Issue 47 December 2009 - UN Convention on the Rights of Persons with Disabilities: Possible Implications for Scotland for Persons with Mental Disorder

 

Introduction

The UN Convention on the Rights of Persons with Dis­abilities ("CRPD") and its Optional Protocol¹ came into force on May 3,2008 and the UK government ratified them on June 8, 2009 and August 7, 2009 respectively This fol­lowed a lengthy drafting process of around five years but one which was distinguished from previous treaties in that it actively involved stakeholder representatives as well as States parties. The resultant treaty did not create any new rights as such but it did amalgamate and define more clearly those rights and responsibilities which promote and pro­tect the dignity of disabled persons and ensure equality of treatment² Moreover, unlike most international human rights treaties, social and economic rights appear alongside civil rights.

In terms of groups of persons under the general um­brella of "disability"', the CRPD dearly intended to include those with mental disorder. Whilst it gives no specific defi­nition of "disability", art.1 provides one of sorts in that it states: "Persons with disability include those who have long-term physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others." Thus, whilst there is express reference to, amongst other things, "long-term" mental impairment, it is equally clear that this is not a dosed provision and shorter term mental illnesses may be included.

The CRPD has several implications for persons with mental disorder in Scotland although these are speculative at present In order to provide a general illustration of this it is necessary to briefly consider the general objectives and rights set out in the CRPD and then indicate how these have the potential to strengthen certain European Con­vention on Human Rights ("ECHR") and other rights.

CRPD Rights

Overriding objectives

The above-mentioned description, in art.1, of disability re­flects what is evident throughout the Convention; the em­phasis on ensuring, where reasonably possible, the effective inclusion in mainstream society of disabled persons and re­moval of obstacles to marginalisation This is in step with the progressive shift in international opinion away from a de­fault position of institutional care and control for mentally disordered persons to promoting effective care and social in­clusion in non-institutional settings.³

Indeed, art.3, in setting out the general principles of the CRPD, refers to' 'inherent dignity'',' 'individual autonomy7', "independence", "non-discrimination", "accessibility", "equality between men and women" and the respect for evolving capacities and the identities of disabled children States parties are in turn required to ensure that the rights necessary to ensure and promote these objectives are actively realised through legislation and policies including tak­ing measures to eliminate discrimination in the private sector.⁴

Taking the underpinning general principle of non-dis­crimination further, art5 CRPD also contains a free stand­ing right to equality and prohibition against discrimination. This goes beyond the prohibition against discrimination in art14 of the ECHR which, despite being given a more ex­pansive interpretation in recent years by the European Court of Human Rights⁵, can only be applied together with other ECHR rights. Additionally, art5 contains a specific endorsement of positive discrimination, only recently reflected in ECHR jurisprudence⁶, and provisions relating to rea­sonable accommodation in a context that is wider than work situations.⁷ Thus far, although the obligation has been recognised under EU law⁸, ECHR case law has moved more slowly towards the recognition of a state duty to pro­vide reasonable accommodation for disabled persons in the workplace under the ECHR.⁹

Specific CRPD Rights

As mentioned, the CRPD reinforces and clarifies those ex­isting civil and social rights that are necessary to achieve in­dividual autonomy of persons with disabilities. These rights are specifically tailored to achieving the general objectives of the Convention.

Most of the usual civil and political rights are there, e.g. the right to life (art.10), equal recognition before the law (art.12), the right to liberty (art.14), freedom from torture, in­human or degrading treatment and punishment (art.15), liberty of movement (art. 18), freedom of expression (art.21), respect for privacy and for home and the family (arts 22 and 23 respectively) and the right to participate in po­litical and public life (art.29). In terms of social rights, re­flecting rights in the International Covenant on Economic, Social and Cultural Rights ('”ICESCR”) and the European Social Charter ("ESC")¹⁰, there is a right to education (art24), work and employment (art.27), an adequate standard of liv­ing (art28) and to participate in cultural life (art30).

To assist with the overall objectives of the CRPD, how­ever, some existing civil and social rights issues are dissected and extended. For example, there are articles which deal specifically with women (art6) and children (art.7) with disabilities as groups who are more likely to suffer from "multiple discrimination" or whose particular needs are rel­atively more likely to be overlooked. Freedom from ex­ploitation, violence and abuse (art.16) is also identified. In terms of successful social inclusion, the specific rights to live independently and be included in the community (art.19), to accessibility, including physical access to build­ings and transport and to information (art.9), to habilitation and rehabilitation (art.26) and to personal mobility (art.20) support other, mainly social, rights which assist individuals in gaining the services they require in order to achieve this.

Another example of the strengthening of a current so­cial right is found in the right to the highest attainable stan­dard of health in art.25. This goes beyond the right as expressed in the ICESCR (art 12) and ESC (art 11). Fol­lowing the UK's report earlier this year on implementation of art 12, the Committee of Economic Social and Cultural Rights, which oversees implementation of the ICESCR, in its Concluding Observations¹¹ observed that persons with mental disabilities experience poorer health conditions and shorter life expectancy than those without mental health problems.¹² It also noted medical professionals' lack of awareness of the UK's ICESCR obligations, the lack of training received by health care professionals about de­mentia and Alzheimers,¹³ and the increasing numbers of suicides amongst mental health patients in Northern Ireland and Scotland who experience difficulties accessing the com­plaints system.¹⁴ The Committee recommended that the UK, whose next periodic report must be submitted by June 30, 2014, takes steps to address and remedy these matters. In essence, art25 CRPD requires that State Parties provide healthcare for disabled persons in a non-discriminatory manner that is appropriate to the particular needs of the in­dividual, that respects individual autonomy and dignity, and that is easily accessible. If the UK was therefore in any doubt before about the provision of the highest attainable standard of health as far as disabled persons are concerned it can only be hoped that this is no longer the case.

Moreover, of fundamental importance to the full and effective exercise of rights is the availability of access to jus­tice. Article 13 CRPD contains such a right. The inclusion of this right is most welcome. It is an issue of considerable and ongoing significance that persons with mental disorder are denied adequate access to justice and one which was highlighted in the Mental Welfare Commission for Scot­land 2008 report Justice Denied.¹⁵

The scope for strengthening interpretations of ECHR and other rights

The European Court of Human Rights has already indi­cated that it is prepared to interpret ECHR rights in the light of the CRPD. In Glorv v Switzerland¹⁶, the European Court of Human Rights ("the Court") was invited to consider whether there had been a violation of art.14 ECHR in con­junction with att.8 ECHR concerning alleged discrimina­tory treatment of a man with diabetes. The ruling has significant implications for all persons with disabilities, in­cluding those with mental disorder. Apart from making it clear that art.14 does indeed apply to persons with disabili­ties, the Court specifically referred¹⁷ to the CRPD as repre­senting European and universal consensus on the need to prevent discriminatory treatment of, and ensure equality for, persons with disabilities.¹⁸ It also confirmed, very much re­flecting arts 2 and 27(1)(T) CRPD, the duty on States to en­sure that reasonable accommodation in work situations is provided for persons with disabilities.

This therefore begs the question of the extent to which CRPD rights can find expression through interpretations of ECHR rights. In this connection, whilst much of the CRPD is worthy of consideration in the context of strengthening ECHR in cases involving mental disordered persons, two issues are particularly interesting; that of non-consensual treatment of incapacitated persons and social inclusion.

Article 17 CRPD and non-consensual treatment of incapacitated persons

Article 17 CRPD provides: "Every person with disabilities has a right to respect for his or her physical and mental in­tegrity on an equal basis with others." It is early days yet and whether this will actually influence judicial decision making at regional level remains to be seen. Article 17 as it stands is a much abbreviated version of what was originally considered by the Convention's drafters for this article and its objective is not now as evident as it might be. It does, however, appear that the intention was that this should apply to situations of involuntary detention and treatment¹⁹. At European level, this is supported by cases concerning medical treatment involving art.8 ECHR (respect for private and family life), such as Y.F. v Turkey²⁰, which state that both physical and psychological integrity²¹ may be violated by medical intervention. The rulings in Gloss v United Kingdom²² and Storck v Germany²³ arguably extend this concept to situations where individuals lack capacity to con­sent to treatment²⁴. Article 8(2) does, however, permit lim­itations to the art8(l) right subject to appropriate safeguards and, where there is a degree of discretion in its implemen­tation, the scope of such discretion being defined.²⁵ The ruling in Herczegfalvy v Austria²⁶ indicated that art.3 ECHR (prohibition of torture and inhuman and degrading treat­ment) will not be violated where therapeutic necessity re­quired that an incapacitated person is subjected to non-consensual treatment in order to preserve their physi­cal and mental health although they nevertheless remain protected by art.3.²⁷ Thus, if the manner of treatment reaches a "minimum level of severity" then art3 may be engaged and violated. However, the Court has traditionally been reluctant to find a violation of art3 on this basis²⁸ and it was acknowledged in Kudla v Poland that the suffering and humiliation which inevitably forms part of legitimate non-consensual treatment would not violate art.3.

The potential therefore exists for art.17 CRPD to be interpreted in such as way as to provide an additional con­straint on unwarranted and excessive treatment³⁰ (e.g. the unnecessary prescribing of psychoactive medicine for de­mentia patients³¹ or the use of excessive force in treating incapacitated persons) where it may be possible to justify the treatment under art8(2) ECHR and it does not reach the minimum level of severity to constitute a violation of art.3 ECHR³².

Supporting effective social integration of mentally disordered persons

Article 19 CRPD emphasises the importance of inde­pendent living and places an obligation on States parties to "take effective and appropriate measures to facilitate full enjoyment by persons with disabilities of this right and their full inclusion and participation in the community'', which includes affording persons with disabilities the op­portunity to choose where they live and to have access to appropriate support services for their needs. This, in turn, is supported by, e.g. the general principles in art.3, accessibility rights identified in art9 and habilitation and rehabilitation rights in art.26, as well as the right to education in art.24, health in art25 and to work and employment in art.27.

The art.19 CRPD right to access to support services is a social right which, as the CRPD acknowledges in art.4(2), may be progressively, rather than immediately, re­alised and is subject to resourcing considerations. How­ever, the CRPD explicitly recognises the influence of, amongst other treaties, the ICESCR³³ where the Com­mittee on Economic Social and Cultural Rights has indi­cated that immediate" and concrete steps must be undertaken by States parties to implement these rights and unnecessarily delays in such realisation are unacceptable.³⁴

This very much reflects European Union and Coun­cil of Europe policy objectives.³⁵ Moreover, art. 15 of the original and revised ESC contains "the right of physically or mentally disabled persons to vocational training, reha­bilitation and social resettlement". However, this does not translate into an enforceable right at national level in the UK in the same way as ECHR rights. Nor have ECHR rights been largely interpreted to date as providing what is essential for effective social integration.³⁶

Being an instrument of civil and political rights, the strength of the ECHR has been in protecting individuals with mental disorder, mainly under arts 5,3 and 8, from unnecessary or uninvited treatment and detention and en­suring fair procedures when matters are adjudicated. However, these rights alone are insufficient if those suf­fering from mental ill health are to be fully and effectively integrated into the communities in which they live.³⁷ Thus far, ECHR rights have not been interpreted by the Court as implying a specific right to effective social inclusion. The proper realisation of many socio-economic rights will enable individuals to function most effectively in the communities in which they live. That being said, the potential arguably exists for certain ECHR rights to be more widely interpreted to achieve just this.³⁸ For example, the Court has also interpreted the link between other ECHR rights and art 14 quite widely. It has, e.g. stressed the autonomy of art 14 so that it may be violated even where the other ECHR right has not been.³⁹ Consequently, art 14 may still be violated in situations which go beyond the somewhat limited number of rights contained in the ECHR This has included situations where socio-economic rights are more applicable and discrimination is often experienced, e.g. social security matters⁴⁰ and, occasionally, the right to work⁴¹. Again, the potential exists for the CRPD rights that assist social inclusion to strengthen this approach.

Implications for mentally disordered persons in Scotland

In order for the rights identified in international treaties such as the CRPD to be in any sense meaningful to per­sons with mental disorder they must, however, be en­forceable at State party level through national policies and laws. As with human rights treaties dealing with social rights, such as the ICESCR and ESC, the CRPD is not in­corporated into UK laws in the same way that most ECHR rights are by the Human Rights Act 1998.⁴² That being said, the fact that it places an obligation on the UK under international law to observe cannot be entirely ig­nored during the legislative process or in judicial decision-making.⁴³ The Glor ruling also indicates that it is likely that the CRPD will influence and develop interpretations of ECHR rights in cases involving disabled persons, which includes persons with mental disorder.

Whether the Court will, e.g. apply the concept of rea­sonable accommodation beyond the workplace in future and the CRPD's influence will lead to a more expansive interpretation of ECHR rights for persons with mental disorder remains to be seen. Will it indeed use CRPD stan­dards when determining cases involving involuntary treat­ment of incapacitated persons or in interpreting ECHR rights to impose an obligation on States to provide those services and support that are essential for effective social in­clusion? If it does, then as legislation currently stands those providing public services in Scotland will be obliged to fol­low this.⁴⁴ It will also be interesting to see how seriously outside the confines of the ECHR and Human Rights Act, Westminster and Scottish legislators choose to view the UK's CRPD obligations.

References

1 United Nations, Convention on the Rights of Persons with Disabilities and Optional Protocol, opened for signature September 13, 2006, GA Res 61/106. UN Doc A/Res/61/106 (entered into force May 3,2008).

2 B. McSherry, "Protecting the integrity of the Person: Developing Lim­itations on Involuntary Treatment"', B. McSherry (ed) (2008), International Trends in Mental Health Laws, Leichardt, NSW, 111, p111.

3 WHO (2007), Community mental health services will lessen social ex­clusion, says WHO, News, June 1,2007; World Health; WHO (2001), World Health Report 2001: Mental Health – New Understanding, New Hope.

4 art4 CRPD.

5 R. O'Connell (2009), "Cinderella comes to the Ball: art 14 and the right to non-discrimination in the ECHR'', 29(2) Legal Studies 211; J. Stavert, “Glor v Switzerland: Article 14 ECHR, disability and non-discrimination", Case Comment, Edinburgh Law Review (January 2010 Issue).

6 Stec v United Kingdom (2006) 43 EHRR 47, paras 51-66. Such affirma­tive discrimination must, however, be reasonably and objectively justified (Stec, ibid, para 66).

7art5(3) and art2(Definitions) CRPD.

8 See art.5 and preamble of Council Directive 2000/78/EC of No­vember 27,2000 establishing a general framework for equal treatment in employment and occupation Official Journal L 303,02/12/2000 R 0016-0022.

9 O. De Schutter (2005), "Reasonable accommodations and Positive Obligations in the European Convention on Human Rights", in A. Lawson and C. Gooding (eds) (2005), Disability rights in Europe: from theory to prac­tice, Hart, pp35-63, p61. See also O'Connell op. cit. and Glor v Switzerland App. no. 13444/04, Chamber judgment of April 30, 2009, paras 94-95.

10 Council of Europe, European Social Charter, October 18,1961, ETS 35 and European Social Charter (Revised), May 3,1996, ETS 163.

11 UN Committee on Economic, Social and Cultural Rights, Consider­ation of reports submitted under arts 16 and 17 of the Covenant Con­cluding Observations (United Kingdom of Great Britain and Northern Ireland, the Crown Dependencies and the Overseas Dependent Terri­tories), E/C.12/GBR/CO/5, May 22,2009.

12 Ibid., para.33.

13Ibid,para,34.

14Ibid.,para.35.

15 See, e.g. Mental Welfare Commission for Scotland, "Justice Denied: A Summary of our investigation into the care and treatment of Ms A", April 2008.

16 Glor v Switzerland App.no. 13444/04, Chamber judgment of April 30, 2009.

17 para.53.

18 See Mental Disability Advocacy Center, op. cit. Note that Switzerland has not yet even signed the Convention.

19 See, e.g. Ad Hoc Committee on Comprehensive and Integral Inter­national Convention on the Protection and Promotion of the Rights and Dignity of Persons with Disabilities (2006), Report on its Seventh Session (UN Doc A/AC265/2006/2) February 13,2006.

20 Y.F. v Turkey (2004) 39 EHRR 34, para 33. See also X and Y v Nether­lands (1986) 82 EHRR 235, at para 22. Note also that excessive and un­warranted medication may also violate arts 3 and 8 (Grare v France 1992 15 EHRR CD100; R (Wilkinson) v Broadway Special Hospital [2001] EWCA Civ 1545; Herczegfalvy op.cit).

21 See also Pretty v United Kingdom  (2002) 35 EHRR 1, at para.6.

22 (2004) 39 EHRR 15, para.82. 23(2006)43EHRR6,para.l43.

24 M Donnelly, "From autonomy to Dignity: Treatment for Mental Dis­orders and Focus for Patients Rights", in in B. McSherry (ed) (2008), op. cit, 37, p,56.

25Silver v United Kingdom (1983) 5 EHRR 347, paras 88 and 90.

26 (1992) 15 EHRR 437. 

27Herczegfalvy ibid., para.82.

28 See, e.g. Kudla v Poland (2002) 35 EHRR 11. Note, however, Dybeku v Albania (2007) ECHR 41153/06 where insufficient regard for the spe­cial psychiatric needs of a convicted long-term prisoner suffering from paranoid schizophrenia violated art3.

29 J para.92.

30 B. McSherry, "Protecting the integrity of the Person: Developing Lim­itations on Involuntary Treatment" op. cit

31 Identified in Care Commission and Mental Welfare Commission for Scotland (2009), "Remember, I'm still me: joint report on the quality of care for people with dementia living in care homes in Scotland". See-http: / /www.mwscot.og.uk/web/FILES/Publications/CC_MWC_joint_report.pdf  [Accessed November 17,2009], pp52-53.

32 See also P Bartlett et al (2007), "Mental Disability and the European Convention on Human Rights", Martiinus Nijhoff, Leiden, pp.116— 119, for a discussion on' 'overly intrusive treatment'' and the current lim­itations of ECHR case law.

33 Preamble, paras (b) and (d).

34 Committee on Economic, Social and Cultural Rights, General Com­ment 3, December 14,1990, paras 2, and 9-12.

35 European Union Commission Communication October 30, 2003, "Equal opportunities for people with disabilities: A European Action Plan" COM (2003) 650 final. http:/ / europa.eu/legislation_summaries/employment_and_social_policy/disability_and_old_age/c11414_en.htm [Accessed November 5,2009]; Council of Europe, Action Plan to promote the rights and full participation of people with disabilities in society im­proving the quality of life of people with disabilities in Europe 2006-2015, Recommendation Rec(2006)5.

36 B. Hale (2007), "Justice and equality in mental health law:. The Euro­pean experience", 30 International Journal of Law and Psychiatry 18; J. Stavert (2007), "Mental health, community care and human rights in Europe: Still an incomplete picture'', November, Journal of Mental Health Law 182.

37 Hale ibid; Stavert ibid.

38 R Bartlett et al (2007),op. cit.., Ch.7.

39See, e.g. Belgian Linguistic Case (1979-80) 1 EHRR 252,283. In this case no violation of art.1 of Protocol 1 ECHR (the right to education) was found on the basis that the article does not infer a guarantee to provide a particular type of educational establishment However, the Court con­sidered that where one has been provided a State cannot stipulate entry requirements that are discriminatory. See also Petrovic v Austria (App. No.20458/92), judgment March 27,1998.

40 See Gaygusuz v Austria (1996) 23 EHRR364; Stec v United Kingdom (2005) 41 EHRR SE18, paras 47-65; Stec v United Kingdom (2006) 43 EHRR 47; and Luczak v Poland (App. No.77782/01) Judgment November 27,2007, paras 46-60, which extended the ambit of property rights in Artide 1 of Protocol 1 ECHR to social security matters.

41 See Sidabras v Lithuania (2006) 42 EHRR 6, paras 38-63.

42 ss.29(2)(d) and 57(2) Scotland Act 1998 requires that devolved legisla­tion, and acts of the Scottish Ministers, are not incompatible with RCHR rights.

43 The presumption in Scots law that Parliament does not intend to leg­islate in such a way as to be inconsistent with international Convention obligations was noted in Mortensen v Peters (1906) 8 F Q) 93.

44 ss.2,3 and 6 of the Human Rights Act 1998.