Disability, Mental Health and Human Rights

• Credit value: 30 credits at Level 7
• Lecturer: Ulele Burnham
• Assessment: a 4000-word essay

The European/Western post-war international consensus on the universal application of human rights standards to all without regard to markers such as class, gender, sexuality and ethnicity has been slow to address the specific rights of disabled people, or indeed, the specific content of fundamental rights as applied to those suffering impairing mental conditions. In recent years, there has been a growing concern to ensure that those who are marginalised for this reason are not denied the safeguards belatedly extended to the non-male, non-western legal subject. The possibility of mental impairment exists in relation to all legal subjects. The practical and effective rights and entitlements available to those who are of 'unsound mind', like those available to prisoners and 'aliens', should be seen as a barometer of a society’s ability to secure satisfactory human living. Yet, in Europe and elsewhere, the mentally impaired subject has only recently begun to be viewed as a legal agent or 'subject' properly so-called. There is, therefore, much scope for examining the applicability of concepts of legal 'subjectivity', 'intersectionality' and 'civil death', considered academically in relation to post-coloniality, race, gender and sexuality, to the treatment of those with psychosocial disabilities within domestic and international civil and criminal justice systems.

This module is an introduction to the domestic and international legal rules and practice relevant to those with mental/psychosocial disabilities. You will have the opportunity to understand and evaluate, by comparison with its treatment of putatively 'non-impaired' subjects, the law as it applies to such persons as a matter of daily living. It will consider the circumstances in which treatment can be coerced, in which preventative detention can be legally justified and in which autonomy can all but be extinguished (eg limits placed on ability to make legally binding decisions in relation to ending-life, marriage, sexual relations, place of residence and finances).

You will be given an opportunity to participate in a mock-trial designed to expose you to the rigours of the trial process.

By the end of this module you will be able to:

• understand the basic principles of domestic and international law applicable to those with mental/psychosocial disorders
• comprehend and retain salient principles from a survey of relevant case law
• understand the concepts underpinning the relevant legal frameworks, eg mental disorder, mental capacity, best interests, therapeutic necessity, consent, autonomy and treatability
• apply the relevant legal principles to a series of scenarios devised by reference to instances of judicial decision-making in analogous cases
• critically evaluate the legal framework in which the rights of those with psychosocial disabilities are protected/promoted against the philosophical foundations from which they are derived
• critically analyse, evaluate, justify and compare the rights afforded those with mental/psychosocial disabilities to those of non-disabled persons
• identify benefits and limitations of specific jurisprudential/philosophical/conceptual approaches
• appreciate the importance of socio-political and socio-legal developments for understanding legal policy and practice in the area of mental health law and practice
• identify appropriate bases for distinguishing the application of relevant principle in a specific factual circumstances from other materially distinct factual circumstances.

Key texts

• Bartlett, P. and Sandland, R. (2014) Mental Health Law: Policy and Practice. Oxford: OUP.  
• Hale, B. (2017) Mental Health Law. London: Sweet & Maxwell, 6^th ed.
• Jones, R. (2016) Mental Capacity Act Manual. London: Sweet & Maxwell, 7^th ed.
• Jones, R. (2017) Mental Health Act Manual. London: Sweet & Maxwell, 19^th ed.
• McSherry, B. and Freckleton, I. (eds), Coercive Care: Rights, Law and Policy. Routledge, 2013.
• Peay, J. (2005) Seminal Issues in Mental Health Law. Aldershot: Ashgate.
• Taylor, James Stacey (ed.) (2005) Personal Autonomy: New Essays on Personal Autonomy and Its Role in Contemporary Moral Philosophy. Cambridge: Cambridge University Press.
  

Important articles

• Allen, N. (2013) ‘The right to life in a suicidal state’, 36 International Journal of Law and Psychiatry 350-357.
• Arstein-Kerslake, A. and Flynn, E. (2017) 'The right to legal agency: domination, disability and the protections of article 12 of the Convention on the Rights of Persons with Disabilities', Int. J.L.C., 13(1), 22-38.
• Bartlett, P. (2012) 'The United Nations Convention on the Rights of Persons with Disabilities and Mental Health Law', 75 Modern Law Review 752.
• Brosnan, L. and Flynn, E. 'Freedom to negotiate: a proposal extricating "capacity" from "consent"', Int. J.L.C. 2017, 13(1), 58-76.
• Burns et al. (2011) 'Pressures to adhere to treatment (‘leverage’) in English mental healthcare', 199 British Journal of Psychiatry 145.
• Case, P. (2016) 'Dangerous liaisons? Psychiatry and law in the Court of Protection - expert discourses of "insight" (and compliance)', Med. L. Rev., 24(3), 360-378.
• Clough, B. (2015) '"People like that": realising the social model in mental capacity jurisprudence', 23 Medical Law Review 53.
• Hale (2007) 'The Human Rights Act and Mental Health Law: Has it Helped?', Journal of Mental Health Law 7-18.
• Kelly, B. (2014) 'An end to psychiatric detention?', 204 British Journal of Psychiatry 174.
• Lepping et al. (2016) 'Paternalism v autonomy', 209 BJPsych 95.
• McRae, L. (2015) 'The Offender Personality Disorder Pathway: Risking Rehabilitation?', Med Law Rev (20150 23(3):321.
• Morrison, A. et al. (2012) 'Antipsychotics: is it time to introduce patient choice?' 201(2) British Journal of Psychiatry 83.
• Quinn, G. and Rekas-Rosalbo, A. (2016) 'Civil death: rethinking the foundations of legal personhood for persons with a disability', Irish Jurist, 56, 286-325.
• Rashmi and Zigmond (2013) 'Mental Health Act 1983: use of urgent treatment in clinical practice', 37 The Psychiatrist 156.
• Richardson (2013) 'Mental Capacity in the Shadow of Suicide: What can the law do?' International Journal of Law in Context 9, 87-105.
• Richardson, G. (2012) 'Mental disabilities and the law: from substitute to supported decision making', Current Legal Problems.
• Taylor, H. (2016) 'What are Best Interests', 24 Med LR 176.

Additional Reading

• Agamben, G., 'Homo Sacer: Sovereign Power and Bare Life', trans. Daniel Heller-Roazen. Stanford CA: Stanford University Press.
• Agamben, G. (2005) State of Exception, trans. K. Attell. Chicago: University of Chicago Press.
• Dayan, C. The Law is a White Dog; How Legal Rituals Make and Unmake Persons. Princeton University Press.