CEU Electronic Theses and Dissertations, 2017
| Author | Isaboke, Wilmah Moraa |
|---|---|
| Title | Rethinking the use of civil commitment with protective standards in the jurisprudence of the crpd: perspectives from ontario (canada), england & wales (uk), ghana and south africa's mental health laws |
| Summary | The following dissertation examines protective substantive and procedural standards that can curb abuse of rights and arbitrary detentions in civil commitment process otherwise known as involun-tary detention and involuntary treatment of persons with mental illness in four jurisdictions. The central argument of this proposal is that there is a need to rethink the Convention on the Rights Per-sons Disability Committees (hereafter CRPD) abolitionist perspective on mental health legislations that sanction the use of civil commitment process and call for the promotion of and the use of effective protective substantive and procedural standards to curb abuse and arbitrary detentions in accessing mental health care access and services as provided in various facilities. The dissertation claims that civil commitment with its challenges is a useful method for certain individuals in certain circumstance in the access of mental health care. It is legislatively recognized as an accepted method of providing treatment in the four countries mental health framework and beyond. Howev-er, arbitrariness and abuse of rights as evidenced by the prevalent historical and current documenta-tion on abuse of human rights of persons with mental disabilities, makes it an inadequate process. As a consequence of the abuse, the thesis concedes that it is reasonably justified to have the call on the absolute ban of civil commitment of persons with mental disability, presently implemented through the prohibition of deprivation of liberty based on a disability by the paradigm changing treaty- the CRPD and the strong anti-civil commitment standpoint of the CRPD Committee. The Committee calls upon States to reform their mental health legislations that allow for “involuntary commitment of persons with disabilities in mental health institutions based on actual or perceived impairment” because “involuntary commitment of persons with disabilities on health care grounds contradicts the absolute ban on deprivation of liberty on the basis of impairments (article 14(1)(b))[right to liberty and security of person] and the principle of free and informed consent of the person concerned for health care (article 25[right to health]).” The alternatives proposed by the Committee include access to and use of mental health voluntarily services, deinstitutionalization and providing mental health care services within the communities. However, current State practices in many jurisdictions contradict these calls by continuing to sanction civil commitment in their mental health legislation with more substantive and procedural standards. The practice also shows slow deinstitutionalization processes but more of refurbishment of institutions and slow establish-ment of community mental health services. At the same time, in many jurisdictions, mental health care remains to be the least funded and staffed. Care and treatment continues to be provided in de-prived infrastructure environment and where arbitrary detentions and abuse remain prevalent. The prevalence of abuse and arbitrary detentions continue to manifest in mental health hospitals, psy-chiatric facilities, and care homes, traditional and spiritual mental health centers prevalent in many African and Asian countries including our private homes. The conclusion that can be drawn from all these, is an indication of disparity between the requirements of the Convention, State practice and the stark reality of many human rights violations taking place in respective domestic jurisdictions. Therefore, for these reasons there is an overriding imperativeness for researching standards and to persuasively engage the CRPD Committee towards rethinking its absolute prohibitionist perspective and to accept standards as an alternative to its current position and a solution to the ongoing problem of human rights abuse and arbitrariness. |
| Supervisor | Prof. Karoly Bard |
| Department | Legal Studies PhD |
| Full text | https://www.etd.ceu.edu/2017/isaboke_wilmah.pdf |
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