Mental Illness, Discrimination and the Law

Fighting for Social Justice

Felicity Callard, Norman Sartorius, Julio Arboleda-Flórez, Peter Bartlett, Hanfried Helmchen, Heather Stuart, José Taborda, Graham Thornicroft

• Publisher: Wiley-Blackwell
• Year: 2012
• Print ISBN:
  9781119953548
• eBook ISBN:
  9781119945826
• Edition: 1
• Topic: Medicine
• Subtopic: Psychiatry & Mental Health

This book describes clearly how legislation can be used to advance the rights and entitlements of people with mental health problems. Straightforward and practical, it provides useful information on how to address disabilities so these people may enjoy full citizenship. It presents the key issues succinctly and illustrates these with legislative examples from around the world. This book documents the role that law can play, at all levels, in combating such discrimination and abuse.

CHAPTER 1

Introduction

1.1 Using the law in the fight for social justice

Legislative action is indispensable in the fight to combat the discrimination, abuse and social injustice experienced across the world by people with mental health problems.

This book is intended to assist and speed up legislative and policy reform. It presents a range of conceptual and empirical material which documents the role that legislative actions – whether applying internationally, regionally, at country level, or to devolved regions within countries – can play in combating the discrimination and abuse experienced by people with mental health problems. At the same time, we emphasise that such reform will effect changes ‘on the ground’ only if it is buttressed by enforcement mechanisms as well as societal and discursive shifts in how people with mental health problems are perceived and treated by other members of society.

The relationship between legislative action on the one hand and experiences of discrimination, abuse and social injustice on the other, is undoubtedly complex. It has been argued that ‘legislation has a limited capacity to achieve social transformation’ – but legislation does have significant ‘symbolic and authoritative power, particularly when enforced and publicised through litigation’ (Watchirs, 2005). The book therefore seeks to maximise the ‘symbolic and authoritative power’ of legislation, by further disseminating knowledge of how it can be used to effect change in the lives of people with mental health problems.

There have already been important strides taken in many countries, both in terms of overturning legislation that explicitly discriminates against people with mental health problems and in developing new legislation that better protects and promotes their rights.

There is also a powerful new impetus in the form of the United Nations Convention on the Rights of Persons with Disabilities (CRPD). This Convention, which was adopted on 13 December 2006 and entered into force on 3 May 2008, is a human rights instrument with an explicit social development dimension. The CRPD lays out a robust framework for promoting, protecting and ensuring the human rights and fundamental freedoms of people ‘who have long-term physical, mental, intellectual or sensory impairments which, in interaction with various barriers, may hinder their full and effective participation in society on an equal basis with others’. By October 2011, there were 153 signatories to the CPRD and it had 105 ratifications. The Convention is legally binding on every State Party that ratifies it, and commits States Parties: ‘to take all appropriate measures, including legislation, to modify or abolish existing laws, regulations, customs and practices that constitute discrimination against persons with disabilities.’

The CRPD has been heralded as a step-change in conceptualising disability and addressing discrimination on the grounds of disability (Lawson, 2008; Arnardóttir and Quinn, 2009; Bartlett, 2009). It has been seen as a document that ‘might indeed mark the dawning of a new era’ (Lawson, 2007). It was written with, and by, people with physical and mental disabilities and its development was characterised by the most significant involvement of civil society of any of the United Nations conventions. Fundamentally, it recognises the capacity of people with disabilities – that is people with mental health problems, people with intellectual disabilities and people with physical disabilities – and places the onus on society in terms of facilitating their full participation. In other words, the CRPD shifts away from a model of disability that is framed around individual dysfunction and culpability to a model in which disability is an issue of human rights and non-discrimination. The CRPD opens up the possibility of real transformation in legislation and policy relating to mental health, and offers new ways in which we might all think about disability and about the ways in which our societies are organised.

The coming into force of the Convention on the Rights of Persons with Disabilities indicates how much there is still to be done at a country level: to transform or abolish existing laws; to draft new laws that adhere to the CRPD; and to implement legislation in ways that have visible and enduring ameliorative impacts on the lives of people with mental health problems.

This book's focus then, is on how legislation can be used to advance the rights and entitlements that people with mental health problems have as citizens. We hope it will contribute to the significant shift that the CRPD heralds in relation to how we conceptualise and address disability.

Many people still frequently assume that the intersection of mental health and law indicates the specific terrain of mental health legislation. This has exacerbated the tendency to regard those with mental health problems simply as patients, rather than as citizens entitled to the full complement of rights (Sayce, 2000; Yamin, 2005). Many people who work in mental health services are accustomed to seeing those for whom they care primarily as (and, in fact, sometimes only as) patients. This book refocuses their attention – indeed, the attention of all of us – in order to address how legislation can be used to advance the rights and entitlements of people with mental health problems in their roles as citizens and members of communities and families (Sayce, 2000; Dhanda and Narayan, 2007). There is much talk about legislation intended to `protect' society from people with mental health problems, but little debate about law that is designed to protect people with experience of mental illness from the wrongs that can be inflicted by society.

In approaching such legislation, it is helpful to consider what law can and cannot do. Overarching statements of principle – for example, those favouring non-discrimination – are to be found in many of the statutes and conventions we include and refer to throughout the book. Such overarching statements may be beneficial, as they may re-enforce social norms: law has, as we have already stated, a symbolic value, and that should not be underrated. It is much too simplistic to suggest that changing laws changes attitudes, however, and the overarching principles are likely to be difficult or impossible to enforce without much more specific, implementing legislation. Indeed, professions of ‘formal equality’ within statutes can act as a smokescreen if statutes are not backed up by significant efforts to ensure that laws are translated into real experiences of equality. ‘Formal equality alone,’ it has been argued, can end up simply ‘giv[ing] an illusion that all are equal and that fairness exists, without addressing underlying inequalities in power, access, and socioeconomic and political circumstances’ (Burns, 2010; see also Sayce, 2003). There is much still to be to be done conceptually – as well as in practice – to determine and to demonstrate how legislation can contribute to the diminution of social inequalities.

In the realm of enforcement, law is better at governing actions than ideas. It is difficult, for example, for the law to make people believe that people with mental health problems are fully-fledged citizens, but it is possible for the law to prohibit those people from harassing and abusing people with mental health problems, or from denying jobs to people with those problems when they are otherwise qualified to be hired. Law can similarly establish complaints mechanisms so that people with mental health problems who feel their rights have been violated can take concrete action for redress. And law can impose duties upon sectors and organisations to have due regard to the need to promote equality of opportunity and eliminate discrimination and harassment: this has the virtue of shifting emphasis away from the individual who has been wronged and placing the onus and responsibility on the body in terms of its facilitation of equality of opportunity.

But creating societies in which people with mental health problems can live their lives free from discrimination and abuse is not simply a matter for law: a non-discriminatory environment must become part of the lived experience of everyone in society – and that is a much bigger task than passing a statute. That is acutely clear in countries in which legislative frameworks are without significant power or authority. There is also a growing body of research from both low- and high-income countries that demonstrates the pernicious effects that can result from the close ties between poverty, disability and social exclusion. This research makes it clear that any use of legislation will need to dovetail with sustained social, structural and political action to address social and health inequalities, as well as social, political and economic marginalisation. To that end, we have included, where appropriate, sources detailing programmes for enhancing non-discriminatory environments that are not essentially legal in structure. Political and legal advocacy both by and on behalf of people with mental health problems is also an essential part of the required social change, and sources that provide advice on these matters are similarly referenced where appropriate. That said, we believe that legal change is one crucial part of this broader process and it is with the specifically legal aspects of reform that the book is concerned.

The book is titled Mental illness, discrimination and the law: fighting for social justice. We regard the nexus of discrimination, the law and mental illness as critical both in understanding why social injustice persists, and in mobilising for social justice. Social justice is, of course, based on the premise of the upholding of human rights and on equality of opportunity, but it also demands that individuals and groups within society have equal access to – and equal means of being able to enjoy – both the material and the psychosocial ‘goods’ that circulate within society (Harvey, 1975). Amartya Sen has argued in his recent work on justice that in judging the advantages and disadvantages that different people have in relation to one another, ‘we have to look at the overall capabilities they manage to enjoy’ (Sen, 2009). (Sen means by ‘capabilities’ the substantive freedoms that people have reason to value [e.g. to participate in community life, to appear in public without shame] – rather than income or financial assets.) For many social, economic, and cultural – as well as legal – reasons, people with mental health problems are often restricted in the capabilities they are able to enjoy. There is, additionally, increasing evidence of the unequal distribution of mental health problems within societies – and of its complex relationship with a range of indicators of material and psychosocial deprivation (Kelly, 2005, 2006; Melzer et al., 2004; Sheppard, 2002; WHO, 2010; Wilkinson, 2005; Wilkinson and Pickett, 2010). Improving the lives of people with mental health problems fundamentally demands pursuing social and structural – rather than individualised – solutions. A recent publication from the World Health Organization (European Region) has argued that: ‘A focus on social justice may provide an important corrective to what has been seen as a growing overemphasis on individual pathology. Mental health is produced socially: the presence or absence of mental health is above all a social indicator and therefore requires social, as well as individual solutions. A focus on collective efficacy, as well as personal efficacy is required’ (Friedli, 2009).

We regard legislation as part of a diverse palette of ‘social solutions’ that can and should be used to combat the unequal distribution of poor mental health within and across societies. Legislation has contributed substantially to the undermining of people's mental health – by removing people's rights, denying their capacity, and preventing them from participating in society. But the flourishing of disability rights legislation in a number of countries across the globe over the last quarter century indicates the impact that legislation can have in improving people's lives, as well as in enhancing community as well as individual self-efficacy (Lawson and Gooding, 2005; Quinn and Waddington, 2009; Waddington and Quinn, 2010). Indeed, the adoption of new legislation has often come after long and hard-fought advocacy by disabled people's organisations (DPOs) (as well as by the organisations that work alongside and in partnership with them). We draw attention to the fact that the quotation above from the World Health Organization speaks of the need for a focus on collective, as well as personal efficacy. While in lay parlance, engagement with the law is frequently imagined as a realm in which it is individuals who are centre stage – as plaintiffs, defendants, and attorneys – we...

Table of contents

• Cover
• Title Page
• Copyright
• Acknowledgements
• Glossary
• Chapter 1: Introduction
• Chapter 2: Principles and Concepts
• Chapter 3: Civil and Political Participation
• Chapter 4: Legal Capacity, Decision-making, Discriminatory Statutes and Practice
• Chapter 5: Work and the Workplace
• Chapter 6: Education
• Chapter 7: Housing
• Chapter 8: Social Security and Social Protection
• Chapter 9: Health, Health Care and the Right to Health
• Chapter 10: Protection Against Abuse and Research Involving Vulnerable Populations
• Chapter 11: Promotion of Mental Health and Prevention of Mental Illness
• Chapter 12: Implementation and Enforcement
• Chapter 13: Summary and Conclusions
• Chapter 14: International and Regional Instruments, Standards, Guidelines and Declarations
• Chapter 15: Examples of Disability Legislation from Across the World
• Chapter 16: Organisations and Resources
• Index