human rights and legislation who resource book on mental health

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When examining another country’s mental health law there may be social, economic <strong>and</strong> cultural variables or factors specific to that country. Certain provisions may therefore not be applicable in one’s own country. For example, a country may restrict guardianship to members of a person’s immediate family or refer to “the spouse” of a patient. This would be inappropriate in a country where an extended family has culturally determined <strong>rights</strong> with respect to a person or where polygamous marriages are allowed. Thus there may be a need to modify <strong>and</strong> adapt the provisions to suit the social, economic <strong>and</strong> cultural situation of that particular country. Examples of obstacles <strong>and</strong> facilitating factors with respect to formulating mental health <strong>legislation</strong> Obstacles Tension between those in favour of an individual <strong>human</strong>-<strong>rights</strong>-based approach to <strong>legislation</strong> <strong>and</strong> those <strong>who</strong> emphasize public safety. Tension between medical hegemony versus a <strong>human</strong> <strong>rights</strong> approach to <strong>legislation</strong>. That is, differences between people <strong>who</strong> believe that the medical professionals know what is best for a patient <strong>and</strong> those <strong>who</strong> believe the user knows best. Conflicts between those <strong>who</strong> favour mental health <strong>legislation</strong> solely concerning treatment <strong>and</strong> patients’ <strong>rights</strong> <strong>and</strong> those <strong>who</strong> favour <strong>legislation</strong> relating also to promotion <strong>and</strong> prevention. Tension between the <strong>rights</strong> <strong>and</strong> responsibilities of families <strong>and</strong> the <strong>rights</strong> <strong>and</strong> responsibilities of users. Resistance from psychiatrists <strong>who</strong> perceive provisions established in <strong>legislation</strong> <strong>and</strong> regulations as undermining clinical autonomy. Low priority to mental health <strong>legislation</strong> by government, parliament <strong>and</strong> sectors outside the health sector. Facilitating factors Formulating mental health law taking a needs-based approach (i.e. addressing user needs as well as the needs of society in general). Formulating a mental health law from a user perspective, <strong>and</strong> through a participative process involving many sectors <strong>and</strong> disciplines. Appoint representatives from both interest groups to the drafting body. Workshops with representatives from families <strong>and</strong> user organizations to examine <strong>and</strong> discuss the key issues <strong>and</strong> interests of each group. Include both groups in the drafting body. Seminars on patients’ <strong>rights</strong> <strong>and</strong> medical ethics with the participation of experts in these areas. Empowerment of organizations of users, carers <strong>and</strong> other advocacy groups. Lobbying legislators <strong>and</strong> finding individual legislators <strong>who</strong> may be prepared to push for mental health <strong>legislation</strong>. For further details, see Module on Advocacy for Mental Health (WHO 2003b): http://www.<strong>who</strong>.int/ mental_health/<strong>resource</strong>s/policy_services/en/) Resistance from the general public to <strong>human</strong>-<strong>rights</strong>-oriented <strong>legislation</strong>. Information <strong>and</strong> education of the public. 94
The box above provides examples of certain obstacles <strong>and</strong> facilitating factors to the process of formulating mental health <strong>legislation</strong>. Each country will face particular obstacles specific to its situation <strong>and</strong> conditions, <strong>and</strong> the examples are by no means exhaustive. 2.5 Building a consensus <strong>and</strong> negotiating for change The previous chapter provided guidance on the issues that should be included in new <strong>legislation</strong> <strong>and</strong>/or that should direct necessary amendments <strong>and</strong> modifications to existing <strong>legislation</strong>. However, a consensus needs to be built around these issues. The stakeholders include politicians <strong>and</strong> parliamentarians, policy-makers, government ministries (health, social welfare, law <strong>and</strong> finance), professionals (psychiatrists, psychologists, psychiatric nurses <strong>and</strong> social workers), family members of those with mental disorders, users <strong>and</strong> user groups, advocacy organizations, service providers, nongovernmental organizations, civil <strong>rights</strong> groups, religious organizations <strong>and</strong> congregations of particular communities. In some countries it may also be necessary to include community leaders <strong>and</strong> traditional healers in the process. Consensus building <strong>and</strong> negotiation have an important role to play, not only in drafting the <strong>legislation</strong> but also in ensuring that <strong>legislation</strong> is implemented once it is adopted. A broad consensus is also necessary because mental health <strong>legislation</strong> cannot be embraced by any society unless misconceptions, misapprehensions <strong>and</strong> fears relating to mental disorders are addressed. 2.6 Educating the public on issues concerning mental health <strong>and</strong> <strong>human</strong> <strong>rights</strong> Due to a lack of underst<strong>and</strong>ing of mental health issues among the general public, in many countries there is resistance, <strong>and</strong> sometimes opposition, to <strong>human</strong>-<strong>rights</strong>-oriented mental health <strong>legislation</strong>. There is also considerable stigma <strong>and</strong> discrimination against people with mental disorders. This may lead to public opposition to the <strong>legislation</strong> while it is being processed through the legislature, or even to an undermining of the <strong>legislation</strong> once it is passed. It is important that the public be informed <strong>and</strong> educated about what a mental disorder is <strong>and</strong> what <strong>rights</strong> people with mental disorders are entitled to. This would greatly facilitate the process of drafting, adopting <strong>and</strong> implementing <strong>legislation</strong>. Preliminary activities in drafting mental health <strong>legislation</strong>: Key issues • The process for new mental health <strong>legislation</strong> may be initiated by professionals responsible for mental health in a ministry, a law commission (or similar body), the legal unit within a ministry, an NGO, or by user, family, advocacy, professional or other group that identifies the need. • . Information about mental disorders, needs <strong>and</strong> barriers can be obtained from epidemiological studies, gathering quantitative information (e.g. from treatment settings), conducting qualitative studies (e.g. focus groups of users) or extrapolating from other countries with similar social <strong>and</strong> cultural characteristics. • Barriers that can be addressed by <strong>legislation</strong> should be identified. • Assessment of all <strong>legislation</strong> relevant to mental health should be undertaken <strong>and</strong> reviewed. • International conventions <strong>and</strong> st<strong>and</strong>ards should be thoroughly studied to ensure that internationally accepted <strong>rights</strong> are included in the <strong>legislation</strong>. • Careful examination of progressive laws of other countries, as well as consideration of the elements that made the implementation of these laws effective, can provide useful guidance for the development of a national law. However, the feasibility <strong>and</strong> applicability within any specific country must be carefully evaluated. 95
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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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Legislation (or accompanying regula
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Rights of users of mental health se
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mentally ill offender. Countries ma
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7.3 Determining incapacity
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Page 67 and 68: “separate” process from admissi
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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 and 104: In countries where women are detain
Page 105: Kenya The Mental Health Act (Act No
Page 108 and 109: Figure 2. Process of mental health
Page 110 and 111: ) Qualitative information from focu
Page 114 and 115: • The process of building a conse
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Page 118 and 119: Written submissions have the advant
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Page 122 and 123: 4.1.2 Debate of draft legis
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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)
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Page 146 and 147: E. Rights of families or other care
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Page 156 and 157: O. Special treatments 1) Does the l
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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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