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Against a backdrop of the UN Convention on the Rights of Persons with Disabilities having been in place for over a decade, discussions about legal capacity, the relevance of mental capacity and the shift to supported decision-making, continue to develop. A panel event was held at the King’s Transnational Law Summit in 2018 with the aim of understanding the contours of the dialogue around these issues. This paper presents the contributions of the panel members, a summary of the discussion that took place and a synthesis of the views expressed. It suggests that divergent conclusions in this area turn on disagreements about: the consequences of sometimes limiting legal capacity for people with mental disabilities; the emphasis placed on particular values; the basis for mental capacity assessments; and the scope for supported decision-making. It also highlights the connection between resources, recognition and freedoms for people with mental disabilities, and therefore the issues that arise when discussion in this area is limited to legal capacity in the context of decision-making.

Background. Human rights violations are commonly experienced by people in psychiatric and social care institutions. States and private organizations providing such health and social services must comply with international human rights law. Monitoring of such compliance is increasingly recognized as a vital component in ensuring that rights are respected and violations are brought out in the open, remedied and prevented. Aims. The Institutional Treatment, Human Rights and Care Assessment (ITHACA) project produced a method to document violations and good practice with the aim of preventing human rights violations and improving general health care practice in psychiatric and social care institutions (www.ithacastudy.eu). Methods. A methodological and implementation study conducted across 15 European countries developed and assessed the ITHACA Toolkit in monitoring visits to 87 mental health organizations. Results. The toolkit is available in 13 European languages and has demonstrated applicability in a range of contexts and conditions. The information gathered through monitoring visits can document both good practice and areas for improvement. Conclusions. The ITHACA Toolkit is an acceptable and feasible method for the systematic monitoring of human rights and general health care in psychiatric and social care institutions that explicitly calls for the participation of service users in the monitoring of human rights violations and general health care practice.

This paper will analyse the essential legal requirements of the European Convention on Human Rights which touch on the lives (and deaths) of people with mental disabilities. It will examine the procedural safeguards which must be followed when involuntarily detaining a person under mental health legislation; access to a court to test the lawfulness of detention; the requirement to be free from torture, inhuman or degrading treatment or punishment; the right to respect for private and family life, home and correspondence; and the right to life, including investigation after a death. The paper will discuss some of the factors which explain the relative scarcity of mental disability cases decided by the Strasbourg Court. In conclusion there will be an examination of the role of lawyers and other key players in mental disability, and how stakeholders can move forward to prompt much needed social reform.