As one of its core missions, Mental Health Europe advocates for the rights of people living with mental ill health. We want to ensure that every person living with mental health problems or psychosocial disabilities can enjoy their full rights as citizens, have access to quality mental health care and support and can lead a meaningful life. For the past few years, the UN Convention on the Rights of Persons with Disabilities (CRPD) has been one of the most important advocacy tools in our work on advocating for a more human rights-based approach to mental health.
For those who don’t know, the UN CRPD is a binding United Nations human rights treaty for persons with disabilities, including persons with psychosocial disabilities. It was a fantastic achievement when adopted back in 2006, and its ratification by the European Union (EU) was a landmark — it was the first time a UN Human Rights Convention was signed and ratified by an inter-governmental organisation. This means that the EU and its Member States are jointly responsible for the full implementation of the Convention.
For persons with psychosocial disabilities, one of the most fundamental rights laid out in the CRPD is the right to equal recognition before the law and legal capacity (Article 12).
Legal capacity is about having the possibility to make our own life choices: about getting married, having children, opening a bank account, choosing where to work or signing a contract. Being denied this right can impact on many essential aspects of life and is a barrier to the enjoyment of our most basic rights. Last year, as part of our work on the UN CRPD, we produced a simple but illustrative animation clip explaining what being denied legal capacity actually means.
Having equal recognition before the law means that all people with disabilities, including people with psychosocial disabilities, are entitled to enjoy their civil and human rights like everyone else. Many States Parties to the Convention find legal capacity one of the most challenging rights to implement in practice, and ten years after the adoption of the CRPD progress has been slow and uneven. Since much confusion remained concerning the exact scope of the application of Article 12, the UN Committee on the Rights of Persons with Disabilities issued a General Comment on this issue in 2014 which takes a strong stance for equality, stating that: “Legal capacity means that all people, including persons with disabilities, have legal standing and legal agency simply by virtue of being human” and that Article 12 “requires that support be provided in the exercise of legal capacity.” This may seem obvious to some and radical to others in the mental health profession who routinely make decisions on behalf of their patients who they deem to ‘lack capacity’, because it confirms that there are no circumstances under which the right to legal capacity can be limited because of disability.
But here’s the thing: you cannot bargain with human rights. Either you have your rights respected or you do not, either they are implemented in practice or they are not — there is very little in between. It is our responsibility to ensure that there is no more in between for people living with psychosocial disabilities.
Our latest Position Paper focuses on Article 12 of the CRPD. It has been both challenging and fascinating to work on the issue and discuss this issue with our members from across Europe.
Our position clearly illustrates the need to move away from the practice of substituting the decisions of people with psychosocial disabilities with decisions made by others in their ‘best interest’, to a system of supported decision-making which supports persons with psychosocial disabilities to make their own decisions. We also focus on specific forms of substitute decision-making which are disproportionately applied to persons with psychosocial disabilities such as forced placement in psychiatric units and hospitals, and forced “treatment” of people without their consent — two practices we believe are currently overused in many European States.
In this paper, we recommend that States repeal their mental health laws and abolish these coercive, often traumatising and harmful measures. We also recommend the immediate investment in and development of viable alternatives, such as Open Dialogue, the Soteria Model and Advanced Directives, which are promising models of mental health services and practices which respect the rights of people with psychosocial disabilities. Finally, another important recommendation we make is the provision of human rights training for professionals and users of services in order to ensure that mental health systems are consensual and free from the use of coercion.
Whilst MHE recognises that exercising the right to legal capacity will not happen immediately for everyone and in all services, we are convinced that this is the aspiration we should all be looking to achieve. Real alternatives exist and they need to be publicised, scaled up and implemented in practice as soon and as widely as possible.
We hope that our position paper and our work will inspire the change that is needed and help States Parties to the UNCRPD, professionals, persons with psychosocial disabilities and service providers to understand what supported decision-making for persons with psychosocial disabilities can and should look like. This discussion must include people with psychosocial disabilities and promote best practices around the issue, with the help of other important stakeholders.
We would be delighted to hear from Mad in America readers’ experiences and views on the issue, as we believe this is an ongoing discussion which deserves much more awareness, exchange of promising practices and debate.
Find out more about our work here.
Read our position paper here.
And watch our video on legal capacity here.