India’s Mental Healthcare Act, 2017 - Evaluation of the Act, its Context and Initial Implementation Richard Duffy Doctor of Philosophy Thesis February 2022 Supervisor: Professor Brendan D Kelly Department of Psychiatry, School of Medicine ii iii I. Declaration, online access and the general data protection regulation I declare that this thesis has not been submitted as an exercise for a degree at this or any other university and it is entirely my own work. I agree to deposit this thesis in the University’s open access institutional repository or allow the Library to do so on my behalf, subject to Irish Copyright Legislation and Trinity College Library conditions of use and acknowledgement. I consent to the examiner retaining a copy of the thesis beyond the examining period, should they so wish. ________________________ (Richard Duffy) II. Declaration and statement of plagiarism The work in this thesis is my own. Full and informed consent was obtained from human subjects and ethical approval was granted by Dublin University School of Medicine Research Ethics Committee Papers published in conjunction with co-authors these papers were done with the full knowledge of Professor Brendan Kelly. I took a lead role in all the published papers and I had the primary role in all steps of the process including, study design, seeking ethical approval, data collection, data analysis and writing of papers and thesis. ________________________ Richard Duffy iv III. Acknowledgements I wish to thank my supervisor Professor Brendan Kelly for all his supervision and input into my professional and academic work. Even before I started this project, he had been a wonderful support. I am very grateful to him for fostering my interest in the interaction between law and psychiatry and for his detailed and patient reviews of my work. I am particularly grateful to Dr Soumitra Pathare of the Centre for Mental Health Law and Policy at the Indian Law Society, for his guidance in our work from the earliest stages, and to Dr Pathare and Arjun Kapoor for contributing to our book. I am sincerely grateful to the many psychiatrists and researchers who assisted me in organizing this research and in writing it up, including, but not limited to, Professor Gautam Gulati (University of Limerick, Ireland), Dr Valerie Murphy (University College Cork), Dr Vasudeo Paralikar (KEM Hospital Research Centre, Pune, India), Dr Niket Kasar (KEM Hospital Research Centre, Pune, India), Professor Choudhary L. Narayan (AN Magadh Medical College, Gaya, Bihar, India), Dr Avinash Desousa (Lokmanya Tilak Municipal General Hospital and Medical College, Mumbai, India), Professor Nishant Goyal (Central Institute of Psychiatry, Ranchi, India) and Professor Ganesan Gopalakrishnan (MVJ Medical College and Research Hospital, Bangalore, India). We also greatly appreciate the time and contributions of all the mental health professionals who attended and helped organize our focus groups in India. I am also thankful for the support of many peers and other researchers whose practical advice and support has been invaluable, in particular, Dr Aoife Curley, Dr Niamh Allen, Isidro Carrion, Dr Rebecca Somerville, Dr Clodagh Power, Dr Fiona Hoare and Dr Desh Sidhu. Professor John Sheehan’s support and the teams in both the Mater and the Rotunda have been fantastic and have allowed me the leave I have needed to get this thesis completed. Finally, and most importantly, I am really grateful to my family, Louise, Arthur, June, Kevin, Nicky, Catriona, Harold, Caroline and Melvin and without their support, patience and childcare skills I could not have undertaken this protect. v IV. Table of contents I. Declaration, online access and the general data protection regulation ..................... iii II. Declaration and statement of plagiarism .................................................................... iii III. Acknowledgements .................................................................................................... iv IV. Table of contents ........................................................................................................ v V. List of Figures and Tables ......................................................................................... xiii VI. List of Abbreviations .............................................................................................. xvii VII. Abstract ................................................................................................................. xviii VIII. Lay Abstract ........................................................................................................... xix IX. Aims and hypothesis of the Project ......................................................................... xx X. Value of Research ..................................................................................................... xxi XI. Outputs .................................................................................................................. xxii XII. Output integration into the thesis ........................................................................ xxv A. Introduction 1. Mental health legislation ...................................................................................... 1 1.1 The early history of mental health legislation ................................................ 2 1.2 The history of formal mental health legislation ............................................. 3 1.2.1 Key time periods in mental health legislation ................................. 3 1.2.1.1 Poor Laws and the Protection of Property ....................... 3 1.2.1.2 Early Residential Care ....................................................... 4 1.2.1.3 The Asylum Era ................................................................. 4 1.2.1.4 Deinstitutionalisation ....................................................... 5 1.2.1.5 Rights-Based Mental Health Law ...................................... 6 1.2.2 Political and Ideologically Driven Legislation Relating to Mental Illness ........................................................................................... 9 1.2.2.1 Military Psychiatry .......................................................... 10 1.2.2.2 Eugenics .......................................................................... 10 1.2.2.3 Key Events and the Protection of Society ..................... 11 1.2.2.4 Legislation Relating to Suicide ........................................ 12 1.2.2.5 Forensic Psychiatry ......................................................... 12 1.2.2.6 Marriage Laws ................................................................ 13 1.3 The United Nations and mental health law .................................................. 16 1.3.1 The United Nations’ Principles for the Protection of Persons with Mental Illness and the Improvement of Mental Health Care (1991) ............................................................................................. 18 1.3.2 The United Nations’ Convention on the Rights of Persons with Disabilities .............................................................................................. 20 1.3.3 The United Nations’ Human Rights Council .................................. 22 1.4 The WHO and mental health law ................................................................. 24 1.4.1 The International Classification of Disease .................................... 24 1.4.2 The World Health Organization Resource Book on Mental Health, Human Rights and Legislation (2005) ..................................................... 25 vi 1.4.3 The QualityRights initiative ........................................................... 27 1.5 Comparative analysis of the Convention on the Rights of Persons with Disabilities and the WHO checklist on mental Health Legislation ...................... 30 1.5.1 The conceptualisation of mental illness as a disability .................. 30 1.5.2 International law, national law and policy .................................... 32 1.5.3 Inclusive or exclusive definitions ................................................... 35 1.5.4 The balancing of ethical principles ................................................ 36 1.5.4.1 Autonomy and dignity .................................................... 36 1.5.4.2 Families and caregivers’ rights and an individual’s privacy ........................................................................................ 38 1.5.4.3 Society and the individual .............................................. 39 1.6 Summary ...................................................................................................... 40 2. India’s mental health legislation ......................................................................... 43 2.1 History of India’s mental health legislation .................................................. 43 2.1.1 Early Mental Healthcare in India ................................................... 43 2.1.2 Early Mental Health Legislation in India ........................................ 45 2.1.3 Indian Lunacy Act, 1912 ................................................................ 47 2.1.4 Constitution of India, 1949 and Representation of the People Act, 1950 .................................................................................... 49 2.1.5 India’s Mental Health Act, 1987 .................................................... 50 2.2 Modern Indian Legislation Related to Mental Health .................................. 51 2.2.1 India’s Rights of Persons with Disabilities Act 2016 ...................... 51 2.2.1.1 Introduction .................................................................... 52 2.2.1.2 Chapters ......................................................................... 52 2.2.1.2.1 Preliminary ...................................................... 52 2.2.1.2.2 Rights and entitlements ................................... 53 2.2.1.2.3 Education ........................................................ 56 2.2.1.2.4 Skill development and employment ................ 57 2.2.1.2.5 Social security, health, rehabilitation and recreation ....................................................................... 57 2.2.1.2.6 Special Provisions for Persons with Benchmark Disabilities ................................................... 59 2.2.1.2.7 Special Provisions for Persons with Disabilities with High Support Needs ............................. 60 2.2.1.2.8 Duties and Responsibilities of Appropriate Governments .................................................................. 60 2.2.1.2.9 Registration of Institutions for Persons with Disabilities and Grants to Such Institutions .................... 61 2.2.1.2.10 Certification of Specified Disabilities ............. 62 2.2.1.2.11 Central and State Advisory Boards on Disability and District Level Committee .......................... 63 2.2.1.2.12 Chief Commissioner and State Commissioner for Persons with Disabilities ................... 64 2.2.1.2.13 Special Court .................................................. 65 2.2.1.2.14 National Fund for Persons with Disabilities ... 65 vii 2.2.1.2.15 State Fund for Persons with Disabilities ........ 65 2.2.1.2.16 Offences and Penalties .................................. 66 2.2.1.2.17 Miscellaneous ................................................ 66 2.2.1.3 Reception ....................................................................... 67 2.2.2 India’s Mental Healthcare Act 2017 .............................................. 68 2.2.2.1 Introduction .................................................................... 68 2.2.2.2 Chapters ......................................................................... 69 2.2.2.2.1 Preliminary’ Matters and Definitions .............. 69 2.2.2.2.2 Mental Illness and Capacity to Make Mental Healthcare and Treatment Decisions ............................. 71 2.2.2.2.3 Advance Directive ............................................ 72 2.2.2.2.4 Nominated Representative ............................. 74 2.2.2.2.5 Rights of Persons with Mental Illness .............. 75 2.2.2.2.6 Duties of Appropriate Government ................. 79 2.2.2.2.7 Central Mental Health Authority ..................... 80 2.2.2.2.8 State Mental Health Authority ........................ 80 2.2.2.2.9 Finance, Accounts and Audit ........................... 81 2.2.2.2.10 Mental Health Establishments ...................... 81 2.2.2.2.11 Mental Health Review Boards ....................... 82 2.2.2.2.12 Admission, Treatment and Discharge ............ 84 2.2.2.2.12.1 Independent Admission .................. 84 2.2.2.2.12.2 Admission of a Minor ...................... 86 2.2.2.2.12.3 Supported Admission ...................... 87 2.2.2.2.12.4 Supported Admission Beyond 30 Days ............................................................... 88 2.2.2.2.12.5 Treatment ....................................... 90 2.2.2.2.13 Responsibilities of Other Agencies ................ 92 2.2.2.2.14 Restriction to Discharge Functions by Professionals Not Covered by Profession ....................... 94 2.2.2.2.15 Offences and Penalties .................................. 95 2.2.2.2.16 Miscellaneous ................................................ 96 2.2.2.3 Reception ....................................................................... 97 2.2.3 Analysis of the interaction between the Indian Mental Healthcare Act 2017 and The Rights of Persons with disabilities Act 2016 ................................................................................................. 99 2.2.3.1 Decision making supports ............................................ 100 2.2.3.2 Involuntary treatments ................................................ 100 2.2.3.3 Definitions of mental illness ......................................... 101 2.3 Summary .................................................................................................... 101 B. Research 3. Black letter analysis of India’s adherence with the WHO-RB Checklist ................ 104 3.1 Introduction ............................................................................................... 104 3.2 Aims ............................................................................................................ 104 3.3 Methods ..................................................................................................... 105 viii 3.4 Results ........................................................................................................ 106 3.4.1 Overall results .............................................................................. 106 3.4.2 Individual section results ............................................................. 107 3.4.2.1 Preamble and objectives (A) ......................................... 107 3.4.2.1.1 Results .......................................................... 107 3.4.2.1.2 Discussion ...................................................... 108 3.4.2.2 Definitions (B) ............................................................... 110 3.4.2.2.1 Results ........................................................... 110 3.4.2.2.2 Discussion ...................................................... 111 3.4.2.3 Access to mental healthcare (C) ................................... 113 3.4.2.3.1 Results ........................................................... 113 3.4.2.3.2 Discussion ...................................................... 114 3.4.2.4 The rights of users of mental health services (D) ......... 118 3.4.2.4.1 Results ........................................................... 118 3.4.2.4.2 Discussion ...................................................... 120 3.4.2.5 The rights of families and other carers (E) ................... 123 3.4.2.5.1 Results ........................................................... 123 3.4.2.5.2 Discussion ...................................................... 124 3.4.2.6 Competence, capacity and guardianship (F) ................ 127 3.4.2.6.1 Results ........................................................... 127 3.4.2.6.2 Discussion ..................................................... 128 3.4.2.7 Voluntary admission and treatment (G) ....................... 131 3.4.2.7.1 Results ........................................................... 131 3.4.2.7.2 Discussion ..................................................... 132 3.4.2.8 Non-protesting patients (H) ......................................... 133 3.4.2.8.1 Results ........................................................... 133 3.4.2.8.2 Discussion ...................................................... 134 3.4.2.9 Involuntary admission
(when separate from treatment) and involuntary treatment (where admission and treatment are combined) (I) .............................................. 135 3.4.2.9.1 Results ........................................................... 135 3.4.2.9.2 Discussion ...................................................... 137 3.4.2.10 Involuntary treatment (when separate from involuntary admission) (J) ........................................................ 140 3.4.2.10.1 Results ......................................................... 140 3.4.2.10.2 Discussion .................................................... 142 3.4.2.11 Proxy consent for treatment (K) ................................. 145 3.4.2.11.1 Results ......................................................... 145 3.4.2.11.2 Discussion .................................................... 145 3.4.2.12 Involuntary treatment in community settings (L) ...... 147 3.4.2.12.1 Results ......................................................... 147 3.4.2.12.2 Discussion .................................................... 147 3.4.2.13 Emergency situations (M) ........................................... 148 3.4.2.13.1 Results ......................................................... 148 3.4.2.13.2 Discussion .................................................... 150 3.4.2.14 Determinations of mental disorder (N) ...................... 153 3.4.2.14.1 Results ......................................................... 153 ix 3.4.2.14.2 Discussion .................................................... 153 3.4.2.15 Special treatments (O) ................................................ 155 3.4.2.15.1 Results ......................................................... 155 3.4.2.15.2 Discussion .................................................... 157 3.4.2.16 Seclusion and restraint (P) .......................................... 160 3.4.2.16.1 Results ......................................................... 160 3.4.2.16.2 Discussion .................................................... 161 3.4.2.17 Clinical and experimental research (Q) ...................... 164 3.4.2.17.1 Results ......................................................... 164 3.4.2.17.2 Discussion .................................................... 164 3.4.2.18 Oversight and review mechanisms (R) ....................... 166 3.4.2.18.1 Results ......................................................... 166 3.4.2.18.2 Discussion .................................................... 168 3.4.2.19 Police responsibilities (S) ............................................ 174 3.4.2.19.1 Results ......................................................... 174 3.4.2.19.2 Discussion .................................................... 175 3.4.2.20 Mentally ill offenders (T) ............................................ 177 3.4.2.20.1 Results ......................................................... 177 3.4.2.20.2 Discussion .................................................... 178 3.4.2.21 Discrimination (U) ....................................................... 181 3.4.2.21.1 Results ......................................................... 181 3.4.2.21.2 Discussion .................................................... 181 3.4.2.22 Housing (V) ................................................................. 183 3.4.2.22.1 Results ......................................................... 183 3.4.2.22.2 Discussion .................................................... 183 3.4.2.23 Employment (W) ........................................................ 185 3.4.2.23.1 Results ......................................................... 185 3.4.2.23.2 Discussion .................................................... 185 3.4.2.24 Social security (X) ....................................................... 187 3.4.2.24.1 Results ......................................................... 187 3.4.2.24.2 Discussion .................................................... 187 3.4.2.25 Civil issues (Y) ............................................................. 188 3.4.2.25.1 Results ......................................................... 188 3.4.2.25.2 Discussion .................................................... 189 3.4.2.26 The protection of vulnerable groups (Z) ..................... 190 3.4.2.26.1 Results ......................................................... 190 3.4.2.26.2 Discussion .................................................... 192 3.4.2.27 Offences and penalties (AZ) ....................................... 196 3.4.2.27.1 Results ......................................................... 196 3.4.2.27.2 Discussion .................................................... 197 3.5 Overall discussion ....................................................................................... 198 3.5.1 Strengths ..................................................................................... 201 3.5.2 Limitations ................................................................................... 201 3.6 Conclusion .................................................................................................. 202 4. The incorporation of the United Nations’ Convention on the Rights of Persons with Disabilities into Indian Law ................................................................................... 204 x 4.1 Introduction ............................................................................................... 204 4.2 Aim ............................................................................................................. 204 4.3 Methods ..................................................................................................... 205 4.4 Results ........................................................................................................ 205 4.4.1 Article 5: Equality and Non-Discrimination ................................. 205 4.4.2 Article 6: Women with Disabilities .............................................. 208 4.4.3 Article 7: Children with Disabilities .............................................. 211 4.4.4 Article 8: Awareness-Raising ....................................................... 215 4.4.5 Article 9: Accessibility .................................................................. 218 4.4.6 Article 10: Right to Life ................................................................ 221 4.4.7 Article 11: Situations of Risk and Humanitarian Emergencies ..... 222 4.4.8 Article 12: Equal Recognition Before the Law ............................. 223 4.4.9 Article 13: Access to Justice ......................................................... 227 4.4.10 Article 14: Liberty and Security of Person ................................. 228 4.4.11 Article 15: Freedom from Torture or Cruel, Inhuman or Degrading Treatment or Punishment ................................................... 230 4.4.12 Article 16: Freedom from Exploitation, Violence and Abuse .... 232 4.4.13 Article 17: Protecting the Integrity of the Person ..................... 234 4.4.14 Article 18: Liberty of Movement and Nationality ...................... 236 4.4.15 Article 19: Living Independently and Being Included in the Community ........................................................................................... 237 4.4.16 Article 20: Personal Mobility ..................................................... 239 4.4.17 Article 21: Freedom of Expression and Opinion, and Access to Information .......................................................................................... 241 4.4.18 Article 22: Respect for Privacy .................................................. 244 4.4.19 Article 23: Respect for Home and the Family ............................ 246 4.4.20 Article 24: Education ................................................................. 248 4.4.21 Article 25: Health ....................................................................... 252 4.4.22 Article 26: Habilitation and Rehabilitation ................................ 255 4.4.23 Article 27: Work and Employment ............................................ 257 4.4.24 Article 28: Adequate Standard of Living and Social Protection . 261 4.4.25 Article 29: Participation in Political and Public Life ................... 264 4.4.26 Article 30: Participation in Cultural Life, Recreation, Leisure and Sport .............................................................................................. 266 4.5 Discussion ................................................................................................... 269 4.5.1 Capacity ....................................................................................... 269 4.5.2 Advance Directives ...................................................................... 274 4.5.3 Nominated Representative ......................................................... 275 4.5.4 Supported Decision-Making and Individual Will and Preference ............................................................................................ 275 4.5.5 Involuntary Treatment ................................................................ 278 4.5.5.1 Supported Admissions .................................................. 279 4.5.5.2 Treatment During a ‘Supported Admission’ ................. 279 4.5.5.3 Emergency Treatment .................................................. 280 4.5.5.4 Restraint and Seclusion ................................................ 280 4.5.6 Research ...................................................................................... 281 xi 4.5.7 Privacy and Confidentiality .......................................................... 282 4.5.8 Electroconvulsive Therapy .......................................................... 283 4.6 Conclusion .................................................................................................. 284 5. The perspective of psychiatrists working in India on the Mental Healthcare Act 2016: a focus group analysis ............................................................................ 288 5.1 Introduction ............................................................................................... 288 5.2 Aims ............................................................................................................ 289 5.3 Methods ..................................................................................................... 289 5.3.1 Group composition ...................................................................... 289 5.3.2 Demographic and professional variables .................................... 290 5.3.3 Development of focus group questions ...................................... 290 5.3.4 Conducting groups ...................................................................... 291 5.3.5 Debriefing following groups ........................................................ 292 5.3.6. Transcription .............................................................................. 292 5.3.7 Analysis and coding ..................................................................... 292 5.4 Results and discussion ................................................................................ 295 5.4.1 General findings and group description ...................................... 295 5.4.1.1 General results ............................................................. 295 5.4.1.2 General discussion ........................................................ 298 5.4.2 Electroconvulsive therapy ........................................................... 307 5.4.2.1 Results .......................................................................... 307 5.4.2.1.1 Themes directly relating to ECT ..................... 311 5.4.2.1.1.1 Benefits for ECT .............................. 311 5.4.2.1.1.2 ECT in minors .................................. 312 5.4.2.1.1.3 Unmodified ECT .............................. 314 5.4.2.1.1.4 ECT in the acute phase ................... 315 5.4.2.1.2 Themes indirectly related to ECT ................... 316 5.4.2.2 Discussion ..................................................................... 319 5.4.2.2.1 ECT use in minors .......................................... 320 5.4.2.2.2 Unmodified ECT ............................................. 321 5.4.2.2.3 ECT in the acute phase .................................. 322 5.4.2.2.4 Themes indirectly relating to ECT .................. 323 5.4.3 Advance directives and nominated representatives ................... 324 5.4.3.1 Results .......................................................................... 324 5.4.3.1.1 Reasons for opposing advance directives and nominated representatives ...................................................... 327 5.4.3.1.2 Logistical considerations that need to be addressed prior to adopting advance directives and nominated representatives .......................................... 330 5.4.3.1.3 Benefits of introducing advance directives and nominated representatives ................................... 332 5.4.3.2 Discussion ..................................................................... 333 5.4.3.2.1 Reasons for opposing advance directives and nominated representatives .......................................... 334 5.4.3.2.2 Logistical considerations that need to be xii addressed prior to adopting advance directives and nominated representatives ................................... 335 5.4.3.2.3 Benefits of introducing advance directives and nominated representatives ................................... 337 5.5 Strengths and limitations ........................................................................... 337 5.5.1 Strengths ..................................................................................... 337 5.5.2 Limitations ................................................................................... 338 5.5.3 Assessment of trustworthiness and credibility ........................... 340 5.6 Conclusion .................................................................................................. 342 6. Summary of findings .......................................................................................... 345 6.1 Context ....................................................................................................... 345 6.2 Black letter analysis summary .................................................................... 346 6.3 Focus group summary ................................................................................ 348 6.4 Future research .......................................................................................... 349 6.5 Conclusion .................................................................................................. 350 References ............................................................................................................ 352 Appendices included in separate volume Appendix 1 – Questioning route Appendix 2 – Published articles Copy India’s Mental Healthcare Act, 2017: Building Laws, Protecting Rights included in a sperate volume xiii V. List of Figures and Tables Table 1.1 Key time-periods and driving forces in mental health legislation Table 1.2 Political and ideologically driven legislation that has impacted on people with mental illness Table 2.1: Timeline of key developments in Indian mental health legislation and their political context Table 3.1 Concordance of Indian legislation with the WHO Checklist on Mental Health Legislation’s standards relating to the preamble and objectives (A) Table 3.2: Concordance of Indian legislation with the WHO Checklist on Mental Health Legislation’s standards relating to Definitions (B) Table 3.3: Concordance of Indian legislation with the WHO Checklist on Mental Health Legislation’s standards relating to access to mental healthcare (C) Table 3.4: Concordance of Indian legislation with the WHO Checklist on Mental Health Legislation’s standards relating to the rights of users of mental health services (D) Table 3.5 Concordance of Indian legislation with the WHO Checklist on Mental Health Legislation’s standards relating to the rights of families and other carers (E) Table 3.6 Concordance of Indian legislation with the WHO Checklist on Mental Health Legislation’s standards relating to competence, capacity and guardianship (F) Table 3.7 Concordance of Indian legislation with the WHO Checklist on Mental Health Legislation’s standards relating to Voluntary admission and treatment (G) Table 3.8 Concordance of Indian legislation with the WHO Checklist on Mental Health Legislation’s standards relating to non-protesting patients (H) Table 3.9 Concordance of Indian legislation with the WHO Checklist on Mental Health Legislation’s standards relating to involuntary admission
(when separate from treatment) and involuntary treatment (where admission and treatment are combined) (I) Table 3.10 Concordance of Indian legislation with the WHO Checklist on Mental Health Legislation’s standards relating to Involuntary treatment (when separate from involuntary admission) (J) Table 3.11 Concordance of Indian legislation with the WHO Checklist on Mental Health Legislation’s standards relating to proxy consent for treatment (K) Table 3.12: Concordance of Indian legislation with the WHO Checklist on Mental Health Legislation’s standards relating to involuntary treatment in community settings (L) Table 3.13: Concordance of Indian legislation with the WHO Checklist on Mental Health Legislation’s standards relating to emergency situations (M) Table 3.14 Concordance of Indian legislation with the WHO Checklist on Mental Health Legislation’s standards relating to determinations of mental disorder. (N) xiv Table 3.15: The concordance of Indian legislation with the World Health Organisation Checklist on Mental Health Legislation’s standards relating to special treatments. (O) Table 3.16: The concordance of Indian legislation with the World Health Organisation Checklist on Mental Health Legislation’s standards relating to Seclusion and restraint. (P) Table 3.17: The concordance of Indian legislation with the World Health Organisation Checklist on Mental Health Legislation’s standards relating to clinical and experimental research. (Q) Table 3.18: Concordance of Indian legislation with the WHO Checklist on Mental Health Legislation’s standards relating to oversight and review mechanisms. (R) Table 3.19: Concordance of Indian legislation with the WHO Checklist on Mental Health Legislation’s standards relating to Police responsibilities. (S) Table 3.20: Concordance of Indian legislation with the WHO Checklist on Mental Health Legislation’s standards relating to Mentally ill offenders. (T) Table 3.21: Concordance of Indian legislation with the WHO Checklist on Mental Health Legislation’s standards relating to discrimination. (U) Table 3.22: Concordance of Indian legislation with the WHO Checklist on Mental Health Legislation’s standards relating to housing. (V) Table 3.23: Concordance of Indian legislation with the WHO Checklist on Mental Health Legislation’s standards relating to employment. (W) Table 3.24: Concordance of Indian legislation with the WHO Checklist on Mental Health Legislation’s standards relating to social security. (X) Table 3.25: Concordance of Indian legislation with the WHO Checklist on Mental Health Legislation’s standards relating to civil issues. (Y) Table 3.26 Concordance of Indian legislation with the WHO Checklist on Mental Health Legislation’s standards relating to protection of vulnerable groups (Minors) (Women) (Minorities) (Z) Table 3.27: Concordance of Indian legislation with the WHO Checklist on Mental Health Legislation’s standards relating to offences and penalties. (AZ) Table 4.1: Incorporation of Article 5 of the Convention on the Rights of Persons with Disabilities into Indian law through the Rights of Persons with Disabilities Act, 2016 and Mental Healthcare Act, 2017 Table 4.2: Incorporation of Article 6 of the Convention on the Rights of Persons with Disabilities into Indian law through the Rights of Persons with Disabilities Act, 2016 and the Mental Healthcare Act, 2017 Table 4.3: Incorporation of Article 7 of the Convention on the Rights of Persons with Disabilities into Indian law through the Rights of Persons with Disabilities Act, 2016, and the Mental Healthcare Act, 2017 Table 4.4: Incorporation of Article 8 of the Convention on the Rights of Persons with Disabilities into Indian law through the Rights of Persons with Disabilities Act, 2016 and the Mental Healthcare Act, 2017 Table 4.5: Incorporation of Article 9 of the Convention on the Rights of Persons with Disabilities into Indian law through the Rights of Persons with Disabilities Act, 2016 and the Mental Healthcare Act, 2017 Table 4.6: Incorporation of Article 12 of the Convention on the Rights of Persons xv with Disabilities into Indian law through the Rights of Persons with Disabilities Act, 2016 and the Mental Healthcare Act, 2017 Table 4.7: Incorporation of Article 13 of the Convention on the Rights of Persons with Disabilities into Indian law through the Rights of Persons with Disabilities Act, 2016 and the Mental Healthcare Act, 2017 Table 4.8: Incorporation of Article 14 of the Convention on the Rights of Persons with Disabilities into Indian law through the Rights of Persons with Disabilities Act, 2016 and the Mental Healthcare Act, 2017 Table 4.9: Incorporation of Article 15 of the Convention on the Rights of Persons with Disabilities into Indian law through the Rights of Persons with Disabilities Act, 2016 and the Mental Healthcare Act, 2017 Table 4.10: Incorporation of Article 16 of the Convention on the Rights of Persons with Disabilities into Indian law through the Rights of Persons with Disabilities Act, 2016 and the Mental Healthcare Act, 2017 Table 4.11: Incorporation of Article 18 of the Convention on the Rights of Persons with Disabilities into Indian law through the Rights of Persons with Disabilities Act, 2016 and the Mental Healthcare Act, 2017 Table 4.12: Incorporation of Article 19 of the Convention on the Rights of Persons with Disabilities into Indian law through the Rights of Persons with Disabilities Act, 2016 and the Mental Healthcare Act, 2017 Table 4.13: Incorporation of Article 20 of the Convention on the Rights of Persons with Disabilities into Indian law through the Rights of Persons with Disabilities Act, 2016 and the Mental Healthcare Act, 2017 Table 4.14: Incorporation of Article 21 of the Convention on the Rights of Persons with Disabilities into Indian law through the Rights of Persons with Disabilities Act, 2016 and the Mental Healthcare Act, 2017 Table 4.15: Incorporation of Article 22 of the Convention on the Rights of Persons with Disabilities into Indian law through the Rights of Persons with Disabilities Act, 2016 and the Mental Healthcare Act, 2017 Table 4.16: Incorporation of Article 23 of the Convention on the Rights of Persons with Disabilities into Indian law through the Rights of Persons with Disabilities Act, 2016 and the Mental Healthcare Act, 2017 Table 4.17: Incorporation of Article 24 of the Convention on the Rights of Persons with Disabilities into Indian law through the Rights of Persons with Disabilities Act, 2016 and the Mental Healthcare Act, 2017 Table 4.18: Incorporation of Article 25 of the Convention on the Rights of Persons with Disabilities into Indian law through the Rights of Persons with Disabilities Act, 2016 and the Mental Healthcare Act, 2017 Table 4.19: Incorporation of Article 26 of the Convention on the Rights of Persons with Disabilities into Indian law through the Rights of Persons with Disabilities Act, 2016 and the Mental Healthcare Act, 2017 Table 4.20: Incorporation of Article 27 of the Convention on the Rights of Persons with Disabilities into Indian law through the Rights of Persons with Disabilities Act, 2016 and the Mental Healthcare Act, 2017 Table 4.21: Incorporation of Article 28 of the Convention on the Rights of Persons with Disabilities into Indian law through the Rights of Persons with Disabilities Act, 2016 and the Mental Healthcare Act, 2017 xvi Table 4.22: Incorporation of Article 29 of the Convention on the Rights of Persons with Disabilities into Indian law through the Rights of Persons with Disabilities Act, 2016 and the Mental Healthcare Act, 2017 Table 4.23: Incorporation of Article 30 of the Convention on the Rights of Persons with Disabilities into Indian law through the Rights of Persons with Disabilities Act, 2016 and the Mental Healthcare Act, 2017 Table 4.24: References to capacity in the Mental Healthcare Act, 2017 and the Rights of Persons with Disabilities Act, 2016 Table 4.25: Key references to the ethical principles underpinning decision-making in the Mental Healthcare Act, 2017 and the Rights of Persons with Disabilities Act, 2016 Table 4.26: Justifications for breaching confidentiality in India’s Mental Healthcare Act, 2017 Figure 5.1: Location of focus groups Table 5.1: Demographic and professional characteristics of mental health professionals who participated in focus groups Box 5.1: Topics developed from the focus group study of psychiatrist in India Table 5.2: Summary of the debriefing sessions following the focus groups Table 5.3: Key themes and subthemes identified from focus groups directly relating to ECT Table 5.4: Key themes and subthemes indirectly relating to ECT identified from focus groups Table 5.5 Key Themes and Subthemes Identified from Focus Groups Relating to Advance Directives and Nominated Representatives under India’s Mental Healthcare Act, 2017 Table 5.6 Exploration of trustworthiness and credibility of the focus groups with Indian psychiatrists discussing the Mental healthcare Act 2017 xvii VI. List of Abbreviations BCE Before common era CE Common era CRPD Convention on the Rights of Persons with Disabilities CMHA Central Mental Health Authority ECT Electroconvulsive therapy IPS Indian Psychiatric Society MHA Mental Health Act 1987 MHCA Mental Healthcare Act 2017 MHRB Mental Health Review Board NGO Non-governmental organisation PWDA Persons with Disabilities Act, 1995 RPWDA Rights of Persons with Disability Act, 2016 SMHA State Mental Health Authorities UK United Kingdom UN United Nations USA United States of America WHO World Health Organization WHO-RB World Health Organization resource book on mental health, human rights and legislation xviii VII. Abstract The United Nations has initiated a paradigmatic shift in mental healthcare through the United Nations Convention on the Rights of Persons with Disabilities (CRPD), in addition to this the WHO has identified legislation as a key tool for improving healthcare. In 2016, India adopted the Rights of Persons with Disabilities Act (RPWDA), closely followed in 2017 by the Mental Healthcare Act (MHCA). These Acts are pioneering pieces of legislation, both were explicitly written to bring Indian legislation in line with the CRPD. This research evaluated the concordance of India’s Mental Health legislation with international standards and explored the views of psychiatrists in India. To examine this, a black letter analysis was conducted comparing the RPWDA and the MHCA with the CRPD and the World Health Organization’s Checklist on Mental Health Legislation from the WHO Resource Book (WHO-RB). Thirteen focus groups were conducted and included 93 mental health professionals, in 4 Indian states, over a two-year period. This was done to compliment and inform the blackletter analysis. In depth thematic analysis was also carried out on data in relation to two key topics: electroconvulsive therapy and assisted decision making. Themes and sub-themes relating to these topics were identified and discussed. The black letter analysis highlighted a number of areas of non-concordance in the Indian legislation and identified the complexities of simultaneously protecting competing rights. Many potentially non-concordant areas stemmed from the interpretation of the Committee on the Rights of Persons with Disabilities rather than the text of the CRPD itself. The focus groups revealed that the concerns of psychiatrists were often divergent or at odds with the international standards. They also highlighted that resource limitation and cultural differences will need to be overcome to adequately implement the new legislation. The complexity of using international standards and conventions as a mechanism for realising human rights for individuals with mental health problems was discussed. xix VIII. Lay Abstract The manner in which mental health care is being provided is being drastically changed by the United Nations Convention on the Rights of Persons with Disabilities (CRPD), this is reducing involuntary treatment and improving patient autonomy. To realise the CRPD, India passed two pieces of legislation the Rights of Persons with Disabilities Act (RPWDA), 2016 and the Mental Healthcare Act (MHCA), 2017. These Acts are pioneering pieces of legislation, both explicitly written to bring Indian law in line with the UNCRPD. This research aims to evaluate the concordance of India’s Mental Health legislation with international standards. To examine this, we looked at how the content of these two pieces of legislation compares to the CRPD and the World Health Organization’s Checklist on Mental Health Legislation from the WHO Resource Book (WHO-RB). This did not consider the realisation of the legislation just the content. To compliment this, thirteen focus groups were conducted in 4 Indian states, with 93 mental health professionals, over a two-year period. This helped us understand the legislation and the context it was written in. We used the results from these groups to describe the perspectives these mental health professionals had in relation to electroconvulsive therapy and assisted decision making. These topics were chosen as they are both strongly impacted by the CRPD. Our review of the legislation highlighted several areas of non-concordance in the Indian legislation but also demonstrated how complex it can be to protect the wide range of rights that people have. Our analysis also demonstrated the additional challenges that have come about through the interpretation of the CRPD by the Committee on the Rights of Persons with Disabilities. This has prohibited all involuntary care. The focus groups revealed that the concerns of psychiatrists were often at odds with the international standards. They also highlighted that resource limitation and cultural differences will need to be overcome to adequately implement the new legislation. The complexity of using international standards and conventions as a mechanism for realising human rights for individuals with mental health problems was discussed. xx IX. Aims and hypothesis of the Project The aims of this study are to examine the Indian MHCA from a legal perspective and to evaluate the opinions of Indian Psychiatrist’s before, during and after implementation. To achieve this aim, the following objectives have been identified. 1. The concordance of the MHCA with the WHO-RB will be evaluated 2. The concordance of the MHCA with the CRPD will be evaluated 3. A systematic examination of the relationship between the CRPD and the WHO- RB will be conducted. 4. Focus groups will be conducted with Indian psychiatrists to evaluate their views of the MHCA and its implementation. xxi X. Value of Research This research provides a comprehensive analysis of the concordance of India’s Mental Healthcare Act, 2017 with the United Nations’ Convention on the Rights of Persons with Disabilities. This is relevant to many other countries seeking to bring their legislation in line with the convention. This is also the only review of this kind that the authors have identified. This study is the only study internationally to compare India’s legislation to the checklist contained in the World Health Organization’s resource book on mental health, human rights and legislation. Of particular interest this examines the protections that are in place for people receiving treatment against their will. This is the only study we are aware of that captures the perspectives of Indian psychiatrists during this dramatic shift in mental healthcare in India. We have presented findings in relation to two key topics: electroconvulsive therapy and assisted decision making. xxii XI. Outputs Original research (peer reviewed) • Duffy, R.M., Kelly, B.D. (2017). Rights, laws and tensions: A comparative analysis of the Convention on the Rights of Persons with Disabilities and the WHO Resource Book on Mental Health, Human Rights and Legislation. International Journal of Law and Psychiatry, 54, 26-35. • Duffy, R.M., Kelly, B.D. (2017). Concordance of the Indian Mental Healthcare Act 2017 with the World Health Organization’s Checklist on Mental Health Legislation. International Journal of Mental Health Systems, 11(1), 48. • Duffy, R.M., Kelly, B.D. (2017). Privacy, confidentiality and carers: India's harmonisation of national guidelines and international mental health law. Ethics, Medicine and Public Health, 3(1), 98-106. • Duffy, R.M., Narayan, C.L., Goyal, N., Kelly, B.D. (2018). New legislation, new frontiers: Indian psychiatrists' perspective of the mental healthcare act 2017 prior to implementation. Indian Journal of Psychiatry, 60(3), 351-354. • Duffy, R.M., Kelly, B.D. (2019). India’s Mental Healthcare Act, 2017: content, context, controversy. International Journal of Law and Psychiatry, 62, 169-178. • Duffy, R.M., Gulati, G., Kasar, N., Paralikar, V., Narayan, C.L., Desousa, A., Goyal, N., Kelly, B.D. (2019). Stigma, inclusion and India’s Mental Healthcare Act 2017, Journal of Public Mental Health, 18(3), 199-205. • Duffy, R.M., Gulati, G., Paralikar, V., Kasar, N., Goyal, N., Desousa, A., Goyal, N., Kelly, B.D. (2019). A focus group study of Indian psychiatrists’ views on electroconvulsive therapy under India’s Mental Healthcare Act 2017: ‘the ground reality is different’. Indian Journal of Psychological Medicine, 41, 507- 515. Books • Duffy, R.M., Kelly, B.D. (2020). India’s Mental Healthcare Act, 2017: Building Laws, Protecting Rights. Cham: Springer. Chapters xxiii • Duffy, R.M., Sidhu, D.S., Kelly, B.D. (in press). Optimizing Patient Care in Psychiatry with Autonomy and Choice. In: Optimizing Patient Care in Psychiatry. Eds A Srivastava, N Shah, A Desousa. Routledge/Taylor and Francis, USA • Kelly, B.D., Gulati, G., Duffy, R.M. (in press). Optimizing Patient Care in Psychiatry with Sound Mental Health Legislation. In: Optimizing Patient Care in Psychiatry. Eds A Srivastava, N Shah, A Desousa. Routledge/Taylor and Francis, USA Oral Presentations • Presented at the XXXVIth International Congress on Law and Mental Health. Rome 2019: India’s Mental Healthcare Act 2017 and the United Nations’ Convention on the Rights of Persons with Disabilities in session. Editorials (peer reviewed) • Duffy, R.M., Kelly, B.D. (2019). The right to mental healthcare: India moves forward. British Journal of Psychiatry, 214(2), 59-60. • Duffy, R.M., Kelly, B.D. (2020). Can the World Health Organisation’s ‘QualityRights’ Initiative help reduce coercive practices in psychiatry in Ireland? Irish Journal of Psychological Medicine, 1-4. • Hoare, F., Duffy, R.M. (2021). The World Health Organisations’ QualityRights materials for training, guidance and transformation: preventing coercion but marginalising psychiatry. British Journal of Psychiatry, 218(5), 240-242 Letters and correspondence • Duffy, R.M., Kelly, B.D. (2017). Can psychiatry lead the way in legislating for health and wellbeing? Irish Medical Journal, 110(6), 591. • Duffy, R.M., Kelly, B.D. (2019). Authors' reply. British Journal of Psychiatry, 215(2), 504. • Duffy, R.M., Kelly, B.D. (2019). Global mental health. Lancet, 394(10193), 118- 119. xxiv • Duffy, R.M. (2019). Letter to the Editor. Irish Journal of Psychological Medicine, 36, 235-236. • Duffy, R.M. (2020). Letter to the Editor, The Limitations of the MHC’s report on seclusion and restraint, and suggestions for future reports. Irish Journal of Psychological Medicine, 1-2. Submitted • Duffy, R.M., Gulati, G., Paralikar, V., Kasar, N., Narayan, C.L., Goyal, N., Desousa, A., Goyal, N., Kelly, B.D. A Focus Group Study of Indian Mental Health Professionals’ Views on Supported Decision Making under India’s Mental Healthcare Act, 2017. International Journal of Mental Health and Capacity Law xxv XII. Output integration into the thesis The contents of this thesis are heavily based on the published works of the author and large sections are taken directly from these works for clarity below I have indicated which published works each chapter is drawn from Chapter 1 • Duffy, R. M., Kelly, B. D. (2020). Background to Mental Health Law. In: India’s Mental Healthcare Act, 2017: Building Laws, Protecting Rights (pp. 3-20). Springer: Cham. • Duffy, R. M., Kelly, B. D. (2020). The United Nations and Mental Health Law. In: India’s Mental Healthcare Act, 2017: Building Laws, Protecting Rights (pp. 21- 33). Springer: Cham. • Duffy, R. M., Kelly, B. D. (2020). The World Health Organization and Mental Health Law. In: India’s Mental Healthcare Act, 2017: Building Laws, Protecting Rights. (pp. 25-48). Springer: Cham. Chapter 2 • Duffy, R.M., Kelly, B.D. (2017). Rights, laws and tensions: A comparative analysis of the Convention on the Rights of Persons with Disabilities and the WHO Resource Book on Mental Health, Human Rights and Legislation. International Journal of Law and Psychiatry, 54, 26-35. • Duffy, R.M., Kelly, B.D. (2019). India’s Mental Healthcare Act, 2017: content, context, controversy. International Journal of Law and Psychiatry, 62, 169-178. • Duffy, R. M., Kelly, B. D. (2020). History of Mental Health Legislation in India. In: India’s Mental Healthcare Act, 2017: Building Laws, Protecting Rights (pp. 51- 60). Springer: Cham. • Duffy, R. M., Kelly, B. D. (2020). India’s Rights of Persons with Disabilities Act, 2016. In: India’s Mental Healthcare Act, 2017: Building Laws, Protecting Rights (pp. 61-80). Springer: Cham. xxvi • Duffy, R. M., Kelly, B. D. (2020). India’s Mental Healthcare Act, 2017. In: India’s Mental Healthcare Act, 2017: Building Laws, Protecting Rights. (pp. 81-106). Springer: Cham. Chapter 3 • Duffy, R.M., Kelly, B.D. (2017). Concordance of the Indian Mental Healthcare Act 2017 with the World Health Organization’s Checklist on Mental Health Legislation. International Journal of Mental Health Systems, 11(1), 48. • Duffy, R. M., Kelly, B. D. (2020). India’s Mental Healthcare Act, 2017 and the World Health Organization’s Checklist on Mental Health Legislation. In: India’s Mental Healthcare Act, 2017: Building Laws, Protecting Rights (pp. 109-140). Springer: Cham. Chapter 4 • Duffy, R. M., Kelly, B. D. (2020). Incorporation of the United Nations’ Convention on the Rights of Persons with Disabilities into Indian Law Through the Rights of persons with Disabilities Act, 2016 and the Mental Healthcare Act, 2017. In: India’s Mental Healthcare Act, 2017: Building Laws, Protecting Rights (pp. 141-208). Springer: Cham. • Duffy, R. M., Kelly, B. D. (2020). Compliance of India’s Mental Healthcare Act, 2017 with the United Nations’ Convention on the Rights of Persons with Disabilities. In: India’s Mental Healthcare Act, 2017: Building Laws, Protecting Rights (pp. 209-226). Springer: Cham. • Duffy, R. M., Kelly, B. D. (2020). Adhering to Conventions: Intentional Grey Areas or Shirking Responsibility. In: India’s Mental Healthcare Act, 2017: Building Laws, Protecting Rights (pp. 227-249). Springer: Cham. Chapter 5 • Duffy, R.M., Narayan, C.L., Goyal, N., Kelly, B.D. (2018). New legislation, new frontiers: Indian psychiatrists' perspective of the mental healthcare act 2017 prior to implementation. Indian Journal of Psychiatry, 60(3), 351-354. xxvii • Duffy, R.M., Gulati, G., Paralikar, V., Kasar, N., Goyal, N., Desousa, A., Goyal, N., Kelly, B.D. (2019). A focus group study of Indian psychiatrists’ views on electroconvulsive therapy under India’s Mental Healthcare Act 2017: ‘the ground reality is different’. Indian Journal of Psychological Medicine, 41, 507- 515. • Duffy, R.M., Gulati, G., Paralikar, V., Kasar, N., Narayan, C.L., Goyal, N., Desousa, A., Goyal, N., Kelly, B.D. (submitted) A Focus Group Study of Indian Mental Health Professionals’ Views on Supported Decision Making under India’s Mental Healthcare Act, 2017. International Journal of Mental Health and Capacity Law 1 A. Introduction 1. Mental health legislation ‘To be obliged to confess this to oneself: infallibility is not infallible, there may exist error in the dogma, all has not been said when a code speaks, society is not perfect, authority is complicated with vacillation, a crack is possible in the immutable, judges are but men, the law may err, tribunals may make a mistake! to behold a rift in the immense blue pane of the firmament!’ - Javert (Hugo, 1862). The World Health Organisation (WHO) have recently commented on the importance of legislation to enhance the delivery of healthcare (2017). While this may be a relatively new concept in many medical specialities, psychiatry have a long, and often chequered history, of employing legislation to support the treatment of individuals. Mental health law has evolved in an iterative process, many jurisdictions retain legislative remnants of former abuses, societal demands, or cultural practices. Many well intended laws were often abused or their implementation underfunded with dire consequences for vulnerable individuals. The last two decades have seen some dramatic shifts in the emphasis and content of mental health law, however internationally laws vary widely. Some jurisdiction’s legislation focuses primarily on involuntary treatment (e.g. Ireland), while others attempt to address all areas of mental healthcare (e.g. India). There are jurisdictions that have never had mental health legislation (e.g. Laos) and those that are attempting to remove mental health specific law (e.g. Northern Ireland). In 2017, 111 of 175 countries reported having standalone mental health law, only 53% of countries without standalone legislation addressed mental health in other legislation (WHO, 2018). Only 40% (66/175) had revised their legislation in the five years preceding the report. This legal heterogeneity has been brought into focus through the work of the WHO and the United Nations (UN). Through their resources, guidelines and conventions described below, there has been an emerging consensus of how people with mental illness should be treated. What should be included in 2 legislation to best facilitate this, is less clear. The potential of negative unintended consequences brought about by potential change is important to examine. This chapter explores the evolution of mental health legislation with a particular focus on the role played by the UN and WHO. An understanding of this evolution provides valuable context for examining the content of modern mental health law and some of the tensions that exist within it. 1.1 The early history of mental health legislation Mental health legislation has held a very prominent place in society and informed the treatment of individuals with mental illness for approximately the last two hundred years (Duffy and Kelly, 2020a). The treatment of those with mental illness goes back much further, descriptions of trepanning to treat depression have been found in the Ebers papyrus, a document approximately 3500 years old (Bou Khalil and Richa, 2014). The origins of the societal rules and laws concerning mental illness is obscure, but evidence exists from a wide range of cultures that indicate ritualised, legal or religious norms relating to the treatment of mental illness. In approximately 1000 BCE, Israel’s King David feigned mental illness in the belief that this would result in him being treated differently. His ruse was successful (1 Samuel 21:10-15). In Buddhism, around 500 BCE, Buddha treated people with mental illness in a compassionate manner that contrasted starkly with how they were commonly treated in the community (Somasundaram and Murthy, 2018). The Buddha’s approach also drastically differed from the Twelve Tables of Rome, from the 5th century BCE, a set of laws inscribed on bronze tablets, which adopted a much less humane approach to children with disabilities (Berkson, 2006). The rise of treatment for mental illness seen in the Islamic world from the eight century, and the later appearance of hospitals like Bethlehem Royal Hospital in London (1247) and the Pitié-Salpêtrière Hospital in Paris (1656) had little connection to formal legislation. In much of Europe the authority underpinning treatment came from Canon Law, which predated civil law, and it was often highly inconsistent in how it dealt with mental illness. It restricted access to sacraments like marriage and baptism for people with mental illness (Trenery and Horden, 2017) and delivered 3 judgements in relation to suicide, which prevented individuals from receiving a Christian burial. Church law also dealt with major crimes and showed some leniency towards mentally ill offenders. However, this leniency was not universal, as mental illness was also seen by some as punishment for sin or a spiritual affliction (Restak, 2000). The best-preserved records from the medieval period are from England and relate mostly to management of the property of the mentally ill and insanity as a defence in court (Trenery and Horden, 2017). Overall, the treatment of people with mental illness was highly variable prior to formal legislation. While there is historical evidence that mental illness sometimes elicited compassion, treatment, support and special legal consideration, there is much greater evidence that it was generally met with stigma, neglect, and marginalisation. 1.2 The history of formal mental health legislation Religious traditions, cultural norms and Cannon law gave way to more formal iterations of mental health law. This begun with Edward II of England’s Praerogativa Regis, dating from 1324 (Somasundaram, 1987). The influence on mental health law of different time periods are summarised in Table 1.1 and the impact of underpinning political and ideological themes are summarised in Table 2.1. These factors are also discussed in detail below. 1.2.1 Key time periods in mental health legislation 1.2.1.1 Poor Laws and the Protection of Property Edward II of England’s Praerogativa Regis gave the King wardship over the lands of ‘idiots’ and, later, ‘lunatics’. These were referred to as ‘Chancery’ idiots or lunatics because it was the responsibility of the Lord Chancellor to take charge of their property. Under the influence of this, prior to the late eighteenth century, the majority of mental health legislation dealt with the estates of people with mental illness (Parry- Jones, 1972). Other legislative measures that concerned the mentally ill dealt with criminals, the homeless and the unemployed. In England and Wales, these were 4 generally addressed in the Poor Law system. Overall, little attention was devoted to the needs of people with mental illness who did not have significant wealth. The first piece of legislation to relate to ‘pauper lunatics’ was the Vagrancy Act, 1744 which allowed for the incarceration of the ‘furiously mad’ (Hamilton, 1983). Scotland had similar legislation, the Scottish Poor Law, 1845 (Farquharson, 2017). 1.2.1.2 Early Residential Care The Poor Law system led to the expansion of ‘madhouses’. These private homes for individuals with mental illness, had been in existence since the 1600s and acted as precursors of the later, larger asylums. In England, these establishments were regulated in 1774 by the Madhouses Act. Private institutions for the mentally ill also existed outside the United Kingdom, with a diverse array of institutions in countries ranging from India (Somasundaram, 2008) to Germany (Schmideler and Steinberg, 2004). Initially, these establishments were not regulated by legislation, although with increasing rates of detention, legislative protections began to appear (e.g. the County Asylums Act, 1808 in England and Wales). 1.2.1.3 The Asylum Era In many ways, the rise of the asylums in the nineteenth century began in England, the first country to legislate for the large-scale building of public asylums. These replaced and upscaled the ‘madhouses’ of the 1700s. This process began in earnest with the County Asylums Act, 1808 and France followed suit with the Law of 1838 (Shorter, 1997; Shorter, 2007). In 1845, England replaced the 1808 Act with the County Asylums Act, 1845 and the Lunacy Act, 1845, which provided a place of refuge for ‘pauper lunatics’ and mentally ill offenders. Other relevant legislation included the Lunatic Asylums Act, 1853 and the Lunacy Act, 1890. Other countries in the British Empire developed legislation that mirrored that of England. Australia, Ireland, Scotland, Nigeria and India all had similar pieces of legislation (Porter and Wright, 2003). Canada did not incorporate the English Poor Law system when it gained independence and consequently many people with mental illness ended up in prison (Wright et al., 2003). 5 Porter and Wright (2003) highlight how the asylum movement became prominent outside of the British Empire. They describe developments in South Africa, Switzerland, France, Germany, Argentina and Mexico. Norway, too, enacted its Insane Act in 1848. Japan’s legislation came much later, with the Mental Patients’ Custody Act, 1900 and inpatient care was further embedded into law with the Mental Hospitals Act, 1919 (Suzuki, 2003). Despite trailing 100 years behind other jurisdictions, the Japanese institutionalised care of individuals with mental illness had many parallels with the English system. Generally speaking, these asylums were built with the intention of helping people with mental illness who could not afford private care (Miller, 2007). These institutions were, however, soon both overcrowded and underfunded (Piddock, 2004); grounds for admission were often unclear; and if discharge occurred, it was a highly protracted process (Luchins, 1988). The asylums were also rife with medical illness and many patients died from infectious diseases (Anonymous, 1902). 1.2.1.4 Deinstitutionalisation The advent of effective treatments for mental illness heralded a major shift in mental health legislation, they expanded the scope of mental health laws from, the management of property and containment of people, to the provision of care and treatment. This led to the dismantling of many asylums and efforts to move care to out-patient settings. The most direct approach was taken in Italy where the Mental Health Act, 1978 (the ‘Basaglia Law’) aimed to eliminate asylum-based care entirely (Crepet and De Plato, 1983). In America, the Community Mental Health Act was passed in 1963 and resulted in a reduction in the numbers in asylums and expansion of community-based services. Reform in the UK was more gradual, following the Mental Health Act, 1959. While many psychiatric hospitals remained operational into the 1980s, the adoption of more progressive, less coercive laws to facilitate treatment undoubtedly contributed to the decline of institutional care (Rachlin, 1983). Over this period, the evolution of mental health legislation was, however, shaped by a number of disparate factors, including not only new treatments but also 6 contemporary social and political events. For example, the libertarian and anti- establishment perspectives common in the 1960s and 1970s, combined with the rising costs of inpatient care, called into serious question the appropriateness of long-term psychiatric admissions and provided people with more protections during involuntary care (Appelbaum, 1996). While this process of change was generally positive, it also led to the criminalisation of some people with mental illness. The number of mentally ill people in prisons increased following the failure of the mental health system to provide a sufficient range of inpatient and outpatient treatments and interventions (Lamb and Weinberger, 2020). 1.2.1.5 Rights-Based Mental Health Law Following the end of the Second World War, increased emphasis was placed on human rights, as reflected in the United Nations’ (UN) Universal Declaration of Human Rights (UDHR), the rise of increasingly democratic forms of government, and the establishment of bodies such as the European Court of Human Rights. In psychiatry, the advent of effective treatments and the emergence of the anti-psychiatry and ‘survivors of psychiatry’ movements further increased recognition of the rights of people with mental illness. Against this background, many countries revised their mental health legislation in parallel with psychiatric deinstitutionalisation. They sought to legislate for better mental healthcare rather than simply address legal matters concerning involuntary detention. For example, Western Australia introduced the Mental Health Act, 1996 which explicitly protected the rights of patients, promoted the least restrictive forms of treatment and stated that mental illness alone could not be grounds for involuntary detention. Some of the legislation of this era also removed stigmatising terminology and provided enhanced reviews of coercive practices, as described by the World Health Organization in its Resource Book on Mental Health, Human Rights and Legislation (WHO-RB) (2005). The single-most significant force driving rights-based mental health legislation today is the UN Convention on the Rights of Persons with Disabilities (CRPD) (2006). The European Union (EU) Agency for Fundamental Rights (2015), for example, 7 highlighted many of the policy and legislative changes that have occurred in the EU as a result of the CRPD. The Convention has triggered a number of fundamental paradigm shifts, including replacing substitute decision-making with supported decision-making, strongly affirming capacity and autonomy, and, according to the most authoritive interpretation, banning all coercive treatments (UN Committee on the Rights of Persons with Disabilities, 2014). The CRPD places patients at the centre of all mental health legislation and makes protecting rights the key driving principle. Good examples of legislation attempting to realise the CRPD include Mental Health Law 29889 in Peru (Toyama et al., 2017) and the Mental Healthcare Act, 2017 in India (Duffy and Kelly, 2020b). The latter is an example of legislation written explicitly to concord with the CRPD and is the chief focus of this thesis. Despite all these developments, however, more than one third of countries still have no formal mental health law, and many others have highly out-dated legislation that is not rights-based and primarily defines involuntary treatment rather than articulating a more positive vision of mental healthcare (WHO, 2018a). Table 1.1 Key time-periods and driving forces in mental health legislation (Duffy and Kelly, 2020a) Driving force behind legislation Positive consequences of legislation Negative consequences of legislation Examples Time- period Protection of property Dealt with the property of people with mental illness Made no provisions for people without money or property. Based on Common Law Chancery Regulation Act, 1862 (England) Lunacy Regulation (Ireland) Act, 1871 1324 - presen t 8 with limited safeguards. Asylum-based care Provided care for poor and homeless people with mental illness First access to care for people with mental illness Large scale institutionalisatio n Often inhumane condition in asylums The Lunatic Asylums (Ireland) Act, 1875. Mental Patients’ Custody Act, 1900 (Japan) The Law of 1838 (France) 1800 – 1960s Advent of effective pharmacologica l treatments and the end of the asylum era Deinstitutionalisatio n Promotion of autonomy Development of community services Insufficient bed numbers and deprivation of treatment for those needing inpatient care Community-based services often underdeveloped Mental Retardation and Community Mental Health Centers Constructio n Act, 1963 (USA) Italian Mental Health Act, 1978 (Italy) 1960s - 1980s 9 Patient- centred, de- stigmatising legislation pre- CRPD Enhanced dignity and shift away from coercive treatments Enhanced protections when coercive measures are used Patient advocacy groups felt reforms did not go far enough Excessive coercive measures remained in place Often worked from a substitute decision-making paradigm Mental Health Care Act, 2002 (South Africa) Mental Health Ordinance, 2001 (Pakistan) 1990s - 2006 CRPD-informed, rights based mental health legislation Affirms multiple rights especially dignity and autonomy Moves away from substitute decision- making to supported decision-making Potentially limits people with severe illness from accessing treatment Criminalisation of people with mental illness could occur if their capacity cannot be questioned, with resulting stigmatisation Law 29973, the General Law on People with Disabilities, 2012 (Peru) Mental Healthcare Act, 2017 (India) 2006 - presen t 1.2.2 Political and Ideologically Driven Legislation Relating to Mental Illness 10 Over past decades, various laws have emerged that are not explicitly pieces of mental health legislation but that nonetheless significantly impact on people with mental illness. These laws are often politically or ideologically driven. These are often reactive pieces of legislation passed following issues that have arisen in different contexts. Indicative examples are summarised in Table 1.2 and discussed in more detail below. 1.2.2.1 Military Psychiatry Legislation relating to military psychiatry has had a significant influence on the field of mental health more generally. American military psychiatry has been particularly influential. One of the key motivations behind the creation of the American Psychiatric Association’s (APA) Diagnostic and Statistical Manual of Mental Disorders (DSM) (APA, 1952) was to facilitate the treatment of veterans of World War II (Houts, 2000). While the ‘Medical 203’ was not strictly speaking a law, it served a similar purpose, leading to the creation of the original DSM and greatly influencing the inclusion of mental disorders in what would later become the WHO’s International Classification of Mental and Behavioural Disorders (Volume 10) (1992). Military psychiatry has also had an impact on how conditions that are common in the military are perceived when they occur in the general population. It has been suggested that the use of PTSD in American legislation impacts on how the condition is perceived more broadly, leading to the minimisation of non-combat-related PTSD (Purtle, 2016). 1.2.2.2 Eugenics In parts of North America, Poland and Germany, the evolution of psychiatry occurred in parallel with the emergence of eugenics, at the turn of the nineteenth century (Stahnisch, 2014; Gawin, 2007). As a result, many countries enacted legislation permitting eugenics and limiting the reproductive rights of the mentally ill. Fourteen countries explicitly legislated for involuntary sterilisation (Amy and Rowlands, 2018a). In 1907, the US was the first country to introduce laws allowing the forced sterilization of people with intellectual disabilities (Diekema, 2003). In total, 30 US states enacted such laws and over 20,000 people were sterilised on the basis of mental illness. 11 In 1934, the British Brock Report recommended introducing legislation that would allow for the sterilisation of people who might ‘transmit mental disorder or deficit’ (Amy and Rowlands, 2018a). In 1940, Japan introduced a National Eugenics Law that permitted the forced sterilisation of people with ‘inherited’ mental illness. Switzerland was the first European country to introduce such laws in 1928 and they remained in force up until the 1990s (Amy and Rowlands, 2018b). The most infamous eugenics legislation was in Germany where, in 1933, the ‘Law for the Prevention of Hereditarily Diseased Offspring’ was passed, based heavily on the US legislation. The German law was applied to a wide range of people with mental health conditions. Germany used sterilisation more frequently than other countries, sterilising almost 400,000 people between 1933 and 1939 (Proctor, 1988). After 1939, Germany adopted a ‘euthanasia’ program in which it killed up to 85% of its people with severe mental illness (Wyszinski, 1998). Other countries that enacted eugenics laws include Austria, Canada, Denmark, Estonia, Finland, Iceland, Japan, Mexico, Norway and Sweden. As recently as the 1990s, China introduced legislation that allowed for the sterilisation of people with a history of mental illness (Pearson, 1995). Some have argued that current US legislation is more inclined to fund incarceration rather than the treatment for the mentally ill and therefore facilitates a form of de facto eugenics (Appleman, 2018). Eugenics is a tragic episode in the history of psychiatry that must be borne in mind when considering the history of the discipline and the necessity for a clear focus on human rights. 1.2.2.3 Key Events and the Protection of Society From time to time, social and political events lead to rapid changes in legislation. This can be particularly relevant in jurisdictions that place a strong emphasis on case-law, such as England and Wales. In 1843, for example, Daniel M’Naughten killed the British prime minister’s secretary, while suffering from paranoid delusions. This led to the M’Naughten rule which has been highly influential internationally in defining the verdict of ‘not guilty by reason of insanity’ (Arboleda-Florez, 1978). In another 12 example from the US, Anfang and Appelbaum (1996) describe how the Tarasoff case impacted legislation for decades. Other recent examples of laws reacting to recent events include Laura’s Law (California State) and Kendra’s Law (New York State), both of which provide for court ordered out-patient treatment for people with mental illness. These pieces of legislation are named in memory of two people who were killed by persons with mental illness (Kass, 2014). Rushed legislation always runs the risk of unintended consequences and new limitations on the rights of the mentally ill. Contemporary politics can also influence mental health laws. One of the clearest examples of this occurred in the former Soviet Union, where mental health legislation facilitated the silencing of political opposition (Thompson, 1990). 1.2.2.4 Legislation Relating to Suicide The legal prohibition on suicide dates back to ancient Greece (Papadimitriou et al., 2007) and continued into the modern era through Church law: the Catholic Church refused to bury people who died by suicide from the sixth century onward (Dine, 2019). For this reason, establishing instances of suicide was important in medieval Europe and such cases often came before the courts (Trenery and Horden, 2017). On occasions, the family of a person who had died by suicide were punished (Behere et al., 2015). Germany was the first country to decriminalise suicide attempts in 1751 (Kazarian and Persad, 2001). Other countries in Europe and North America began to follow suit (Behere et al., 2015). Some took a considerable period of time to make this change in legislation; Ireland, for example, passed its Criminal Law (Suicide) Act in 1993 (Osman et al., 2017). A 2016 review of legislation across 192 countries identified 25 countries where suicide is currently illegal and 20 others where, under Islamic or Sharia law, suicide attempts may result in jail sentences (Mishara and Weisstub, 2016). 1.2.2.5 Forensic Psychiatry In its early iterations, forensic psychiatry legislation had broad powers and formed a key element of general asylum systems in many countries, such as Great Britain 13 (through its Criminal Lunatics Act, 1800). Such legislation generally addressed the evaluation of a person’s fitness to plead and the insanity defence, as well as how people with mental illness progress through the criminal justice system, how prisoners with mental illness are treated, and how mental illness can lead to some degree of mitigation following offending behaviour. Laws relating to fitness to be tried in court have been in existence for centuries (Mudathikundan et al., 2014). As early as 1583, juries were asked to determine if a defendant was ‘mute of malice or by visitation of God’ (Walker, 1968). Legislation concerning fitness to plead was formalised during the nineteenth century with legislation like the Criminal Lunatics Act, 1800 and the Prison Act, 1865 (Mudathikundan et al., 2014). Outside of Great Britain, other countries also identified that many defendants had unmet mental health needs (Konrad and Völlm, 2014). Many countries now have formal prerequisites relating to mental health and being tried (e.g. Section 4 of Ireland’s Criminal law (Insanity) Act, 2006). As trial by jury replaced trial by ordeal in twelfth-century England, pardon started to be given to people with mental illness (Higgins, 1986). Insanity defences were heavily influenced by a number of English cases in the eighteenth and nineteenth centuries, of which the best known was the 1843 M’Naughten case (Higgins, 1986). The impact of this case influenced judges and legislators across the world (Allnut et al., 2007; Weiss and Gupta, 2018). As the field of forensic psychiatry continues to evolve, future legislation will need to take account of the CRPD and its strong affirmation of legal capacity. Concerns have been raised that an overly dogmatic approach to this in the area of mental health could result in the criminalisation of people with mental illness (Freeman et al., 2015.) 1.2.2.6 Marriage Laws From medieval times, the ability of people with mental illness to marry has been debated in court (Trenery and Horden, 2017). Positions on this issue have often been formalised in law, including, for example, Malaysia’s Law Reform (Marriage and Divorce) Act 164, 1976 (Reddy, 1995). In India, the Special Marriage Act, 1954 and Hindu Marriage Act, 1955 both limited the ability of people with mental illness to 14 marry (Narayan et al., 2015; Sharma et al., 2015). Such laws remain a major problem today and may represent a continuation of the eugenics ideology of a century earlier. One 2016 analysis of 193 countries found that 37% prohibited people with mental illness from marrying and 11% stated that mental health problems were grounds for declaring a marriage void (Bhugra et al., 2016). Table 1.2 Political and ideologically driven legislation that has impacted on people with mental illness Driving force behind legislation Positive consequences of legislation Negative consequences of legislation Examples of legislation Concerns about the mental health of soldiers Development of psychometric testing Development of treatments, especially for post- traumatic stress disorder (PTSD) and substance misuse Interventions and legislation often not based on medical evidence but on the needs of the military Over-emphasis of combat as the main cause for PTSD Medical 203 (1943) (USA) Federal Framework on Post-Traumatic Stress Disorder, 2018 (Canada) Eugenics Nil Serialisation of hundreds of thousands of people with mental illness Mass euthanasia programs Law for the Prevention of Genetically Diseased Offspring, 1933 (Germany) Sexual Sterilization Act, 1933 (British Columbia, Canada) 15 Propagation of racist ideology Maternal and Infant Health Care Law, 1994 (China). Events interpreted as indicating a need to protect society Supporters of such legislation believe it reduces risk. Reduced personal autonomy, dignity and justice; increased stigma Rushed legislation Non-evidence-based reforms Mental Health Act, 1973 (South Africa) Proposition 63 (2004) (California) Section 9.60 of New York State Mental Health Law, 1999 Legislation relating to suicide Some have argued it creates a moral and social barrier that reduces risk of suicide Can criminalise and stigmatise people who die by suicide and their families Can prevent people with suicidal ideation from seeking help Obstructs the collection of data related to suicide through underreporting Section 327 of the Criminal Code Act, 1990 (Nigeria) Section 309 of Singapore Penal Code (Singapore) Forensic psychiatry Decriminalisation of people with mental illness who May be seen to limit the legal capacity of people with mental illness Homicide Act, 1957 (England) 16 engage in offending behaviour Protections for people with mental illness Penal Law (Article 34) (Greece) Marriage laws May provide some protections for people who do not have the mental capacity to consent to marriage Stigmatises people with mental illness, reducing their reproductive rights and right to a family Legislation often spuriously used against women with no mental illness The Special Marriage Act, 1954 (India) Law Reform (Marriage and Divorce) Act 164, 1976 (Malaysia) 1.3 The United Nations and mental health law With so many factors influencing the development of mental health law it has been important to establish consensus between countries, in this regard the UN and the WHO have provided much needed guidance (Duffy and Kelly, 2020c; Duffy and Kelly, 2020d). Founded in 1945, with the purpose of maintaining international peace and security in the wake of the Second World War, the UN has done much to shape the latter half of the twentieth century. The organisation currently comprises 193 member states. In 1948, the UN published the UDHR, laying out a common standard of fundamental human rights (UN General Assembly, 1948). Many of these rights would later be articulated in the context of people with disabilities and incorporated into the CRPD (UN, 2006). Many of the 30 articles of the UDHR have direct relevance for people with mental illness. Article 3, for example, gives people the right to life, liberty and security 17 of person. Article 6 protects an individual’s right to recognition everywhere as a person before the law. Article 7 states that all persons are equal before the law. Article 9 prohibits arbitrary detention. Liberty and equal status before the law were especially important to individuals with mental illness at the time the Declaration was published because the asylum era was only beginning to come to an end. Article 5 gives people protection from torture and from cruel, inhuman or degrading treatment. Special Rapporteurs within the UN have since described the use of non-consensual treatment as a form of torture (UN Human Rights Council, 2013). Article 16 protects the equal right to marriage, which is still not available to many people with mental illness around the world (Bhugra et al., 2016). The UN Human Rights Office of the High Commissioner recognises nine core international human rights instruments, each with its own monitoring body. These fundamental documents have a much greater legal footing than other UN documents and have consequently had significant impact. While not all of them are directly relevant to mental illness, they have broad applications for people with mental health problems. Many of these conventions support the provision of healthcare in a general sense, although the International Covenant on Civil and Political Rights (UN General Assembly, 1966a) repeatedly gives ‘the protection of public health or morals’ as grounds for limitation of rights. Article 12 of the International Covenant on Economic, Social and Cultural Rights addresses mental health directly, stating: ‘The States Parties to the present Covenant recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health’ (UN General Assembly, 1966b). Other conventions promote the delivery of healthcare, including mental healthcare, and identify the impact of psychological trauma, but the Convention on the Rights of the Child (UN General Assembly, 1989) was the first of the core instruments to give detailed consideration to mental health. Article 17 gives a child a right to access media material promoting ‘his or her social, spiritual and moral well- 18 being and physical and mental health’. Article 19 protects children from ‘mental violence’. Article 23 states: ‘States Parties recognise that a mentally or physically disabled child should enjoy a full and decent life, in conditions which ensure dignity, promote self- reliance and facilitate the child's active participation in the community.’ It continues by advocating for free assistance, training and education for carers. Article 25 gives children who have been placed in care due to their mental health a right to periodic review. Articles 27 and 29 promote the mental development of the child. Finally, Article 32 identifies the potential for economic exploitation to lead to mental harm. Following the Convention on the Rights of the Child (1989), the CRPD (2006) gave further consideration to mental health (below). In recent years, many psychiatrists were disappointed that the UN did not include a consideration of mental health in its Millennium Development Goals (Thornicroft and Votruba, 2016). There were only minor improvements in the Sustainable Development Goals of the UN's 2030 Agenda for Sustainable Development (Cratsley and Mackey, 2018; UN, 2015). Bass and colleagues (2012) appealed to the UN to do more to address mental, neurological, and substance use disorders. In 2016, the UN General Assembly had a special session on drugs which addressed the needs of people with substance misuse disorders and will hopefully be instrumental in shifting the emphasis away from criminalisation and punishment towards rehabilitation, treatment and prevention (UN General Assembly Special Session on Drugs, 2016). Encouragingly, this initiative also drew heavily on research in the area and was not defined by ideological views on substance misuse. This has been described as a positive and unprecedented step (Volkow et al., 2016). 1.3.1 The United Nations’ Principles for the Protection of Persons with Mental Illness and the Improvement of Mental Health Care (1991) The UN Principles for the Protection of Persons with Mental Illness and the Improvement of Mental Health Care (UN General Assembly, 1991) were initially 19 developed by the Subcommission on the Prevention of Discrimination and Protection of Minorities in 1988, after which input was received from governmental and non- governmental organisations (Moncada, 1994). The completed document was adopted by the General Assembly in 1991 and laid out basic standards for mental healthcare. The 25 principles are not legally binding and do not articulate new rights but, rather, set existing rights from the UDHR in the context of mental illness. These rights include, inter alia, a right to life and a role in the community (Principles 3 and 7), protections from spurious, unfounded or malicious diagnoses (Principle 4), freedom from arbitrary medical examinations (Principle 5), confidentiality (Principle 6), the right to high quality, individualised care, delivered in the least restrictive manner (Principles 8-10), and a requirement for consent to treatment, albeit with certain exceptions (Principle 11). There is also a prohibition on sterilisation as a treatment for mental illness. This was an especially important step because eugenics legislation for people with mental health conditions existed into the 1990s (Amy and Rowlands, 2018a; Amy and Rowlands, 2018b). The general limitation clause set out in the preamble arguably undermines impact of the entire document, it states: ‘The exercise of the rights set forth in these Principles may be subject only to such limitations as are prescribed by law and are necessary to protect the health or safety of the person concerned or of others, or otherwise to protect public safety, order, health or morals or the fundamental rights and freedoms of others.’ While it is both well established and logically necessary that there are certain contexts in which some rights may be limited (UN Economic and Social Council, 1985), this clause is too general. The impact of the document is further muted by the fact that the General Assembly resolutions are not legally binding (Moncada, 1994). Despite their limitations, however, it was believed that the 1991 Principles could improve human rights monitoring, prompt legislative change and even be directly applied at a domestic and international level (Rosenthal and Rubenstein, 1993). They were used to advocate for legislative change in, for example, Uruguay 20 (Moncada, 1994) and Australia (Zifcak, 1996), but, overall, their effect has been incremental rather than transformative. 1.3.2 The United Nations’ Convention on the Rights of Persons with Disabilities The CRPD has been the driving force behind the latest iterations of mental health law internationally (European Union Agency for Fundamental Rights, 2015). Some of the rights articulated in the CRPD are elaborations of those affirmed in 1991 Principles for the Protection of Persons with Mental Illness and the Improvement of Mental Health Care. The 1991 Principles are, however, noticeably absent from the preamble to the CRPD and do not feature strongly in the history of the convention (Schulze, 2010). The social rights articulated in the 1991 Principles are, however, considered in some detail in the CRPD. By contrast, the 1991 Principles that relate to admission, coercive treatments and limitations of rights, and those that are ostensibly rooted in the ‘biomedical model’ of mental illness, are either not considered in the CRPD or have their validity called into question. The variation between the two documents, published fifteen years apart, highlight how dramatic the shift in emphasis in mental health law has been. The dissonance between the two documents is, in many ways, an overture to the tensions that currently exist in modern mental health law. The CRPD does not create any new rights, instead, it contextualises existing rights for people with disabilities (Schulze, 2010). The convention was drafted between 2002 and 2006 in collaboration with non-governmental organisations representing the views of persons with disabilities. The General Assembly adopted the convention in 2006 and it came into force in 2008 (Steinert et al., 2016). The CRPD contains 50 articles; the first four address general principles, and Articles 31 to 50 focus on the implementation of the convention, the remaining 26 articles directly address specific rights. While the CRPD is framed to address the needs of all people with disabilities, it explicitly includes people with long-term mental illness under its remit; Article 1 states that: 21 ‘Persons with disabilities 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.’