1. International Principles &
Guidelines
Anselm Eldergill

2. New legislation & human rights
‘Countries that have decided to draft and
enact new mental health legislation have to
carry out certain preliminary activities …
An important part of these preliminary
activities involves studying international
human rights and the conventions and
standards associated with them. Countries
that are signatories to such conventions are
obliged to respect, protect and fulfil the
rights enshrined in them …These human
rights standards … reflect international
agreement on good practice in the field of
Dr Michelle Funk
mental health.

3. International agencies
United Nations World Health Organisation
Council of Europe European Convention on Human Rights

4. Important Declarations
• The United Nations Declaration on the Rights of
Mentally Retarded Persons, proclaimed by General
Assembly resolution 2856 (XXVI) of 20 December 1971;
• The United Nations Declaration on the Rights of
Disabled Persons, Proclaimed by General Assembly
resolution 3447 (XXX) of 9 December 1975;
• The protection of persons with mental illness and the
improvement of mental health care (Universal
Declaration of Human Rights, UN Resolution of 1991,
No. A/RES/46/119, 75th Plenary Meeting);
• The Guidelines for the Promotion of Human Rights of
Persons with Mental Health Disorders
(WHO/MNH/MND/95.4).
• Mental Health Care Law: Ten Basic Principles
(WHO/MNH/MND/96.9)

5. Important guidance
• Mental Health Legislation
and Human Rights (Mental
Health Policy & Service
Guidance Package), WHO,
2003;
• Advocacy for Mental Health
(Mental Health Policy &
Service Guidance Package),
WHO, 2003;
• Chapter 5 (‘The Way
Forward’) of WHO’s World
Health Report for 2001;
• Nations for Mental Health,
Final Report, WHO, 2002.

6. Determination of mental illness (1)
The protection of persons with mental illness and the improvement
of mental health care (United Nations, 1991)
4(1) A determination that a person has a mental illness shall be made in accordance
with internationally accepted medical standards.
‘Mental disorder’ means ‘any disability or
disorder of the mind or brain, whether
permanent or temporary, which results in
an impairment or disturbance of mental
functioning.’
.’

7. Determination of mental illness (2)
The protection of persons with mental illness and the improvement
of mental health care (United Nations, 1991)
4(2) A determination of mental illness shall never be made on the basis of … any …
reason not directly relevant to mental health status.
4(3) … non-conformity with moral [or] social … values ... shall never be a
determining factor in diagnosing mental illness.
4(5) No person or authority shall classify a person as having … a mental illness
except for purposes directly relating to mental illness or the consequences of mental
illness.
People may be dealt with as mentally disordered by reason
solely of promiscuity, immoral conduct, sexual deviancy or
dependence on alcohol or drugs.

8. ‘Hospital’
‘The approach the Government
has developed … involves the
idea of detention based on the
serious risk such people present
to the public.’
‘Third units’ may be defined as
adult secure accommodation of
the kind sometimes provided for
behaviourally-disturbed children.
Anti-social people are mentally disordered.
Supervised social interventions are medical
treatments.
Establishments which detain people under the
Act, or provide social care under appropriate
supervision, are hospitals.

9. Self-determination
The protection of persons with mental illness and the improvement
of mental health care, 1991
9(4) The treatment of every patient shall be directed towards preserving and
enhancing personal autonomy.
Mental Health Care Law: Ten Basic Principles (WHO, 1996)
5. Consent is required before any type of interference with a person can occur.
6. In case a patient merely experiences difficulties in appreciating the implications of
a decision, although not unable to decide, he/she shall benefit from the assistance of
a knowledgeable third party of his or her choice.
7. There should be a review procedure available for any decision made by official
(judge) or surrogate (representative, e.g. guardian) decision-makers and by health
care providers.

10. Restrictions on liberty
The protection of persons with mental illness and the improvement
of mental health care, 1991
9(1) Every patient shall have the right to be treated in the least restrictive
environment and with the least restrictive or intrusive treatment appropriate to the
patient’s health needs and the need to protect the physical safety of others.
Mental Health Care Law: Ten Basic Principles (WHO, 1996)
4. Persons with mental health disorders should be provided with health care which
is the least restrictive.

11. Involuntary admission (1)
Free and informed consent
‘The principle of free and informed consent
to treatment should be enshrined in the
legislation. Treatment without consent
(involuntary treatment) should be
permitted only under exceptional
circumstances.’
Involuntary admission the exception
‘Involuntary admission to hospital should be
the exception and should happen only in
very specific circumstances.’
‘Legislation can ensure that involuntary
admission is restricted to rare situations in
Dr Michelle Funk
which individuals pose a threat to
themselves and/or others and community
based alternatives are considered unfeasible.’

12. Involuntary admission (2)
The protection of persons with mental illness and the improvement
of mental health care (UN, 1991)
15(1) Where a person needs treatment in a mental health facility, every effort shall
be made to avoid involuntary admission.
16(1) A person may be admitted involuntarily to a mental health facility as a patient
… if, and only if, a qualified mental health practitioner authorized by law for that
purpose determines … that that person has a mental illness and considers:
(a) That, because of that mental illness, there is a serious likelihood of
immediate or imminent harm to that person or to other persons; or
(b) That, in the case of a person whose mental illness is severe and whose
judgment is impaired, 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.

13. Involuntary admission (3)
Convention on Human Rights and Biomedicine
Article 1 — Purpose and Object
Each Party shall take in its internal law the necessary measures
to give effect to the provisions of this Convention.
Article 7 — Protection of persons who have mental disorder
Subject to protective conditions prescribed by law, including
supervisory, control and appeal procedures, a person who has
a mental disorder of a serious nature may be subjected,
Oviedo, 1997
without his or her consent, to an intervention aimed at treating
his or her mental disorder only where, without such treatment,
serious harm is likely to result to his or her health.

14. The
When and why? relevant
conditions
Three of the ‘relevant conditions’ are
common to all statutory examinations:
(1) The patient is suffering from [a]
mental disorder
(2) That mental disorder is of such a
nature or degree as to warrant the
provision of medical treatment to him.
(3) Appropriate medical treatment is
available in the patient’s case.
‘medical treatment’ is treatment for mental disorder provided under
the supervision of an approved clinician, including care, education,
and training in work, social and independent living skills.

15. The ‘third’ condition
Cases where a patient is
at substantial risk of All other cases
causing serious harm to
other persons
It is necessary for the (i) It is necessary for the
protection of those health or safety of the
persons that medical
treatment be provided to patient or the protection of
him other persons that medical
treatment be provided to
him, and
(ii) That treatment cannot
be provided to him unless
he is subject to the
provisions of this Act.

16. Community patients
A community patient’s
consultant may sign a pink
statutory form, upon the
completion of which the patient
is liable to detention.

17. Seclusion and restraint
The protection of persons with mental illness and the improvement
of mental health care (United Nations, 1991)
11(11) Physical restraint or involuntary seclusion of a patient shall … be employed …
only when it is the only means available to prevent immediate or imminent harm to
the patient or others. It shall not be prolonged beyond the period which is strictly
necessary for this purpose …
A personal representative, if any and if relevant, shall be given prompt notice of any
physical restraint or involuntary seclusion of the patient.
Mental Health Care Law: Ten Basic Principles (WHO, 1996)
See the ‘components’ of the least restrictive care guideline.

18. Protection from harm and abuse
The protection of persons with mental illness and the improvement
of mental health care (United Nations, 1991)
Principle 8(2): ‘Every patient shall be protected from harm, including unjustified
medication, abuse by other patients, staff or others or other acts causing mental
distress or physical discomfort.’
Protection against harm and misuse of powers
‘The legislation should lay down procedures for
protecting the human rights of people who are being
treated involuntarily and should provide them with
protection against harm and the misuse of the
powers indicated above. These procedures include
obtaining an independent second opinion, obtaining
permission from an independent authority based on
professional recommendations …’

19. Protecting community patients
Human rights of patients treated in the community
‘… in countries that have adopted community
supervision it is important that sufficient measures
exist to protect the human rights of the patients
concerned, as in other treatment settings.’
Role of families
‘Legislation can help to carers to play an important
role in interactions with mental health services … For
example, people can appeal on behalf of members of
their families…’

20. Compliance and inspection
The protection of persons with mental illness and the improvement
of mental health care (United Nations, 1991)
Principle 14(2): ‘Every mental health facility shall be inspected by the competent
authorities with sufficient frequency to ensure that the conditions, treatment and
care of patients comply with these Principles.’
Principle 22: ‘States shall ensure that appropriate mechanisms are in force to
promote compliance with these Principles, for the inspection of mental health
facilities, for the submission, investigation and resolution of complaints and for the
institution of appropriate disciplinary or judicial proceedings for professional
misconduct or violation of the rights of a patient.’

21. Persons liable to compulsory treatment
PRESENT POPULATION ADD NEW POPULATION
• Those liable to be • Alcohol/drug dependency
detained under Pt II or III • Sexual deviancy
for 28 days or more • Personality disorder/anti-social
(even if untreatable)
• Learning disability
• Non-compliant out-patients
• 28
28-day community orders
• 1500–2000 con. discharge
• Guardianship & after-care
under supervision
• 44,000 incapacitated

22. Where? (Places of compulsion)
• Hospitals
• Nursing homes
• Residential homes
• People’s homes
• Police stations, prisons
• CMHT bases, crisis teams,
AOTs, etc
• Various new units (PDs,
social services
hostels/houses)

23. Safeguards
An in
An in-patient’s spouse, partner or child cannot discharge
or
them home, even if their objections to compulsion are not
if to
unreasonable and no one is in danger.
no is in
Patients who meet the conditions for compulsion no longer
no
have a right to an independent decision concerning their
to a n
medication or ECT.
or
The duty to provide after-care under section 117 is
to is
abolished.
The principles and guidance in the Code of Practice may be
in of be
qualified.
Hospital managers, Health Authorities, NHS trusts, and local
authorities will lose their powers of discharge.
of
There will no longer be a separate, specialist, Mental Health
no be
Commission.

24. Tribunals
Where a person asks for a review of the
of
grounds for their detention, it can extend it
it it
b y u p to
by up to six months.
Whether a patient who meets the
conditions for compulsion is released from
is
detention is left to entirely up to the
is to up to
tribunal’s discretion.
People who have not committed any
criminal offence may be placed under
be
restrictions on discharge, transfer and
on
leave of the kind now imposed by the
of by
Crown Court on offenders who pose a risk
on
of
of serious harm to the public.
to

25. Functions — 1
• Monitoring the Mental • When reasonably
Health Act and the requested to visit
European Convention hospitals and other
• Scrutiny and establishments
rectification of • Ill-treatment, neglect,
statutory documents improper compulsion
• When requested, to • Review deaths or
visit incapacitated injuries to patients
patients and those • Solitary confinement
subject to compulsion and mechanical
restraint.

26. Functions — 2
• Restrictions on the
right to communicate Possible Functions
• Prosecution of 1.
1. Release of those
offences
subject to unlawful
• Publication of a Code compulsion
of Practice 2.
2. Appeals from MHRTs
• Publication of an and other prescribed
annual report b o d ie s
3.
3. Advising the
• Other functions Secretary of State
prescribed by
regulations

27. Concluding remarks
• ‘In many respects, [the draft
Bill] does not comply with the
European Convention on
Human Rights, or with the
minimum international
standards agreed by nations as
being the baseline for countries
that wish to be considered
civilised in this respect.’

28. END OF THIS PRESENTATION
Alternative Slides

29. Other rights
The protection of persons with mental illness and the improvement of
mental health care (United Nations, 1991)

30. Determinations — the medical component
Mental Health Care Law: Ten Basic Principles (WHO, 1996)
3. Mental health assessments should be made in accordance with internationally
accepted medical principles and instruments (e.g., WHO’s ICD-10 Classification of
Mental and Behavioural Disorders — Clinical Descriptions and Diagnostic Guidelines,
Tenth Revision, 1992).
Determination of
Diagnosis Components of
competence
Mental health
Choice of
assessment Risk assessments
treatment

31. Self-determination
The protection of persons with mental illness and the improvement
of mental health care, 1991
9(4) The treatment of every patient shall be directed towards preserving and
enhancing personal autonomy.
Mental Health Care Law: Ten Basic Principles (WHO, 1996)
5. Consent is required before any type of interference with a person can occur.
6. In case a patient merely experiences difficulties in appreciating the implications of
a decision, although not unable to decide, he/she shall benefit from the assistance of
a knowledgeable third party of his or her choice.
7. There should be a review procedure available for any decision made by official
(judge) or surrogate (representative, e.g. guardian) decision-makers and by health
care providers.

32. Mental Health Legislation
Free and informed consent
‘The principle of free and informed consent to treatment
should be enshrined in the legislation. Treatment without
consent (involuntary treatment) should be permitted only
under exceptional circumstances.’
Involuntary admission the exception
‘Involuntary admission to hospital should be the
exception and should happen only in very specific
circumstances.’
‘Legislation can ensure that involuntary admission is
restricted to rare situations in which individuals pose a Dr Michelle Funk
threat to themselves and/or others and community
based alternatives are considered unfeasible.’

33. Mental Health Legislation
Human rights of patients treated in the community
‘… in countries that have adopted community
supervision it is important that sufficient measures
exist to protect the human rights of the patients
concerned, as in other treatment settings.’
Role of families
‘Legislation allows people with mental disorders and
their families and Legislation can help to carers to
play an important role in interactions with mental
health services, including promote the integration
admission to mental health facilities. For example,
Dr Michelle Funk
people can appeal on behalf of members into
communities of persons of their families…’

34. Mental Health Legislation
Confidentiality
‘The legislation should guarantee to persons with
mental disorders that confidentiality exists in respect
of all information obtained in a clinical context.’
Protection against harm and misuse of powers
‘The legislation should lay down procedures for
protecting the human rights of people who are being
treated involuntarily and should provide them with
protection against harm and the misuse of the
powers indicated above. These procedures include
obtaining an independent second opinion, obtaining Dr Michelle Funk
permission from an independent authority based on
professional recommendations …’

35. Drafting new legislation
‘Countries that have decided to draft and enact new mental health
legislation have to carry out certain preliminary activities … An
important part of these preliminary activities involves studying
international human rights and the conventions and standards
associated with them. Countries that are signatories to such
conventions are obliged to respect, protect and fulfil the rights
enshrined in them …These human rights standards … reflect
international agreement on good practice in the field of mental health.
‘Legislation codifies the values and principles of human rights which are
embedded in mental health policy.’
§
The preliminary activities should also include a critical review of existing
mental health legislation in other countries, especially ones with similar
social and cultural backgrounds ….
The final step in the preliminary activities is to engage all stakeholders Dr Michelle Funk
in consultation and negotiation about possible components of mental
health legislation. Consultation and negotiation for change are
important not only in the drafting of legislation but also in its
implementation once it has been adopted.’