Healing or jailing? Reconciling fundamental contradictions between the European Convention on Human Rights and the Convention on the Rights of Persons with Disabilities in Psychiatric Confinement Cases

Abstract

This essay presents a thorough analysis of the case law of the European Court of Human Rights, both prior to and following the entry into force of the Convention on the Rights of Persons with Disabilities (CRPD). The research will focus on cases involving violations of Article 5 of the European Convention on Human Rights (ECHR), which permits the involuntary confinement of persons of ‘unsound mind’. As is discussed in this paper, the CRPD expressly prohibits confinement on the basis of disability; this essay asks how the Court has considered the CRPD in its case law in light of this contradiction between the two conventions. It will be shown that the Court has struggled to define the ‘unsound mind’ or equate it to a mental disability, and has been generally reluctant to include the CRPD in its rulings on psychiatric confinement cases. The Court has therefore neglected to apply the CRPD properly, or even to allow the CRPD to develop its case law in any way. The paper will conclude by suggesting methods for a more harmonious interpretation of the two conventions, and how the Court can be more progressive in its treatment of persons with disabilities and all those involuntarily confined.