Human Rights Watch is an independent, non-governmental organization dedicated to defending and protecting human rights, working in more than 90 countries. We conduct research on the rights of persons with disabilities around the world, including in Latin America.

Human Rights Watch welcomes your commitments to advance the rights of citizens of Mexico to access mental health care. These efforts can be beneficial for building a stronger legislative framework to provide mental health services for the Mexican population at large, and will hopefully bring Mexico in line with its international obligations on disability rights.

We would like to raise our concerns in relation to the proposed bill on mental health (Iniciativa con Proyecto de Decreto por el que se crea la Ley Nacional de Salud Mental) that is currently in front of the chamber of deputies.

We urge the Mental Health Commission to not approve the bill in its current form but rather propose a revised bill that reflects a human rights-oriented framework, developed in consultation with disabled persons organizations and disability rights experts, to ensure the right to mental health for everyone in Mexico without resorting to coercive treatment.

The paradigm shift towards human rights-based model of disability

As the Special Rapporteur on the Right of Everyone to the Enjoyment of the Highest Attainable Standard of Physical and Mental Health, Mr. Dainius Pūras, noted in his latest report “[e]veryone, throughout their lifetime, requires an environment that supports their mental health and well-being; in that context, we are all potential users of mental health services.”[1] Mental health policy, including legislation, should address mental health services for everyone and not just for those who are labeled, as the proposed bill does, to have “mental illness” or “mental disorders” (psychosocial disabilities).

The Convention on the Rights of People with Disability (CRPD), to which Mexico became a state party in December 2007, establishes a paradigm shift based on a human rights-based model in opposition to a medical model that considers disabilities, including psychosocial disabilities, “illnesses” or impairments. Instead of focusing on the specific features of the person, the new paradigm underscores the relational character of disability and its evolving nature. It is the impairment (including physical, sensory, or mental), in interaction with the environment and other attitudinal barriers, which constitutes a disability. The bill under consideration includes multiple references to the need to have regard to the CRPD when developing the provision of mental health services in Mexico.

The mental health bill and the medical model of disability

The bill that is now currently the subject of discussion with the Mental Health Commission depends heavily on a coercive framework for mental health treatment of persons with psychosocial disabilities (mental health conditions) as well as persons who are considered to be dependent on drugs. Any approach to mental health should follow a human rights model. The CRPD Committee, the Special Rapporteur on the Right of Everyone to the Enjoyment of the Highest Attainable Standard of Physical and Mental Health, and the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, have all emphasized the need to abandon the use of forced treatment and other nonconsensual measures, i.e. involuntary admission to psychiatric hospitals for medical treatment.

An integral part of the right to health, including mental health, is the right to consent to treatment, both as a freedom and an essential safeguard to its enjoyment. This includes the right to refuse treatment.[2] Mexico needs to move away from a paternalistic approach towards mental health and build on alternatives that emphasize peoples’ right to choose and govern their own lives as a core element. In the realm of mental health, an array of services should be made available from which people can choose freely, instead of continuing coercive policies, such as involuntary treatment, forced medication, and others.

Human Rights Watch is concerned that the proposed bill is deeply entrenched in the medical model of disability and the language used is inappropriate and outdated, for example using terms like “mental disorder” (instead of psychosocial disability), and “mentally ill patients” (instead of persons with mental health conditions). Although there is an explicit recognition of the obligations set forth in the CRPD, certain provisions in the bill are in direct opposition to them.

Currently, several countries and international organizations are working together to transform mental health policies that are conducive to ensure access to services that are respectful of human rights. We call on the mental health and drugs commission of the chamber of deputies in Mexico to review new trends that are currently being constructed to this effect, like the one that is currently being promoted by WHO.[3]

Broad exceptions to fundamental rights

The bill provides for measures such as “selective intervention for families at risk” (article 23, I) and “early interventions in schools”. The bill however does not define the exact scope of these measures which leaves open the possibility of misguided measures emerging that are overly intrusive and fail to respect the rights of persons with mental disability or mental health issues. There is no consensus as to what is to be understood by “families at risk”. Such vague terms could lead to the biased application of the law, for instance, a bias towards believing that one parent households are more at risk of mental health problems. Likewise, children who are poor at complying with very rigid rules of discipline, could be labeled in these “early interventions” as having “mental issues”.

Designed as preventive measures to avoid so-called “mental disorders”, these policies, if subject to overly broad discretion, poorly implemented, and absent close monitoring and review including appeal by the families, could lead to the possibility of medicalizing families and school environments, and prompting screenings on persons that might have unorthodox living styles that could be considered signals of “mental disorders”.[4]

Likewise, the bill establishes several exceptions to the fundamental rights of persons with psychosocial disabilities but does not spell out the limits on exceptions to ensure that they are compatible with human rights law, such as the exceptions must be for a legitimate aim, proportionate to achieving that aim and non-discriminatory. Such exceptions apply to areas such as patient confidentiality and the prohibition of involuntary hospitalization. (Article 24, IV and VIII)[5]

The confidentiality principle between patient and psychiatrist means that the patient has the right to keep his or her medical record and interactions with mental health professionals confidential, thus mental health professionals have the duty not to disclose any information. The proposed bill recognizes this principle but foresees exceptions to the obligation, referring in general to applicable legal norms that might lead to the principle being breached in ways that are unjustified. The proposed bill should clarify with greater precision when and what types of exceptions exist and how those can be compatible with human rights protection.

Involuntary hospitalization can happen relatively easily and anyone, such as the police or a member of the community, can ask the health authority to determine that the hospitalization of a person should be permitted because the requestor believes a person might have a “mental disorder” (Article 53) and pose a threat.[6] Article 14 of the CRPD protects the right of persons with disabilities to liberty and they cannot be deprived of liberty on the basis of disability. Involuntary hospitalization amounts to deprivation of liberty because the person is not free to decide whether he or she wants to be admitted to a medical facility and when such involuntary hospitalization is based on a disability, it is arbitrary.

Infringement to the right to informed consent and the right to legal capacity

Article 26 of the bill establishes a general provision allowing the restriction of human rights for persons with disabilities when there is a need to protect the safety and security of the person or other persons, or to protect security, public order, public health, or third parties’ rights. [7]

In principle, the bill recognizes that persons with psychosocial disabilities must consent to any treatment and have a right to refuse and it is presumed they have capacity of discernment. Nevertheless the bill also makes it easy for medical staff or judicial authorities to challenge a person’s capacity (article 31 and 32).[8] The exception is so broad the risk is that involuntary treatment will become the rule. The right to be treated only on the basis of informed consent, which is a core component of the right to health, can be limited in cases of urgency, when it is determined that the person needs to be involuntarily hospitalized, or when health professionals consider there is evidence that treatment is the best alternative to the patient’s needs. These exceptions are so broad that it threatens to deprive the right of all substance (article 24, VIII)[9].

Article 30 of the bill, in conjunction with article 31, provides that family members who are assuming responsibility for the care of persons deemed to have “mental disorders” have the right to be involved in the formulation and implementation of treatment if the person is said to lack capacity.[10] Where this constitutes a situation that a person can be treated without their informed consent, or against their wishes, then this violates the right to health.[11]

The CRPD Committee has held that forced treatment by psychiatric and other health and medical professionals is a violation of the right to equal recognition before the law and an infringement of the right to personal integrity (article 17); freedom from torture and inhuman and degrading treatment (article 15); and freedom from violent exploitation and abuse (article 16). Non-consensual medical treatment denies legal capacity of a person to choose medical treatment and is therefore a violation of article 12 of the CRPD. The Special Rapporteur on the Right to Health has noted that where grounds of “medical necessity” and “dangerousness" of the person are used as justification for non-consensual treatment their application is open to broad interpretation and, consequently, raises questions of arbitrariness.[12]

State parties to the CRPD have an obligation to respect legal capacity of persons with disabilities to make decisions at all times, even in crisis situations. If the person so requests, state parties have an obligation to provide access to supported decision-making regarding psychiatric and other medical treatment. Decisions relating to a person’s physical or mental integrity should only be taken with free and informed consent of the person concerned.[13]

Involuntary hospitalization and violations to the right to liberty

Article 36 of the bill says that no one shall be obliged to submit to a mental health evaluation to determine if he or she has a “mental disorder”[14], however, a family member, the police, a judicial authority, a psychiatrist or a member of the community (article 53) can request a health authority to agree to the involuntary hospitalization of a person, if they consider he or she has a “mental illness”, with the goal of “protecting” the person from harm to self and others, or when they are disturbing “public order”.

Detention of persons with disabilities in institutions against their will, either without their consent or with the consent of a substitute decision-maker, because of their disability, or assumptions that they will cause harm because of their disability, constitutes arbitrary deprivation of liberty and violates articles 12 and 14 of the CRPD.[15] Detention on the basis of medical necessity or for the purpose of treatment for drug users has also been criticized by the Special Rapporteur on Torture on the basis that it opens the way for abuse and it has no scientific basis.[16]

The CRPD Committee has held that there are no exceptions to the right to liberty and security of the person because of actual or perceived disability. Any mental health legislation authorizing involuntary internment or hospitalization on the basis of “danger” for self and others which is based on the alleged dangerousness of the impairment of a person is contrary to the right to liberty as established in article 14.2 of the CRPD.[17]

In October 2014, the CRPD Committee in its Concluding Observations on Mexico, called on the government to:

(a) Eliminate security measures that mandate medical and psychiatric inpatient treatment and promote alternatives that comply with articles 14 and 19 of the Convention;

(b) Repeal legislation permitting detention on grounds of disability and ensure that all mental health services are provided based on the free and informed consent of the person concerned.[18]

The Commission should therefore use this opportunity to act on the Committee’s recommendation and not to reinforce legal provisions and practices that are inconsistent with the CRPD. Persons with disabilities can be detained, on an equal basis with others, when they engage in behavior that would constitute a legitimate cause for detention for everyone else. In these cases, reasonable accommodation should be provided when it is so required.

Mexico’s constitutional framework only permits detention of persons when there is a criminal or administrative infraction, cases of foreigners with irregular migration status, and for extradition purposes.[19] The Mexican Constitution warrants no detention on the basis of disability or perceived disability, so enabling involuntary hospitalization contradicts the Mexican Constitution and constitutes disability-based discrimination according to article 1 of the Constitution.

Solitary confinement and physical restraint

The proposed bill also considers the possibility of applying solitary confinement and physical restraints on persons with “mental disorders”. Article 66 establishes the possibility of applying restraints for 72 hours when there is a need to control situations of “unmanageable violence”, or when the person has lost “sense of reality”, and to prevent harm to self and others.[20] The CRPD Committee has stated in numerous concluding observations that mental health laws that condone the practice of restraining persons with disabilities or using other coercive measures to control them, still reflect the medical model of disability and should be repealed.[21]

Moreover, the special rapporteur on torture has emphatically stated that “it is essential that an absolute ban on all coercive and non-consensual measures, including restraint and solitary confinement of people with psychosocial or intellectual disabilities, should apply in all places of deprivation of liberty, including in psychiatric and social care institutions.”[22] Passing this bill would be to flagrantly ignore the CRPD committee’s recommendations to Mexico issued in 2014, in which the Committee expressed serious concern with respect to human rights violations committed against persons with psychosocial disabilities, “such as physical restraint and placement in isolation”, which might even “amount to acts of torture or cruel, inhuman or degrading treatment”.[23] The bill under consideration is in startling contrast to the CRPD Committee’s explicit recommendations.

Article 55 provides for circumstances in which psychosurgery, irreversible medical treatments, and electroconvulsive therapy can take place. While the provision is subject to further development in guidelines to be issued by the health authority, there is the possibility that at least some of these procedures will be allowed proceed without the informed consent of the person receiving. [24]

We would appreciate your interest to discuss these issues further with Human Rights Watch and other disabled persons organizations who have also expressed their concerns on several aspects of this proposed bill.

 

[2] Report of the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health A/HRC/35/21, paragraph 63.

[3] Realising recovery and the right to mental health and related services - WHO QualityRights training to act, unite and empower for mental health (pilot version). Geneva: World Health Organization; 2017 (WHO/MSD/MHP/17.4). Licence: CC BY-NC-SA 3.0 IGO.

[4] Article  23. Policies of prevention, alongside the promotion of mental health, should be oriented by the needs of the population and cover different environments. These policies, should include, among other actions:

II. Selective interventions with at risk families and confronting family disintegration;

III. In schools, the development of life skills, coexistence skills, education in values, as well as early intervention in schools to promote a healthy environment amongst pupils;

[5] "Article  24. It is recognized as fundamental freedoms and human rights to each people with mental disorders and drug addictions the following:

IV. Right to confidentiality of personal information, information derived from the relation between the psychiatrist and the patient and confidentiality of treatment established in the clinical file. Except in cases provided in the applicable legal norms.

[6] The  mandatory internment refers to the one that is determined by the sanitary or judicial authority. Mandatory internment could be administrative, when it is determined by the sanitary authority, upon the request of the family, police authority, a certified psychiatrist responsible for the patient, or some member of the community, with the goal of protecting the person who apparently has a mental illness or whose behavior is endangering his integrity or that of third parties, or to avoid alteration of public order.

Mandatory internment should be reevaluated every five days with the opinion of another certified psychiatrist, that doesn't belong to the interdisciplinary team responsible for the patient to inform the sanitary authority about the situation of the patient.

Judicial mandatory internment is determined by a judge and it should be based on the recommendation of an expert opinion of a physician about the situation of the patient. The interdisciplinary team must inform the judge every 10 days about the evolution of the patient and if he has obtained a therapeutic goal of the internment.

[7] Article  26. The exercise of fundamental rights and safeguards to which this law makes reference can only be subject to limitations in those cases provided by the Constitution, the Mexican laws or international treaties the project health and security of the person, or to protect security, order, public health or fundamental rights of third persons.

[8] Article 31. Every treatment and internment of patients with mental disorders or drug addictions should be administered with prior informed consent, except were there are exceptions to mandatory and involuntary procedures.

Article 32. In order to be valid informed consent must satisfy the following criteria:

I. Person giving informed consent should have capacity to do so, capacity is presumed except when the contrary is proven.

[9] Article 24: VIIII. Right to informed consent of the person or his representative in relation to treatment or internment. Informed consent will not be needed in cases of involuntary internment, when there is an urgent case, or when it is proven that the treatment is the better way to meet with the patient needs.

[10] Article  30: III. Families have the right to be involved in the framing and implementation of treatment.

[12] Report of the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health A/HRC/35/21, paragraph 64.

[14] The determination of a diagnostic of a mental disorder or drug addiction, shall be established in accordance with internationally accepted medical norms. No one can be forced to medical screenings to determine if they are suffering from a mental disorder or drug addiction, unless the screening is determined when there is mandatory and involuntary treatment.

[15] CRPD Committee, General Comment 1, CRPD/C/GC/1 paragraph 40.

[16] Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, Juan E. Méndez A/HRC/22/53, paragraphs 40, 41 and 42. February 2013. http://www.ohchr.org/Documents/HRBodies/HRCouncil/RegularSession/Session...

[17] Guidelines on article 14 of the Convention on the Rights of Persons with Disabilities. The right to liberty and security of persons with disabilities. Paragraph 6.

[19] Political Constitution of the United Mexican States (articles 16, 33, and 119)

[20] Article  66. Isolation and physical restraints as means of control can only be applied in exceptional cases, as a therapeutical last resource when there is a situation of unmanageable violence, alongside the lost of judgment and sense of reality, or when there is lack of real conscience of the state the person is in, and, as long as there is the purpose of protecting health or integrity of the ill person and of those who are surrounding him in providing care, in accordance with the criteria of the physician in order to avoid an immediate harm to the patient or third persons. The patient under this measure will be under the care and monitoring of qualified staff at every moment.

Solitary confinement and physical restraints should never be determined to punish the person or for the convenience of the staff. The time of application of solitary confinement and physical restraints can never exceed 72 hours and should be authorized by the interdisciplinary team. The sanitary authority must publish the guidelines for psychiatry contention.

In order to apply contention measures professional personnel and train technical staff are needed. The employment of contention measures should be reduced to a minimum.

Duration and reasons for the application of contention measures should be registered immediately in the patient's clinical file and should be informed in the weekly report in order to be reviewed systematically.

The family member or legal representative of the patient should be informed about the application of these contention measures.

[21] Armenia, concluding observations CRPD/C/ARM/CO/1, paragraph 25; Bosnia and Herzegovina, Concluding Observations CRPD/C/BIH/CO/1, paragraphs 27 and 28; Lithuania, Concluding Observations CRPD/C/LTU/CO/1, paragraphs 29 and 30; New Zealand, Concluding Observations CRPD/C/NZL/CO/1, paragraphs 31 and 32; Republic of Moldova, Concluding Observations CRPD/C/MDA/CO/1, paragraph 30; Ethiopia, Concluding Observations CRPD/C/ETH/CO/1, paragraphs 33 and 34; Serbia, Concluding Observations CRPD/C/SRB/CO/1, paragraphs 27 and 28; Slovakia, Concluding Observations CRPD/C/SVK/CO/1, paragraph 45 and 46; Thailand, Concluding Observations CRPD/C/THA/CO/1,  paragraph 31; Uganda, Concluding Observations CRPD/C/UGA/CO/1, paragraph 28; Kenya, Concluding Observations CRPD/C/UGA/CO/1, paragraphs 29 of 30; Croatia, Concluding Observations CRPD/C/HRV/CO/1 , paragraphs 23 and 24; Czech Republic, Concluding Observations CRPD/C/CZE/CO/1, paragraph 31 and 32; Germany, Concluding Observations CRPD/C/DEU/CO/1, paragraph 33 and 34; Denmark, Concluding Observations CRPD/C/DNK/CO/1, paragraphs 38 and 39; Republic of Korea, Concluding Observations CRPD/C/KOR/CO/1, paragraphs 29 and 30; Mexico, Concluding Observations CRPD/C/MEX/CO/1, paragraphs 31 and 32; Australia, Concluding Observations CRPD/C/AUS/CO/1, paragraphs 35 and 36; El Salvador, Concluding Observations CRPD/C/SLV/CO/1, paragraphs 37 and 38.

[22] Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, Juan E. Méndez A/HRC/22/53, paragraph 63. February 2013. http://www.ohchr.org/Documents/HRBodies/HRCouncil/RegularSession/Session.

[23] Mexico, Concluding Observations CRPD/C/MEX/CO/1, paragraphs 31 and 32.

[24] Article  55. Sterilization, psychosurgery, other irreversible treatments, electroconvulsive therapy, experimental treatment are considered special treatments. The following should be considered:

I. Chemical techniques or sterilization shall never be applied as part of psychiatric treatment;

III. Psychosurgery or other irreversible treatments or those that modify the integrity of the person, shall not be applied, they can only be applied (sic) if authorized by legislation, with the consent of the patient, and following a specific protocol.

IV. Electroconvulsive therapy shall be applied only with the informed consent of the patient or the consent of his legal representative or guardian, as long as the protocol is followed. Electroconvulsive therapy on minors should be subjected to the evaluation of an ethical and medical committee of the institution. The use of electroconvulsive therapy on children below 12 years old is prohibited.