Tina Minkowitz, Esq. writes for Mad in America:
The disability community, including users and survivors of psychiatry, has sent a letter (drafted and circulated by WNUSP) to the UN Human Rights Committee urging that treaty monitoring body to follow the Committee on the Rights of Persons with Disabilities in prohibiting all mental health detention. The signatories came from all regions of the world and include user/survivor organizations, disability organizations, other human rights organizations and individual experts. The Special Rapporteur on Disability sent his own statement elaborating this point, and the organization Autistic Minority International has also submitted an excellent paper. All these submissions can be found on the website of the Human Rights Committee.
Since our letter is quite technical in pointing out the divergence of the Human Rights Committee’s position from that of the CRPD, which is a higher standard of human rights protection, I would like to bring out some additional points that may be helpful in our advocacy.
Why Do We Say That Mental Health Detention is Discrimination, and Why is it Prohibited Under the CRPD?
Detention in the mental health context is discrimination because the threshold criterion for such detention is the existence of an actual or perceived disability as evidenced by a psychiatric diagnosis. Indeed, UN standards in force prior to the CRPD, such as the Principles for the Protection of Persons with Mental Illness and for the Improvement of Mental Health Care (MI Principles), permitted mental health detention only of individuals who are so diagnosed according to international standards. This criterion that is similarly found in mental health legislation throughout the world exposes mental health detention per se as a discriminatory detention regime that is contrary to the Convention on the Rights of Persons with Disabilities.
Mental health detention cannot be disability-neutral in theory or in practice. Its raison-d’être is to confine people with psychosocial disabilities. The individuals so confined are subjected to a regime of medical supervision, as well as to medical and psychological interventions without their free and informed consent. Medical personnel have a decisive influence in determining how long the person remains under detention, according to medical opinion about the person’s behavior and decision-making skills. This represents a medical model approach to psychosocial disability, which is contrary to the CRPD and in particular contrary to Article 12 as explained in General Comment No. 1 of the Committee on the Rights of Persons with Disabilities.
People who experience difficulties in living that are labeled as madness or mental illness, or whose behavior and self-expression are perceived as such by others, are people with disabilities under the CRPD and under the earlier non-binding Standard Rules for the Equalization of Opportunities of Persons with Disabilities. It is untenable to claim that a mental health detention regime, which exclusively targets such individuals for deprivation of liberty and medical interventions against the person’s will, is anything other than discrimination.
Mental health laws typically include criteria in addition to the existence of a psychiatric diagnosis, in particular a forecast that the person may harm oneself or others. It is important to underline that this is a secondary criterion, applied only to individuals who have been labeled with a psychiatric diagnosis. Neither the international standards in force prior to the CRPD nor any domestic mental health legislation would countenance the detention in mental health facilities of any individual who is not labeled with a psychiatric diagnosis, even if there is reason to believe that the person may harm oneself or others. Police and the criminal justice system are the usual mechanism to deal with threats to others; if they are not adequate the society needs to debate the balance of public safety and individual freedoms and develop more effective measures that do not discriminate based on disability. Danger to oneself is addressed either by laws that apply to the entire population (such as laws requiring the use of seatbelts) or by harm-reduction campaigns that promote safer behaviors while respecting individual autonomy…
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