Compulsory Mental Health Interventions and the CRPD: Minding Equality by Anna Nilsson (review)

Countries as far afield as Peru, India, and Kenya have recently engaged in law reform efforts to bring their mental health statutes in line with international standards.¹ In particular, the introduction of the Convention on the Rights of Persons with Disabilities (CRPD or Convention) has been a significant catalyst because of its wide ratification and because of treaty provisions which, read alongside the interpretation of the Committee on the Rights of Persons with Disabilities (CRPD Committee), prohibit substitute decision-making by clinicians, law enforcement or even family members. Essentially, according to proponents of this "paradigm shift," what this means is that coercion in mental health care is outlawed in international human rights law, and efforts to prevent and correct measures that result in involuntary mental health treatment need to be undertaken in domestic laws and practices.²

Since the introduction of the Convention and General Comment 1 on CRPD Article 12, legal scholars and mental health practitioners have been reflecting on the rationality, scope and extent of the prohibition and indeed, in many instances, on arguments that these positions are untenable where an individual with a mental health condition might pose a risk to him or herself or to others.³ Anna Nilsson's book is one such contribution. The author examines to what extent (if any) Article 12 and the interpretation of the CRPD Committee allow for involuntary treatment and what arguments might be made in support of, or in opposition to, this allowance.

Nilsson argues that a conclusive answer to the question of whether or not the CRPD outlaws involuntary treatment cannot be determined by treaty interpretation. Instead, she proposes an anti-discrimination approach to separate lawful and unlawful practices. Nilsson's approach is novel, but it rests heavily on the assumption that the understanding of discrimination in the CRPD is similar to older human rights instruments. She puts forward important arguments for this thesis, and the account is credible, but an equally strong case can be made for differences in the CRPD's non-discrimination approach, reflected in the definition of disability and General Comment No. 6 on equality and non-discrimination.⁴ The CRPD is at least in part a non-discrimination treaty,⁵ but one could also argue that its understanding of equality is different from existing treaties.⁶

Nilsson's method of choice to analyse discrimination is proportionality reasoning, grounded in the work of Robert Alexy. She proposes a formula for assessing the permissibility of coercive interventions in limited circumstances that considers the potential suitability of involuntary mental health treatment while also seeking out an optimal balance between rights and freedoms and rational clinical limitations. In Nilsson's view, Alexy's approach "breaks down proportionality argumentation into a step-by-step process and sets out clear criteria to be fulfilled at each step."⁷ This is perhaps another point of contention, as one could very well make the argument that such an assessment is inappropriate in the context of an absolute prohibition on involuntary treatment, or treatment that has been equated to torture by Juan Mendez, the United Nations Special Rapporteur on the right to be free from torture, cruel and inhuman and degrading treatment.⁸ Indeed, for some scholars who share Mendez's view, the question using Nilsson's framing and put fairly bluntly would read something like "Under what circumstances would the use of torture result in optimal outcomes?" This is perhaps a simplistic summation but is not an inaccurate one.

Leaving aside the aforementioned question, it is worth noting that there has been very little concurrence among scholars and activists regarding the absolute or limited nature of the prohibition of involuntary mental health treatment. Many clinicians and jurists have argued for limitations and exceptions based on risk assessment.⁹ This is the context in which Nilsson's contribution must navigate its own arguments. Essentially, she suggests that stark dichotomies...