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The existence of regional human rights courts and commissions has been an essential element in the enforcement of international human rights in those regions of the world where such tribunals exist. In the specific area of mental disability law, there is now a remarkably robust body of case law from the European Court on Human Rights, some significant and transformative decisions from the Inter-American Commission on Human Rights, and at least one major case from the African Commission on Human Rights. In Asia and the Pacific region, however, there is no such body. Although the Association of Southeast Asian Nations (ASEAN) charter refers to human rights, that body cannot be seen as a significant enforcement tool in this area of law and policy. Some of the antipathy flows from past colonialism, and the feeling that human rights values are “Western values,” and some comes from the attitude that human rights mechanisms are a “threat to national sovereignty.” The lack of such a court or commission has been a major impediment in the movement to enforce disability rights in Asia. The absence of such a body has become even more problematic since the CRPD has been ratified. Without a regional enforcement body, it is impossible to be overly optimistic about the “real life” impact of this Convention on the rights of Asian and Pacific region persons with disabilities. This lack of optimism is furthered by the general lack of consumer involvement in mental disability treatment issues in Asia, and the serious mental health resource deficiencies in many Pacific Rim nations. As it is unlikely that an Asian regional human rights commission or court will be created in the near future, the creation of a Disability Rights Tribunal for Asia and the Pacific (DRTAP) would be a bold, innovative, progressive and important step on the path toward realization of those rights. It would also be a likely inspiration for a full regional human rights tribunal in this area of the world. This chapter briefly discusses the absence of human rights tribunals in Asia, and then considers the “Asian values” dispute, concluding that it leads to a false consciousness (since it presumes a unified and homogeneous multiregional attitude toward a bundle of social, cultural, and political issues), and that the universality of human rights must be seen to predominate here (here, I look at China as a case example). It offers a structural outline of a Tribunal, and finally explain why the creation of the DRTAP is timely, inevitable, and essential, if the UN Convention on the Rights of Persons with Disabilities is to be given true life.

This chapter offers a short overview of international human rights law that relates generally to mental disability law. It begins with a short background of early UN documents and conventions, discusses more specialized civil rights documents, and explores some of the conceptual dichotomies. It sets the stage for the consideration of the mental disability law–specific questions that follow; the CRPD must be seen in the context of prior UN conventions, covenants, and declarations, and the application of rights to persons with disabilities must be seen in the context of the application of rights to other often-disenfranchised minorities. As ratified, the CRPD calls for “respect for inherent dignity.” The final subsection of this chapter further discusses this. This chapter also explores two concepts central to the understanding of mental disability law: “sanism” and “pretextuality.” “Sanism” is an irrational prejudice of the same quality and character of other irrational prejudices that cause (and are reflected in) prevailing social attitudes of racism, sexism, homophobia, and ethnic bigotry. It permeates all aspects of mental disability law and affects all participants in the mental disability law system: litigants, fact finders, counsel, and expert and lay witnesses. “Pretextuality” defines the ways in which courts accept (either implicitly or explicitly) testimonial dishonesty and engage similarly in dishonest (and frequently meretricious) decision making. All of the topics discussed in subsequent chapters are tainted by the pervasive corruption of sanism, and each reflects the blinding pretextuality that contaminates legal practice in this area.

The most significant development in the relationship between international human rights law and mental disability law has been the ratification of the Convention on the Rights of Persons with Disabilities. The CRPD furthers the human rights approach to disability and recognizes the right of people with disabilities to equality in most aspects of life. It provides a framework for ensuring that mental health laws fully recognize the rights of those with mental illness. It categorically affirms the social model of disability, reconceptualizes mental health rights as disability rights, and extends existing human rights to take into account the specific rights experiences of persons with disabilities. Scholars characterize the Convention as a “moral compass” for social change, reflecting a “paradigm shift” in the way we think about and treat persons with disabilities, and a “beacon for an international consensus on justice and disability,” ushering in a “new era in human rights protection,” bringing “hope to the vulnerable,” and arguing that it illustrates “profound shifts both in the conception of human rights and the implementation of human rights in public policy domains.” This chapter discusses the most important provisions of the Convention. It looks at scholarly literature evaluating the impact that the CRPD might have locally as well as the still-meager case law that considers the CRPD. It briefly looks at some of the criticisms of the Convention, and concludes with some thoughts as to the most likely “pressure point areas” in which future developments will suggest the Convention’s ultimate impact on the population in question.

This chapter examines four separate substantive issues, leading to a consideration of the intersection between international human rights law and mental disability law through varying perspectives: law school education; the limits of expert testimony; the private law question of a psychotherapist’s duty to warn, and corrections law. Although these issues appear to have little in common, I conclude that the same overarching factors discussed previously and subsequently—the role of sanism and pretextuality, and the importance and promise of therapeutic jurisprudence—play a major role in any analysis of these disparate issues. Although—with the modest exception of corrections law—there has been very little scholarly literature about the intersection between international human rights law and these substantive legal questions, it is hoped that, as time goes on (and especially in light of the ratification of the CRPD), we will come more readily to see the significance of this intersection.

An examination of comparative mental disability law reveals that there are at least five dominant, universal, core factors that must be considered carefully in any evaluation of the key question of whether international human rights standards have been violated. Each of these five factors is a reflection of the shame that the worldwide state of mental disability law brings to all of us who work in this field. Each is tainted by the pervasive corruption of sanism that permeates all of mental disability law. Each reflects a blinding pretextuality that contaminates legal practice in this area. The core factors are: (1) Lack of comprehensive legislation to govern the commitment and treatment of persons with mental disabilities, and failure to adhere to legislative mandates; (2) Lack of independent counsel and lack of consistent judicial review mechanisms made available to persons facing commitment and those institutionalized; (3) A failure to provide humane care to institutionalized persons; (4) Lack of coherent and integrated community programs as an alternative to institutional care; and (5) Failure to provide humane services to forensic patients. In this chapter, each of these universal factors is discussed, and examples are offered from many regions of the world (not primarily from case law nor from sophisticated jurisprudential analyses but mostly from reports done by advocacy agencies and nongovernmental organizations).

This chapter presents the history of the American disability rights movement and its many, sometimes conflicting, projects. It begins with a brief tour of the major components of the disability rights movement, focusing on the movement's development in the two decades leading up to the passage of the Americans with Disabilities Act (ADA) in 1990. It discusses the one position that approaches consensus within the movement—the endorsement of a social rather than a medical model of disability. It then describes the intramovement tensions that the broad agreement on a social model obscures. It gives particularly extensive treatment to the tensions within the notion of “independence” that has been a fulcrum of disability rights thinking in the United States. Those tensions have come to the fore, in various ways, as courts have made decisions interpreting the ADA and advocates have considered further legislation.

This chapter seeks to answer these questions: To what extent does the body of what we categorize as “international human rights” actually offer protection to persons with mental disabilities? Do the UN conventions, treaties, and other documents sufficiently articulate both the positive and negative rights needed to empower such persons? Will states enforce judgments entered by regional courts? Do the regional courts and commissions take seriously the issues that arise in litigated and contested cases? Do sovereign states take seriously their obligations to enforce the human rights of this all-too-frequently marginalized and hidden population? The chapter looks closely at cases from the United States and from the regional human rights courts and commissions of the world. A relatively recent review article, in discussing the human rights of persons admitted to psychiatric hospitals in South America, characterized the development of human rights protections for such individuals as “one of the great and continuing achievements of the latter part of the twentieth century.” The same article, however, concluded that the countries of the region “have not satisfied their obligations to protect, respect and fulfill the human rights of persons with disabilities, despite human rights instruments recognizing these obligations.” The question to be addressed in subsequent chapters is this: How will future court and commission decisions illuminate the extent of the “real life” impact of the Convention on practice before, and the jurisprudence of, these tribunals?

This chapter discusses issues on which disability rights advocates have in some cases clashed publicly with one another—with both sides invoking the notion of antipaternalism. These issues involving life-and-death questions such as whether to treat newborns with disabilities and whether terminally ill adults should have the right to obtain assistance in suicide. The life-and-death issues discussed demonstrate the limits of the antipaternalist principle as a guide to the goals of the disability rights movement.

This chapter charts the emergence of the predominant forms of home care delivery that unions would have to confront for the rest of the century. The welfare wars that rocked the late 1960s and early 1970s generated not only California’s independent provider system but also solidified the vendor model in New York City, both of which allowed governments to transfer employer responsibility by contracting out the work. The presence of a well-organized and vocal independent living movement distinguished the fight in California during Ronald Reagan’s governorship, resulting in the consumer-directed In-Home Supportive Services. But because individuals could hire family members, IHSS served as a form of income support during a period when new federal welfare rules ideologically and administratively separated AFDC from disability and elder assistance. In contrast, New York moved to contract out and privatize services, funding old community development programs through Medicaid monies, in response to both public employee strikes and the militancy of poor women of color who dominated its Home Attendant Program. At each level of government, neoliberalism and privatization emerged as a continually evolving political tactic, part of the politics of welfare, Medicaid, and elder care.

This chapter identifies the area of decision-making as central to the protection of older people. It addresses the recognition of legal capacity as a central issue to avoid choices being ignored and not respected. The chapter discusses some of the law and policy reforms necessary to meet international human rights standards, as set out in the Convention on the Rights of Persons with Disabilities and the European Convention on Human Rights. Lessons from research in other jurisdictions are highlighted to avoid the pitfalls identified from similar law reform elsewhere.

This chapter discusses future directions disability policy might take to respond to the limitations of the Americans with Disabilities Act (ADA). It begins by considering ways to improve the enforcement of the ADA. There are a number of possibilities here, which may be politically difficult to obtain from Congress or the executive branch, but they are ones on which all disability rights activists, at least, can agree. Interventions that go beyond the ADA's antidiscrimination/accommodation model are also discussed. They may be politically easier to obtain from Congress and the executive branch, but they raise difficult dilemmas for disability rights activists who sought to move from welfare rights to civil rights. Much of the future task of disability rights advocacy will involve efforts to manage these dilemmas.

This chapter reflects on the ways in which courts in the thirteen jurisdictions included in this study have interpreted the provisions of the Convention on the Rights of Persons with Disabilities (CRPD). Firstly, it explores the interpretations which CRPD provisions (from the Preamble to Article 30) have been given by different courts in cases analysed in this study. Secondly, it considers various issues concerning the interpretations of the CRPD adopted in the thirteen jurisdictions. This discussion begins by reflecting on the extent to which interpretations of the various provisions appear to converge before moving on to consider the nature of the interpretation techniques being used. It also considers the extent to which judges appear to be drawing on UN guidance and transnational judicial dialogue to inform their understandings of CRPD provisions.

If there has been any constant in modern mental disability law in its near-forty-year history, it is the near-universal reality that counsel assigned to represent individuals at involuntary civil commitment cases is likely to be ineffective. In many nations, there simply is no mental disability “law,” and, even where there is such a law “on the books,” the promise of counsel is often little more than an illusion. Moreover, the lack of meaningful judicial review makes the commitment hearing system little more than a meretricious pretext. Encouragingly, though, a variety of interrelated factors may shed some light on this scandal and lead to positive social change in this area: the new, robust case law from the European Court on Human Rights on virtually all aspects of mental disability law, the ratification of the CRPD, and the publication of the World Health Organization Resource Book on Mental Health; the work done by mental disability law–specific NGOs (e.g., Mental Disability Rights International; Mental Disability Advocacy Center) on institutional conditions in central and eastern Europe and in Central and South America, and greater interest globally in what can broadly be called “access to justice” issues. This chapter surveys an array of international jurisdictions (common law, civil law, and mixed) and considers the range of findings (from nations in which there is no counsel, to perfunctory-at-best counsel, to almost-adequate counsel). It considers other major legal, political, and social developments that might illuminate these issues, and the impact of sanism and pretextuality on these developments. It concludes that the legislative and judicial creation of rights—both positive and negative—is illusory unless there is a parallel mandate of counsel that is (1) free and (2) regularized and organized. Without the presence of such counsel, any rights articulated by a court, human rights commission, or legislature become, again, merely “paper victories.” The presence of sanism and the technical complexity of most mental disability law cases (involving, often, expert testimony by mental health professionals and subtle predictions about “future dangerousness” or about institutional conditions) further augments the necessity and importance of adequate representation in such cases.

This chapter focuses on the disability movement, a relatively new movement that has managed to draw on the increased availability of foreign funding to capitalize on the democratic structures now in place in Indonesia. It shows how the disability rights movement, which was at best embryonic in the late New Order period, has developed momentum since the Indonesian government signed the United Nations Convention on the Rights of Persons with Disabilities (CRPD) in 2007. After that time, the availability of international aid to support activities related to disability contributed to the formation of a number of new organizations that were then well placed to respond to the opportunities that democratization offered. In particular, these organizations have been able to take advantage of the opportunities to influence policy at both the provincial and national levels. Their success highlights how Indonesian democracy offers inclusive and participatory processes for people with disabilities to have direct input into policy decisions.

One of the most important legal theoretical developments of the past two decades has been the creation and dynamic growth of therapeutic jurisprudence (TJ). Initially employed in cases involving individuals with mental disabilities, but subsequently expanded far beyond that narrow area, therapeutic jurisprudence presents a new model for assessing the impact of case law and legislation, recognizing that, as a therapeutic agent, the law can have therapeutic or antitherapeutic consequences. The ultimate aim of therapeutic jurisprudence is to determine whether legal rules, procedures, and lawyer roles can or should be reshaped to enhance their therapeutic potential while not subordinating due process principles. This chapter considers the potential impact of TJ on the relationship between international human rights principles and mental disability law developments, a consideration significantly premised on the belief that applying therapeutic jurisprudence can assist both lawyers and mental health professionals in addressing and resolving human rights issues. The chapter considers the TJ/international human rights intersection in the context of the forensic mental health system, focusing specifically on the role of forensic mental health professionals. It looks at that intersection in the context of some of the issues that which has been the focus of work (specifically, the use of state-sanctioned psychiatry as a tool of suppression of political dissent, the “universal factors,” the need for dedicated counsel, the enforcement of the CRPD, and the creation of a Disability Rights Tribunal for Asia and the Pacific), and concludes with some recommendations for future action.

The slogan “Nothing About Us Without Us” resonates with the philosophy and history of the disability rights movement (DRM), a movement that has embarked on a mission parallel to other liberation movements. The DRM's demand for control is the essential theme that runs through all its work. Control has universal appeal for DRM activists because the needs of people with disabilities and the potential for meeting these needs are everywhere conditioned by a dependency born of powerlessness, poverty, degradation, and institutionalization. This dependency, saturated with paternalism, begins with the onset of disability and continues until death. The condition of dependency is typical for hundreds of millions of people throughout the world. Only in the past twenty-five years has this condition begun to change. Although little noticed and affecting only a small percentage of people with disabilities, this transformation is profound.

This chapter assesses the role of the UN Convention on the Rights of People with Disabilities (CRPD) in driving law and policy reform globally relating to the rights of people with disabilities. By ratifying the CRPD states promise to adopt proactive equality norms and provide positive supports for persons with disabilities. They are also required to involve people with disabilities in the enforcement and implementation of the CRPD. It is thus a valuable tool for those advocating for the realisation of the rights of persons with disabilities that they be treated on an equal basis with others and fully included in society. The potential of the CRPD as a tool for social policy reforms is illustrated with reference to its use to impact EU policy to accelerate the de-institutionalisation and de-segregation of persons with disabilities across the EU.