Mental Health Law: Abolish or Reform?

As mental health law involves state-sanctioned coercion, and mental health care has a history of neglect and abuse, it has always been controversial. But, it is only since the entry into force of the Convention on the Rights of Persons with Disabilities (CRPD) in 2008 that the call for the abolition of mental health law, particularly involuntary detention in hospital and psychiatric treatment, has started to gain real momentum. Since then certain scholars, international human rights bodies and disability and human rights advocates (whom I call abolitionists) have been increasingly critical of mental health law on the grounds that it is discriminatory and an unjustified deprivation of liberty and bodily integrity. Instead, abolitionists argue that persons with mental impairment should be offered support to make their own decisions and where that is not possible, after substantial efforts have been made, decisions should be made by a supporter or facilitator based on the best interpretation of the persons will and preferences, rather than in a person’s objective medical best interests. However, the text of the CRPD does not explicitly ban mental health law or substitute decision-making because States Parties would not agree to this during the CRPD negotiations, and many States Parties, such as Australia and Canada have given interpretive declarations to that effect. Abolitionists nonetheless insist that the CRPD ought to be interpreted in a way that requires the abolition of mental health law and continue to criticise States Parties for retaining mental health law, even though many States Parties have reviewed and reformed, or are in the process of reviewing or reforming their mental health law. Against this contentious background, my thesis explores the question of whether mental health law should be abolished or reformed. I do so by using the CRPD and international human rights law as my conceptual framework, including the interactive social model of disability. Rat