THE INTERNATIONAL HUMAN RIGHTS FRAMEWORK
APPLICABLE TO CHILDREN WITH A PSYCHIATRIC DISABILITY



Fiona Ang
Catholic University of Leuven (Belgium)
fiona.ang@gmail.com



In this paper, a legal analysis is given of the international human rights framework
applicable to children with a psychiatric disability (first, a terminological justification is
included). Using the discourse of the international children's rights movement, these
children undeniably constitute a `very vulnerable group': `vulnerable' because they have a
disability, and `very vulnerable' because the disability they have is not always a physically
tangible one. Indeed, practice shows that the classical patients' rights are not automatically
assumed to be applicable to children treated for a psychiatric disability. These children can
be locked up without having been in conflict with the law, given medication without their
consent, denied psychiatric treatment without a medical reason. It appears that these
practices are often in conformity with ­ hiatuses in ­ national legislation. Therefore, the
main purpose of this paper is to examine the compliance of the latter with the state
obligations flowing from international human rights law.


The key principle of this international human rights framework is simple: being a `child
treated for a psychiatric disability' is not per se a valid criterion to be treated differently. All
human rights are applicable. Only if an objective and pertinent justification can be given,
protection of those rights can be restricted or expanded. Placing a child against his or her
will in an institution is therefore merely possible if the safeguards provided in international
law are respected, both with regard to the conditions of placement and those in placement.
Nevertheless, it is not always self-evident to apply human rights law to children with a
psychiatric disability. The `free and informed consent' doctrine, for instance, confronts
children's rights lawyers and health professionals with particular problems. Does this
doctrine under international human rights law constitute a genuine `right' for children
treated for a psychiatric disability? Is parental consent sufficient, provided that children are
involved in accordance with their evolving capacities, or does international children's rights
law require a reversal, in principle asking the child's consent? Does a psychiatric disability
always influence a child's evolving capacities? What is the impact of compulsory
placement? Likewise, many questions can arise with regard to the classical patients' right to
confidentiality. Should information on the health status of a child with a psychiatric
disability be disclosed to the child himself or herself, or to his or her parents or guardian?


In this paper, the analysis covering the abovementioned problems is made from a legal,
more in particular human rights, perspective. Patients' rights are proclaimed in numerous
declarations, which are mostly non-binding instruments (a laudable exception being the
1997 Council of Europe Convention on Human Rights and Biomedicine). It is argued,
however, that all those patients' rights can be derived from the ­ binding ­ international

1273

---

human rights treaties adopted within the framework of UN and the Council of Europe. Also
the draft Disability Convention, which is hopefully soon to be adopted, is taken into
account. It is concluded that children with a psychiatric disability are granted a certain level
of protection of their rights at the international level.


A first step to materialize those rights consists of implementing the international state
obligations in domestic law. This paper briefly compares the domestic implementation of
those state obligations in Belgium, in the Netherlands and in Indonesia. The three countries
can be said to have made some effort to comply with international human rights law. For
theory to become reality, however, the most important step is the actual realization of
legislation, so that children with a psychiatric disability are treated with respect for their
human dignity ­ as are all other people.


1274

---