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      “Capacity”, “best interests”, “will and preferences” and the UN Convention on the Rights of Persons with Disabilities : “Capacity”, “best interests”, “will and preferences” and the UN convention on the rights of persons with disabilities

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      World Psychiatry
      Wiley

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          Abstract

          The United Nations (UN) Convention on the Rights of Persons with Disabilities (CRPD) is the most up-to-date international legal instrument concerning the rights of persons with disabilities. Such persons are taken to include those with serious mental disorders. According to an authoritative interpretation of a crucial Article (Article 12 - Equal recognition before the law) by the UN CRPD Committee, involuntary detention and treatment of people with mental health disabilities are prohibited under the Convention. Both conventional mental health law and "capacity-based" law are deemed to violate the Convention. However, some other UN bodies are not in full agreement (for example, the UN Human Rights Committee and the Subcommittee on Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment), while others are less explicitly absolutist (for example, the Human Rights Council). Furthermore, strong criticisms of the position of the CRPD Committee have been mounted from a number of academic quarters. These criticisms center on whether the role of a person's ability to make a decision can be ignored, no matter the circumstances. Much of the above debate turns on the concept of "legal capacity" and the now often-repeated precept that one must always respect the "will and preferences" of the person with a disability. However, "will and preferences" remains undefined. In this paper, I offer an analysis of "will and preferences" that can clarify interventions that may be acceptable or non-acceptable under the terms of the UN Convention.

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          Most cited references19

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          Reversing hard won victories in the name of human rights: a critique of the General Comment on Article 12 of the UN Convention on the Rights of Persons with Disabilities.

          The UN Convention on the Rights of Persons with Disabilities (CRPD) is a major milestone in safeguarding the rights of persons with disabilities. However, the General Comment on Article 12 of the CRPD threatens to undermine critical rights for persons with mental disabilities, including the enjoyment of the highest attainable standard of health, access to justice, the right to liberty, and the right to life. Stigma and discrimination might also increase. Much hinges on the Committee on the Rights of Persons with Disabilities' view that all persons have legal capacity at all times irrespective of mental status, and hence involuntary admission and treatment, substitute decision-making, and diversion from the criminal justice system are deemed indefensible. The General Comment requires urgent consideration with the full participation of practitioners and a broad range of user and family groups.
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            Mental capacity in psychiatric patients: Systematic review.

            Mental capacity is central to legal and ethical debates on the use of compulsion in psychiatry. To describe the clinical epidemiology of mental incapacity in patients with psychiatric disorders, including interrater reliability of assessments, frequency in the psychiatric population and associations of mental incapacity. Cross-sectional studies of capacity to consent to treatment for psychiatric patients were systematically reviewed from Medline, EMBASE and PsycInfo databases. Information on the reliability of assessments, frequency and associations of mental incapacity was extracted. Out of 37 papers reviewed, 29 different capacity assessment tools were identified. Studies were highly heterogeneous in their measurement and definitions of capacity. Interrater reliabilities between tools were high. Studies indicate incapacity is common (median 29%) but the majority of psychiatric in-patients are capable of making treatment decisions. Psychosis, severity of symptoms, involuntary admission and treatment refusal were the strongest risk factors for incapacity. Mental capacity can be reliably assessed. The majority of psychiatric in-patients have capacity, and socio-demographic variables do not have a major impact but clinical ones do.
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              Mental health law and the UN Convention on the rights of persons with disabilities

              People with a mental illness may be subject to the UN Convention on the Rights of Persons with Disabilities (CRPD), depending on definitions of terms such as ‘impairment’, ‘long-term’ and the capaciousness of the word ‘includes’ in the Convention's characterisation of persons with disabilities. Particularly challenging under the CRPD is the scope, if any, for involuntary treatment. Conventional mental health legislation, such as the Mental Health Act (England and Wales) appears to violate, for example, Article 4 (‘no discrimination of any kind on the basis of disability’), Article 12 (persons shall ‘enjoy legal capacity on an equal basis with others in all aspects of life’) and Article 14 (‘the existence of a disability shall in no case justify a deprivation of liberty’). We argue that a form of mental health law, such as the Fusion Law proposal, is consistent with the principles of the CRPD. Such law is aimed at eliminating discrimination against persons with a mental illness. It covers all persons regardless of whether they have a ‘mental’ or a ‘physical’ illness, and only allows involuntary treatment when a person's decision-making capability (DMC) for a specific treatment decision is impaired — whatever the health setting or cause of the impairment — and where supported decision making has failed. In addition to impaired DMC, involuntary treatment would require an assessment that such treatment gives the person's values and perspective paramount importance.
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                Author and article information

                Journal
                World Psychiatry
                World Psychiatry
                Wiley
                17238617
                February 2019
                February 2019
                January 02 2019
                : 18
                : 1
                : 34-41
                Affiliations
                [1 ]Institute of Psychiatry, Psychology and Neuroscience; King's College London; London UK
                Article
                10.1002/wps.20584
                6313688
                30600630
                8b37ff48-1ba0-4376-b43c-6fceb6c6be61
                © 2019

                http://doi.wiley.com/10.1002/tdm_license_1.1

                http://onlinelibrary.wiley.com/termsAndConditions#vor

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