The UN disability treaty’s impact on mental health law and policy in Canada

December 10th is Human Rights Day. To mark the occasion we invited the authors of an article on the implications of the UN disability treaty on mental health law and policy in Canada, which was published earlier this year in BMC International Health and Human Rights, to tell us about their research.

Approximately 15% of the world’s population lives with disabilities. This means there are almost one billion people who face everyday inequality, marginalization, and discrimination through inequitable opportunities, as compared to persons without disabilities. Moreover, persons with psychosocial disabilities face disparate access to healthcare and social services worldwide, along with systemic discrimination, structural inequalities, and widespread human rights abuses. People with psychosocial disabilities face particularly acute social challenges and continue to be subjected to human rights violations worldwide. The stories of discrimination, mistreatment, and exclusion are harrowing.

Approximately 15% of the world’s population lives with disabilities.

Accordingly, many people have looked to international human rights law to help address mental health challenges. On December 13, 2006, the United Nations formally adopted the landmark Convention on the Rights of Persons with Disabilities (CRPD) – the first human rights treaty of the 21st century and the fastest ever negotiated.

CRPD implementation in Canada

Our article published in BMC International Health and Human Rights assesses the CRPD’s potential impact on mental health systems and presents a legal and public policy analysis of its implementation in one high-income country: Canada. As part of this analysis, we undertook a critical review of the CRPD’s implementation in Canadian legislation, public policy, and jurisprudence related to mental health.

Overall, we found that while the CRPD remains conspicuously absent from Canadian legislation, public policy, and jurisprudence, the country’s ratification of the Convention (which took place on March 11, 2010) has facilitated an important shift in the social and cultural paradigms surrounding psychosocial disability in Canada. As a result, this new international human rights treaty may be aiding the everyday struggles of persons living with psychosocial disabilities – even in the wealthiest countries – by facilitating larger changes in social norms and expectations around such disabilities.

Barriers to implementation

CRPD remains conspicuously absent from Canadian legislation, public policy, and jurisprudence.

While the Convention is clearly an important step forward, there remains a divide, even in Canada, between the Convention’s goals and the experiences of Canadians with disabilities. Its implementation is perhaps hindered most by Canada’s reservations to Article 12 of the CRPD on legal capacity for persons with psychosocial disabilities.

The overseeing CRPD Committee has stated that Article 12 only permits “supported decision-making” regimes, yet most Canadian jurisdictions maintain their “substitute decision-making” regimes. This means that many Canadians with mental health challenges continue to be denied legal capacity to make decisions related to their healthcare, housing, and finances. But changes are afoot: new legislation has been introduced in different jurisdictions across the country, and recent court decisions have started to push policymakers in this direction.

Ultimately, the success of the CRPD and other international laws related to mental health depends on the extent to which they are domestically implemented and followed by its state parties.

Despite the lack of explicit implementation, the CRPD has helped to facilitate a larger shift in social and cultural paradigms of mental health and disability in Canada. But mere ratification and passive implementation are not enough. Further efforts are needed to implement the CRPD’s provisions and promote the equal enjoyment of human rights by all Canadian citizens – and presumably for all other people too, from the poorest to the wealthiest countries.

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