Swinging the pendulum from ‘a necessary evil’ to ‘the dignity of risk’: Can new UN legislative guidance help to end psychiatric coercion?

Abstract

The Convention on the Rights of Persons with Disabilities (CRPD) came into force almost two decades ago. Prohibitive of disability discrimination, Article 1 includes “long-term…mental…[and] intellectual impairments”. Thus, psychiatric coercion and the detention and forced medical treatment of persons with permanent cognitive impairment are unlawful acts. Due to non-compliance with the CRPD, the World Health Organization (WHO) withdrew its legislative mental health guidance several years ago. It has since conducted lengthy consultations with stakeholders, including many with lived experience of psychosocial disability.¹ This has led to new guidance compiled jointly with the UN Office of the High Commissioner for Human Rights (OHCHR), Mental Health, Human Rights and Legislation: Guidance and Practice (2023). The publication is described as a useful resource for states and decision-makers, and a “call to action” to realise the CRPD's vision of a shift from coercive care to equality and non-discrimination. It offers suggestions for legislative provisions that promote human rights and dignity in mental health systems to comply with international human rights norms and standards. Furthermore, it exhorts states to ensure that legislation recognises the “dignity of risk” for service users, which runs contrary to the current dominant biomedical model. This article considers the Guidance's take on key CRPD provisions and reflects on its logic and the legislative solutions it offers to various legal and ethical questions surrounding “hard cases”. The article also discusses some of the likely implications arising from compliance with the Guidance and the CRPD on which it is based, with particular reference to the law of England and Wales.