1.7 UN Principles on Mental Illness

The Soviet use of psychiatry for political purposes was the catalyst for a more general investigation into international psychiatric practices by the UN Commission on Human Rights. In 1977 the Commission appointed a ‘Sub-Commission to study, with a view to formulating guidelines, if possible, the question of the protection of those detained on the grounds of mental ill-health against treatment that might adversely affect the human personality and its physical and intellectual integrity’. The primary task given to the two Special Rapporteurs the Sub-Commission subsequently appointed was to ‘determine whether adequate grounds existed for detaining persons on the grounds of mental ill-health’.[48]

The UN Principles for the Protection of Persons with Mental Illness and for the Improvement of Mental Health Care[49] did not emerge until more than a decade later. Unfortunately, despite the brave start, the final document had been so repeatedly rewritten and massaged by numerous committees dominated by psychiatrists that the primary tasks of attending to involuntary detention and the risks of treatment were largely buried by cross-referencing and other priorities.

The final version of the Principles adopted by the United Nations General Assembly in 1991 is primarily designed to protect the rights of voluntary patients, not involuntary patients. Principle 1 begins with an assertion of the ‘right to treatment’. This right thereafter becomes the basis for most of the other voluntary patients’ concerns, such as confidentiality and protection against discrimination, addressed by the document.

Where the Principles do address the problems of involuntary patients, it is done in a way that tends to undermine their rights rather than protect them. Principle 11, for instance, deals with ‘Consent to Treatment’ and specifies that ‘No treatment shall be given to a patient without his or her informed consent, except as provided for in paragraphs 6, 7, 8, 13, and 15.’ Paragraph 6, however, denies the right of informed consent to involuntary patients: ‘. . . treatment may be given to a patient without a patient’s informed consent if the following conditions are satisfied: (a) The patient is, at the relevant time, held as an involuntary patient;’[50]

When the Principles were introduced in 1991, they actually allowed for more psychiatric coercion than did much of the pre-existing mental health legislation in the signatory countries. In the early 1990s, for instance, the Mental Health Act[51] in the state of New South Wales, Australia, required that a person be thought likely to cause serious physical harm to themselves or other people before involuntary commitment was permitted. But under the new UN Principles, physical dangerousness is not required and a person can be involuntarily committed merely because ‘a qualified mental health practitioner’ considers the person’s condition is likely to deteriorate, or treatment will be prevented, without incarceration.[52]

The weakness of the UN Principles in relation to the rights of involuntary patients makes them useless as a frontline defence against psychiatric abuse of  fundamental human rights such as the 'right to liberty', the 'right to protection against torture, cruel, inhuman or degrading treatment' and the 'freedom of thought and belief'. In fact, the Principles are so weak they probably wouldn't even deter the blatant Soviet-type of political abuse that brought them into existence. Although Principle 4 requires that diagnosis ‘shall be made in accordance with internationally accepted standards’ and ‘A determination of mental illness shall never be made on the basis of political, economic or social status’[53] these requirements simply require psychiatrists to be cautious in the language they use when they are describing the symptoms of their burgeoning array of mental disorders.

[48] Yo Kubota, ‘The Institutional Response’, p. 115.

[49] United Nations, ‘Principles for the Protection of Persons with Mental Illness and for the Improvement of Mental Health Care’, pp. 989–1005.

[50] Ibid., Principle 11, pp. 994–995.

[51] New South Wales Parliament, NSW Mental Health Act 1990, Reprinted as in force at 17 October, Section 9, p. 5.

[52] United Nations, ‘Principles for the Protection of Persons with Mental Illness and for the Improvement of Mental Health Care’, Principle 16, p. 1000.

[53] Ibid., Principle 4, p. 992.