Law and mental health最新文献

Difficulties with the Meaning of Equality, Non-Discrimination and Participation in the CRPD, and their Application to the Abolition with Support Model 《残疾人权利公约》中平等、非歧视和参与意义的难点及其在支持废除模式中的应用

Law and mental health Pub Date : 2021-06-08 DOI: 10.1093/oso/9780192843258.003.0007

Kay Wilson

{"title":"Difficulties with the Meaning of Equality, Non-Discrimination and Participation in the CRPD, and their Application to the Abolition with Support Model","authors":"Kay Wilson","doi":"10.1093/oso/9780192843258.003.0007","DOIUrl":"https://doi.org/10.1093/oso/9780192843258.003.0007","url":null,"abstract":"Chapter 7 considers the difficulties with the meaning of equality and non-discrimination in the CRPD and what this means for the call for the abolition of mental health law. These difficulties include determining the equality of what, equality with respect to whom and finding an appropriate comparator, determining whether involuntary detention and treatment is a benefit or detriment, and how to address the difference and sameness of persons with mental impairments. Specifically, whether the difference between persons with and without mental impairments is real and whether supported decision-making is sufficient to make persons with mental impairments equal to those without disabilities. It also introduces and discusses the third limb of the interpretive compass, the right to participation. It argues that the right to participation is a right for persons with disabilities and their organizations to be consulted with in good faith about policy and individual health decisions and for their views to be taken seriously. It does not mean that States Parties have to do everything persons with disabilities want, nor is it a power of veto. That said, States Parties should probably implement the wishes of persons with disabilities unless there is a good reason not to. Even so, the right to participation raises a number of difficulties in determining whether disabled persons organizations are sufficiently representative of their constituents and all persons with disabilities generally, including those with intersecting identities.","PeriodicalId":81815,"journal":{"name":"Law and mental health","volume":"36 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2021-06-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"80237249","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

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The ‘Interpretive Compass’ of the CRPD: The Theory of Dignity 《残疾人权利公约》的“解释指南针”:尊严理论

Law and mental health Pub Date : 2021-06-08 DOI: 10.1093/oso/9780192843258.003.0004

Kay Wilson

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The Interpretive Framework and the Reform (as opposed to the Abolition) of Mental Health Law 《精神卫生法》的解释框架和改革(而不是废除)

Law and mental health Pub Date : 2021-06-08 DOI: 10.1093/oso/9780192843258.003.0008

Kay Wilson

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The Case for the Abolition of Mental Health Law 废除精神卫生法的案例

Law and mental health Pub Date : 2021-06-08 DOI: 10.1093/oso/9780192843258.003.0003

Kay Wilson

{"title":"The Case for the Abolition of Mental Health Law","authors":"Kay Wilson","doi":"10.1093/oso/9780192843258.003.0003","DOIUrl":"https://doi.org/10.1093/oso/9780192843258.003.0003","url":null,"abstract":"Chapter 3 traces the history of opposition to mental health law including anti-psychiatry and the emergence of the disability rights movement explaining where the call for the abolition of mental health law has come from and why it has emerged in international human rights law now. It argues that the call for abolition is more than just a reaction to historically poor treatment, but is a qualitatively different basis for understanding mental impairment. It explains the Abolition with Support model and sets out the key arguments for the abolition of mental health law being that mental health law is a form of social control of non-conformists, that it is discriminatory and a denial of legal capacity, that free and informed consent is integral to the right to health, that it is an unjustified interference with liberty, that it is an unjustified interference with the integrity of the person, that it is a form of torture and cruel, inhuman, and degrading treatment and punishment, that it is inconsistent with the right to independent living, that it is ineffective and un-therapeutic, that there are better non-coercive alternatives, that it undermines the ‘dignity of risk’ of persons with mental impairment, and that mental health law is too ‘easy’ and creates a culture of coercion throughout the entire mental health system. While I ultimately argue against the abolition of mental health law in favour of substantial reform, I argue that it is important to listen to and properly understand abolitionists’ concerns in order to improve mental health law and include persons with mental impairment in the policy-making and health-care decision-making process.","PeriodicalId":81815,"journal":{"name":"Law and mental health","volume":"401 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2021-06-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"87952053","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

引用次数: 0

Application of Inherent Dignity to the Abolition with Support Model 内在尊严在支持模式废除死刑中的应用

Law and mental health Pub Date : 2021-06-08 DOI: 10.1093/oso/9780192843258.003.0005

Kay Wilson

{"title":"Application of Inherent Dignity to the Abolition with Support Model","authors":"Kay Wilson","doi":"10.1093/oso/9780192843258.003.0005","DOIUrl":"https://doi.org/10.1093/oso/9780192843258.003.0005","url":null,"abstract":"This chapter argues that inherent dignity is more than an abstract concept and must be understood within its social and political context. It applies the concept of inherent dignity in the disability context and to the Abolition with Support model. I argue that dignity is relevant to mental health in two ways. First, it relates to the loss of dignity that persons with mental impairment may experience by reason of their impairment itself and secondly by the way in which persons with mental impairment have historically been treated by the mental health system and society more generally. I consider the meaning of autonomy and the tensions between the concepts of dignity and autonomy. I argue that the meaning of dignity is wider than the legal recognition of autonomy. On a balanced and holistic reading of the CRPD which gives effect to all human rights, dignity may at times be given priority over autonomy, which could provide a human rights justification for limited detention and psychiatric treatment, rather than the abolition of mental health law. Nonetheless, the loss of dignity that is caused by the mental health system must also be addressed and provides a strong basis for significant systemic and legal reform.","PeriodicalId":81815,"journal":{"name":"Law and mental health","volume":"3 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2021-06-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"79133244","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

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The Interpretive Compass Part 2: Theories of Equality and Non-Discrimination 解释性指南针第2部分:平等和非歧视理论

Law and mental health Pub Date : 2021-06-08 DOI: 10.1093/oso/9780192843258.003.0006

Kay Wilson

{"title":"The Interpretive Compass Part 2: Theories of Equality and Non-Discrimination","authors":"Kay Wilson","doi":"10.1093/oso/9780192843258.003.0006","DOIUrl":"https://doi.org/10.1093/oso/9780192843258.003.0006","url":null,"abstract":"Chapter 6 explains the second limb of the interpretive compass—equality and non-discrimination. The concepts of equality and discrimination are highly complex and contested in law, politics, and philosophy. This Chapter argues that the text of the CRPD is based on a wide-ranging, eclectic, and under-developed conception of equality and discrimination which is prone to inherent tensions, especially in relation to the proposed abolition of mental health law. That is, it notes conflict between formal equality in abolishing mental health law to treat everyone the same and achieving substantive equality which is sufficiently sensitive to difference, as well as conflict between direct and indirect discrimination. I describe all of the different types of equality and non-discrimination which underpin the model of equality and non-discrimination in the CRPD. I argue in accordance with my overarching contention that a meaning of equality and non-discrimination which is consistent with the overall purpose of the CRPD to ensure the enjoyment of all of the rights of persons with mental impairments is to be preferred. That is, in accordance with international human law, all rights are seen as ‘universal, indivisible, interdependent and interrelated’. I propose a holistic vision of equality in which persons with disabilities are able to live a meaningful life with housing, education, employment, family, and leisure taking into account their impairments and where realization of one right should not be at the cost of sacrificing others.","PeriodicalId":81815,"journal":{"name":"Law and mental health","volume":"28 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2021-06-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"83525237","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

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The History, Justification, and Purpose of Mental Health Law 精神卫生法的历史、理由和目的

Law and mental health Pub Date : 2021-06-08 DOI: 10.1093/oso/9780192843258.003.0002

Kay Wilson

{"title":"The History, Justification, and Purpose of Mental Health Law","authors":"Kay Wilson","doi":"10.1093/oso/9780192843258.003.0002","DOIUrl":"https://doi.org/10.1093/oso/9780192843258.003.0002","url":null,"abstract":"Chapter 2 examines the historical development of mental health law in England (which is similar to the rest of the common law world, including America, Canada, and Australia) and uses that history to consider the justification, purpose, and need for mental health law from Ancient Greece to the present. Contrary to the claims of abolitionists that mental health law has essentially always stayed the same, it demonstrates a history of continuous legal and systemic reform in mental health law. Rather than an over-zealous and interfering state keen to exercise social control over persons with mental impairment, it instead depicts a state which for the most part reluctantly only became involved in the care of persons with mental health problems when informal care by family and friends failed or was non-existent, to prevent abuses by private operators, and as an incident of its administration of the criminal law. When set against the background of the fashions, cycles, and recurring themes of mental health law, the call of abolition can be conceptualized as simply the latest fad in its evolution. Further, many of the issues which arise from mental health problems will continue to exist even without mental health law. Mental health law can be positive and negative, including defining and protecting rights and allocating resources. The chapter cautions against being too optimistic about the promises of sweeping revolutionary changes which have never really delivered (deinstitutionalization or the ‘abolition’ of the asylum being the most poignant example), in favour of solid incremental change.","PeriodicalId":81815,"journal":{"name":"Law and mental health","volume":"19 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2021-06-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"81635771","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

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Conclusion 结论

Law and mental health Pub Date : 2021-06-08 DOI: 10.1093/oso/9780192843258.003.0009

Kay Wilson

引用次数: 0