffering from [a] mental disorder (2) That mental disorder is of such a nature or degree as to warrant the provision of medical treatment to him. (3) Appropriate medical treatment is available in the patient’s case.‘medical treatment’ is treatment for mental disorder provided underthe supervision of an approved clinician, including care, education,and training in work, social and independent living skills.
  15. 15. The ‘third’ condition Cases where a patient is at substantial risk of All other cases causing serious harm to other persons It is necessary for the (i) It is necessary for the protection of those health or safety of the persons that medical treatment be provided to patient or the protection of him other persons that medical treatment be provided to him, and (ii) That treatment cannot be provided to him unless he is subject to the provisions of this Act.
  16. 16. Community patientsA community patient’sconsultant may sign a pinkstatutory form, upon thecompletion of which the patientis liable to detention.
  17. 17. Seclusion and restraint The protection of persons with mental illness and the improvement of mental health care (United Nations, 1991)11(11) Physical restraint or involuntary seclusion of a patient shall … be employed …only when it is the only means available to prevent immediate or imminent harm tothe patient or others. It shall not be prolonged beyond the period which is strictlynecessary for this purpose …A personal representative, if any and if relevant, shall be given prompt notice of anyphysical restraint or involuntary seclusion of the patient. Mental Health Care Law: Ten Basic Principles (WHO, 1996)See the ‘components’ of the least restrictive care guideline.
  18. 18. Protection from harm and abuse The protection of persons with mental illness and the improvement of mental health care (United Nations, 1991)Principle 8(2): ‘Every patient shall be protected from harm, including unjustifiedmedication, abuse by other patients, staff or others or other acts causing mentaldistress or physical discomfort.’ Protection against harm and misuse of powers ‘The legislation should lay down procedures for protecting the human rights of people who are being treated involuntarily and should provide them with protection against harm and the misuse of the powers indicated above. These procedures include obtaining an independent second opinion, obtaining permission from an independent authority based on professional recommendations …’
  19. 19. Protecting community patients Human rights of patients treated in the community ‘… in countries that have adopted community supervision it is important that sufficient measures exist to protect the human rights of the patients concerned, as in other treatment settings.’ Role of families ‘Legislation can help to carers to play an important role in interactions with mental health services … For example, people can appeal on behalf of members of their families…’
  20. 20. Compliance and inspection The protection of persons with mental illness and the improvement of mental health care (United Nations, 1991)Principle 14(2): ‘Every mental health facility shall be inspected by the competentauthorities with sufficient frequency to ensure that the conditions, treatment andcare of patients comply with these Principles.’Principle 22: ‘States shall ensure that appropriate mechanisms are in force topromote compliance with these Principles, for the inspection of mental healthfacilities, for the submission, investigation and resolution of complaints and for theinstitution of appropriate disciplinary or judicial proceedings for professionalmisconduct or violation of the rights of a patient.’
  21. 21. Persons liable to compulsory treatment PRESENT POPULATION ADD NEW POPULATION• Those liable to be • Alcohol/drug dependency detained under Pt II or III • Sexual deviancy for 28 days or more • Personality disorder/anti-social (even if untreatable) • Learning disability • Non-compliant out-patients • 28 28-day community orders • 1500–2000 con. discharge • Guardianship & after-care under supervision • 44,000 incapacitated
  22. 22. Where? (Places of compulsion)• Hospitals• Nursing homes• Residential homes• People’s homes• Police stations, prisons• CMHT bases, crisis teams, AOTs, etc• Various new units (PDs, social services hostels/houses)
  23. 23. Safeguards An in An in-patient’s spouse, partner or child cannot discharge or them home, even if their objections to compulsion are not if to unreasonable and no one is in danger. no is in Patients who meet the conditions for compulsion no longer no have a right to an independent decision concerning their to a n medication or ECT. or The duty to provide after-care under section 117 is to is abolished. The principles and guidance in the Code of Practice may be in of be qualified. Hospital managers, Health Authorities, NHS trusts, and local authorities will lose their powers of discharge. of There will no longer be a separate, specialist, Mental Health no be Commission.
  24. 24. TribunalsWhere a person asks for a review of the ofgrounds for their detention, it can extend it it itb y u p toby up to six months.Whether a patient who meets theconditions for compulsion is released from isdetention is left to entirely up to the is to up totribunal’s discretion.People who have not committed anycriminal offence may be placed under berestrictions on discharge, transfer and onleave of the kind now imposed by the of byCrown Court on offenders who pose a risk onofof serious harm to the public. to
  25. 25. Functions — 1• Monitoring the Mental • When reasonably Health Act and the requested to visit European Convention hospitals and other• Scrutiny and establishments rectification of • Ill-treatment, neglect, statutory documents improper compulsion• When requested, to • Review deaths or visit incapacitated injuries to patients patients and those • Solitary confinement subject to compulsion and mechanical restraint.
  26. 26. Functions — 2• Restrictions on the right to communicate Possible Functions• Prosecution of 1. 1. Release of those offences subject to unlawful• Publication of a Code compulsion of Practice 2. 2. Appeals from MHRTs• Publication of an and other prescribed annual report b o d ie s 3. 3. Advising the• Other functions Secretary of State prescribed by regulations
  27. 27. Concluding remarks• ‘In many respects, [the draft Bill] does not comply with the European Convention on Human Rights, or with the minimum international standards agreed by nations as being the baseline for countries that wish to be considered civilised in this respect.’
  28. 28. END OF THIS PRESENTATION Alternative Slides
  29. 29. Other rightsThe protection of persons with mental illness and the improvement ofmental health care (United Nations, 1991)
  30. 30. Determinations — the medical component Mental Health Care Law: Ten Basic Principles (WHO, 1996)3. Mental health assessments should be made in accordance with internationallyaccepted medical principles and instruments (e.g., WHO’s ICD-10 Classification ofMental and Behavioural Disorders — Clinical Descriptions and Diagnostic Guidelines,Tenth Revision, 1992). Determination ofDiagnosis Components of competence Mental healthChoice of assessment Risk assessmentstreatment
  31. 31. Self-determination The protection of persons with mental illness and the improvement of mental health care, 19919(4) The treatment of every patient shall be directed towards preserving andenhancing personal autonomy. Mental Health Care Law: Ten Basic Principles (WHO, 1996)5. Consent is required before any type of interference with a person can occur.6. In case a patient merely experiences difficulties in appreciating the implications ofa decision, although not unable to decide, he/she shall benefit from the assistance ofa knowledgeable third party of his or her choice.7. There should be a review procedure available for any decision made by official(judge) or surrogate (representative, e.g. guardian) decision-makers and by healthcare providers.
  32. 32. Mental Health LegislationFree and informed consent‘The principle of free and informed consent to treatmentshould be enshrined in the legislation. Treatment withoutconsent (involuntary treatment) should be permitted onlyunder exceptional circumstances.’Involuntary admission the exception‘Involuntary admission to hospital should be theexception and should happen only in very specificcircumstances.’‘Legislation can ensure that involuntary admission isrestricted to rare situations in which individuals pose a Dr Michelle Funkthreat to themselves and/or others and communitybased alternatives are considered unfeasible.’
  33. 33. Mental Health LegislationHuman rights of patients treated in the community‘… in countries that have adopted communitysupervision it is important that sufficient measuresexist to protect the human rights of the patientsconcerned, as in other treatment settings.’Role of families‘Legislation allows people with mental disorders andtheir families and Legislation can help to carers toplay an important role in interactions with mentalhealth services, including promote the integrationadmission to mental health facilities. For example, Dr Michelle Funkpeople can appeal on behalf of members intocommunities of persons of their families…’
  34. 34. Mental Health LegislationConfidentiality‘The legislation should guarantee to persons withmental disorders that confidentiality exists in respectof all information obtained in a clinical context.’Protection against harm and misuse of powers‘The legislation should lay down procedures forprotecting the human rights of people who are beingtreated involuntarily and should provide them withprotection against harm and the misuse of thepowers indicated above. These procedures includeobtaining an independent second opinion, obtaining Dr Michelle Funkpermission from an independent authority based onprofessional recommendations …’
  35. 35. Drafting new legislation‘Countries that have decided to draft and enact new mental healthlegislation have to carry out certain preliminary activities … Animportant part of these preliminary activities involves studyinginternational human rights and the conventions and standardsassociated with them. Countries that are signatories to suchconventions are obliged to respect, protect and fulfil the rightsenshrined in them …These human rights standards … reflectinternational agreement on good practice in the field of mental health.‘Legislation codifies the values and principles of human rights which areembedded in mental health policy.’ §The preliminary activities should also include a critical review of existingmental health legislation in other countries, especially ones with similarsocial and cultural backgrounds ….The final step in the preliminary activities is to engage all stakeholders Dr Michelle Funkin consultation and negotiation about possible components of mentalhealth legislation. Consultation and negotiation for change areimportant not only in the drafting of legislation but also in itsimplementation once it has been adopted.’

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