Rethinking Rights-Based Mental Health Laws

Front Cover
Bernadette McSherry, Penny Weller
Bloomsbury Publishing, Aug 16, 2010 - Law - 464 pages
Mental health laws exist in many countries to regulate the involuntary detention and treatment of individuals with serious mental illnesses. 'Rights-based legalism' is a term used to describe mental health laws that refer to the rights of individuals with mental illnesses somewhere in their provisions. The advent of the United Nations Convention on the Rights of Persons with Disabilities makes it timely to rethink the way in which the rights of individuals to autonomy and liberty are balanced against state interests in protecting individuals from harm to self or others.
This collection addresses some of the current issues and problems arising from rights-based mental health laws.
The chapters have been grouped in five parts as follows:
- Historical Foundations
- The International Human Rights Framework and the United Nations Convention on the Rights of Persons with Disabilities
- Gaps Between Law and Practice
- Review Processes and the Role of Tribunals
- Access to Mental Health Services
Many of the chapters in this collection emphasise the importance of moving away from the limitations of a negative rights approach to mental health laws towards more positive rights of social participation. While the law may not always be the best way through which to alleviate social and personal predicaments, legislation is paramount for the functioning of the mental health system. The aim of this collection is to encourage the enactment of legal provisions governing treatment, detention and care that are workable and conform to international human rights documents.
 

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Contents

1 Rethinking RightsBased Mental Health Laws
3
Part 2 Historical Foundations
11
The Codification of Clinical Authority and the Limits of RightsBased Approaches
13
Human Rights and Mental Health Law
51
A Next Step?
73
Part 3 The International Human Rights Framework and the United Nations Convention on the Rights of Persons with Disabilities
95
An Analysis of the United Nations Convention on the Rights of Persons with Disabilities
97
Using Negotiated Silence to Facilitate Change?
129
10 Civil Admission Following a Finding of Unfitness to Plead
231
Part 5 Review Processes and the Role of Tribunals
255
The Rights and the Wrongs of Competing Models?
257
Legalism Process and the Protection of Rights
275
A Reappraisal of the Canadian Experience
299
14 Compulsory Outpatient Treatment and the Calculus of Human Rights
327
Part 6 Access to Mental Health Services
355
The United States of Americas Experience
357

7 Abolishing Mental Health Laws to Comply with the Convention on the Rights of Persons with Disabilities
151
Part 4 Gaps between Law and Practice
179
Some Thoughts from the Research
181
9 ExtraLegislative Factors in Involuntary Status DecisionMaking
203
Voluntary Treatment and the Role of the Law
379
Mental Health and Rights Outside the First World
397
Index
419
Copyright

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About the author (2010)

Bernadette McSherry is ARC Federation Fellow, and Professor of Law at Monash University
Penelope Weller is a Post-Doctoral Research Fellow on the ARC Federation Fellowship at Monash University

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