A/HRC/34/32
41.
Other interventions include the promulgation of laws and policies to:
(a)
Address and eliminate stigma and discrimination;
(b)
Protect the principle of free and informed consent for treatment and prohibit
involuntary treatment and detention;
(c)
Protect individuals from human rights violations in health settings;
(d)
Prohibit recourse to all forms of substitute decision-making;
(e)
Ensure the availability of and equitable access to services and support for
persons with mental health conditions and those with psychosocial disabilities, including
those in prisons and other detention facilities;
(f)
occurred.
Ensure expeditious access to justice where human rights violations have
42.
Regarding mental health and disability specifically, mental health laws, where they
exist, should avoid the separate regulation of legal capacity, the right to liberty and security,
or other aspects of the law which are amenable to being mainstreamed into general
legislation. In all cases, laws and regulations should be compliant with articles 5, 12, 13, 14,
15, 16, 17 and 25 of the Convention on the Rights of Persons with Disabilities, among other
provisions, and should: (a) prohibit the arbitrary deprivation of liberty on the basis of
impairment, irrespective of any purported justification based on the need to provide “care”
or on account of “posing a danger to him or herself or to others”; (b) ensure the individual’s
right to free and informed consent in all cases for all treatment and decisions related to
health care, including the availability and accessibility of diverse modes and means of
communication, information and support to exercise this right; and (c) in accordance with
the standards of the Convention, develop, adopt and integrate into the legal framework the
practice of supported decision-making, advance directives and the principle of “the best
interpretation of the will and preferences” of the person concerned as a last resort.
3.
Participation
43.
The full participation of affected communities in the development, implementation
and monitoring of policy has a positive impact on health outcomes and on the realization of
their human rights. Ensuring their participation supports the development of responses that
are relevant to the context and ensures that policies are effective. 48 Participation in lawmaking and policy design in mental health has typically been directed at health
professionals, as a result of which the concerns and views of users, persons with mental
health conditions and persons with psychosocial disabilities have not been systematically
taken into account and harmful practices have been perpetuated and institutionalized in law
and policies.
44.
States should, therefore, ensure that users of mental health services, persons with
mental health conditions and persons with psychosocial disabilities participate
meaningfully during all stages of planning and implementation, as envisaged in article 4 (3)
of the Convention on the Rights of Persons with Disabilities and recommended by the
Committee on Economic, Social and Cultural Rights in its general comment No. 14 (para.
54). With this objective, States should build the capacity of users, persons with mental
health conditions and those with psychosocial disabilities to participate and to claim their
rights. An effective strategy will include education and awareness-raising, and ensuring that
48
See Joint United Nations Programme on HIV/AIDS, “Non-discrimination in HIV responses” (June
2010), paras. 18-22.
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