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A Review of Mental Health Legislation in Commonwealth Member States

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A Review of Mental Health Legislation in Commonwealth Member States A review of mental health legislation in Commonwealth member states Soumitra Pathare, Laura Shields and Renuka Nardodkar Promotion of mental health and human rights can be seen as oldest mental health law still in force in a Commonwealth country complementary approaches to advancing the well-being of persons dated from 1902, while the most recent was from 2012, indicating worldwide (Gostin and Gable, 2009). Violations of rights can affect the wide variability in legislation throughout the Commonwealth. mental health; one way of preventing human rights violations is The relevance of classifying laws according to their date of through mental health law reform aligned to the promotion of the enactment is that a law drafted prior to 1991, for example, is rights of persons with mental illness (PWMI) and leading to a unlikely to include provisions in line with MI principles; similarly, progressive, well-formulated mental health law. laws drafted prior to 1960 are likely to reflect a time when there were limited treatment options available in the community and In an effort to protect and promote the rights of PWMI, several when institutionalisation of PWMI was prevalent. international conventions, although not aimed specifically at PWMI, have provisions which promote and protect the rights of PWMI. More recently, the UN Convention on the Rights of Persons with Stigmatising terminology used in mental Disabilities (CRPD) was adopted by the General Assembly in 2006 health laws and serves as a comprehensive and legally binding framework for The archaic terminology used in mental health laws to refer to promoting and protecting the rights of PWMI (Drew et al., 2011). PWMI also highlighted the need to amend legislation. Our review Globally, the CPRD has been celebrated as a universal standard for found the word ‘lunatic’ used in laws in 12 countries, ‘insane’ in the promotion of human rights of persons with disabilities (Drew et 11, ‘idiot’ in ten, ‘imbecile’ in two and ‘mentally defective’ in two. al., 2011). Thirty-eight Commonwealth countries have ratified the Overall, 21 (47 per cent) of laws in Commonwealth countries use CRPD while 11 others have signed the convention. It is, however, one of these terms, which reinforce stereotypes of PWMI and thus unclear whether countries which have ratified the convention have perpetuate the stigma faced by PWMI. adapted their mental health legislation to reflect the binding provisions outlined in the CRPD. This article reviews the situation across Commonwealth member states to obtain an insight as to Outdated mental health laws and non- how mental health legislation in the Commonwealth complies with compliance with the CRPD the CPRD and adopts a rights-based approach. While analysing mental health legislation, we found that outdated For this article, we analysed dedicated mental health legislation in mental health laws were less likely to comply with provisions of Commonwealth member states. We were able to obtain copies of human rights conventions, thus increasing the risk of violation of mental health laws from 45 countries but were unable to obtain human rights, as described below: copies of mental health laws of four countries (Rwanda, Saint Lucia, St Kitts and Nevis, and St Vincent and the Grenadines) and Right to health care: The right to health care means that mental were also unable to obtain an official English translation of the health care is treated on par with physical health care, and access mental health law in Cyprus. An extensive online search and to mental health care (particularly at the community level) is correspondence with Commonwealth Health Professions Alliance mandated in legislation and policy (in line with article 19 of the (CHPA) partners revealed that Cameroon, Maldives and CRPD). Our review found that only five (11 per cent) of the Mozambique did not have dedicated mental health legislation. Commonwealth mental health laws equated physical and mental health, and 11 (24 per cent) emphasised community-based care, Our review (Pathare and Sagade, 2013) yielded several key although the primary focus of even these 11 laws was on findings, described below, which together highlight the need for institutional care and its regulation. mental health law reform across Commonwealth countries. Further, access to care is compromised if mental health services are Many mental health laws are outdated inappropriate to meet needs or are unaffordable. Our review revealed that 18 (40 per cent) laws gave governments the right to Of the 45 Commonwealth country laws included in our review, 20 recover treatment costs incurred (including involuntary treatment in per cent of laws were enacted before 1960, when psychotropic public mental health facilities) from the property or estate of PWMI medicines were introduced; 60 per cent of laws were enacted prior or their relatives, friends or caregivers. This provision is problematic to the introduction of the MI Principles in 1991; and 90 per cent of as it can be exploitative of PWMI and denies the right to social laws were enacted before the CRPD. At the time of review, the protection. Commonwealth Health Partnerships 2014 125 Mental health y r r e P m o T / t a i r a t e r c e S h t l a e w n o m m o C Professionalism is about dignity and rights. Pictured: nurses in Solomon Islands Right to information and awareness of rights: PWMI should Regular review of involuntary admissions: Having review have access to information about their care, in line with provisions mechanisms in place and specified in mental health legislation is in the International Covenant on Civil and Political Rights, the MI important as they provide a statutory safeguard with legal bodies Principles and the CRPD. Our review found that only 12 (27 per to monitor involuntary admissions and treatment as well as appeals cent) laws made specific provisions regarding access to information for care-related decision. Absence of such review mechanisms for PWMI. Even in circumstances where a provision exists on access contravenes guarantees entitled to PWMI in article 14(b) of CRPD. to information, many PWMI may be unaware of their rights or not Our review noted that more than two-thirds of mental health laws in a position to ask about their rights. Thus, a provision in (31 out of 45) did not have provision for a judicial/quasi-judicial legislation mandating health authorities to inform service users of body to review involuntary admissions and treatment. their rights will assist in exercising those rights. However, our Furthermore, we found that mental health laws in only 26 (58 per review highlighted that mental health laws of only 13 cent) of Commonwealth countries had provisions for setting up an Commonwealth countries (29 per cent) require professionals to independent body to monitor mental health facilities and mental inform PWMI of their rights while receiving care. health care settings to prevent exploitation, violence and abuse Involuntary admission and least restrictive care: There has inside as well as outside the mental health facilities. An additional been a shift over the last few decades from involuntary to finding was the underrepresentation of PWMI and their caregivers voluntary care and this is evidenced by our review, which found on such regulatory bodies. that 32 countries (71 per cent) had provisions for voluntary admission; however, few had laws stating that voluntary admission The need for a transition from guardianship models to and treatment are the preferred alternative. The majority of laws supported decision-making models: Articles 12 and 13 of the specified that persons voluntarily admitted to a mental health CRPD stress that PWMI have the right to equal recognition as facility can be treated only after informed consent is obtained. persons before the law and are entitled to equal benefit and Currently, all Commonwealth laws allow involuntary admission and protection of the law. Article 12 has been celebrated by disability treatment for PWMI. Mental health laws in just 24 countries (53 activists worldwide as representing a ‘paradigm shift’ in our per cent) mandate that the mental disorder must be of a specified perception of persons with disabilities. However, some health severity to allow involuntary admission; in the remaining countries, professionals have been less enthusiastic about this paradigm there is no such requirement. shift, primarily due to concerns about the decision-making 126 Commonwealth Health Partnerships 2014 A review of mental health legislation in Commonwealth member states capacity of PWMI and the lack of implementable supported legislation, as well as to shift the discourse on rights, many mental decision-making models. health laws still espouse guardianship, institutionalisation and protectionism as opposed to models of supported decision-making, Concerns about legal and mental capacity mean that persons with community-based care and entitlement. The key goals of mental mental illness in many countries are assigned a guardian to make health legislation should be to facilitate better access to and quality decisions on their behalf. Our review found that 24 of mental health care, and to promote the rights of social inclusion Commonwealth countries (53 per cent) had guardianship of PWMI. One positive development is that a number of countries provisions in their mental health legislation. Of these, seven (29 per are already reforming their legislation, the result of which may be cent) allowed only limited guardianship (restricted to decisions on more progressive mental health laws. property matters), while 14 (58 per cent) had provisions for both limited and plenary (full) guardianship. Plenary guardianship Future work in this area should look at subsidiary legislation, which conflicts with obligations under the CRPD (particularly Article 12), may have important provisions for rights protection and explore as it does not allow PWMI to retain any decision-making abilities, civil, political and economic laws as well as social and cultural rights rendering them non-persons before the law.
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