human rights and legislation who resource book on mental health

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• Minors must have access to a personal representative to adequately represent their interests, especially when admitted to mental health facilities, <strong>and</strong> throughout the course of such admission. • Inequities <strong>and</strong> discriminatory practices can both cause <strong>and</strong> exacerbate mental disorders in women. • Women should have separate sleeping facilities (single-sex wards), <strong>and</strong> their living facilities should be of adequate quality <strong>and</strong> comparable to the living facilities provided to men. • In countries where women are detained in hospitals on social or cultural grounds, it is necessary that <strong>legislation</strong> explicitly state the illegality of such a practice. • Legislation may specifically provide protection against discriminatory practices directed towards minorities. For example, <strong>legislation</strong> could stipulate that the review body must monitor involuntary admissions <strong>and</strong> involuntary treatment of minorities, <strong>and</strong> the provision of community-based treatment <strong>and</strong> rehabilitation services to minorities. • Refugees should be afforded the same mental health treatment as citizens of the host country. 18. Offences <strong>and</strong> penalties A law is not written with the intention of prosecuting people <strong>who</strong> do not adhere to its provisions, but rather to guide <strong>and</strong> direct people in terms of what a (hopefully) democratically constituted legislature, after consultation <strong>and</strong> debate, has deemed necessary <strong>and</strong> appropriate for the country. When a law is transgressed, however, the criminal justice system of a country has the power to take actions to prosecute <strong>and</strong> punish offenders. This gives <strong>legislation</strong> a special position relative to, for example, a country’s policy or strategic plans. Like other issues that have been covered in this chapter, dealing with offences <strong>and</strong> penalties will vary from country to country. Nonetheless, in many countries, unless specific guidance is given in the law regarding the level <strong>and</strong> extent of penalties to be awarded for particular offences, the courts may be unable to act effectively when the law is transgressed. As a result, the law’s potential to promote mental health may not be fully realized. The law should therefore specify the appropriate punishment for different offences, <strong>and</strong> may indicate the severity of penalties to be h<strong>and</strong>ed out for particular transgressions, taking account of the fact that not all transgressions are equally serious. Examples: Offences <strong>and</strong> penalties The following are illustrations of how different legislative systems provide for offences <strong>and</strong> penalties within their mental health law. These examples are for illustrative purposes only <strong>and</strong> it will be up to each individual country to determine the system for offences <strong>and</strong> penalties to be adopted for their national <strong>legislation</strong>. Japan In Japan, the law concerning the Mental Health <strong>and</strong> Welfare of the Mentally Disordered Person (Law 94, 1995) outlines a range of different penalties for various transgressions. For example: • A person to which any of the following items are applicable shall be punished with penal servitude for not more than three (3) years or a fine of not more than one million yen: (i) a person <strong>who</strong> violates an order of discharge under paragraph 5 of Article 38.5; (ii) a person <strong>who</strong> violates an order under paragraph 2 of Article 38.7; (iii) a person <strong>who</strong> violates an order under paragraph 3 of Article 38.7. • The administrator of a mental hospital, the designated physician, the member of the psychiatric review board [<strong>and</strong> various other people mentioned] shall be punished with penal servitude for not more than one year or a fine of not more than five thous<strong>and</strong> yen if he/she, without due cause, discloses a secret that has come to him/her in the course of execution of duties under this law. 86
Kenya The Mental Health Act (Act No 7, 1989) in Kenya lists a number of actions that are regarded as offences in terms of the Act. It then states: Any person <strong>who</strong> is guilty of an offence under this Act, or <strong>who</strong> contravenes any of the provisions of this Act or of any regulation made under this Act shall, where no other penalty is expressly provided, be liable on conviction to a fine not exceeding ten thous<strong>and</strong> shillings or to imprisonment for a term not exceeding twelve months or both. Australia In New South Wales, a system of “penalty units” is used. This precludes the need to regularly change every piece of <strong>legislation</strong> where a specific penalty is prescribed in order, for example, to keep up with inflation or other economic fluctuations. For instance, a maximum of 50 penalty units could be awarded for disclosure of information or refusing to obey or comply with an order, direction or decision of the review tribunal, a magistrate or the Psychosurgery Review Board, while a maximum penalty of 10 units is assessed for a person <strong>who</strong> operates a residential facility without a licence. 87
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WHO RESOURCE BOOK ON MENTAL HEALTH,
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All rights reserve
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Technical contribution and<
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Nacanieli Goneyali Maria Grazia Gia
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Leen Meulenbergs Harry I. Minas Alb
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Harvey Whiteford Ray G. Xerri XIE B
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5. Rights of users of mental health
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4.1.3 Sanction, promulgation <stron
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For whom is this R
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This chapter covers five main areas
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3.2 Violations of human</st
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3.5 Promoting access to mental heal
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health legislation
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The right to health, as embodied in
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trade, torture and
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The MI Principles have also served
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8.4 The Salamanca Statement <strong
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Chapter 2 Content of mental health
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persons with mental disorders. The
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Mental disability is not synonymous
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Mental Disability Mental Incapacity
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Definition of “mental ill health
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Example: Mental health in primary c
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Another means of promoting communit
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MI Principles: Access to informatio
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Page 55 and 56: Rights of users of mental health se
Page 57 and 58: mentally ill offender. Countries ma
Page 59 and 60: 7.3 Determining incapacity
Page 61 and 62: • The presence of a major mental
Page 63 and 64: The concept of “voluntary” prec
Page 65 and 66: The key issue for mental health <st
Page 67 and 68: “separate” process from admissi
Page 69 and 70: In some cases, certain families bel
Page 71 and 72: as an inpatient or outpatient. This
Page 73 and 74: Example: Successful appeal of an ad
Page 75 and 76: 8.3.7 Involuntary treatment in comm
Page 77 and 78: Figure 1. Procedure for combined in
Page 79 and 80: Emergency situations: Key issues
Page 81 and 82: 10.1 Major medical and</str
Page 83 and 84: MI Principles: Seclusion an
Page 85 and 86: The MI Principles and</stro
Page 87 and 88: Authorize or prohibit intrusive <st
Page 89 and 90: • confidentiality • independent
Page 91 and 92: 14.2 Responding to calls for assist
Page 93 and 94: 15. Legislative provisions relating
Page 95 and 96: For minor offences, the court could
Page 97 and 98: 15.4 The post-sentencing (serving s
Page 99 and 100: 16. Additional substantive provisio
Page 101 and 102: • Right to work and</stro
Page 103: In countries where women are detain
Page 108 and 109: Figure 2. Process of mental health
Page 110 and 111: ) Qualitative information from focu
Page 112 and 113: When examining another country’s
Page 114 and 115: • The process of building a conse
Page 116 and 117: Consultation should be undertaken w
Page 118 and 119: Written submissions have the advant
Page 120 and 121: The group, body or individual(s) m<
Page 122 and 123: 4.1.2 Debate of draft legis
Page 124 and 125: mental health facts and</st
Page 126 and 127: Example: The National Commission ta
Page 128 and 129: 5.2.4 Developing information <stron
Page 130 and 131: Human resource iss
Page 132 and 133: Rosenthal E, Sundram C (2002). Inte
Page 134 and 135: Declaration of Hawaii (1983). Appro
Page 136 and 137: Bibliography Araya R et al. (2001).
Page 138 and 139: Introduction and h
Page 140 and 141: 2) Does the legislation</st
Page 142 and 143: C. Access to mental health care 1)
Page 144 and 145: 3) Does the legislation</st
Page 146 and 147: E. Rights of families or other care
Page 148 and 149: G. Voluntary admission and<
Page 150 and 151: ) there is serious likelihood of ha
Page 152 and 153: • Patient lacks the capacity to m
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2) Are all the criteria and
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O. Special treatments 1) Does the l
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3) Does the law specify a restricte
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R. Oversight and r
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3) (iv) Maintain registers of accre
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• the right of patients a
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3) Does the law allow for people <s
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2) Does the law provide for “reas
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3) Does the law ensure that all min
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AZ. Offences and p
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• Inter-American Convention on th
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Civil and Politica
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5. A patient shall never be invited
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Principle 15 Admission principles 1
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Principle 20 Criminal offenders 1.
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Annex 5. Extract from the Declarati
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5. Organ Transplantation: The role
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Restraint & Seclusion: If condition
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Rights of Recipients Summary in Eng
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PART C TAKING PERSON TO APPROVED ME
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I base my opinion on the following
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Annex 9. Example: New Zeala
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Who can make an advance directive?
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