Book Review: Mental Health, Legal Capacity and Human Rights (Michael Ashley Stein, Faraaz Mahomed, Vikram Patel and Charlene Sunkel, eds, Cambridge, 2021)

Mental Health, Legal Capacity and Human Rights (Michael Ashley Stein, Faraaz Mahomed, Vikram Patel and Charlene Sunkel, eds, Cambridge, 2021, Hardback, £85)

[A version of this book review will be forthcoming in due course in the International Journal of Mental Health and Capacity Law, so this serves as a sneak preview – the most recent issue of the journal can be found here]

This is perhaps the most useful book that has been published in recent times in what is now a very crowded area, and (something which is sufficiently rare to merit noting) lives up to the billing on the back that it offers a “comprehensive, interdisciplinary analysis of legal capacity in the realm of mental health.”   Edited by Michael Ashley Stein (Harvard Law School), Faraaz Mahomed (Wits University), Vikram Patel (Harvard Medical School) and Charlene Sunkel (Global Mental Health Peer Network), this hefty[1] – 412 page – book includes chapters by a very wide range of contributors.   This range is particularly important for two reasons.

The first – and very unusually for works in this area – is that the editors have deliberately sought contributions from across the spectrum of perspectives.   This means that a chapter from Tina Minkowitz outlining clearly and crisply the argument that the Convention on the Rights of Persons with Disabilities (CRPD) “strictly prohibits substitute decision-making and any form of involuntary admission or treatment in mental health settings” (p.44) and advocating reparations for psychiatric violence is followed directly by a chapter from Gerald L Neuman describing (in his words) how “the Committee [on the Rights of Persons with Disabilities]‘s absolutism endangers many of the people living with moderate or severe dementia whom it supposedly benefits” (p.56).  The book could therefore serve as a primer for anyone new to the issues raised by the passage of the CRPD in a way that texts that seek to gloss over real differences do not.   The opening chapter by the editors itself serves as an elegant and stimulating tour d’horizon of the state of the debate.

The other reason that the range of the book is so important is because it brings in perspectives from outside what is sometimes a hot and airless bubble of debates relating to issues in America, Canada and European countries.  It is perhaps a shame that there is only one contribution from South America, as reforms there in the field of legal capacity are often lauded as coming closest to achieving CRPD compliance.   The contribution there is from there, Alberto Vasquéz Encalada, in relation to the potential for legal capacity law reform in Peru to transform mental health provision is undoubtedly stimulating, even if the chapter leaves this common law-lawyer wanting to understand more about (for instance) precisely how the apparently very broad concept of “medical emergency” is actually interpreted in practice, applying as it does across the board – including psychiatric emergencies – to disapply the need for informed consent in respect of “any sudden or unexpected condition that requires immediate attention as it imminently endangers life, health, or that may leave disabling consequences for the patient.[2]  As ever, when analysing reforms, it is important to be able to put them within the wider context of the laws (and practices) that apply in the jurisdiction in question.[3]

Even if South America feels under-represented, and there is no chapter addressing the debates from the perspective of a Muslim country, there is otherwise an embarrassment of riches to delight: there are contributions from authors discussing Cameroon, Ethiopia, Ghana, India, Japan, Kenya, South Africa and Zambia.  Amongst these, I would single out, in particular, the chapter by Mrinalini Ravi et al entitled “Contextualising legal capacity and supported decision-making in the Global South: Experiences of Homeless Women with Mental Health Issues from Chennai, India.”  This – all-too short – chapter was of particular interest for the way in which the authors both show how an organisation significantly pre-dating the CRPD (The Banyan) was, in effect, supporting decision-making avant la lettre, and, on the basis of their work, advance the challenge that “[f]or a document that is extremely futuristic and representative of the needs of persons with disabilities, the General Comment on Article 12 is not robust in terms of representation from ultra-vulnerable populations or those from the Global South.  This leads to a silencing or abstraction of practical issues faced by the aforementioned population and treatment responses of those states that have ratified it” (p.122-3).   This challenge may not be popular, but it is one which it is necessary to engage.

A further merit of the broad church approach taken in the book is that it allows the reader to compare for themselves theory and reality, to compare micro-level work and macro-level policy, and to pose for themselves the question of whether evolution is better than revolution. In this regard, of particular interest – to me at least – were the chapters by Piers Gooding on the barriers to researching alternatives to coercion in mental health care, and also the chapter by Laura Davidson seeking what she identifies as a “practical legal approach towards the global abolition of psychiatric coercion,” a chapter in which she ends up, in essence, making a plea for the CRPD Committee to “acquiesce in pragmatic progressive realisation,” as the only basis upon which the global elimination of psychiatric coercion can move from pipe dream to reality (p.94).

Whilst the book has a very wide range, it also has an importantly limited scope, the editors making clear at the outset that the focus of the book is on those with psychosocial disabilities.   In an important footnote (fn 1, p.2) they note that intellectual disabilities and degenerative conditions such as Alzheimer’s “are likely to be affected by changes in decision-making regimes and should, therefore, be considered in debates relating to legal capacity,” and that whilst in practical terms such was not possible for the book “it is conceivable that many of the findings and assumptions relating to mental health may apply to intellectual disabilities, dementia and other conditions which affect capacity.  However, this is not a universal truth, and conclusions drawn here about the mental health care system should be interrogated further before being applied to social care models for the intellectually disabled or for those whose condition may not improve with time.”    In this regard, and whilst – by the editors’ criteria – the chapter by Gerard L Neuman should perhaps not have been included, it is of no little importance that this chapter fundamentally challenges the applicability of such “truth.”   If it does, then on what “truth” about the relationship between mental capacity and legal capacity can legal systems be built other than a recognition that, at least at some points, anyone can lack mental capacity to make a decision, and that legal systems need to be able to respond?

That the book provokes such questions is a measure of its strength, and readers from all backgrounds with an interest in these critically important issues will find themselves informed, stimulated and challenged in equal ways.   Especially in the circumstances of the pandemic (which features in the chapter by Benjamin Barsky et al on redefining international mental health care in its wake) the editors are to be congratulated on bringing together, and home, such an important work.

[Time limited information – if you want to hear from the editors and some of the contributors, see here for a link to the (free) book launch event to be held on 8 October 2021 at 10:00 am Eastern Standard Time].

[Full disclosure, I was provided with an inspection copy of this book by the publishers.  I am always happy to review books in the field of mental capacity and mental health law (broadly defined).]

[1] Although, as so often, the heft does not include an index – a particular regret here given the riches it contains.

[2] General Health Act, Law No. 26842, translation (it appears) by the author of the chapter.

[3] A useful example of a work which does this is: Marshall, P., & Jiménez, G. (2021). Medicalisation and participation in legal capacity determinations in ChileInternational Journal of Law and Psychiatry78, 101735.

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