The UN Convention on the Rights of Persons with Disabilities and UK mental health legislation

The editorial by Kelly ¹ was thought-provoking for two reasons: the implication that the United Nations Convention on the Rights of Persons with Disabilities might prevent the detention and treatment of patients who are ill, and that there was a ‘UK’ Mental Health Act 1983 modified in 2007.

Fortunately, I had not missed a major legislative change. It remains the case that in Scotland the Mental Health (Care and Treatment) (Scotland) Act 2003 is the legislation under which care is given to those with mental disorder. The Mental Health (Northern Ireland) Order 1986 also remains. Thus there is no ‘UK’ mental health legislation. This may appear parochial but it is critically important when considering care and treatment in these legislative areas of the UK. As Kelly does not address the criteria for detention in Scotland or Northern Ireland, his attempt to raise the relevance of the UN Convention to UK mental health legislation is undermined: these criteria are considered here.

In Scotland there are broadly five criteria for civil detention: mental disorder; significant impairment of decision-making ability about medical treatment for mental disorder; a significant risk to the health, safety or welfare of the patient or the safety of any other person; it is necessary to detain the patient in hospital and medical treatment is available. There is thus a specific ‘mental disorder’ criterion which is defined in Section 328 of the Act as any: mental illness, personality disorder or learning (intellectual) disability ‘however caused or manifested’. As mental disorder is a criterion, the UN Convention may require the Scottish Government to remove it in order to be compliant in the same manner as the UK Government would be required to do so for the legislation critiqued by Kelly.

Similarly in Northern Ireland the criteria for detention, although varying with different ‘forms’, include mental disorder of a nature or degree which warrants detention of the patient in hospital and when failure to detain would create a substantial likelihood of serious physical harm to the patient or to other persons. Thus in Northern Ireland the criteria for detention also include a mental disorder criterion which may be considered a disability under the UN Convention.

In view of the argument that neither of these acts comply with the definition of disability in Article 1 of the UN Convention, could this be used as grounds to challenge detention? At present, the Convention is not legally binding on UK domestic legislation but places obligations on the government to ensure its laws are compliant. ² Complaints can be made to the UN commissioner where people with a disability feel that the Convention is not being appropriately implemented. It was not possible to determine whether any complaints had been received as a result of this definition.

In conclusion, the UK, in the sense of all three legislative areas, may receive a similar criticism to Spain from the UN Committee on the Rights of Persons with Disabilities when it reports, ³ but it remains to be seen whether this will lead to widespread change in mental health legislation.