[Involuntary placement and treatment of persons with mental health problems].
Involuntary placement and treatment of persons with mental health problems were initially discussed from the perspective of personal liberty. However, the autonomy of persons with mental health problems has been growing in importance as an issue of involuntary placement and treatment since the last part of the twentieth century, because the purpose of involuntary placement is not the deprivation of liberty but to provide adequate treatment under medical supervision. The UN Convention on the Rights of Persons with Disabilities (CRPD) adds a new perspective from non-discrimination and equality. Article 14 of CRPD states that "the existence of a disability shall in no case justify a deprivation of liberty." This provision should be construed from a perspective of non-discrimination. Conventional types of involuntary placement mainly based on dangerousness (UN-MI Principle 16-1a) and incompetency (UN-MI Principle16-1b) are not allowed by Article 14. There is a discussion on the difference between "mental disability" and "mental illness". Some people argue that CRPD should apply not to persons with mental illness, but to those with mental disabilities. However, CRPD does not provide a definition of "disability". It states that its definition is developing. ICF also mentions that ICD-10 and ICF should complement each other. Thus, CRPD should apply to the involuntary placement and treatment of persons with mental illness as well. It is clear that Article 14 intends to change the situation whereby persons who have been described using various terms, such as madness, lunacy, insanity, mental illness, mental disability, mental health problems, and users, are involuntarily hospitalized/placed. The significance of Article 14 will be lost if it cannot be applied to psychiatric hospitalization. From the perspective of non-discrimination, we have to universalize involuntary placement and treatment or completely abolish them. We cannot tolerate a situation where a type of dangerousness is applied to anyone who is a danger and who can be managed by involuntary placement and treatment. However, it will be acceptable to establish strict rules of involuntary placement and treatment in a case where a person loses his/her capacity to provide consent and certain placement and treatment will be helpful to recover his/her autonomy. Such rules are necessary not only for persons with mental disabilities, but also for other patients such as those in a coma. We have to devise new rules on types of incompetency. However, we must consider some other issues. Article 12 of CRPD provides a non-discriminatory view on the legal capacity. It is based on the so-called "Social Model". The human capacity to understand and judge is supported by education, social experiences, as well as human and social networks. However, persons with disabilities have far less of these resources than others because of social exclusion. It is essential to overcome such social deficits before we judge one's capacity. Treatability and a less restrictive alternative are also important rules of involuntary placement and treatment. Finally, there is controversy regarding the consent of a family member to involuntary placement with regard to the ongoing discussion on the amendment of the Mental Health Act. It is impossible to regard the consent of a family member as a patient's will. It is unreasonable to grant priority to a family member who gives consent and ignore another family member's opinion against hospitalization, since their legal status is the same. The proposed amendment will cause a serious conflict among the hospital, a family member who gives consent, other family members, and the patient. Consent from a family member is not necessary and detrimental.
Tokyo Advocacy Law Office.
Yoshikazu
Y
Ikehara
D003134:Commitment of Persons with Psychiatric Disorders; D003695:Delivery of Health Care; D006760:Hospitalization; D006801:Humans; D007564:Japan; D001523:Mental Disorders / Q000628:therapy*; D008603:Mental Health; D026684:Personal Autonomy