human rights and legislation who resource book on mental health

Notice of <strong>rights</strong>
• Legislation should include a provision for informing patients of their <strong>rights</strong> at the earliest
possible time, when interacting with mental health services. Notifying them of their <strong>rights</strong>
should take place within the shortest delay possible.
• This information should be conveyed in such a way that patients are able to underst<strong>and</strong> it.
• Legislation may also make provisions for communicating these <strong>rights</strong> to personal
representatives <strong>and</strong>/or family members in the case of patients <strong>who</strong> lack the capacity to
underst<strong>and</strong> such information.
6. Rights of families <strong>and</strong> carers of persons with mental disorders
The roles of families or other carers of people with mental disorders vary significantly from
country to country <strong>and</strong> from culture to culture. Nonetheless, it is common for families <strong>and</strong> carers
to assume many responsibilities for looking after persons with mental disorders. These include
housing, clothing <strong>and</strong> feeding them, <strong>and</strong> ensuring that they remember to take their treatment.
They also make sure these persons avail of care <strong>and</strong> rehabilitation programmes <strong>and</strong> assist them
in following through with these. They often bear the brunt of the person’s behaviour when he or
she is ill or relapses, <strong>and</strong> it is usually the caregivers/family members that fundamentally love, care
<strong>and</strong> worry about the person with the mental disorder. Sometimes they too become targets of
stigma <strong>and</strong> discrimination. In some countries, families <strong>and</strong> carers also carry the legal
responsibility for third-party liability arising from actions of persons with mental disorders. The
important role of families needs to be recognized in <strong>legislation</strong>.
Family members <strong>and</strong> carers need information about the illness <strong>and</strong> treatment plans to be better
able to look after their ill relatives. Legislation should not arbitrarily refuse information merely on
grounds of confidentiality – though the extent of an individual’s right to confidentiality is likely to
vary from culture to culture. For instance, in some cultures a patient’s refusal to allow information
to be released to family members or carers would need to be fully respected, while in others the
family may be regarded as a unified, structured unit, <strong>and</strong> confidentiality may extend to culturally
determined members of that family. It is likely, in these situations, that patients themselves are
more accepting of the need to provide family members with information. In countries where there
is more emphasis on the individual, as opposed to the family, it is more likely that the individual
himself/herself may be less inclined to share information. Many variations <strong>and</strong> gradations are
possible depending on culturally accepted practices. One position could be, for example, that
family members <strong>who</strong> have ongoing responsibility for the care of a patient may receive some
information required for the accomplishment of their supportive role in the patient’s life, but not
about other clinical or psychotherapeutic issues.
The right to confidentiality is not in dispute, however. In <strong>legislation</strong>, this right should be
interpreted at the country level taking local cultural realities into account. In New Zeal<strong>and</strong>, for
example, under the Mental Health (Compulsory Assessment <strong>and</strong> Treatment) Amendment Act
1999, Section 2, “ … the legislative powers must be exercised or the proceedings conducted:
a) with proper recognition of the importance <strong>and</strong> significance to the person of the person’s ties
with his or her family, whanau, hapu, iwi, 1 <strong>and</strong> family group; b) with proper recognition of the
contributions those ties make to the person’s well-being; <strong>and</strong> c) with proper respect for the
person’s cultural <strong>and</strong> ethnic identity, language, <strong>and</strong> religious or ethical beliefs.”
Families can play an important role in contributing to the formulation <strong>and</strong> implementation of a
treatment plan for the patient, especially if the patient is incapable of doing it alone. The Mauritian
law states that “the patient … or next of kin may participate in the formulation of the treatment
plan” (Mental Health Care Act, Act 24 of 1998, Mauritius).
Legislation can also ensure involvement of families in many aspects of mental health services
<strong>and</strong> legal processes. For example, family members may have the right to appeal against
involuntary admission <strong>and</strong> treatment decisions on behalf of their relative, if the latter lacks the
capacity to do so himself/herself. Similarly, they may be able to apply for the discharge of a
1
Whanau (extended family groups), hapu (sub-tribes, formed of several whanau), <strong>and</strong> iwi (tribes, made up of a number of hapu).
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