Convention on the rights of persons with disabilities in mental health. A human rights issue

Dear Editor,

The Convention on the Rights of Persons with Disabilities¹ is a treaty on human rights in healthcare, social and political matters, focused on the “long-term” physical, mental, intellectual or sensory “disability” that prevents full participation in society. In mental health, this definition errs in not distinguishing between (and consequently discriminating against), for example, a patient with chronic schizophrenia and a brief psychotic episode. These are both mental dimensions that affect daily life.

This difficulty violates equal recognition as a person before the law,² given that it excludes patients not encompassed in the definition from legal protection. It is true that the law guarantees equality because it focuses on full participation of the person. However, recognising that the person is not always autonomous, it is stipulated that the member States should ensure appropriate and effective “safeguards”² to prevent abuses. Although this also lacks a definition, the literature^3,4 shows that various approaches have been adopted. In mental health, the focus is on making shared decisions, advance directives and early planning of decisions.

Given that what is desired is protection against abuses, the Committee recommended that Spain should revise its laws on deprivation of liberty based on criteria of disability and authorisation of involuntary hospital admissions and treatments, and that it should adopt measures based on informed consent.⁵ For that reason, we would have to revise laws such as the Penal Code (Article 156), which allows sterilisation of persons with disabilities without their consent.

Although we should promote social and healthcare policies based on free consent, people do not always have sufficient competence to decide autonomously. “Legal capacity” (having rights and obligations) is presumed, but not all individuals have enough “competence” (skills to carry out actions based on their convictions). We believe that it is a mistake to hold that mental competence is not something objective, natural y scientific, but rather social and political.² Research centres on a functional focus that studies cognitive processes: reasoning, comprehension, appraisal and choice.⁶ When this fails, it is hard to apply a model based on support, having to apply the “best interpretation of the wishes”² (beliefs, values, desires, etc.) of the person and not the one that decides in his or her name. And all of this based⁷ on non-discrimination, equality and dignity (Article 3), protection of integrity (Article 17), right to life (Article 10) and health (Article 26), and enablement and rehabilitation (Article 27).¹

Consequently, with these premises, without having to be the rule but rather the exception, our legal system would respect the Convention and apply involuntary hospital admissions or involuntary out-patient treatments. In both cases, the criteria would not the “disability” or “dangerousness” involved,⁸ they would be the human rights (health, rehabilitation, etc.). As far as involuntary out-patient treatment goes,⁹ it should be focused on patients with severe mental disease (frequently psychosis), lacking consciousness of illness, with multiple hospital admissions, abandonment of therapy, physical and psychological deterioration, and self- and/or hetero-aggressive behaviours. Its application is not aimed at a collective of individuals, but at clinical characteristics. Its rationale¹⁰ is endorsed by Articles 3, 10, 17 and 27,¹ and the search for a life with dignity, with quality of life.