Is the UN Convention on the Rights of Persons with Disabilities Impacting Mental Health Laws and Policies in High-Income Countries? A Case Study of Implementation in Canada

Abstract

BackgroundPersons with psychosocial disabilities face disparate access to healthcare and social services worldwide, along with systemic discrimination, structural inequalities, and widespread human rights abuses. Accordingly, many people have looked to international human rights law to help address mental health challenges. On December 13, 2006, the United Nations formally adopted the Convention on the Rights of Persons with Disabilities (CRPD) – the first human rights treaty of the 21st century and the fastest ever negotiated.MethodsThis study assesses the CRPD’s potential impact on mental health systems and presents a legal and public policy analysis of its implementation in one high-income country: Canada. As part of this analysis, a critical review was undertaken of the CRPD’s implementation in Canadian legislation, public policy, and jurisprudence related to mental health.ResultsWhile the Convention is clearly an important step forward, there remains a divide, even in Canada, between the Convention’s goals and the experiences of Canadians with disabilities. Its implementation is perhaps hindered most by Canada’s reservations to Article 12 of the CRPD on legal capacity for persons with psychosocial disabilities. The overseeing CRPD Committee has stated that Article 12 only permits “supported decision-making” regimes, yet most Canadian jurisdictions maintain their “substitute decision-making” regimes. This means that many Canadians with mental health challenges continue to be denied legal capacity to make decisions related to their healthcare, housing, and finances. But changes are afoot: new legislation has been introduced in different jurisdictions across the country, and recent court decisions have started to push policymakers in this direction.ConclusionDespite the lack of explicit implementation, the CRPD has helped to facilitate a larger shift in social and cultural paradigms of mental health and disability in Canada. But ratification and passive implementation are not enough. Further efforts are needed to implement the CRPD’s provisions and promote the equal enjoyment of human rights by all Canadian citizens – and presumably for all other people too, from the poorest to the wealthiest countries.

Public attitude towards restrictions on persons with mental illness in greater Hanoi area, Vietnam

“…This trend is backed by political campaigns and agreements like the United Nations Convention on the Rights of Persons with Disabilities (United Nations, 2006) or a European Union project with the title ‘The right to political participation of persons with mental health problems and persons with intellectual disabilities’ (Fundamental Rights Agency (FRA) – Euro-pean Union Agency for Fundamental Rights, 2010). Within the last years, considerable effort has been made to reduce restrictive measures in mental health settings (Hoffman, Sritharan, & Tejpar, 2016; McSherry, 2013; Morrissey, 2012; Steinert et al, 2010).…”

The Convention on the rights of persons with disabilities and the legal capacity of persons with psychosocial disabilities

“…That was a period when mental disorders (disability) were treated exclusively as a defect, i.e., damage on the part of an individual who needs appropriate care and assistance, which justifies medical intervention. 12 The existing legal framework for treating people with mental disabilities was reduced in practice to a mere formalism in which the physicians had wide discretion. This, unfortunately, led to a series of abuses to the detriment of psychiatric patients.…”

“…53 Given such a small number of reservations in relation to the total number of State Parties, it could be concluded that, at the time when they were able to formulate a reservation, states did not see anything controversial in Art. 12 their national legislative framework to be fully compliant with the CRPD provision.…”

Human rights and equity in mental health services

“…The grounds on which mandatory detention orders can be issued vary from region to region, but orders are generally based on risk assessments of harm "to self or others. " While it is recognized that domestic mental health laws operate in contravention of the UNCRPD 1 (Pũras, 2017(Pũras, , 2018Hoffman et al, 2016), there has been little political will to bring domestic laws in line with international law.…”