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Camilla Parker A Legislative Approach To Embedding Rights Whats Possible In Ireland
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Camilla Parker A Legislative Approach To Embedding Rights Whats Possible In Ireland

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A Legislative Approach to Embedding Rights -What's Possible in Ireland

A Legislative Approach to Embedding Rights -What's Possible in Ireland

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  • In this presentation I will consider Interrelationship between mental health policy, legislation and human rights Role of legislation Article 12 (Right to health) International Covenant Economic, Social & Cultural Rights Article 19 (Living independently and being included in the community) Implications for mental health services Examples of where legislation will be relevant
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    • 1. Camilla Parker Mental Health & Human Rights Consultant 18 th May 2009
    • 2. Mental health policy, human rights & legislation
      • “ There are many ways to improve the lives of people
      • with mental disorders. One important way is
      • through policies, plans and programmes that lead to better services. To implement such policies and
      • plans, one needs good legislation–that is, laws that
      • place the policies and plans in the context of
      • internationally accepted human rights standards
      • and good practices.”
      • WHO, 2005
    • 3. A supportive & dynamic relationship
    • 4. How they are connected:
      • Mental Health Policy: underpinned by human rights principles; take forward action to ensure compliance with human rights obligations, including a review to identify legislative barriers & need for new legislation
      • Legislation: can codify human rights principles; give framework on how policy implemented & enforced; ensure the protection & promotion of human rights
      • Human Rights: provide the principles on which policy & legislation developed, implemented and enforced; identify areas of policy and legislation not complying with human rights
    • 5. Core components of mental health policy (WHO)
      • Establishment of high quality mental health services
      • Access to quality mental health care
      • Protection of human rights
      • Patients’ rights to treatment
      • Development of robust procedural protections
      • Integration of persons with mental disorders into the community; and
      • Promotion of mental health throughout society.
    • 6. Emerging Principles: a Basis for Positive Change
      • Respect for individuals’ inherent dignity & autonomy
      • Protect against discrimination
      • Promote equality & social inclusion: remove barriers to exercise of rights & freedoms, facilitate participation
      • Promote personal autonomy: enabling people to make decisions for themselves
      • Protect from arbitrary interference (least restrictive alternative)
      • Provision of support based on individuals’ needs and strengths
      • Ensure full & effective participation
    • 7. Legislation: far more than care and treatment
      • Protection from arbitrary detention/compulsory treatment: define circumstances justifying compulsory care and treatment
      • Ensuring availability of community-based services
      • Safeguarding the rights of individuals seeking/receiving mental health services (whether as in-patients or in the community)
      • Addressing the barriers to social inclusion
    • 8. Health as a human right
      • Article 12 ICESCR: the right of everyone to the enjoyment of the highest attainable standard of physical and mental health
      • Progressive realisation: recognition of resource constraints and competing duties – some rights cannot be achieved immediately BUT requires means to measure progress
      • Immediate obligations: including to take steps towards fully realising these rights
      • Participation in all health-related decision-making at community, national and international levels
    • 9. GC14: Right to health: Linked to other rights
      • ...closely connected to and dependent upon the realization of other human rights....including the rights to food, housing, work, education, human dignity, life, non-discrimination, equality, the prohibition against torture, privacy, access to information... These rights and freedoms address integral components of the rights to health.
      • Embraces a wide range of socio-economic factors that promote conditions for a healthy life, extends to the underlying determinants of health e.g. housing, healthy working conditions and healthy environment
    • 10. 4 Elements of right to health Element Examples of possible relevance to legislation Available - Requirement to provide a sufficient range of mental health care facilities, goods & services Accessible
      • Anti-discrimination law : ensure equality of access to services; no presumptions made about quality of life & potential
      • Legislation to uphold presumption of capacity (challenge presumptions that individuals not able to make decisions about their own care)
      Acceptable
      • Respect for individuals’ cultural background
      • Ensure treatment & care based on individually prescribed plan, discussed with service user and reviewed regularly
      Quality
      • Health professionals to receive adequate training
      • Mechanisms for monitoring and evaluation
    • 11. Obligations to respect, promote & fulfil the right to health
      • Respect: refrain from denying or limiting equal access to health-care facilities
      • Protect: protect individuals from health-related abuses in private health care or support services
      • Fulfil: range of measures including:
        • Empower people to make choices about their lives
        • Legal protections for establishment of (and access to) quality mental health facilities; care & support services
        • Ensure integration into the community
        • Promote mental health throughout society
      • Report of Special Rapporteur, 2005
    • 12. UN Convention Rights of Persons with Disabilities
      • Rights of disabled people must be respected and promoted
      • Seek full participation in society
      • Take action to eliminate discrimination
      • Take concrete steps to achieving all rights set out in the Convention
      • Involve disabled people in this work
    • 13. Article 19 UNCRPD
      • States recognise the equal right of disabled people:
        • To live in the community
        • With choices equal to others
      • States shall take effective & appropriate measures to facilitate people’s:
        • Full enjoyment of this right
        • Full inclusion and participation in the community
    • 14. Article 19: Effective & appropriate measures
      • Equal opportunity to choose place of residence & where & with whom to live
      • Not obliged to live in a particular living arrangement
      • Access to a range of community support services (to support community living and prevent isolation/segregation)
      • Access to general public community services and facilities on an equal basis (& services responsive to their needs)
    • 15. Implications for Mental Health Policy: Services
      • Assessment to address individuals’ health, social care and other support requirements
      • Provide services to meet individuals assessed needs, taking their views and preferences into account
      • Wherever possible, provide community based services
      • Service planning to involve service users & families
      • Establish mechanisms to monitor and review the services provided, involving service users & families
    • 16. Implications for Mental Health: Protection of Rights
      • Individuals should be given the opportunity to make decisions for themselves and provided with the support to assist this where necessary
      • Any intervention to be on the principle of least restrictive alternative
      • Establish mechanism to safeguard individuals’ rights e.g. Complaints, independent review of detention
    • 17. Implications for Mental Health: Addressing Stigma & Discrimination
      • Anti-discrimination laws and policies to protect people with mental health problems
      • Workforce to receive training on mental health and disability issues
      • Develop public awareness campaigns
    • 18. Mental Health Policy and Legislation (1)
      • Clarify circumstances justifying compulsion and safeguards when compulsory powers used
      • Complaints procedures and powers of monitoring & inspection bodies to take action against poor care and/or abuse
      • Anti-discrimination legislation – and review of laws to check against unfair discrimination
    • 19. Mental Health Policy and Related Legislation (2)
      • Provision of support to meet assessed health and social care needs
      • Legal and financial mechanisms setting out different agencies responsibilities for the planning and delivery of services
      • Supported decision-making for individuals who lack capacity
    • 20. Legislation for community-based services: suggested components
      • Powers & responsibilities of relevant agencies for commissioning & provision of services
      • Procedures to ensure individuals receive appropriate care and support e.g. comprehensive assessment of their needs for health, social care, accommodation etc
      • Service user involvement: a) developing their care plans and b) monitoring and evaluation of services
      • Availability of independent advocates
      • Complaints procedures
      • Accessible information (procedures, complaints)
      • Independent monitoring and evaluation of services
    • 21. What’s possible in Ireland?
      • Legislation not a panacea: need
        • Political will, adequate resources , trained professionals
        • Strategy for implementing legislation e.g. raising awareness, training and guidance, ensuring remedies are effective and accessible
      • Advocating for action:
        • Vision – ‘Vision for Change’
        • Dissatisfaction with existing situation
        • Examples of what can be achieved
        • Working together to remove the barriers to realising the vision and facilitate positive reform.
    • 22. Further information
      • World Health Organisation (WHO) (2003) Mental Health Policy and Service Guidance Package, Mental Health Legislation and Human Rights, World Health Organisation, Geneva
      • WHO Resource Book on Mental Health, Human Rights and Legislation (2005)
      • Report of the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health, Paul Hunt, E/CN.4/2005/51

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