Controversy and Consensus: Does the UN Convention on the Rights of Persons with Disabilities Prohibit Mental Health Detention and Involuntary Treatment?

• Author: Chen Bo
• Position: Ph.D., Assistant Professor at the Faculty of Law, Macau University of Science and Technology
• Pages: 39-64

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Controversy and Consensus: Does the UN Convention on the

Rights of Persons with Disabilities Prohibit Mental Health

Detention and Involuntary Treatment?

Chen Bo

1

Abstract: The common function of global mental health laws is to authorize and regulate

psychiatric detention and involuntary treatment. The UN Convention on the Rights of Persons

with Disabilities (CRPD) poses a fundamental challenge to this system and requires an overall

abolition. This article addresses how international human rights laws protect the rights of

persons with psychosocial disabilities (or persons with mental health issues), particularly the

provisions provided by the CRPD. The focus of this article is to review the debate around the

desirability and practicability of the CRPD requirement of abolition, pointing out the important

consensus in this debate: a need to develop non-coercive mental health services and reduce the

use of involuntary arrangements.

Key Words: UN Convention on the Rights of Persons with Disabilities; Mental Health

Law; Mental Health Detention and Involuntary Treatment; Paradigm Shift

1. Introduction

China ratified the United Nations Convention on the Rights of Persons with Disabilities

(“CRPD”)⁠ in 2008,

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and submitted its first state report to the Committee on the Rights of

Persons with Disabilities (“CRPD Committee”) in 2010 on the implementation of the

convention in China. In its Concluding Observations in 2012, the CRPD Committee expressed

its concern about the “nvoluntary commitment system” in China for not respecting the

“individual will of persons with disabilities”.

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The CRPD Committee also stated “38. The

Committee advises the State party to adopt measures to ensure that all health care and services

provided to persons with disabilities, including all mental health care and services, is based on

the free and informed consent of the individual concerned, and that laws permitting involuntary

treatment and confinement, including upon the authorization of third party decision-makers

such as family members or guardians, are repealed.”

4

⁠

Subsequently, this recommendation has not appeared to raise much attention or concern

in the related law-making processes in China. When the Concluding Observation was adopted,

China was close to the end of its 28 year-long law-making journey to have the first national

Mental Health Law (“MHL”)

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whose very nature was fundamentally challenged by the CRPD

Committee. The lack of legislative debate or reaction to the CRPD Committee’s

recommendation in the MHL’s legislative history can be explained by the narrow window

1

Chen Bo, Ph.D., Assistant Professor at the Faculty of Law, Macau University of Science and Technology. Partial

content of this article was published, in Chinese language, on Journal of Southwest University of Political Science

and Law (2019). The author thanks the insightful comments from the anonymous reviewers and the doctoral

supervisors Dr. Mary Keys and Dr. Charles O’ Mahony for their support.

2

See Convention on the Rights of Persons with Disabilities (adopted on January 24, 2007, entered into force May

3, 2008), A/RES/61/106 (CRPD).

3

See CRPD Committ ee, Concluding observations on the initial report of China, CRPD/C/CHN/CO/1 (Oct.15,

2012).

4

See CRPD Committee, Concluding observations o n the initial report of China, para.38, CRPD/C/CHN/CO/1

(Oct.15, 2012).

5

See Mental Health Law of the People’s Republic of China, passed by the Standing Committee of t he National

People’s Congress on October 26, 2012, and entered into force on May 1, 2013.

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between the Concluding Observations’ adoption on the 15th of October 2012 and the final

review of the MHL under the Standing Committee of the National People’s Congress on the

26th of October 2012. However, there has been an international trend where states party to the

CRPD have enacted legislation in which involuntary mental health interventions are still

permissible, for example India.

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Other state parties, such as Ireland, Australia, and Canada,

entered declarations or reservations in relation to provisions in the CRPD requiring abolishing

involuntary interventions upon their ratification of the Convention.

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A straightforward and

popular explanation to the fact that most, if not all, state parties are not following the CRPD

Committee’s recommendation on the abolition of involuntary mental health interventions is its

radical and unrealistic nature.

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Given this context, the article seeks to help understand the freedom from involuntary

interventions first, rather than jumping to the conclusion that it is indeed too radical and

unrealistic, and therefore should be rejected or overlooked. In other words, the article will

discuss the legitimacy of mental health legislations whose primary function is to authorise and

regulate involuntary interventions in the new era of the CRPD. It will review what new

requirements the CRPD added to the mental health services in its state parties and how these

state parties and scholars react to these requirements. In doing so, a broader perspective will

be adopted rather than just a doctrinal examination of relevant legal provisions. This approach

is based on the belief that the constructiveness of international human rights law is not about

“human rights diplomacy”, in which human rights is part of bargaining, negotiation and even

battles among states,

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but must be based on the communication and exchange process.

Therefore, this article does not aim to simply conclude whether or not involuntary interventions

are permissible or CPRD-compliant, since the answer from the CRPD Committee is,

consistently, a clear “No”. Instead, the ultimate goal is to find the consensus of the complex

controversies: maximising service users’ autonomy in mental health decision-making by

providing non-coercive supports.

The article is also timely. China submitted its state report, combined for the second and

third reporting cycles, on August 31, 2018 to the CRPD Committee and the review may take

place in the coming years.

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The article seeks to help the mutual understanding between the

newest international human rights standards and the MHL in China, home for over 170 million

adults having at least one type of mental disorder and 16 million people having severe mental

illness.

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The article below begins with Section 2 which reviews the approaches to involuntary

mental health interventions adopted by international and regional human rights mechanisms

6

See Mental Health Care Act 2017 (India).

7

See Declarations and Reservations to the CRPD, https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY

&mtdsg_no=IV-15&chapter=4&lang=_en&clang=_en (accessed on August 1, 2018).

8

See John Dawson, A Realistic Approach to Assessing Mental Health Laws Compliance with the UNCRPD, 40

International Journal of Law and Psychiatry 70 (2015).

9

See Barbara Keys, Congress, Kissinger, and the Origins of Human Rights Diplomacy, 34 Diplomatic History

823 (2010).

10

China, Implementation of the Convention on the Rights of Persons with Disabilities: 2nd and 3rd Reports

Submitted by States Parties under Article 35 of the Convention, CRPD/C/CHN/2-3 (2018).

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See Qian Ji-wei, Mental Health Care in China: Providing Services for under-Treated Patients, 15 The Journal

of Mental Health Policy and Economics 179 (2012). Michael R Phillips et al., Prevalence, Treatment, and

Associated Disability of Mental Disorders in Four Provinces in China during 2001–05: An Epidemiological

Survey, 373 The Lancet 2041 (2009). A recent study finds that 16.6% of 32,552 participants have mental disorders

in their lifetime before the interview. See Huang Yue-qin et al., Prevalence of Mental Disorders in China: A

Cross-Sectional Epidemiological Study, 6 The Lancet Psychiatry 211 (2019). Besides, a Lancet editorial wrote in

2015 that “[a]n estimated 173 million adults in China have mental health disorders, of whom 4.3 million are

registered as having severe mental health problems”. See Lancet, Mental Health in China: What Will Be Achieved

by 2020?, 385 The Lancet 2548 (2015).