human rights and legislation who resource book on mental health

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mental health facts <strong>and</strong> best practices, <strong>and</strong> to ask their opinion about policy <strong>and</strong> legislative initiatives. Lobbying is essential during the entire process of <strong>legislation</strong> – <strong>and</strong> particularly in the adoption phase – to ensure that the proposed law is sent to the legislature <strong>and</strong> that it moves forward through the different stages of analysis, discussion <strong>and</strong> promulgation. Adopting mental health <strong>legislation</strong>: Key issues • Parliament or a sovereign law-making body has final responsibility for passing <strong>legislation</strong>. • In some countries, mental health laws are a “state” or “provincial” responsibility, while in others there is a national mental health law. State laws must always follow the principles of the national <strong>legislation</strong> where both apply. • In some countries, laws may be promulgated by an administrative ordinance, <strong>and</strong> this would need to be ratified later by the parliament or law-making body. • Many legislatures have subcommittees that debate <strong>legislation</strong> <strong>and</strong> receive public input before a bill is submitted to a full sitting of the legislature. • During debate on a law, amendments can be proposed <strong>and</strong> adopted. To do this effectively, lawmakers must be fully briefed <strong>and</strong> informed of all implications of any changes. • Once a law is passed by the legislature other steps are required such as: sanction (head of State signs the text); promulgation (official announcement of the adopted law); <strong>and</strong> publication (printed in the text of the government’s official legal statutes). • During the adoption of <strong>legislation</strong> it is important to mobilize public opinion <strong>and</strong> the media for the purposes of both advocacy for the passing of the bill <strong>and</strong> to inform the public on the issues, changes <strong>and</strong> opportunities afforded by the <strong>legislation</strong>. • Members of the executive <strong>and</strong> the legislature should be lobbied at all stages of the legislative process, <strong>and</strong> particularly at the adoption stage, to ensure that the <strong>legislation</strong>, with its full potential to improve people’s lives, is actually passed. 5. Implementing mental health <strong>legislation</strong> The process leading up to implementation ideally starts from the point of conception of mental health <strong>legislation</strong>. Many implementation difficulties can be identified, <strong>and</strong> corrective action taken, during the drafting <strong>and</strong> consultation phase of the proposed <strong>legislation</strong>. The complexity of modern mental health <strong>legislation</strong> adds to difficulties in its practical application. Often much attention can be paid to the drafting <strong>and</strong> legislative process, while little preparatory work is done with regard to implementation until after the <strong>legislation</strong> has been enacted. The experience of many countries shows that “law in <strong>book</strong>s” <strong>and</strong> “law in practice” sometimes are rather different. Implementation problems tend to occur not only in countries without a tradition of mental health law, but also in countries with a history of such law. Once <strong>legislation</strong> has been passed through the legislative process, there is usually a short period before enactment of the <strong>legislation</strong>. This is a critical time, as it allows for procedures to be put in place, review bodies to be set up, training to take place, <strong>and</strong> to make sure that all those involved are ready to implement the <strong>legislation</strong> once it is enacted. In countries which have regulations attached to <strong>legislation</strong>, these regulations must also be finalized <strong>and</strong> signed before the <strong>legislation</strong> is enacted. In some countries a decision may be made after the adoption of the law, to allow a period before enforcement, which gives the authorities time to put in place the necessary infrastructure to implement the law. 5.1 Importance <strong>and</strong> role of bodies responsible for implementation As with the drafting of <strong>legislation</strong>, responsibility for overseeing implementation can take numerous forms. Moreover, different functions of the <strong>legislation</strong> may be undertaken <strong>and</strong> monitored by different groups. For example, if (as recommended in Chapter 2) a regulation <strong>and</strong> oversight body has been established, it is likely to be compelled, through its given functions, to 106
oversee certain legislative requirements. For example, regulatory or overseeing bodies could be given the task of performing regular inspections of facilities to ensure patients’ <strong>rights</strong> are being protected. They may also have to hear complaints <strong>and</strong> monitor intrusive <strong>and</strong> irreversible treatments (see Chapter 2, section 13) Through these responsibilities they will be able to assess whether the various legislative provisions are being met. If these review bodies report directly to the responsible minister, the latter can be kept informed of the extent <strong>and</strong> effectiveness of implementation. This should not, however, preclude the government itself from setting norms, st<strong>and</strong>ards <strong>and</strong> indicators to establish whether the provisions of the <strong>legislation</strong> are being met. These need to be monitored <strong>and</strong> evaluated, <strong>and</strong> necessary steps taken if the <strong>legislation</strong> is not being implemented. Example: Commission to oversee the law established in Portugal In Portugal, the mental health <strong>legislation</strong> requires the setting up of a commission <strong>who</strong>se task is to “gather <strong>and</strong> analyse the information regarding the application of the … law” <strong>and</strong> “propose to the Government the measures deemed necessary for the implementation of the current Act”. This approach formalizes the monitoring of the <strong>legislation</strong> in the Act itself, <strong>and</strong> ensures that an ongoing assessment <strong>and</strong> feedback process takes place. The composition of the commission ensures that the legislative <strong>rights</strong> of users <strong>and</strong> families are considered through the legal appointment to the commission of representatives of these groups. (Personal communication, Dr J.M. Caldas de Almeida, Regional Adviser for WHO Region of the Americas, 2003) Whatever oversight agency is established, or whichever body is given this function, it should have a set timetable, measurable targets <strong>and</strong> the necessary administrative <strong>and</strong> financial powers to ensure effective <strong>and</strong> speedy implementation. The agency may require the m<strong>and</strong>ate, authority <strong>and</strong> adequate financial <strong>resource</strong>s to, for example: • develop rules <strong>and</strong> procedures for implementation; • prepare st<strong>and</strong>ardized documentation instruments for recording <strong>and</strong> monitoring implementation; • ensure a proper process of training of mental health professionals, introducing certification procedures if necessary; • address <strong>human</strong> <strong>resource</strong> issues, for example by empowering non-medical mental health professionals (nurses, nursing aides, psychologists, psychiatric social workers) to act as specialists in certain situations, after adequate training <strong>and</strong> supervision; <strong>and</strong> • monitor implementation. Visiting mental health facilities to monitor the implementation of the law constitutes a valuable safeguard against unjustified involuntary detention <strong>and</strong> limitation of patients’ <strong>rights</strong>. Such visiting boards can monitor conditions in mental health facilities, ensure that treatment <strong>and</strong> care practices do not violate the <strong>rights</strong> of persons with mental disorders, <strong>and</strong> ensure that safeguards contained in <strong>legislation</strong> are being implemented by the mental health facilities. In addition, there must be speedy <strong>and</strong> effective implementation of complaints procedures as provided in <strong>legislation</strong>. In particular, mental health facilities should make users <strong>and</strong> their families aware of their <strong>rights</strong> as incorporated in mental health <strong>legislation</strong>, <strong>and</strong> of the means for using the complaints procedures to obtain redress for their grievances, if any. Despite these important provisions for oversight bodies, this does not guarantee protections for people with mental disorders. Many countries have such bodies, but <strong>human</strong> <strong>rights</strong> abuses persist. It should always be remembered that the law provides recourse to the courts, <strong>and</strong> that it should be utilized if necessary. Legislation generally includes a section on penalties for offences, <strong>and</strong> any citizen or organization has the right to bring cases of violation of the law to the attention of prosecutors or other responsible officials within the criminal justice system (see Chapter 2, section 18). 107
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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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• The presence of a major mental
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The concept of “voluntary” prec
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The key issue for mental health <st
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“separate” process from admissi
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In some cases, certain families bel
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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
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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 112 and 113: When examining another country’s
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 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
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Page 150 and 151: ) there is serious likelihood of ha
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Page 154 and 155: 2) Are all the criteria and
Page 156 and 157: O. Special treatments 1) Does the l
Page 158 and 159: 3) Does the law specify a restricte
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Page 162 and 163: 3) (iv) Maintain registers of accre
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Page 166 and 167: 3) Does the law allow for people <s
Page 168 and 169: 2) Does the law provide for “reas
Page 170 and 171: 3) Does the law ensure that all min
Page 172 and 173: 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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