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Coercive interventions under the new Dutch mental health law: Towards a CRPD-compliant law?
مداخلات قهری تحت قانون جدید سلامت روان هلند: به سوی قانون منطبق با CRPD؟-2020 The Netherlands became State Party to the United Nation Convention on the Rights of Persons with Disabilities (CRPD) in 2016, a treaty that holds great promise for promoting and protecting human rights of persons with mental disorders. Yet, the Dutch government also made explicit reservations to the Convention. On 1 January 2020, the Netherlands introduced a new mental health law, the Compulsory Mental Health Care Act (CMHCA), which aims to strengthen the legal status of persons with psychiatric illnesses. To which extent does the new Dutch mental health law comply with the regulations as outlined in the CRPD? In this article, we examine how coercive interventions, specifically the elements of competence, involuntary treatment and involuntary admis- sion are regulated in the domestic legislation and compare them to the CRPD approach. A normative analysis combined with literature review helps to understand the law, reveal the gaps and uncover the barriers that remain. Is there a need to reassess the domestic legal provisions allowing for coercive treatment, and if so, what advancements are required? After all, should the CRPD be strictly adhered to at all times? Keywords: CRPD | Mental health legislation | Capacity | Psychiatric coercion | Coercive interventions |
مقاله انگلیسی |
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An empirical study of actions on custodianship in Hungary
مطالعه تجربی اقدامات مربوط به حضانت در مجارستان-2020 Our research on the operation of legal institutions related to the restriction of the legal capacity of adults (custodianship and supported decision-making) started in December 2019. Our present analysis of case law on custodianship and supported decision-making is based on cases published in the Collection of Court Decisions. The adoption of the new Hungarian Civil Code has clearly had a significant effect on the court decisions, as it made it compulsory to designate the categories of decisions to which a partial restriction on legal capacity ap- plies. However, the change in regulation also implies a change of attitude that is considerably less apparent in the cases. In the context of international human rights expectations, any limitation of legal capacity should be applied as circumspectly as possible, and only in the most necessary cases. In the examined cases, the efforts of the Curia (the Hungarian Supreme Court) to reinforce this change of attitude in court practice may be detected but they are not extensive. At the same time, the spirit of the UN Convention on the Rights of Persons with Disabilities (CRPD) is not clearly reflected in court practice, and supported decision-making is not seen by courts as a real alternative to custodianship. Regarding the processes of the analyzed disputes, we found that the procedures in the published cases are relatively short, the higher courts in most cases upholding the decision of the lower courts, and that there is no legal or critical evaluation of any expert opinion. In a number of cases, the dominant function of custodianship is not the protection but the restriction of the rights of the given person and - against its declared goal - it serves to protect the interest of others. For example, property issues and the pro-tection of the financial interests of family members are given priority in the published cases. In addition, there were several cases in which the authorities themselves sought to be ‘protected’ by limiting the capacity of the person to initiate official and judicial proceedings. Keywords: Surrogate decision making | Custodianship | Guardianship | Supported decision making | Case law analysis | Hungary |
مقاله انگلیسی |
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A scoping review of case law relating to support and treatment for people with Prader-Willi Syndrome
مروری بر حوزه حقوقی مربوط به حمایت و درمان برای افراد مبتلا به سندرم پرادر-ویلی-2020 Background: Prader-Willi Syndrome (PWS) is a complex multisystem genetic disorder associated with several
challenges for people with PWS themselves, and for their families and care givers. Support around access to food
is a particular issue due to impaired satiety and, because of this, people with PWS eat excessive amounts of food
(hyperphagia). Together with other aspects of the PWS phenotype including, in many cases, a reduced sensitivity
to pain, hyperphagia results in life-threatening obesity and life-shortening complications for some people with
PWS. Restrictions to liberty and/or access to food raise important legal and ethical considerations in the clinical
management of children and adults with PWS. Particularly where disagreements arise and, in the absence of
comprehensive guidance for care providers, the courts may be called upon to resolve these difficult issues.
Aims: 1) To review case-law from English-speaking common law jurisdictions concerning support arrangements
for people with PWS with a view to identifying issues that have required the intervention of the courts. 2) To
identify principles on which to base clinical guidelines relating to the issues identified, ensuring that such
guidelines are consistent with ethical and human rights imperatives.
Methods: Westlaw, Westlaw AU, and Lexis Nexis were searched for case law concerning the treatment or support
of a person with PWS.
Results: Fifteen cases from jurisdictions in Australia, New Zealand, Canada, the United Kingdom and the United
States of America met inclusion criteria. Areas requiring judicial decision making included a) detention in
psychiatric hospital; b) support in least restrictive environments c) eligibility for support services; d) guardianship; e) access to special education. Judicial decisions are discussed in the context of the United Nations
Convention on the Rights of Persons with Disabilities.
Keywords: Prader Willi Syndrome | PWS | Intellectual disability | United Nations convention on the rights of persons with disabilities | Coercion | Capacity |
مقاله انگلیسی |
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Indigenous ontology, international law and the application of the Convention to the over-representation of Indigenous children in out of home care in Canada and Australia
هستی شناسی بومی ، حقوق بین الملل و اعمال کنوانسیون در نمایندگی بیش از حد کودکان بومی در مراقبت از خانه در کانادا و استرالیا-2020 This paper explores the efficacy of the United Nations Convention on the Rights of the Child
(Convention, UN General Assembly, 1989) through the lens of the over-representation of First
Nations children placed in out-of-home care in Canada and Aboriginal and Torres Strait Islander
children in Australia. A general overview of Indigenous worldviews frames a discussion on the
coherence of international human rights law and instruments, including the Convention, account
for Indigenous Peoples’ ontologies. The authors argue that the United Nations Declaration on the
Rights of Indigenous Peoples (UN General Assembly, 2007) and a new theoretical framework
published by the Pan American Health Organization (2019) on health equity and inequity are
useful tools to augment the Convention’s coherence with Indigenous ontologies.
The paper discusses how the Convention can be applied to structural and systemic risks
driving the over-representation of First Nations and Aboriginal and Torres Strait Islander children
in out of home care in Canada and Australia. These two countries are included as First Nations
and Aboriginal and Torres Strait Islander peoples in these countries have both had significant
impact in advocating for their children despite experiencing similar barriers including contemporary
colonialism. The advocacy work of the First Nations Child and Family Caring Society
in Canada and the Victorian Aboriginal Child Care Agency in Victoria, Australia are discussed.
The paper ends by outlining some of the challenges ahead that include the need to meaningfully
recognize Indigenous self-determination and equitable funding and resources to enable
the actualization of self-determination. Further research contrasting international human rights
instruments with Indigenous ontologies could help inform possible amendments to international
human rights treaties and general comments. Keywords: Indigenous | Child welfare | Structural risks | Equity | Human rights | Ontology |
مقاله انگلیسی |
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Advance directives: Addressing the obligations of support as part of the right of a person with disabilities to equal recognition before the law?
بخشنامه های پیشبرد: رسیدگی به تعهدات حمایت به عنوان بخشی از حق یک شخص معلول برای شناخت برابر در مقابل قانون؟-2020 Depending upon how they are regulated in domestic law, advance directives (ADs) can enable persons to make
decisions that have legal effect in the future as directed in the AD. There is some agreement in the academic
literature that ADs are a legitimate way of giving effect to the obligations arising from Article 12 (3) of the
United Nations Convention on the Rights of Persons with Disabilities to take appropriate measures to provide
access by persons with disabilities (PWDs) to the support they may require in exercising their legal capacity. It is
the purpose of this article to question when and how ADs address the obligations of support arising from Article
12 (3), concluding that it cannot and should not be assumed that ADs address those obligations only because
they embody and give effect to their makers agency. The article instead highlights the questions that must be
posed to obtain legal certainty as to when and how ADs will be a form of Article 12 (3) support. The article also
refutes some of the instances in the academic literature when ADs have been presented as support, while offering
an account as to how the regulation of ADs should be reconsidered in order to specifically address the obligations
arising from Article 12 (3) both when PWDs can and when they cannot communicate their wishes to others. Keywords: Advance directives | Exercising legal capacity | Human rights | Support | UNCRPD |
مقاله انگلیسی |
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Scottish mental health and capacity law: The normal, pandemic and ‘new normal’
بهداشت روانی و قانون ظرفیت اسکاتلند: نرمال ، همه گیر و عادی جدید-2020 A states real commitment to its international human rights obligations is never more challenged than when it
faces emergency situations. Addressing actual and potential resourcing pressures arising from the COVID-19
pandemic has resulted in, amongst other things, modifications to Scottish mental health and capacity law and
the issuing of new guidance relating to associated practice. Whether these emergency or ordinary measures are
invoked during the crisis there are potential implications for the rights of persons with mental illness, learning
disability and dementia notably those relating to individual autonomy and dignity. This article will consider
areas of particular concern but how strict adherence to the legal, ethical and human rights framework in
Scotland will help to reduce the risk of adverse consequences. Keywords: COVID-19 | Scotland | Mental health and capacity law | Emergency measures | Human rights |
مقاله انگلیسی |
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Mental health and capacity laws in Northern Ireland and the COVID-19 pandemic: Examining powers, procedures and protections under emergency legislation
قوانین بهداشت و ظرفیت های روانی در ایرلند شمالی و بیماری همه گیر COVID-19: بررسی قدرت ، رویه ها و حمایت ها تحت قانون اضطراری-2020 This article examines the changes made to mental health and capacity laws in Northern Ireland through temporary
emergency legislation, known as the Coronavirus Act 2020. The purpose of the legislation was to respond
to the emergency situation created by the COVID-19 pandemic, in particular the increase pressure placed on
health services in the United Kingdom. An overview is provided of the governments rationale for the changes to
Northern Ireland mental health and capacity laws, as well as exploring how they are likely to be operationalised
in practice. Consideration is also given as to how such changes may impact upon existing human rights protections
for persons assessed as lacking mental capacity. It is argued that it is important that regular parliamentary
oversight is maintained in relation to the potential impact and consequences of such changes during the
period they are in force. This should be done in order to assess whether they remain a necessary, proportionate
and least restrictive response to the challenges faced in managing mental health and capacity issues in Northern
Ireland during this public health emergency. Keywords: Mental capacity law | Mental health law | Human rights | Northern Ireland | COVID-19 | Coronavirus Act 2020 | Emergency legislation |
مقاله انگلیسی |
8 |
Modern slavery and public health: a rapid evidence assessment and an emergent public health approach
برده داری مدرن و سلامت عمومی: ارزیابی سریع شواهد و رویکردهای اضطراری بهداشتی-2020 Objectives: Modern slavery is a human rights violation and a global public health concern. To date,
criminal justice approaches have dominated attempts to address it. Modern slavery has severe consequences
for peoples mental and physical health, and there is a pressing need to identify and implement
effective preventative measures. As such, a public health approach to modern slavery requires elucidation.
The objectives of this study were to explore the case for public health involvement in addressing
modern slavery and the components of a public health approach and to develop a globally relevant
framework for public health action.
Study design: A Rapid Evidence Assessment.
Methods: This study is a rapid systematic review of published literature and stakeholder consultation.
Results: The accounts of 32 consultees and evidence from 17 papers including reviews, commentaries
and primary studies were included in the evidence assessment. A strong ethical rationale for
public health engagement in addressing modern slavery was evident. Multilevel and multicomponent
interventional strategies were identified across global, national, regional, local and service
levels. Although public health could add value to existing approaches, multiple barriers and tensions
exist.
Conclusion: Published literature and stakeholder opinion indicate an emergent public health approach to
modern slavery. It involves intervention at multiple levels and is guided by a rights-based, survivorcentred
and trauma-informed approach. This synthesis offers an important early step in the construction
of a globally relevant public health approach to modern slavery. Keywords: Modern slavery | Trafficking | Public health | Evidence synthesis | Stakeholder consultation | Partnership |
مقاله انگلیسی |
9 |
Council of Europe convention 108+: A modernised international treaty for the protection of personal data
کنوانسیون شورای اروپا 108+: یک معاهده بین المللی مدرن شده برای حفاظت از داده های شخصی-2020 The Council of Europe has modernized its Convention 108 for the protection of individuals
with regard to automatic processing of personal data: in 2018 it adopted Convention 108+.
The modernised version of Convention 108 seeks to respond to the challenges posed, in
terms of human rights, by the use of new information and communication technologies.
This article presents a detailed analysis of this new international text. Convention 108+
contains important innovations: it proclaims the importance of protecting the right to informational autonomy and human dignity in the face of technological developments. It consolidates the proportionality requirement for data processing and strengthens the arsenal of
rights of the data subjects. It reinforces the responsibility of those in charge of data processing as well as its transparency. It requires notification of security breaches. It strengthens the
independence, powers and means of action of the supervisory authorities. It also strengthens the mechanism to ensure its effective implementation by entrusting the Committee set
up by the Convention with the task of verifying compliance with the commitments made
by Parties. Keywords: Data protection | Council of Europe Convention 108 | Modernised Convention 108 | Personal data | Informational autonomy | Data subject’s rights | Data security | Transborder data flows | Supervisory authority | Convention Committee |
مقاله انگلیسی |
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Struggling to strike the right balance between interests at stake: The ‘Yarovaya’, ‘Fake news’ and ‘Disrespect’ laws as examples of ill-conceived legislation in the age of modern technology
تلاش برای ایجاد تعادل مناسب بین منافع در خطر: قوانین "Yarovaya"، "Fake News" و "بی احترامی" به عنوان نمونه هایی از قوانین نادرست در عصر فناوری مدرن-2020 The article deals with the legislative amendments that have been recently adopted in the Russian Federation, the so-called ‘Yarovaya’ law, the ‘fake news’ law and the ‘disrespect’ law. It explains the essence and problems of implementation of the above-mentioned legal instruments and assesses them from the human rights angle. It is established that the rather complex laws under analysis pose significant threats to the human rights and fundamental freedoms of individuals, including privacy, data protection and freedom of expression, and introduce other additional negative effects to the Russian society and economy. While in the adoption of such legislation it is crucial to give due weight to the involved interests, the used examples indicate that the State’s interests seem to prevail at the cost of the rights and freedoms of those who need to be adequately protected.© 2020 E. Moyakine and A. Tabachnik. Published by Elsevier Ltd. This is an open access article under the CC BY-NC-ND license (http://creativecommons.org/licenses/by-nc-nd/4.0/) Keywords: Russian legislation | Yarovaya law | Fake news law | Disrespect law | Human rights | Privacy | Data protection | Freedom of expression | Public safety | Public security |
مقاله انگلیسی |