See also A/58/181/Add.1
Progress of efforts to ensure the full
enjoyment of the human rights of persons with disabilities -
Report of the Secretary-General
In its resolution 2002/61, the Commission on Human Rights requested
the Secretary-General to report annually to the General Assembly on
the progress of efforts to ensure the full recognition and enjoyment
of the human rights of persons with disabilities. The Commission’s
resolution was endorsed by the Economic and Social Council in its decision
2002/265 of 25 April 2002. The present report focuses on the issue of
procedural safeguards for persons with mental disabilities. It analyses
briefly the key international human rights instruments relating to persons
with mental disabilities, with a view to identifying the main substantive
standards and procedural guarantees applicable with regard to persons
with intellectual and psychiatric disabilities. In particular, the report
considers such issues as legal capacity, involuntary institutionalization
and involuntary or forced treatment, and reviews the way in which these
international standards are transposed into domestic legislation.
A. Mandate contained in Commission on Human Rights
B. Structure of the report
II. Human rights and disability: overview of the
main international human rights instruments applicable for persons
with mental disabilities
III. Legal capacity
IV. Involuntary and forced institutionalization
V. Involuntary and forced treatment
VI. Conclusions and recommendations
A. Mandate contained in Commission on Human Rights resolution 2002/61
1. The present report is submitted in accordance with Commission on
Human Rights resolution 2002/61 of 25 April 2002,1
in which the Commission requested the Secretary-General to report
annually to the General Assembly on the progress of efforts to ensure
the full recognition and enjoyment of the human rights of persons
2. Several reports are submitted every year to different organs
(General Assembly, Economic and Social Council) and subsidiary bodies
(Commission on Human Rights, Commission for Social Development) of
the United Nations on the issue of disability. In order to avoid duplication,
the present report focuses on the protection afforded by international
human rights law to persons with mental disabilities.2
The need to fill this information gap has been highlighted by the
Special Rapporteur on Disability of the Commission for Social Development
3. In its resolution 56/168 of 19 December 2001, the General Assembly
established an Ad Hoc Committee to consider proposals for a comprehensive
and integral international convention to promote and protect the rights
and dignity of persons with disabilities. Following the first session
of the Ad Hoc Committee, the General Assembly, in its resolution 57/229
of 18 December 2002, requested the Secretary-General to seek the views
of relevant bodies and organizations of the United Nations system
on proposals for a convention including, inter alia, questions relating
to its nature and structure and the elements to be considered. By
focusing on a particular issue not fully considered in the past, the
present report also aims at contributing to the discussions concerning
the proposed new convention on the human rights of persons with disabilities.
B. Structure of the report
4. The present report focuses on the issue of procedural safeguards
for persons with mental disabilities and aims at clarifying the protection
afforded to them under international human rights law. In particular,
the report analyses such issues as (a) legal capacity and arrangements
for guardianship; (b) involuntary institutionalization; and (c) involuntary
or forced treatment. In the report, the term “mental disability”
(or “mental illness”) is used in its broadest possible
sense, so as to include persons with intellectual and psychiatric
disabilities. The term “mental disability” is also used
to refer to individuals with no disability, who are nevertheless subject
to discrimination on the perception that they have a mental illness,
and individuals with a background of past treatment or hospitalization
as patients with a mental disability.
5. The report does not aim to be an exhaustive analysis of human rights
law as it relates to persons with mental disabilities. Therefore,
such issues as protection from inhuman and degrading treatment (including
protection from harm, unjustified medication and abuse of physical
restraint and involuntary seclusion, the right to be treated in the
least restrictive environment, the use of psychosurgery and other
intrusive and irreversible treatment for mental illness without obtaining
informed consent), sexual exploitation, sterilization, access to mental
health care and rehabilitation, and non-discrimination — although
of extreme importance for ensuring the equal effective enjoyment of
all human rights by persons with mental disabilities and closely linked
with the need for procedural safeguards — are not considered
on this occasion.
6. In order to solicit information on national legislation and practice
relating to persons with mental disabilities, the Secretary-General
distributed a questionnaire to States, relevant bodies and organizations
of the United Nations system and national human rights institutions.
Replies were received from the following States: Argentina, Armenia,
Belize, Costa Rica, Croatia, Guatemala, Lebanon, Mexico, Morocco,
Netherlands, Norway, Panama, Serbia and Montenegro, Spain, Sweden
and United Kingdom of Great Britain and Northern Ireland. The United
Nations Economic and Social Commission for Asia and the Pacific, the
Economic and Social Commission for Western Asia and the World Health
Organization submitted a contribution. The following national human
rights institutions and commissions also provided information: the
Human Rights Commission of Fiji; the National Commission for Human
Rights of the Hellenic Republic; the Hong Kong Equal Opportunities
Commission; the Islamic Human Rights Commission of the Islamic Republic
of Iran; the National Human Rights Commission of Mauritius; the National
Human Rights Commission of Mexico; the National Human Rights Commission
of Mongolia; the National Human Rights Commission of Rwanda; the Disability
Ombudsman of Sweden; and the Defensoría del Pueblo of Venezuela.
7. Section II of the report reviews briefly the key international
human rights instruments, with a view to identifying the main substantive
standards and procedural guarantees relating to persons with intellectual
and psychiatric disabilities. Section III considers the issue of legal
capacity and analyses the procedural safeguards existing under international
law to protect individuals against possible improper uses of guardianship.
Section IV deals with the issue of involuntary or forced institutionalization
and highlights the principles of international human rights law which
should govern admission to mental health facilities. Section V considers
the substantive and procedural standards applicable in the context
of treatment, with a particular emphasis on the human rights requirements
for informed consent. Finally, section VI contains some concluding
remarks and recommendations.
II. Human rights and disability: overview of the main international
human rights instruments applicable for persons with mental disabilities
8. Despite the lack of United Nations human rights treaties specifically
addressing the special concerns of individuals with mental disabilities,
it is clear that this group of individuals is entitled to the same
protection that human rights law affords in general to all persons.
The Universal Declaration of Human Rights, in articles 1 and 2, states
that all human beings are born free and equal in dignity and rights
and are entitled to all the rights and freedoms set forth in the Declaration,
without distinction of any kind, such as race, colour, sex, language,
religion, political or other opinion, national or social origin, property,
birth or other status. Although disability is not explicitly mentioned
among the prohibited grounds for discrimination, it is included in
the concept of “other status” and is therefore one of
the prohibited grounds of distinction.
9. Like the Universal Declaration of Human Rights, the International
Covenant on Civil and Political Rights (article 2 (1)) and the International
Covenant on Economic, Social and Cultural Rights (article 2 (2)) include
specific provisions relating to non-discrimination, and provide persons
with mental disabilities with the right to liberty and security of
person, to fair trial and to recognition everywhere as a person before
the law, and the right to the highest attainable standard of physical
and mental health, to education and to work, respectively. The Committee
on Economic, Social and Cultural Rights adopted General Comment No.
5 (1994) on persons with disabilities, which spells out the relevance
of economic, social and cultural rights in the context of disability.
In addition to the two Covenants, which, along with the Universal
Declaration, form the International Bill of Rights, other core United
Nations human rights treaties are of relevance in promoting and protecting
the rights of persons with mental disabilities.3
10. While most United Nations human rights treaties do not refer
explicitly to persons with disabilities, other human rights instruments,
such as declarations and resolutions adopted by international bodies,
have set out agreed standards protecting this group of individuals.4
In particular, the General Assembly adopted two instruments specifically
aimed at protecting and promoting the human rights of persons with
mental disabilities, namely the Declaration on the Rights of Mentally
Retarded Persons (resolution 2856 (XXVI) of 20 December 1971) and
the Principles for the Protection of Persons with Mental Illness and
for the Improvement of Mental Health Care (resolution 46/119, annex,
of 17 December 1991).
11. As its inappropriate terminology shows, the Declaration is in
many ways outdated. It reflects an approach to disability commonly
referred to as the “medical model”, in which persons with
disabilities are primarily seen as individuals with medical problems,
dependent on social security and welfare and in need of separate services
and institutions. Nevertheless, the Declaration shows the first signs
of a shift from a “caring” to a “rights-based”
approach and contains some important principles for the protection
and promotion of the human rights of persons with intellectual disabilities.
Significantly, the Declaration begins by stating that such persons
enjoy the same human rights as other human beings (para. 1). It then
includes a list of rights which are of particular relevance, including
the right to proper medical care and education.
12. The Principles set forth minimum human rights standards for persons
with mental disabilities, and provide valuable guidance for the implementation
of State obligations in the context of mental health facilities. They
apply to all persons with an actual or perceived mental illness, whether
or not they are admitted to a mental health facility. The Principles
state that all persons with a mental disability — or who are
being treated as such — shall be protected from discrimination
on the grounds of mental illness and are entitled to enjoy the full
range of civil, cultural, economic, political and social rights set
forth in international human rights instruments. The Principles establish
substantive standards and procedural guarantees for involuntary or
forced commitment and treatment in psychiatric institutions. They
also provide protection against the most serious human rights abuses
which may occur in such institutions, such as misuse or inappropriate
use of physical restraint or involuntary seclusion, administration
of improper medication as a punishment, sterilization, the use of
psychosurgery and other intrusive and irreversible treatment for mental
illness without obtaining informed consent.
13. The Principles have served as a model for drafting mental health
legislation in several countries, and represent an important instrument
for clarifying the content of general human rights law with regard
to the particular circumstances and needs of persons with mental illnesses.
However, it follows from their very legal nature that they cannot
impose the same level of legal obligation upon States as binding and
voluntarily accepted treaty obligations. Furthermore, they offer in
some cases a lesser degree of protection than that offered by existing
human rights treaties, for example with regard to the requirement
for prior informed consent to treatment. In this regard, some organizations
of persons with disabilities, including the World Network of Users
and Survivors of Psychiatry, have called into question the protection
afforded by the Principles (and in particular, principles 11 and 16)
and their consistency with existing human rights standards in the
context of involuntary treatment and detention.5
The Principles also lack specific provisions requiring the competent
judicial authority to adapt guardianship arrangements to the actual
capacities of the individual. The sections below provide information
on the actual implementation of the relevant international standards
at the national level, with a view to identifying those aspects which
may be strengthened in the new proposed convention on the human rights
of persons with disabilities.
III. Legal capacity
14. Under international human rights law, individuals have the right
to be recognized as persons before the law.6
This right finds its corollary in the principle of autonomy or self-determination,
according to which each individual is presumed to be able to make
life choices and act independently on the basis of his or her conscience.
Individuals with a mental illness may in some circumstances be unable,
because of the severity of their condition, to protect their own interests.
In those cases, the person may be “incapacitated” and
placed under legal guardianship. The function of guardianship is to
protect the individual from any danger which his or her mental conditions
may cause.7 International human rights law requires
the adoption of substantial and procedural guarantees to prevent improper
recourse to, and use of, guardianship arrangements.
15. The right to recognition as a person before the law is often neglected
in the context of mental health. The concept of guardianship is frequently
used improperly to deprive individuals with an intellectual or psychiatric
disability of their legal capacity without any form of procedural
safeguards. Thus, persons are deprived of their right to make some
of the most important and basic decisions about their life on account
of an actual or perceived disability without a fair hearing and/or
periodical review by competent judicial authorities. The lack of due
process guarantees may expose the individual whose capacity is at
stake to several possible forms of abuse. An individual with a limited
disability may be considered completely unable to make life choices
independently and placed under “plenary guardianship”.
Furthermore, guardianship may be improperly used to circumvent laws
governing admission in mental health institutions, and the lack of
a procedure for appealing or automatically reviewing decisions concerning
legal incapacity could then determine the commitment of a person to
an institution for life on the basis of an actual or perceived disability.
16. The Principles on mental illness establish substantive standards
and procedural guarantees against the improper use of guardianship.
Principle 4 states that a determination of mental illness must be
made in accordance with internationally accepted medical standards.8
Principle 1 (6) provides that any decision that, by reason of his
or her mental illness, a person lacks legal capacity, and any decision
that, in consequence of such incapacity, a personal representative
shall be appointed, shall be made only after a fair hearing by an
independent and impartial tribunal established by domestic law.9
The person whose capacity is at issue is entitled to be represented
by a counsel. In order to avoid possible conflicts of interest, principle
1 (6) also provides that the counsel shall not in the same proceedings
represent a mental health facility or its personnel and shall not
also represent a member of the family of the person whose capacity
is at issue. The decision concerning capacity and the need for a personal
representative must be reviewed at reasonable intervals prescribed
by domestic law and the person whose capacity is at issue, his or
her personal representative, if any, and any other interested person
have the right to appeal this decision to a higher court.
17. According to principle 1 (7), a person can be deprived of his
or her legal capacity only where a court or other competent tribunal
finds that a person is unable, due to his or her mental conditions,
to manage his or her own affairs. In that case, measures shall be
taken, so far as is necessary and appropriate to that person’s
condition, to ensure the protection of his or her interests. The Principles
do not provide any element to evaluate whether the measures concerning
the denial or restriction of legal capacity adopted by the tribunal
are “necessary” and “appropriate”. However,
the right to be recognized as a person before the law and the principle
of proportionality seem to suggest that any restriction on a person’s
right must be based on a specific finding that the individual lacks
the capacity to make decisions by himself or herself with regard to
that specific activity. Consequently, the court’s decision should
ascertain that the limitation of the individual’s capacity is
strictly necessary to protect the rights of the person whose capacity
is at issue and specify exactly what powers the guardian has and what
legal capacity the person retains. Outside those cases, the placement
of persons with mental illness under plenary guardianship could constitute
a violation of the right to be recognized as a person before the law
and, insofar as it denies people with mental disabilities the ability
to exercise the same rights as all other persons, also constitutes
illegal discrimination under article 26 of the International Covenant
on Civil and Political Rights (equality before the law).
18. From the submissions received, it appears that, in general,
a person can be deprived of his or her legal capacity when she or
he is totally or partially unable to take care of his or her affairs
on his or her own, owing to a psychiatric or mental disorder. In some
countries, persons with a sensorial impairment who have not received
a proper education are deemed incapable of taking decisions concerning
themselves.10 The application is usually submitted
by a spouse, next of kin or the public prosecutor.
19. In most of the responding countries, the decision on legal capacity
is taken by the competent civil court, usually on the basis of the
views of a mental health practitioner.11 An exception
is represented by the Netherlands, where the decision on capacity
is taken by a care provider in consultation with the members of his
or her team, and usually after having heard the opinion of an independent
physician. In Hong Kong SAR, the appointment of a guardian is decided
by the Guardianship Board, which is composed of experts in different
disciplines. While the case is being heard, the judge can, in some
cases, adopt interim measures, including the appointment of a provisional
guardian, to protect on a temporary basis the interests of the person
concerned.12 The person whose capacity is at
stake is represented by his or her legal representative or provisional
guardian; in some cases, she or he can participate and be heard at
the capacity hearing.13 In Venezuela, such participation
is required for the validity of the proceedings.
20. Courts can usually choose among different guardianship arrangements.
In most countries, the legislation provides two kinds of guardianship
arrangements: “full guardianship”, an arrangement for
those situations in which the person concerned is deemed completely
unable to act independently, and partial guardianship”, a less
restrictive arrangement, in which the judge must specify the acts
that the person concerned may carry out independently and those for
which the assistance of a guardian is required. In some Spanish-speaking
countries,14 for example, the legislation distinguishes
between tutela (full guardianship) and curatela (partial guardianship).
In a few countries, the courts may choose among a wider list of options.
Under article 1679 of the Greek Civil Code, for example, the judge
may adapt the two existing forms of guardianship (“privative
judicial support”, which corresponds to full guardianship, “auxiliary
judicial support”) to the particular circumstances of the case
(so-called “combined judicial support”), and indicate
the legal acts that the persons may carry out on his or her own and
those for which she or he requires the guardian’s approval.
In the Netherlands, the court may choose among the appointment of
a guardian (the most far-reaching protective measure), an administrator
or a tutor.
21. In most countries, the consequences of the determination of
legal incapacity depend on the form of representation chosen by the
court. In general terms, persons subject to full guardianship cannot
perform any legal act by themselves and must be assisted at all times
by their guardians (although they may retain the capacity to carry
out independently some legal acts belonging to the sphere of family
law, such as the testamentary capacity15 or the
capacity to get married),16 whereas persons subject
to partial guardianship retain their legal capacity for those acts
which have not expressly been attributed to the guardian. In Sweden,
a person for whom a guardian is appointed loses the right to decide
only on the matter(s) covered by the guardianship decision, but in
all other respects retains his or her legal competence; a person for
whom a conservator is appointed retains instead full legal competence.
In the United Kingdom, there are different approaches to testing capacity
and different definitions of capacity, most of which are set out in
case law rather than in statute. A new single definition of capacity,
called “functional test”, is currently under discussion.
It would allow for cases in which the individual is able to make some
decisions, but is unable to understand the implications of others,
thus ensuring that they are not excluded from making decisions that
they are capable of making.
22. The submissions received indicate that, in the countries concerned,
the decisions concerning capacity may usually be appealed to a higher
court. In some countries, an appeal may also be lodged with other
authorities. In the Netherlands, for instance, the decision on capacity
may ultimately be reviewed by a complaints committee, the Medical
Disciplinary Board or the ordinary courts. In Sweden, an appeal can
be lodged with the chief guardian, whose function is to supervise
the administration work carried out by guardians and conservators,
or with the district court; in the former case, an appeal against
decisions of the chief guardian may be made to the district court.
Where a national human rights commission or institution exists, complaints
may also be lodged with it.17 In most of the
replies received, there is no reference to any requirement for a periodic
review of decisions concerning legal capacity and guardianship arrangements.
In Mauritius, there is a constant supervision by the Ministère
Public and a person may cease to be legally incapacitated if she or
he has been treated and has recovered his/her sanity.18
IV. Involuntary and forced institutionalization
23. Article 9 (1) of the International Covenant on Civil and Political
Rights provides that everyone has the right to liberty and security
of person. No one shall be subjected to arbitrary arrest or detention.
No one shall be deprived of his liberty except on such grounds and
in accordance with such procedure as are established by law.19
This provision is of extreme importance in the context of civil commitment
of persons with intellectual or psychiatric disabilities, as it requires
that the institutionalization of persons with disabilities in mental
health facilities be carried out in accordance with the substantive
standards and the procedural guarantees established by national law.
In its General Comment No. 8 (1982) on liberty and security of person,
the Human Rights Committee pointed out (para. 1) that the protection
afforded by article 9 (1) was applicable to all deprivations of liberty,
whether in criminal cases or in other cases such as, for example,
mental illness. In particular, the Committee recognized that the right
to control by a court of the legality of the detention applied to
all persons deprived of their liberty, and that States parties had
to ensure that an effective remedy was provided in other cases in
which an individual claims to be deprived of his liberty in violation
of the Covenant.
24. The general protection afforded under article 9 of the Covenant
is supplemented by the Principles on mental illness, which set forth
substantive criteria and due process protections against improper
detention in mental health facilities.
25. With regard to the substantive criteria, the Principles limit
involuntary admission to a mental health facility to people who have
been diagnosed with a mental illness by a qualified mental health
practitioner in accordance with internationally accepted medical standards.20
A determination of mental illness is a necessary but not sufficient
ground for involuntary commitment. Principle 9 provides, in fact,
that “every patient shall have the right to be treated in the
least restrictive environment” and principle 15 (1) stipulates
that where a person needs treatment in a mental health facility, every
effort shall be made to avoid involuntary admission. Therefore, a
person with a mental illness may be admitted to a psychiatric institution
only if one of the two additional criteria referred to in principle
16 (1) are met. According to the first criterion, the person must
present a “serious likelihood of immediate or imminent harm”
to him or herself or to other persons (principle 16 (1) (a)). Alternatively,
a person whose mental illness is severe and whose judgement is impaired
may be committed to a psychiatric facility if failure to admit or
retain that person is likely to lead to a serious deterioration in
his or her condition or will prevent the giving of appropriate treatment
that can only be given by admission to a mental health facility in
accordance with the principle of the least restrictive alternative
(principle 16 (1) (b)).
26. It has been noted that “this second criterion for commitment
is much broader than the first, and it creates a risk of opening up
psychiatric commitment to anyone who is determined to ‘need
treatment’.”21 However, the reference
to the principle of the least restrictive alternative greatly limits
the discretionality of the mental health practitioner, and permits
institutionalization only as an extrema ratio, that is, only when
the person cannot be adequately treated and cared for in the community
in which he or she lives (principle 7 (1)). Principle 16 (1) also
provides that in the case referred to in subparagraph (b), a second
such mental health practitioner, independent of the first, should
be consulted, and that if such consultation takes place, the involuntary
admission or retention may not take place unless the second mental
health practitioner concurs.
27. With regard to procedural guarantees, principle 16 (2) establishes
that involuntary admission or retention shall initially be for a short
period as specified by domestic law for observation and preliminary
treatment pending review of the admission or retention by the review
body. The grounds and the fact of the admission must be communicated
to the person “without delay”, and also communicated “promptly
and in detail” to the review body, to the person’s personal
representative, if any, and, unless the person objects, to his or
her family. The review body is a judicial or other independent and
impartial body established by domestic law and functioning in accordance
with procedures laid down by domestic law. Its function is to review
whether the decision to admit or retain a person as an involuntary
patient has been taken in accordance with the substantive criteria
set forth in principle 16 (1) (principle 17 (1)). In formulating its
decision, the review body is assisted by one or more qualified and
independent mental health practitioners, who must be independent from
the institution seeking the involuntary commitment.
28. The person, his or her personal representative and any interested
person have the right to appeal to a higher court against a decision
that the person be admitted to, or be retained in, a mental health
facility (principle 17 (7)). An involuntary patient may also apply
to the review body for release or voluntary status, at reasonable
intervals as specified by domestic law (principle 17 (4)). At each
review, the review body considers whether the criteria for involuntary
admission set out in principle 16 (1) are still satisfied and, if
not, the person has to be released. The review body also have the
task to review decisions concerning involuntary commitment ex officio,
at reasonable intervals as specified by domestic law (principle 17
(3)). Principle 18 contains detailed provisions to ensure that the
right of the person subject to civil commitment to a fair process22
is effective. The person has the right to choose and appoint a counsel
to represent him or her in any complaint procedure or appeal. She
or he and his or her counsel are entitled to attend, participate and
be heard personally in any hearing, and to request and produce independent
mental health reports as well as oral, written and other evidence
that are relevant and admissible. They also have a right to access
to the patient’s records.
29. Some of the submissions received provided information on the
procedure to be followed in case of involuntary admission of a person
with a mental illness in a mental health facility. In general terms,
decisions concerning institutionalization can only be adopted by the
judicial authority, on the basis of a previous diagnosis of mental
illness. In some countries, where commitment to a mental health facility
is carried out without the previous intervention of the judicial authority
(i.e. in emergency situations, where there is a concrete and imminent
threat for the health of the person or the safety of others), mental
health authorities must promptly request a review of this decision
by the competent judge.23 In other countries,
however, decisions on compulsory care are taken by medical officers,
and only at a later stage subject to the scrutiny of the judicial
authority.24 In Sweden, for example, the decision
on compulsory care is taken by the chief medical officer at the department
of psychiatric care without the intervention of the court, which is
needed only if treatment must be provided for more than four weeks
from the decision on admittance.
30. In most of the countries concerned, institutionalization can
be requested only when the person presents a danger for him or herself
or other persons. In others, civil commitment in a psychiatric institution
may also be ordered when the person is in need of treatment.25
In the latter case, national legislation often provides procedural
safeguards, such as the appointment of a special representative for
the person (defensor especial),26 aimed at ensuring
that admission to psychiatric facilities is not prolonged for more
than is necessary for reasons of treatment. In Sweden, compulsory
care can only be provided if a person suffers from a serious mental
disorder and due to his or her mental condition and personal circumstances
has an unavoidable need of psychiatric care, which cannot be provided
in any other way than the patient being admitted to a medical institution.27
In a few cases (Costa Rica, Mexico), a person can be involuntarily
admitted as a patient without a previous diagnosis of mental illness,
on the sole basis of a certificate issued by a qualified medical doctor
stating that treatment is necessary for the patient.
31. The application for involuntary institutionalization is usually
lodged by a medical practitioner, the guardian or tutor or the closest
relatives of the mentally ill person. In some countries, the application
may also be submitted by other persons, such as the public prosecutor
(Greece), an approved social worker (Croatia, United Kingdom) or any
citizen when the person concerned represents a threat to public security.28
The decision on institutionalization is usually based upon the written
opinion(s) of one29 or two30
independent medical doctors or mental health practitioners. In Rwanda,
the judge must also seek the views of the Family Council, an institution
which protects and promotes the interest of the family and its members.
Usually, the court also hears the person concerned. In Venezuela,
for example, the absolute legal incapacity (interdicción) cannot
be decreed without the person concerned having been questioned and
four immediate relatives or, in their absence, family friends, having
32. In most responding countries, decisions on involuntary admission
can usually be appealed to the higher court. In others, they are appealed
to the same court but decided by a different judge (Croatia, Rwanda).
Sometimes, involuntary patients or their representatives can apply
to a specific Mental Health Review Tribunal or Commission.31
Complaints may also be lodged with the national human rights institution
or commission, where they exist (Fiji, Mongolia). In Costa Rica, decisions
on involuntary commitment may be appealed against before the Constitutional
Chamber of the Supreme Court of Justice.32
33. Different mechanisms exist for the review of such decisions,
with a view to obtaining release. In Argentina, the Ministry for Minors
and Persons with Disabilities (Ministerio de Menores e Incapaces)
and the special representative (defensor especial) appointed pursuant
to article 482 of the Civil Code33 verify that
institutionalization is limited to the time strictly necessary to
ensure the fulfilment of the therapeutic needs of the person. In some
countries, the review of commitment decisions is carried out by medical
authorities at the institution, without the involvement of any independent
authority.34 In Fiji, the review is entrusted
to the Medical Superintendent and the Ministry of Health. In Greece,
the institutionalized person, his or her next of kin and the public
prosecutor may apply for the review of the commitment decision, and
the court decides, taking account of a report on the patient’s
state of health prepared by the director of the psychiatric hospital
and another State psychiatrist.35 In Guatemala,
the review is carried out by the Dirección Ejecutiva of the
National Hospital for Mental Health. In Rwanda, the review of commitment
decisions is entrusted to the Family Council. In Spain, the review
is carried out periodically by the judge on the basis of information
provided by the medical authorities. In Sweden, it is carried out
by the court four weeks after the initial admittance, and a four-month
extension may be granted. For further extension of time, a new decision
by the court, granting authorization for at most six months at a time,
V. Involuntary and forced treatment
34. The right to be recognized as a person before the law, along with
the basic human rights principles of dignity and autonomy, endows
individuals with the right to make independent life choices on the
basis of their conscience. Other rights, such as the right to privacy
(article 17 of the International Covenant on Civil and Political Rights)
and the right to freedom of thought, conscience and religion (article
18 of the Covenant), may also be relevant in ensuring the effective
enjoyment of the right to decide autonomously about one’s life.
Persons with mental disabilities — and in particular those residing
in mental health institutions — are often deprived of this right,
on the assumption — sometimes erroneous — that they lack
capacity for self-directed action and behaviour. The violation of
their right to self-determination may be particularly serious with
regard to involuntary or forced treatment, that is, with regard to
those situations in which persons with mental disabilities are subjected
to medical treatment or scientific experimentation without their prior
35. Article 7 of the International Covenant on Civil and Political
Rights, which ensures protection from torture or other forms of inhuman
or degrading treatment, provides that no one shall be subjected without
his free consent to medical or scientific experimentation. The requirement
of free and informed consent is commonly alleged to be ignored in
the practice of many mental health facilities. In this regard, the
Human Rights Committee affirmed that special protection in regard
to such experiments is necessary in the case of persons not capable
of giving valid consent, and that such persons should not be subjected
to any medical or scientific experimentation that may be detrimental
to their health.36 The Committee on Economic,
Social and Cultural Rights linked this right to the right to health
(article 12 of the International Covenant on Economic, Social and
Cultural Rights), stating that the latter includes the right to control
one’s health and body, including sexual and reproductive freedom,
and the right to be free from interference, such as the right to be
free from torture, non-consensual medical treatment and experimentation.37
36. The Principles on mental illness provide valuable guidance for
the interpretation of these human rights in the context of treatment
of persons with mental disabilities. Principle 9 sets out the basic
human rights standards with regard to treatment in mental health facilities.
Treatment must be directed towards preserving and enhancing the personal
autonomy of the patient, and be provided in accordance with applicable
standards of ethics for mental health practitioners, including internationally
accepted standards. Thus, patients have the right to be treated with
the least restrictive or intrusive treatment, and on the basis of
an individually prescribed plan, discussed with the patient and reviewed
regularly by qualified professional staff. Principle 11 provides persons
held in institutions with protection against forced or involuntary
treatment. It states that no treatment shall be given to a patient
without his or her informed consent. Informed consent is consent obtained
freely, without threats or improper inducements, after appropriate
disclosure to the patient of adequate and understandable information
in a form and language understood by the patient (principle 11 (2)).
The person has also the right to refuse or stop treatment, except
as provided for in paragraphs 6, 7, 8, 13 and 15 (principle 11 (4)).
In this case, the consequences of refusing or stopping treatment must
be explained to him or her. The right to informed consent cannot be
37. However, the Principles contain several exceptions to the right
to informed consent. Principle 11 permits involuntary treatment when
an independent authority finds that the person lacks the capacity
to give or withhold informed consent or unreasonably withholds such
consent, and is satisfied that the proposed plan of treatment is in
the best interest of the patient’s health needs. For individuals
placed under guardianship, the Principles provide that the guardian
be fully informed about the treatment and consent to it on the person’s
behalf (principle 11 (7)). Furthermore, involuntary treatment may
also be given if a qualified mental health practitioner authorized
by law determines that it is urgently necessary in order to prevent
immediate or imminent harm to the patient or to other persons (principle
11 (8)). The Principles also provide exceptions to the principle of
informed consent with regard to major medical or surgical procedure
and clinical trials and experimental treatment. Principle 11 (13)
states that a major medical or surgical procedure carried out on a
person unable to give consent can be authorized only after independent
review. Similarly, principle 11 (15) states that clinical trials and
experimental treatment on persons without their informed consent can
be carried out only with the approval of a competent, independent
review body specifically constituted for this purpose.38
38. Principle 11 provides procedural safeguards against abuse of the
exceptions provided in paragraphs 6, 7, 8, 13 and 15. Paragraph 10
provides that all treatment shall be immediately recorded in the patient’s
medical records, with an indication of whether involuntary or voluntary.
The patient’s personal records are maintained by the mental
health facility, and the person and his or her personal representative
and counsel have the right to have access to the information contained
in it (principle 19). These provisions aim at facilitating access
to information concerning involuntary treatment, with a view to allowing
the person, his or her personal representative, or any interested
person, to appeal to a judicial or other independent authority concerning
any treatment given to him or her.
39. In most of the responding countries, domestic legislation requests
that the person, or — when she or he is subject to guardianship
— his or her legal representative, be informed of his or her
rights and provide informed consent prior to treatment. In some countries,
consent to treatment may also be provided by the next of kin.39
With some exceptions,40 persons are usually informed
that their consent is necessary for the administration of treatment
and can always be withdrawn. In Fiji, decisions regarding treatment
of persons in institutions are usually taken by the Medical Superintendent,
on the assumption that once admitted the person consents “to
all treatments and procedures”. Patients and their relatives
or guardians are sometimes “informed” of the procedures,
but in case of disaccord between them and the Medical Superintendent,
the latter’s decision will prevail “if the treatment is
critical for the patient”.41 In the Netherlands,
the legislation expressly recognizes the right to refuse treatment,
but the person’s consent must be explicitly sought only in the
case of major examinations or forms of treatment. In other cases,
tacit consent is assumed instead.
40. In all the responding countries the principle of prior informed
consent is subject to exceptions, which in some cases are so wide
that they risk compromising the applicability of the general rule.
Usually, these exceptions include the lack of a legal representative,42
the need to adopt urgent measures to protect the patient’s health43
or other persons (Croatia, Mongolia), risk for public health (Spain),
and the lack of other alternatives (Costa Rica). In the Netherlands,
the person may be treated against his or her will or that of his or
her representative only insofar as this is absolutely necessary to
avert a serious risk to the patient or others arising from mental
disorder. In that case, the person’s closest relatives must
be informed, the Inspectorate notified and the measures registered
in the patient’s medical records. In the United Kingdom, the
common-law principle according to which a valid consent is required
before medical treatment can be given is subject to exceptions in
statutes. Thus, treatment may be administered without the person’s
consent when a second opinion from a registered medical practitioner
has ascertained that this is necessary in the patient’s best
41. The requirement of prior informed consent seems to be applied
more strictly in the field of major medical or surgical procedure
and medical or scientific experimentations. In a few countries, medical
or scientific experimentations on human beings are expressly prohibited
by law.44 In most responding countries, medical
trials or research activities cannot be carried out without the person’s
informed consent. When the person is unable — due to his or
her condition — to provide a valid consent, medical experimentations
can be carried out only when their guardians have been fully informed
about the nature, scope and implications of the project and have consented
to it (Costa Rica, Croatia). In the Netherlands, for example, research
on persons incapable of a reasonable assessment of their interest
— in principle prohibited — can be carried out with the
consent of the person’s legal representative when the research
can only be performed on persons belonging to a specific category
and the risks are negligible. In some countries, medical or scientific
trials must be also approved by a medical ethics review committee
(Croatia, the Netherlands).
42. In the countries that replied to the questionnaire, patients or
their legal representatives can usually file a complaint with the
competent authority with regard to the treatment received in institutions.
In Mongolia, a patient, his or her legal representative or any other
interested person have the right to appeal a decision on medical treatment
before a court or the national human rights commission. In the Netherlands,
people residing in mental health facilities may lodge a complaint
before the independent complaints committee which is established in
each institution, the Medical Disciplinary Board or the Health Care
Inspectorate. In the United Kingdom, the patient, his or her legal
representative or the next of kin can apply to the High Court for
a judicial review of the decision concerning treatment, and the Court
has the power to adopt interim measures to prevent the treatment taking
place. Complaints can also be lodged with the Hospital Trust or the
Medical Health Act Commission, a statutory body with authority to
investigate complaints made by or on detained persons.
VI. Conclusions and recommendations
43. One of the major obstacles to the implementation of existing human
rights standards for persons with mental disabilities is the lack
of specific guidelines on their application. The Principles for the
Protection of Persons with Mental Illness and for the Improvement
of Mental Health Care provide a valuable starting point to clarify
the content of general human rights standards with regard to the particular
situation of persons with mental disabilities. However, a more detailed
analysis of the implementation of State human rights obligations in
the context of mental health institutions would be desirable. This
clarification could be provided, for example, by the Human Rights
Committee in a general comment.
44. The protection afforded by the Principles needs to be strengthened
in some cases. The language used is in some cases outdated. The term
“patient”, for example, should be replaced by “person”.
45. The Principles lack an explicit right to refuse treatment for
persons detained in psychiatric facilities. The generous exceptions
to this right contained in principle 11 deprive it of real meaning.
Psychiatric detention should not mean giving up a person’s right
to choose his or her medical treatment. This right is firmly established
under international human rights law. Limitation of rights concerning
treatment decisions should always be subject to judicial review.
46. The Principles do not provide any element to evaluate whether
the decision on capacity adopted by a court is “necessary”
and “appropriate” to protect the interest of the person
concerned (principle 1 (7)). Any restriction on a person’s right
must be based on a specific finding that the individual lacks the
capacity to make decisions by him or herself with regard to that specific
activity. The court’s decision must clearly determine the acts
that the person concerned can carry out alone and those for which
she or he needs assistance. Full deprivation of legal capacity must
only be used as a last resort, when no other alternative exists. The
judge should always choose the option which, in accordance with the
principles of autonomy and proportionality, best accommodates the
needs of the person concerned. Decisions on legal capacity should
be subject to automatic review by the competent judicial authority
at regular intervals set out by law.
47. The criteria set forth in principle 16 (1) for compulsory institutionalization
should be reviewed. The serious likelihood of immediate or imminent
harm to him or herself may not represent a sufficient reason to justify
a measure that infringes dramatically on the enjoyment of several
human rights, including the right to liberty and security of person
and the right to freedom of movement. The consistency of the second
criterion, which refers to the person’s state of health, with
existing human rights standards, should also be analysed. In accordance
with the principle of the least restrictive alternative, the decision
on involuntary admission should at the very least provide evidence
on (a) the risk of serious deterioration in the person’s health
conditions and (b) the lack of other viable alternatives, such as
community-based rehabilitation. The decision on psychiatric commitment
should always be subject to judicial review and reconsidered periodically.
48. Abuses and violation of human rights standards are allegedly common
practice in many psychiatric institutions all over the world. Detailed
monitoring on the actual implementation of the rights of persons with
mental disabilities would be needed to assess respect for such norms
in practice. Existing human rights treaty bodies should encourage
Governments to provide information on measures adopted in this regard
in their periodic report.
- See Official Records of the Economic and Social Council, 2002,
Supplement No. 3 (E/2002/23), chap. II, sect. A.
- The only human rights report entirely devoted to this issue was
prepared by a Special Rapporteur to the (then) Sub-Commission on Prevention
of Discrimination and Protection of Minorities in 1986 (E.-I. Daes,
Principles, Guidelines and Guarantees for the Protection of Persons
Detained on Grounds of Mental Ill-Health or Suffering from Mental
Disorder, E/CN.4/Sub.2/1983/17/Rev.1, United Nations, New York, 1986).
- International Convention on the Elimination of All Forms of Racial
Discrimination, Convention on the Elimination of All Forms of Discrimination
against Women, Convention against Torture and Other Cruel, Inhuman
or Degrading Treatment or Punishment and Convention on the Rights
of the Child.
- See, for example, the Declaration on the Rights of Disabled Persons
(General Assembly resolution 3447 (XXX) of 9 December 1975); the World
Programme of Action concerning Disabled Persons (General Assembly
resolution 37/52 of 3 December 1982); and the Standard Rules on the
Equalization of Opportunities for Persons with Disabilities (General
Assembly resolution 48/96 of 20 December 1993).
- World Network of Users and Survivors of Psychiatry, Position Paper
on the Principles for the Protection of Persons with Mental Illness,
Vancouver, July 2001, http://www.wnusp.org/docs/positionpaper.html
- Universal Declaration of Human Rights, article 6; International
Covenant on Civil and Political Rights, article 16.
- See article 5 of the Declaration on the Rights of Mentally Retarded
Persons: “The mentally retarded person has a right to a qualified
guardian when this is required to protect his personal well-being
- This determination shall never be made on the basis of political,
economic or social status, or membership of a cultural, racial or
religious group, or any other reason not directly relevant to mental
health status. Likewise, family or professional conflict, or non-conformity
with moral, social, cultural or political values or religious beliefs
prevailing in a person’s community, shall never be a determining
factor in diagnosing mental illness. A background of past treatment
or hospitalization as a patient does not of itself justify any present
or future determination of mental illness.
- See also article 7 of the Declaration on the Rights of Mentally
- Argentina, Guatemala and Panama.
- Argentina, Armenia, Costa Rica, Croatia, Greece, Islamic Republic
of Iran, Mauritius, Mexico and Venezuela.
- Argentina, Costa Rica, Croatia, Mauritius, Mexico, Panama and Venezuela.
- Armenia, Costa Rica, Greece, Hong Kong SAR, Mauritius, Mexico,
Rwanda, Serbia and Montenegro, Spain, Sweden and Venezuela.
- Costa Rica, Spain, Panama and Venezuela.
- In Fiji, persons with mental disabilities who fulfil the requirements
as to testamentary capacity may write a valid will (Wills Act).
- In Mauritius, for example, the person lacking legal capacity may
get married with the consent of the Court, which has to seek the views
of the treating doctor, the person and the destined spouse, as well
as the parents, brothers and sisters of the incapacitated person.
- See, for instance, article 9 (3) of the Law on the National Human
Rights Commission of Mongolia.
- National Human Rights Commission of Mauritius, reply to the questionnaire,
- See also articles 3 and 9 of the Universal Declaration of Human
- 20 Principle 16 (1). On the determination of mental illness, see also
- E. Rosenthal and C. J. Sundram, International Human Rights in Mental
Health Legislation, in New York Law School Journal of International
and Comparative Law, Volume 21, Number 3, 2002, p. 528.
- International Covenant on Civil and Political Rights, article 14;
see also the Universal Declaration of Human Rights, article 10.
- Argentina, Belize, Costa Rica, Croatia, Hong Kong SAR, Netherlands,
Serbia and Montenegro and Spain.
- Armenia, Islamic Republic of Iran, Norway and Sweden.
- Croatia, Fiji, Greece, Hong Kong SAR, Mauritius, Norway, Rwanda,
Sweden, United Kingdom and Venezuela.
- Article 482 of the Argentine Civil Code.
- Compulsory Mental Care Act, 1991, section 3.
- Article 114 of the Argentine Civil Code.
- Croatia, Guatemala, Mauritius, Mongolia, Netherlands, Rwanda and
- Argentina, Belize, Fiji, Hong Kong SAR, Greece, Serbia and Montenegro,
Sweden and United Kingdom.
- Hong Kong SAR, Mauritius and United Kingdom.
- Article 5 of Law No. 7135 of 11 October 1989 (Ley de la Jurisdicción
- See supra, footnote 29.
- Costa Rica, Mexico and Norway.
- Greece: article 99 of Law 2071/1992.
- Human Rights Committee, General Comment No. 20 (1992) on prohibition
of torture and cruel treatment or punishment, para. 7.
- Committee on Economic, Social and Cultural Rights, General Comment
No. 14 (The right to the highest attainable standard of health), 2000,
- On the contrary, principle 11 (14) affirms that psychosurgery and
other intrusive and irreversible treatments for mental illness can
be carried out only where the patient has given informed consent and
an independent external body has satisfied itself that there is genuine
informed consent and that the treatment best serves the health needs
of the patient.
- Argentina, Greece and Norway.
- Fiji, Guatemala and Mauritius.
- Fiji Human Rights Commission, Reply to the questionnaire, p. 8.
- Costa Rica, Fiji, Hong Kong SAR, Mongolia, Spain and Venezuela.
- Croatia, Hong Kong SAR, Mexico, Mongolia, Netherlands, Spain, United
Kingdom and Venezuela.
- Argentina, Armenia, Guatemala, Mexico and Panama.
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