Compulsory Mental Health Interventions and the CRPD

Anna Nilsson is Postdoctoral Fellow at the Faculty of Law, Lund University.

Introduction
I. To Intervene or not to Intervene?
II. Methodological Remarks
III. Vocabulary and Key Concepts
IV. A Roadmap for this Book
1. The Convention’s Approach to Mental Health Care
I. A New Approach to Mental Health Care
II. Article 12 and the Right to Enjoy Legal Capacity
III. Article 14 and the Right to Liberty
IV. Article 17 and the Right to Respect for Physical and Mental Integrity
V. Article 25 and the Right to Consent
VI. The Enjoyment of Legal Capacity, Liberty and Integrity ‘on an Equal Basis with Others’
A. The Prohibition of Discrimination
B. The Objective and Reasonable Standard
VII. The CRPD’s Approach to Mental Health Care in Brief
2. Putting Mental Health Laws to the Test
I. Applying the Objective and Reasonable Standard
II. Domestic Mental Health Legislation
III. Do Compulsory Interventions Serve Legitimate Aims?
IV. Are Compulsory Interventions Based on Objective Criteria?
A. The Protection of the Health of the Person Concerned
B. The Protection of the Life of the Person Concerned
C. The Protection of Others
V. Are Compulsory Interventions Reasonable?
VI. Conclusions on the Objectivity and Reasonableness of Domestic Regimes
3. Proportionality Reasoning
I. A Way Forward?
II. Theoretical Underpinnings
III. The Rudiments of Proportionality Assessment
A. Legitimate Aim(s)
B. Suitability
C. Necessity
D. Proportionality in the Narrow Sense
IV. Compatibility with the Objective and Reasonable Standard
V. Assessing and Weighing Arguments
A. Abstract Weights
B. Degrees of Infringement
VI. Dealing with Epistemic Uncertainty
A. Empirical Uncertainty and Discretion
B. Normative Uncertainty and Discretion
VII. The Advantages and Disadvantages of Proportionality Reasoning
A. The Legal Soundness of Classification Choices
B. Too Much Discretion?
C. Structure and Precision
4. Proportionality and Non-discrimination
I. The Focus on Distributive Justice
II. Proportionality Assessments Tailored to Non-discrimination Norms
A. Legitimate Aim: Excluding Offensive Policies
B. Suitability: Excluding Ineffective Policies
C. Necessity: Excluding Excessive Policies
D. Proportionality: Excluding Inconsistent Policies and Policies with Unreasonable Disadvantageous Effects
III. Applying the Consistency Requirement
A. Compulsory Intervention to Protect Health
B. Civil Detention to Protect Life
C. Civil Detention to Protect Others
D. The Value of a Consistency Requirement
IV. The Role of Equality-specific Harm in Balancing
A. The Compulsory Mental Health Care of Persons with Psychosocial Disabilities
B. The Compulsory Care of Everyone Who Lacks Decision-making Ability
V. The Value of Structured Proportionality Assessments in the Non-discrimination Context
VI. A Framework for Evaluating Domestic Systems of Compulsory Mental Health Care
Conclusion
I. To Intervene or Not to Intervene? A Difficult Question
II. The Long Answer to the Question
A. The Limits Set by the Treaty Text
B. The Limits Set by Discrimination Analysis
C. CRPD-compliant Compulsory Mental Health Interventions to Protect the Health and Lives of Patients
III. Concluding Remarks on the Future of Mental Health Law and Policy