In December 1991, the General Assembly adopted the “Principles for the protection of persons with mental illness and the improvement of mental health care.” The operative paragraph 3 of General Assembly resolution, 46/119 of December 17, 1991 requests the Secretary-General to give the Principles the widest possible dissemination.
The twenty-five Principles address: fundamental freedoms and basic rights; protection of minors; life in the community; determination of mental illness; medical examination; confidentiality; role of community and culture; standards of care; treatment; medication; consent to treatment; notice of rights; rights and conditions in mental health facilities; resources for mental health facilities; admission principles; involuntary admission; review body, procedural safeguards; access to information; criminal offenders; complaints; monitoring and remedies; implementation; scope of principles relating to mental health facilities; and saving of existing rights.
These principles are applied without any discrimination of any kind to “all persons who are admitted to a mental health facility.” Principle 23 on implementation states that: “States should implement these Principles through appropriate legislative, judicial, administrative, educational and other measures, which they shall review periodically” and “should make these Principles widely known.”
Fundamental freedoms and basic rights guaranteed under the principles for the protection of persons with mental illness and the improvement of mental health care include-
1. The right of all persons to the best available mental health care, which shall be part of the health and social care system.
2. The right of all persons with a mental illness, or who are being treated as such persons, to be treated with humanity and respect for the inherent dignity of the human person.
3. Right to protection from economic, sexual and other forms of exploitation, physical or other abuse and degrading treatment for all persons with a mental illness, or who are being treated as such persons.
4. Right not to be discriminated on the grounds of mental illness. “Discrimination” means any distinction, exclusion or preference that has the effect of nullifying or impairing equal enjoyment of rights. Special measures solely to protect the rights, or secure the advancement, of persons with mental illness shall not be deemed to be discriminatory. Discrimination does not include any distinction, exclusion or preference undertaken in accordance with the provisions of these Principles and necessary to protect the human rights of a person with a mental illness or of other individuals.
5. Every person with a mental illness shall have the right to exercise all civil, political, economic, social and cultural rights as recognized in the Universal Declaration of Human Rights, the International Covenant on Economic, Social and Cultural Rights, the International Covenant on Civil and Political Rights, and in other relevant instruments, such as the Declaration on the Rights of Disabled Persons and the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment.
6. Any decision that, by reason of his or her mental illness, a person lacks legal capacity, and any decision that, in consequence of such incapacity, a personal representative shall be appointed, shall be made only after a fair hearing by an independent and impartial tribunal established by domestic law. The person whose capacity is at issue shall be entitled to be represented by a counsel. If the person whose capacity is at issue does not himself or herself secure such representation, it shall be made available without payment by that person to the extent that he or she does not have sufficient means to pay for it. The counsel shall not in the same proceedings represent a mental health facility or its personnel and shall not also represent a member of the family of the person whose capacity is at issue unless the tribunal is satisfied that there is no conflict of interest. Decisions regarding capacity and the need for a personal representative shall be reviewed at reasonable intervals prescribed by domestic law. The person whose capacity is at issue, his or her personal representative, if any, and any other interested person shall have the right to appeal to a higher court against any such decision.
7. Where a court or other competent tribunal finds that a person with mental illness is unable to manage his or her own affairs, measures shall be taken, so far as is necessary and appropriate to that person’s condition, to ensure the protection of his or her interest.
The principles contemplate that special care should be given to the protection of minors. This includes, if necessary, the appointment of a personal representative other than a family member for such minor as well.
The role of community and culture in the protection of persons with mental illness prescribe that-
1. Every patient shall have the right to be treated and cared for, as far as possible, in the community in which he or she lives.
2. Where treatment takes place in a mental health facility, a patient shall have the right, whenever possible, to be treated near his or her home or the home of his or her relatives or friends and shall have the right to return to the community as soon as possible.
3. Every patient shall have the right to treatment suited to his or her cultural background.