The Special Committee on Human Rights has prepared a 'Questions and Answers' document about the Convention on the Rights of Persons with Disabilities (CRPD) which may well be of interest to RCPsych members.
I started to practice psychiatry as a trainee in 1972, having completed my medical degree and house jobs in Melbourne, Australia. Now retired from clinical work, I nevertheless continue with my academic interests.
I am Emeritus Professor of Psychiatry and Society at the Institute of Psychiatry, King’s College London. I was previously a consultant psychiatrist at the Maudsley Hospital, Medical Director of the Maudsley and Bethlem NHS Trust (1997-1999), joint Medical Director of the South London and Maudsley NHS Trust (1999-2001) and Dean of the Institute of Psychiatry, King’s College London (2001-2006).
I was also a visiting professor in the Department of Sociology (BIOS Centre) at the LSE (2006-2013), and an Associate Director of the NIHR Mental Health Research Network (2007-2015) with a special responsibility for Patient and Public Involvement – that is, involving service users and carers as collaborators in the conduct of research, not simply as participants.
Special Committee on Human Rights
I have been a member of the College’s Special Committee on Human Rights for the past two years. I regard its work to be of fundamental importance to policies governing the practice of psychiatry and to its role in society. Its primary focus is national, though the College may also need from time to time to take a position on human rights abuses elsewhere when they impact on people with mental illness. I am delighted to have been appointed its Chair.
Human rights issues, especially the use of state-sanctioned coercive powers in mental healthcare have troubled me throughout my career, and indeed did so before I ever embarked on it.
As a medical student, I found psychiatry by far the most interesting specialty. Its broad scope – ranging from the molecular to the sociocultural – was for me extremely attractive. However, I was put off it by its potential use as an instrument of social control, especially in the construction of social problems, and best understood as such, as residing in disturbances in individuals’ mental health.
At the time I was reading Szasz, Laing and, especially, Foucault. The last’s ‘Madness and Civilization’ appeared in English in 1971. As a student I tried to work out some of the issues by writing a piece on the subject for the Melbourne University journal, with one of my tutors, Sidney Bloch. He, as many will know, was instrumental in bringing to our attention the appalling political abuses of psychiatry in the Soviet Union.
This had a huge impact on me. In the end, after a six month trial period as a Senior House Officer in psychiatry at Friern Hospital (known in the old days as ‘Colney Hatch’) I decided it was the specialty for me. I was fortunate in being exposed to some inspiring teachers who worried as much as I did about the role of psychiatry in society, and who practised the discipline with great sensitivity to human rights and ethical issues.
Throughout my career, I have combined clinical practice with research. My research has for the most part been dominated by a preoccupation with ‘coercion’ and how the ‘negative rights’ (rights against state intrusion) of people with a diagnosis of a mental disorder are best protected. My MD doctoral dissertation was based on a study of compulsory admissions from the London Borough of Camden.
For the past 25 years or so I have studied mental health and other law governing the use of coercive interventions; trends in the use of compulsion (local, national and international); some relevant philosophy (eg. ‘autonomy’, ‘paternalism’, ‘dignity’, ‘fairness’); the notions of ‘decision-making capacity’ and ‘best interests’; and the problems of ‘risk assessment’ and its relationship to preventive detention.
An important area of my research has been the evaluation of methods for reducing recourse to coercive interventions in psychiatry, such as patients making ‘advance statements’ detailing their treatment preferences (and thus expressing certain rights) when well, anticipating a time in the future when they might become unwell and unable to express those preferences.
Instead of my interest waning as the years go by, it has grown. Indeed, given the growing use of compulsion and the damaging negative stereotypes of people with mental illness, I believe that the issues now need even more attention. In this enterprise, as well as the professional experts - clinicians, lawyers, social scientists, policy makers, and so on – it is imperative that the voice of those subjected to, or deeply affected by such interventions - service users and carers - should be especially heeded.
The argument that there is an unfair discrimination against people with a mental disorder is in my view unarguable.[1,2] The intimately related question of when it is justified to make treatment decisions in medicine in general for those whom it is assumed lack that capability is crucially important. What constitutes that capability? How do we know it is impaired? How impaired does it need to be to warrant an interference in a person’s life? Recent developments in international law, especially the UN Convention on the Rights of Persons with Disabilities, pose major challenges to long-established, conventional ideas about involuntary treatment.[3,4]
Brexit and the future
Furthermore the rights of people with mental illness may also be challenged by current pressing social issues. These include changes, thus far unclear, in the rights of people with disabilities (particularly social, economic and cultural rights) that may follow the abandonment of the European Union Charter of Fundamental Rights following Brexit.
Even more serious, if it were to occur, would be leaving the European Convention on Human Rights whose ratification does not require EU membership, only Council of Europe membership. Then there are questions concerning the place of psychiatry, if any, in national counter-terrorist measures.
The Special Committee on Human Rights will do everything it can to support the College in its responses to challenges having significant human and civil rights implications.
- Dawson J, Szmukler G. Fusion of mental health and incapacity legislation. Br J Psychiatry. 2006;188:504-509.
- Szmukler G, Kelly B. In Debate: We should replace conventional mental helath law with capacity-based law. Br J Psychiatry. 2016;209:449-453.
- Szmukler G, Daw R, Callard F. Mental health law and the UN Convention on the Rights of Persons with Disabilities. International Journal of Law and Psychiatry. 2014;37:245-252.
- Kelly BD. An end to psychiatric detention? Implications of the United Nations Convention on the Rights of Persons with Disabilities. The British Journal of Psychiatry. 2014;204:174-175.
- Counter-terrorism and psychiatry (PS04/2016 Sep 2016)
- George Szmukler (Chair)
- Anne-Laure Donskoy
- Peter Hughes
- Sujeet Jaydeokar
- Carol Khan
- Nicola Naven
- Catherine Penny
- Abdi Sanati
- Su Sukumaran
- Alex Till
- Policy support provided by Zoé Mulliez
Human Rights law dates from at least revolutionary France in the 18th century – the Rights of Man. The principles enunciated there were:
- Universality – human rights are inherent in every human being
- Inalienability – and cannot be taken from him/her
- Rule of Law - Just laws must be applied with just procedures
Post WW2 and the United Nations
Human Rights principles were expressed at an important moment, following the defeat of the Nazi tyranny. The new United Nations in 1948 gave out the Universal Declaration of Human Rights (and fundamental freedoms for all, UDHR). These were in the form of general principles.
Under the UN, a regional organisation was set up, the Council of Europe (1948), which drafted the European Convention on Human Rights (ECHR), that came into use in 1953 and was a more detailed exposition. Its procedures go much further than the UDHR in application and enforcement. Resulting from the ECHR came the European Commission on Human Rights, and importantly a Court of Law which had the power to try cases from the whole of Europe, the European Court of Human Rights (ECtHR).
It is important to note that the Council of Europe, the ECHR and the ECtHR are entirely separate from the European Union, and its Court of Justice.
Britain enthusiastically supported the Council of Europe and the ECHR, indeed Winston Churchill was involved in the devising and drafting of the Convention. Pleas from the UK were heard early in the life of the ECtHR, but complainants had to go separately to the Court in Brussels.
In 1997, the Labour Government incorporated the ECHR into UK law, in the form of the Human Rights Act 1998 (HRA'98), so that the very principles of the ECHR were then required in every subsequent Act drafted and cases heard, initially in Scotland, then throughout the UK.
It is important to UK psychiatrists and instructive of the Act that the very first case1 heard under the new HRA'98 was a mental health issue, involving the Burden of Proof in Mental Health Review Tribunals. Previously, detained patients had to prove they were well enough to be Informal; this offended not only English Common Law (the presumption of innocence), but also Articles 5(1) and 5(4) of the ECHR. It led immediately to a change in UK law.
A subsequent case, that of 'HL'2 (the 'Bournwood case), before the ECtHR, criticised the whole basis of English Common Law as lacking any fixed procedural rules by which the admission and detention of compliant incapacitated patients was conducted, and this has, led among other things, to a change in the Mental Capacity Act 2005.
R(oAo 'H') v London and NE Region MHRT  EWCA Civ 415
H.L. v. the United Kingdom (application no. 45508/99).
- Human Rights Act 1998 (see Schedule 1 of the Act for the Articles
- Mental Capacity Act 2005
- Statute Law Database
- Bailii Case Law searches
- European Court of Human Rights
- The Council of Europe
- Joint Committee on Human Rights
- British Institute of Human Rights
- Your rights when detained under the Mental Health Act in England (Equality and Human Rights Commission)
- Ministry of Justice - a variety of resources
- Article 3 of the Human Rights Act 1998: implications for clinical practice, Martin Curtice, Adv Psychiatr Treat 2008 14: 389-397.
- Article 8 of the Human Rights Act 1998: a review of case law related to forensic psychiatry and prisoners in the UK
- Article 8 of the Human Rights Act 1998: Implications for Clinical Practice (APT article by Dr Martin Curtice)