A critical analysis of the right to liberty of persons with psychosocial disabilities under the UN Convention on the Rights of Persons with Disabilities and the European Convention on Human Rights

This thesis undertakes a critical analysis of the right to liberty of persons with psychosocial disabilities as contained within Article 14 of the UN Convention on the Rights of Persons with Disabilities (CRPD) and Article 5 of the European Convention on Human Rights (ECHR). While both of these instruments contain guarantees of the right to liberty, their normative content is different and this therefore presents challenges for states that have ratified both treaties. Article 14 requires that any detention of an individual is not based on the existence of a disability whereas Article 5 expressly provides for the detention of an individual where they are found to be of ‘unsound mind’. This thesis interrogates the construction of the right to liberty contained in both instruments. It sets out the drafting history of Article 14 of the CRPD, specifically focusing on the impact of the social model of disability on that provision, as well as the need to view the right to liberty of persons with psychosocial disabilities in the context of other provisions of the CPRD, particularly Articles 19 and 25. The jurisprudence of the Committee on the Rights of Persons with Disabilities is then analysed, as are the differing interpretations of the right to liberty of persons with psychosocial disabilities contained within the United Nations human rights architecture. Conclusions are drawn regarding how this conflict of interpretation of the right to liberty of persons with psychosocial disabilities might be resolved. Article 5 of the ECHR is then discussed and the normative requirements of that provision are examined and contrasted with those of Article 14 of the CRPD. Countervailing factors which weigh against any reconciliation between the ECHR’s construction of the right to liberty and that contained in Article 14 of the CRPD are discussed. The potential for harmonisation between these two norms is then analysed. Finally, Ireland is taken as a case study in order to assess the impact of both the CRPD and the ECHR on the practice of involuntary detention domestically, at both the judicial and legislative level. Conclusions are drawn regarding the constitutional requirements and judicial attitudes which have influenced the effect which these international instruments have had on both the case law and legislation in this area of law. This analysis demonstrates that the case law in this area exposes a failure on the part of the Irish judiciary to engage with the requirements of either Article 14 of the CRPD or Article 5 of the ECHR, choosing instead to decide cases based on questions of constitutionality or statutory interpretation. It is concluded that this judicial approach has generally led to the dominance of a paternalistic interpretation of the right to liberty of persons with psychosocial disabilities, despite reform of the law in this area by way of the Mental Health Act 2001. More recently, however, the potential for a domestically focused legal interpretation to also yield more rights-based interpretations of the right to liberty has become evident. This analysis also concludes that the impact of both the ECHR and the CRPD has been more evident in legislative and policy reform on the right to liberty of persons with psychosocial disabilities in Ireland. This has been particularly apparent in the case of the CRPD, which has been enthusiastically adopted by civil society organisations in their efforts to achieve reform in this area. In the case of Ireland, it is concluded that if greater cognisance of its international obligations are taken in the future, this will likely be focused on ECHR rather than CRPD compatibility.

Grantor dc:publisher

University College Cork

Year dc:date.issued

2019

Author dc:creator

• Doyle Guilloud, Suzanne

Advisors dc:contributor.advisor

• Donnelly, Mary
• Whelan, Darius

• Disability
• Liberty
• CRPD
• ECHR
• Social model of disability
• International law

Statement dc:rights

• © 2019, Suzanne Doyle Guilloud.

Licence dc:rights.uri

• http://creativecommons.org/licenses/by-nc-nd/3.0/

Language dc:language.iso

en

Handle dc:identifier.uri

https://hdl.handle.net/10468/7972

OAI identifier oai:identifier

oai:cora.ucc.ie:10468/7972