United Nations Convention on the Rights of Persons with Disabilities: The effects of the debate

Dear Editor,

The International Convention on the Rights of Persons with Disabilities¹ is a tool approved by the United Nations in 2006. It aims to bring about a change of paradigm in the conception of disability from a medical capacity/incapacity model to a social model based on supports and founded on human rights. Spain signed and ratified this convention in 2009 and this body of law now forms part of the Spanish legal system. The Committee on the Rights of Persons with Disabilities is the body entrusted with supervising the application of the convention which, in the year 2014, carried out an interpretation of articles 12 (equal recognition of persons before the law)² and 14 (freedom and security of the person) that have been the object of discussion.

The debate, a mirror of the unavoidable political dimension of our clinical work, has been emerging in different spaces (volumes of academic journals, national and international). The latest body to state its position is the Spanish Society of Psychiatry.³

Taking a look at this problematisation, the debates so far have focused mainly on the committee’s interpretations of the convention’s articles, which in turn suggest an array of issues, some of which spring up from old themes and others which are newer. Mental illness as a constraining element inhibiting freedom and treatment as the restorer of it; the confusion between care and coercion claimed by those in favour of the abolition of article 763; the possible forensic implications of the issue; the conceptual ambiguity of some terms (capacity, will, preference); the lack of clinicians and users on the committee; the need to shift the paradigm of substitution towards support in decision-making… are just a few examples. At the core of the debate lie the tensions between recognition of the subject’s vulnerability to protect him or her (care) versus the exaltation of autonomy and emancipator normalisation,⁴ arguments which are in turn flagged up by some, misrepresented when used in isolation, but as conflictive as they are necessary to one another.

In the midst of such old but also such new pitches, is the lack of the presence of discussion on what aspects we need to include in our clinical practice and what the effects of the debate are. No one knows better than we do (and the users of our services) that the transformative potential of some reforms may be accompanied by the persistence or aggravation of coercive practices, be they existing or newly emerging. Clarifying concepts is and will remain necessary, but some elements of the debate seem to be irreconcilable. Ensuring participation in the discussion of a wider range of stakeholders and promoting debate in all of its forms is vital, but maybe the time has come to focus on deciding which measures, strategies and interventions are effective and have been developed to reduce coercion. There are still landmines ahead: the literature is disperse and complex, the impact of population or environmental issues are difficult to assess (although this does not mean that are ineffective) and we do not know the impact of other mental health interventions such as peer care, home-based interventions or other alternative approaches in community care.

Despite these research limitations, efforts made to reduce, prevent and terminate coercion are effective in the majority of studies.⁵ Interventions to reduce involuntary admissions, such as shared decision-making (which in turn includes advance directives and other ways of providing the patient with greater information), or staff training to reduce the use of physical restraint, have shown the greatest effectiveness.⁶ Other consensual issues to be considered are that the guidelines usually emphasize the rights of peoples to be involved in their treatment as a general principle but not as a structured group of specific interventions, which would be easier to establish by means of specific recommendations. To consolidate and sustain these interventions not only individual and independent measures are needed, but also a change in organization culture that places greater emphasis on human rights-based recovery and care. To conclude, now is the time to think about and establish what the preservation and enhancement of the rights of persons with disabilities with mental health conditions should imply, without leaving them unprotected along the way.