When we were drafting language to go into the Convention on the Rights of Persons with Disabilities, and throughout the negotiations, we avoided any specific mention of psychiatry, psychiatric institutions or mental health. Instead we framed all the issues of our community in terms of non-discrimination in the enjoyment of human rights, with an eye to how specific applications of these principles would logically entail the abolition of forced psychiatry.
The reasons for this choice were: to call attention to the underlying principles of fairness and justice rather than have a free-for-all debate on whether forced psychiatry is a good or a bad thing; to situate ourselves within the mainstream of disability and deliberately transform the mainstream to include and not exclude our issues; and to argue for the mutual application of “our” issues to all people with disabilities, and of all disability issues to ourselves. In this way we built solidarity within the disability community, strengthened disability rights concepts and principles, and contributed to the treaty’s overall effect of mainstreaming people with disabilities into the human rights framework.
When the treaty was taking its final shape in the last negotiating sessions, I had to make the assessment of whether it gave us what we wanted or not. We fought hard to get the best possible language that we could, and in many respects the text fell short of what would have been ideal. At every stage, we could have chosen to keep participating in the process, or to withdraw and denounce it. We did threaten to withdraw our support for the treaty at a tense point in the negotiations when it wasn’t certain that our version of legal capacity would be passed. We were able to make this a credible threat because we spoke as leaders of the International Disability Caucus, and our departure would have been a blow to the countries who wanted buy-in from the disability community. But it was a power that we could not invoke lightly, and we also did not really want to scrap the treaty, we wanted it to be passed with the language that would give us what we needed.
So my test was, 1) Is this a compromise of language, or a compromise of substance? If it was writing “human wrongs” into the treaty (like allowing involuntary treatment) it clearly had to be denounced as this would have made the treaty not only worthless but harmful for us. And 2), Is there a legally sound interpretation that gives us what we want? If I could make a credible legally reasoned argument that the text means what we intended it to mean, and that it could not mean the opposite, that interpretation is favored by the canons of treaty interpretation as being in line with the object and purpose of the treaty to promote and protect the human rights of persons with disabilities. If that sounds nerve-wracking, it was. But I believe the decisions we made were correct ones.
Evaluating the text as it was adopted, with its various ambiguities, in the last negotiating session, I felt that we had succeeded, but that it would need work to ensure a good interpretation. It was not a static fact, did we win or lose, it was more as if there was a high probability that we had won, and this would only be determined in the future. Significantly, our own actions would have an impact on whether in the final analysis we had won or lost. Human rights treaty interpretation, like the negotiation of the CRPD itself, is highly amenable to advocacy by civil society organizations and individuals, and in the case of the CRPD the opinions of persons with disabilities and our self-representative organizations are emphasized. (This was the practice during the negotiations, and is incorporated as an obligation of governments in the implementation of the treaty, in Article 4.3.)
My position, and that of WNUSP, was to claim the CRPD as a victory and argue for the interpretation of particular provisions that mean the abolition of forced psychiatry. I was disappointed that many academics and non-governmental organizations that are not user/survivor-run took a more cautious stance, because I believe that it is a duty of human rights advocates to advocate the most favorable legally sound interpretation, and I cannot really understand why they would fail to do so. Many in the user/survivor community were also slow to understand and appreciate the potential of this treaty, but over the past 6 years since the adoption I am happy to say that the CRPD has become a guiding star in the work of our movement in many countries, with leading work going on in every region of the world.
In the past six years there has also been significant support from the UN affirming our interpretation, including most crucially observations made by the Committee on the Rights of Persons with Disabilities, which is the authoritative body designated to monitor and interpret countries’ compliance with the CRPD. The Committee’s observations on the reports of particular countries show how it is interpreting the treaty, and so these observations can be taken to apply to all countries that have similar problems. Here is what they said recently to China about abolishing forced psychiatry and transforming mental health policy and practices:
The Committee advises the state party to adopt measures to ensure that all health care and services provided to persons with disabilities, including all mental health care and services, is based on the free and informed consent of the individual concerned, and that laws permitting involuntary treatment and confinement, including upon the authorisation of third party decision-makers such as family members or guardians, are repealed. It recommends the state party to develop a wide range of community-based services and supports that respond to needs expressed by persons with disabilities, and respect the person’s autonomy, choices, dignity and privacy, including peer support and other alternatives to the medical model of mental health.
Here is what they said about legal capacity. Remember that saying we are “incapable” of making our own decisions because of a “mental illness” is one of the justifications used to impose forced treatment, to take away a person’s right to manage their money and many other abuses.
The Committee urges the state party to adopt measures to repeal the laws, policies and practices which permit guardianship and trusteeship for adults and take legislative action to replace regimes of substituted decision-making by supported decision making, which respects the person’s autonomy, will and preferences, in the exercise of one’s legal capacity in accordance with Article 12 of the CRPD. In addition, the Committee recommends the state party in consultation with DPOs to, prepare a blueprint for a system of supported decision-making, and legislate and implement it which includes:
a. Recognition of all persons’ legal capacity and right to exercise it;
b. Accommodations and access to support where necessary to exercise legal capacity;
c. Regulations to ensure that support respects the person’s autonomy, will and preferences and establishment of feedback mechanisms to ensure that support is meeting the person’s needs;
d. Arrangements for the promotion and establishment of supported decision-making.
Some people have asked me, what is supported decision-making and how do we do it? I would say that the first step is to ask people what kind of support they need, and then figure out how to make that happen. Supported decision-making is a principle of cooperation to respect individuals’ autonomy, and not another service to be set up and then provided to people who already are living so much of their lives in connection with services.
In the light of these recommendations coming out of the authoritative committee that monitors the CRPD, it is highly irresponsible for anyone to doubt that the CRPD prohibits forced psychiatry and requires governments to repeal the laws that allow these violations to be committed. Our movement should be questioning any organization or prominent leader, whether that person is a lawyer, mental health professional, or user/survivor advocate (or any combination of the above), who is still claiming that CRPD cannot be used to abolish forced psychiatry. And we should ask, “cui bono?” Who is benefiting from this silencing, and how?
It is also a fallacy if people think that the CRPD is simply too far from any country’s political reality to be used to abolish forced treatment. First of all, such thinking takes the existing political climate as a limit on human rights, contrary to what the human rights framework is all about. But more importantly, it may really be a U.S.-centric way of thinking. It is likely that countries with more respect for human rights treaties and the United Nations, and where psychiatry is a colonial imposition rather than a home-grown mega-industry, will be the first to advance in this way. In India, a government ministry has put out a proposed bill on the rights of persons with disabilities, based on the CRPD. Among other things, it would guarantee full legal capacity to all people, with a remedy against any act that questions or denies a person’s legal capacity, and it would phase out civil commitment in the mental health system. The bill provides for thoughtful, positive approaches to creating support for exercise of legal capacity and creating services responsive to the needs of people with psychosocial disabilities. Although the CRPD requires an immediate end to civil commitment, this would be a huge step beyond what any other country has done so far. At the same time however, another ministry put forward a mental health bill that has all the standard provisions allowing involuntary commitment and involuntary treatment, and according to activists in India would actually make existing standards worse. So our colleagues held a “dharna” outside the ministry to protest the mental health bill, and they are getting decent media coverage. They have strong mutual support and solidarity with the disability movement; as we have seen this was also one of the key factors in the CRPD negotiations.
I believe that one of the underlying reasons it is difficult to move through the obstacles to fully embrace the CRPD and fight for our rights, is that discrimination continues to affect us on many levels. We have accommodated in some ways to a system that hurts us – not just the mental health system but the legal system that supports these violent acts and the society that condones them. It can be painful to change, to shift gears, to move in different ways. It is unfamiliar and uncertain, we may be acutely aware of our shortcomings and lack confidence. I struggle with this myself in the process of bringing this treaty more and more fully into the world, and continue to redefine my role in relation to the advocacy, so that more and more I am “leading from behind,” supporting others to develop the strategies and tactics that will get us where we are going, creating spaces where the discussion can happen to spark ideas that someone will be able to take up where the conditions are right. I especially want to teach as much as possible of what I know about the CRPD and human rights, as one of the five activity areas identified by the Center for the Human Rights of Users and Survivors of Psychiatry – ensuring good interpretation of the CRPD, law reform, human rights monitoring and enforcement, human rights education, and extending the analysis in related areas (which at the moment include the rights of older persons and the rights of prisoners). In struggle and solidarity, I would like to see more of our organizations in the U.S. survivor/peer/consumer/client movement take up the CRPD as intended, and cooperate to secure our full human rights including the abolition of forced psychiatry. We are at a crucial time in history when our choices matter. Even if you do not know how to go about making this change, at least know that it is part of the way here already.
Mad Law and Human Rights: An attorney and psychiatric survivor, Tina Minkowitz writes on the new perspectives in human rights law that emerged in the work by users and survivors of psychiatry on the Convention on the Rights of Persons with Disabilities.