Historic Moment for the Right to Legal Capacity

Tina Minkowitz, Esq.
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On Tuesday April 8, 2014, the UN Committee on the Rights of Persons with Disabilities adopted its first General Comment, on Article 12 which deals with the issue of legal capacity.  It was a moment that brought tears to my eyes and I turned and hugged another woman who was crying – Raquel Jelinek from the Mexican group CONFE, which advocates for the rights of people with intellectual disabilities.  I had not expected the adoption to happen so quickly and had not expected my tears.

As I listened just beforehand to the Committee read and discuss the finalized version of the General Comment, I found myself considering the text as I had done during the drafting and negotiation of the Convention itself: wow, this is good; this is not great but I can live with it . . .  there were no parts that I couldn’t live with.  The text of this General Comment is better than the Convention itself, in terms of the satisfying experience of hearing it made explicit that nonconsensual psychiatric interventions must be eliminated, and that the “controversial” concept of mental capacity can never be a basis for depriving anyone of legal capacity, including the capacity to perform legal acts, make one’s own decisions and create legal relationships. It is truly a watershed for users of survivors of psychiatry and people with psychosocial disabilities throughout the world, and for people with intellectual disabilities as well.

In short, with its adoption of General Comment No. 1, the Committee on the Rights of Persons with Disabilities has brought to fruition the work that was started way back in 2002 when the World Network of Users of Survivors of Psychiatry joined other organizations in starting to think about what rights we wanted to address in the new treaty.  The work is far from over, and the General Comment gives us a solid platform to push for changes in domestic laws throughout the world in countries that have ratified the CRPD.  But at the level of international law, the General Comment certifies that the CRPD establishes the fundamental shifts in perspective and principles that we advocated for, and that we believed as a matter of legal interpretation as well as social justice must be the correct understanding of the CRPD text.

A General Comment is a particularly useful way for a treaty monitoring body to make known its interpretation of provisions of the treaty and to guide governments in implementation.  There have been a lot of questions surrounding Article 12, which requires countries to recognize the legal capacity of persons with disabilities on an equal basis with others, and to move from substitute decision-making to supported decision-making, which respects the person’s own will and preferences.  Legal capacity also has implications for the abolition of forced psychiatry, since many jurisdictions use a capacity test to disqualify people from exercising the right to refuse treatment.

WNUSP and the Center for the Human Rights of Users and Survivors of Psychiatry made several submissions to the Committee on the issue of legal capacity.  We were especially concerned to ensure that prohibition of nonconsensual psychiatric interventions and psychiatric detention were addressed, and also that legal capacity was understood to mean the full right and authority to make decisions and enter into legal relationships (including the responsibilities they entail) in every aspect of life, and not only the elimination of formal guardianship mechanisms.  The Committee addressed this latter point by extensive commentary on the distinction between legal capacity and “mental capacity” and on the various approaches that are used to deny a person’s legal capacity – status-based, functional, and outcome-based – which all violate Article 12.

Still to be addressed is the issue of criminal responsibility . . .  which the Committee has signaled it may do at a later stage (and which WNUSP and CHRUSP have strongly advocated).  The Committee has begun to approach criminal responsibility in its Concluding Observations under Article 13, on access to justice, having said that people with psychosocial disabilities subject to criminal proceedings are entitled to equal substantive and procedural guarantees as others, and that diversion to psychiatric commitment regimes or nonconsensual mental health services is prohibited.  The Committee has also addressed the freedom from psychiatric detention in somewhat greater detail in its Concluding Observations, as noted here earlier.

General Comments are accorded greater weight than Concluding Observations, which are directed to a particular country and only indirectly provide guidance to others on how the Committee will address the same issue elsewhere.  The General Comment on Article 12 truly a watershed for all of us who are fighting against psychiatric abuse and violence, and for human rights, dignity and non-discrimination.  The Committee on the Rights of Persons with Disabilities is to be commended as true human rights defenders, who have the courage to stand out as leaders within a human rights system that needs to raise its awareness and its understanding about the revolutionary meaning of the CRPD, which brings fresh air and justice to many of us who have been left out of human rights for so long.

43 COMMENTS

  1. Yes, I have heard other mothers of psychiatric survivors in the US say that we should start using this to provide legal protection for our children against forced drugging and institutionalization of our loved ones. But how? Are there any legal precedents for overthrowing court decisions in the US based on what the UN says? The UN is so disrespected in the US and it has no binding power. From where my family stands, this sounds wonderful in theory but I don’t know how beneficial it is in a practical sense.

  2. I live in Scotland, UK, so my experience has all been of psychiatric settings here, where voluntary meant forced, for all of my family members through 3 generations, mother to grandsons, myself included. I do believe that the right to legal capacity has to be a step forward, despite knowing that the mental health laws we have here are not always implemented or monitored appropriately. And Scotland would say that it had one of the most progressive mental health acts in global terms.

    We had the first conference here in Scotland on the topic of mental health and incapacity, recently in Fife where I live. People with lived experience of mental illness and carers attended, had a voice. It was led by the Law Society of Scotland alongside the Scottish Mental Welfare Commission and the Equality and Human Rights Commission UK:
    http://www.lawscot.org.uk/events/mhic2014

    It was billed as a “major” conference. Prior to this I campaigned from the perspective of “first do no harm” and that human rights abuse in psychiatric settings should be unacceptable. That mental health act safeguards are not safe as that has my family’s experience.

    It is a matter of chipping away at the power base of psychiatry using the tool of human rights, backed up by the stories of people who have had their rights overpowered and denied by psychiatry. The term “incapacity” cannot just be used as a reason for forcing psychiatric drugs into a person. Which is what often has been our experience.

    I am hopeful of change and thankful for the work that Tina and others are doing in this area.

    • The “right” to legal capacity is meaningless if that right is not honoured and it won’t be. No state/provincial judge is going to be swayed by the United Nation’s stated position. This is a feel good victory that will do very little (if anything) for those being coerced.

      • I know it must be frustrating to have this convention and not be able to utilize it because you live in the USA.

        You have included ‘provincial’ so I am going to assume you’re included Canada in your reply? In a number of provincial and territorial human rights are is the inclusion of international human rights instruments. So yes, right now, today, judges can refer to and use the CRPD in Canada. It is my hope that this becomes the case for all countries.

        • The wheels of justice turn slowly.

          I think it’s very important to have one friend or family member who loves you, knows you better than anyone, and trusts you. This person visiting you regularly while you’re in a psyche ward, and speaking on your behalf is very important. They can submit letters and notes to the staff that should be included in your record, too.

          Also, in the U.S. anyway, a person is entitled to get their psyche records from the hospital and can sign a form telling the administration not to release that information to anyone else. Even if you just do it for yourself, going through those records and making corrections can be a self-affirming exercise that is advantageous to go through as soon as you’re let go. You may find out that the staff was just as dismissive and tone deaf as they appeared to be. For me and my friend who went over the records with me, it was quite vindicating. The records included things he said that they got all wrong. He was ticked and had a hard time believing that they just misunderstood. The record appeared to be packed with confirmation bias on their point to the degree that they looked to be hearing what they wanted to hear.

          • I’ve seen my record and honestly, it consisted mostly of invectives directed at my character/personality as perceived by the psychiatrist. They did not even try to interpret it, they simply wrote down half a page of insulting adjectives followed by a “diagnosis”. I’m not sure how can you even discuss with something like that…

        • I am also in Canada and just been deemed ‘incompetent” to try my own medical malpractice case against psychiatry.

          Although I have disabilities, I believe this to be, for the most part, little more than yet another tactic to silence the massive body of evidence of fraud I put on the record. I claomed duress and was threatened with contempt of court where the judge could “throw the book at me” including jail time.

          The contempt is of course being positioned by the judge as “help” and I was in fact caught in a horrific catch 22 being unable to try a geometrically complex litigation without the aid of a lawyer- no matter how corrupt or abusive.
          The defense is pushing to ensure that I am not allowed to instruct the lawyer and the judge supports them unequivocally. I was dammed if I did and dammed if I didn’t because ultimately, there is no law, just judicial discretion and procedure over merit.

          The case, although meritorious and a possible game changer, will most likely be quashed for no just reason other than to keep silencing persons disabled by iatrogenic injury that is rampant in psychiatry. The entire pretense of justice is little more than a massive farce causing injury to insult against the public- especially in Canada where the government itself, in reality, is the party fighting to block the injured party by providing doctors with a 2 billion dollar tax fund to cover all their legal expenses and provide them with the best lawyers in the country while their victims are lucky IF they get legal aid.

          I find it very disheartening that the victims of these crimes, who actually manage to get their cases into court are not supported by this community- who if they were organized to stand up for us when we were in the front line trenches fighting these battles and state these fact there, we would no doubt all be further ahead. As it is, there is little point for lone individuals to bother going to court without the assistance of this very powerful community that doesn’t seem to care what happens to us when we take on these massive battles alone.

          • Opps, I should have stated that the “competency” (not the threats of contempt) were being positioned as ‘help” by the judge. When I argued that competency was a bogus concept potentially causing more harm he asked “do you want help or not” to which I could only reply, ‘help at what cost?” I believe it is posed to cost me everything I worked for all these years in getting to this place only to see that there was no way they would allow me to win or put the evidence I collected from this community against psychiatry on trial in a court of law. Indeed – it is the ONLY place it really matters.

      • what you’re saying here is too easily said and justifies our passivity

        every informed psychiatrized person should march into their mh team’s office with a copy of these words, a copy of their wishes, with a witness, emboldened by the words in theis document. record responses by their mh teams and go to their local civil liberties with evidence of the discrimination against them by their treatment team. have we lost all courage to defend ourselves? what can they do to us? nothing they haven’t already done.

        • There’s a form for forced treatment denial at MindFreedom.

          http://www.mindfreedom.org/campaign/shield/forced-drug-defense-pkg

          I really need to fill this out, but have been contemplating what to put in it, other than a request to be sent to a veteran’s hospital as soon as possible, in the event of a psychotic episode and to be given nothing but benzos to bring me down in the case of psychosis— sleep, not a drug induced state of drooling and muttering incoherently is my first choice. I also want to see if a prescribing nurse I see sometimes and my neurologist can add a couple of notes for me.

          I don’t really expect to have another episode, and wouldn’t expect a hospital to pay any attention to a legal document, but I really should do this and give a lawyer a retainer to use it on my behalf. I’ve already given my bff the power of attorney, but an actual lawyer may put a profiteering psychiatrist on notice and prevent him from giving me my day in court while I’m under the influence of a drug cocktail that makes it difficult for me to understand anything, much less understand a judge who looks like he doesn’t know how to dress himself, has crumbs in his beard read a sloppy stack of papers in legalese as fast as he could in a monotone and grumpy voice, while not allowing me to ask any questions. Sure, he was awakened for it, but he still had a job to do and was responsible for more than himself at that time. I couldn’t have easily followed that on my best days after a cup of espresso and a good breakfast.

          Has anyone here had a good experience with a lawyer while under shrink arrest?

          • Does not remembering ever meeting one and finding out later that she doesn’t even speak your language, or any language that you feel comfortable with, count? 😉
            Sorry, for the sarcasm but after I’ve heard from her that it was fine that I was refused legal council in a language I understand (not mentioning being drugged into oblivion) and that it makes no sense to sue: I should just go to the doctors who abused me and tell them how I feel because she knows them and they’re good people…
            Legal defense for psychiatric patients is a joke everywhere – unless you have someone in the family or you can afford a good lawyer you don’t stand a chance.

          • Part one: get the legislation in place (check)

            Part two: enforce those rights. I don’t know the answer, I sense it’s multifaceted whether it’s self advocacy, supported advocacy, legal assistance (student lawyers, paralegals etc) in the background or….?

            Ideally legal aid should be available to pwd. That’s the next hurdle.

    • “my experience has all been of psychiatric settings here, where voluntary meant forced”
      So do you want to stay here voluntarily or should I call a lawyer? Yeah, I know that. With lawyer representing you being the best buddy of local psychiatrists and the judge rubber stamping every document they give to him.
      Also according to psychiatrists there is supposed to be a difference between coercing someone and using a “leverage”. I guess the difference is equivalent to beating someone over the head with a baseball bat and only threatening it while waving the bat in your hands.

      • I have found that services move on what is supposed to be voluntary but is really coerced, with the threat of being sectioned implied but not stated, if the patient disagrees with thier rules. I did have to invade the ward, refuse to leave, be forcible escorted off the ward and then spend some time with a senior staff member, make repeated phone calls and then threaten to call the press, but they eventually changed.

        Such hard work though. Unfortunately that is the sort of work it is going to take.

        • Well, if I tried something like that in the place where I was held I’d be in restrains before I could even blink. The system is set up in such a way that you have no way of proving any wrongdoing unless they are too stupid to fix the documents. Paper is patient and it will endure any bulls**t – I was really surprised to read about somethings that happened which allowed them to say I was dangerous for self and others. However, I have no witnesses other than hospital staff and no cameras were installed in the hospital so it’s basically my word against theirs. Interestingly, the innocent until proven guilty does not exist in the psychiatric system: unless you can prove you did nothing wrong you’re screwed.

        • The psychiatrist for my only involuntary commitment said three times that he could keep me for 180 days. I was not violent and not suicidal, and made it clear to him that I knew that the standard was “threat to self or others”. I had been psychotic for about an hour. I finally said that I’d take lithium and was out two days later. And then I stopped taking it, but that’s what it took for me to get out, and I believe that that was the case because the Veteran’s Administration was paying for it. There weren’t any hospital beds available at the V.A. when I was checked in.

          I had to insist that they get my medical records and give me my medication for multiple sclerosis it. I was in remission at the time— the first one since I had been diagnosed— but I still had the pain and it was worse. Now I know that the pain is always worse during a remission. In the mental ward, all I got for pain was Tylenol, the ward was cold as hell when it wasn’t ridiculously hot, and it was difficult sometimes to get basic things like washcloths or toothpaste because the staff was so busy with paranoid monitoring. They even had just one nurse for me, even though I was lucid and non-threatening, because I was refusing the antipsychotics as soon as I was lucid enough to refuse them.

          I told myself that this was like exercises “in the field” when I was in the military, and just toughed it out. The food was great, I’ll give it that much. Other than that, it was a theater of the absurd.

          There was a woman who had come in for making a suicide attempt when she was home with her child. She openly admitted that the she did it because her husband was talking about leaving her. She was there for one night.

          I don’t understand how they could not see how twisted their assessments were and how little they had to do with the actual patient and the patient’s behavior.

  3. Congratulations, Tina!!As you say, the work is far from over, but it’s a start. We all know that the United States has an abysmal record, especially lately, on human rights. At the same time, this country tries to be the watchdog for human rights abuses in other countries. Specifically in the area of torture, the United States Code implements and provides FUNDS to combat torture – but only for torture in OTHER places. That said, the United States does at least pay lip service to human rights in some contexts. As I understand it, there was a representative from the United States, a Dr. Wanda Jones, who appeared before Tina’s committee trying to justify the U.S. record in this regard. Why bother doing that if you can do whatever you want without worrying how you’re viewed internationally? The U.N. comment, as Tina explains it, is the most authoritative writing to date on the attitude of the international community towards forced drugging as it applies to international treaty interpretation. It should be used far and wide by attorneys who are truly advocating for their psychiatrically victimized clients. Right now, this is excellent news for John Rohrer, who is currently being force drugged and force hospitalized in Ohio, and who is seeking his liberty from the Ohio Supreme Court in the case of State ex rel Rohrer v. Holzapfel. The link, showing all the downloadable filings to date is as follows:

    http://www.supremecourt.ohio.gov/Clerk/ecms/resultsbycasenumber.asp?type=3&year=2014&number=0268&myPage=searchbycasenumber.asp

    Should John be released, and especially if the Ohio Supreme Court mentions international treaties as forming a part of its decision, this will also be welcome news for others, who, if they are in any court, can use decisions from the highest courts even of other states to make their current judge think twice before keeping them confined, especially in close cases. Let us spread Tina’s news everywhere we can!!

  4. Tina,

    Once again, thank you so much for all of your hard work devoted to this very important cause on everyone’s behalf. The fact that you are a lawyer makes you all the more valuable in interpreting all these issues with most having legal ramifications.

    I also greatly appreciate your keeping us informed of all the great progress you and your like minded associates have made in enlightening the world and pushing for human rights among those targeted and scapegoated by narcissistic cultures. When all is said and done, it all comes down to power and the corruption of it by those who want all the power to disempower others for their own sick, sadistic, narcissistic needs/agenda.

  5. Yeah, Tina, congratulations!

    While the U.S. generally spits on international law unless it can be used to justify its own position on something, I agree with Donna about this providing the “rhetorical infrastructure” with which we can hold the U.S. government’s feet to the fire morally and legally speaking.

  6. I have the greatest respect for Tina and the work she does. I’m glad she does it .It is necessary that it be done.
    But I cannot ignore what my mind and memory tell me . Does not the U.S.A. pay the majority of the U.N. budget ?
    Heres the example that causes me to worry. In Iran before the Shah was installed in power as a dictator. The previous democratically elected leader made speeches at the podium in the United Nations in front of all the nations proving how Iran’s oil reserves for decades had been virtually stolen by Britain and he demanded the right to nationalize the oil fields because so much oil was being stolen by Great Britain. He was cheered by all nations and was validated. Soon after the US forcefully removed the democratically elected leader, and installed the dictator the Shah. Divided the oil with Britain. Then started lecturing Iran about freedom and democracy and human rights. That’s why they call us the Great Devil. And look what trouble since.
    Looks to me like the US ,Britain, Ireland, etc. will do anything to maintain and build the Therapeutic State or should I say the Therapeutically Controlled Planet ,holding and growing the force driven Pharmapelago concession . It seems the disabled are just to be some of the collateral damage of this ongoing fascist enterprise.
    We and others better come up with some strategies that work as countless millions or more will be swept away unless we all fight somehow together gaining mass on going support and shared effort.

    • The U.S. does not pay for most of the U.N. budget. Of all the countries on the Security Council with the right to veto—- the U.S., the U.K., France, China, and the Russian Federation, the last two are much worse for the mentally ill and “mentally ill” than the U.S. or U.K. Even their orphanages are hell holes, and those people don’t have a fighting chance to change the way the mentally ill are treated there.

      As “fascist” as the institution of mental health care still is in the U.S. and the U.K., it can be changed the way every institution is changed for the better in a democracy— with organized and sustained collective action, and with changing minds and perceptions on a personal and public level. There is a lot of marketing working against us in the media, in our colleges and schools, and in doctors’ offices. Critical psychiatrists, psychologists and other people working in the mental health field are strong and necessary voices.

      I no longer donate money to the ACLU because they don’t defend psyche rights, but I can try to influence my representatives and try to change the minds of people I speak with. It’s difficult and unfortunate that it’s so hard to convince college-educated middle class liberals that most “mental illness” is not an endogenous brain glitch, that most medication doesn’t help, that most medication is harmful, and that depriving people labeled with mental illness of their civil rights is not good for the “patient” or “consumer”. or the public. That most people can’t put the readiness to deny the civil rights of mental patients together with the myth of mental illness being destigmatized and see how ridiculous and sad it is is frustrating.

      Most people fear mental illness and people they believe to be mentally ill. “Concerned” paternalism makes sense to them. It’s not going to be easy to convince enough people that mental illness isn’t what they think it is, and that psychiatry isn’t the success they think it is in order to change the climate and culture of psychiatry and commitment. But it’s happening.

          • Well, maybe someone from the movement should engage with them then? Seems to me like they’re not completely oblivious:
            http://www.washingtontimes.com/news/2014/feb/3/aclu-questions-involuntary-commitment-changes/?page=all
            I looked through the cases they are defending and seems like recently a lot of them are about LGBT rights. LGBT community has campaigned loudly and aggressively for their rights and it has given results. It’s easy to criticise the organisation like that but if there are no people from our community among the members and we don’t actively engage with them, is it really surprising that we are not their first priority? Maybe joining ACLU and actively pushing for more action on psych rights is a way to go?

  7. Nice work, Tina. There needs to be respect for the rights of those who are experiencing mental distress. No issue regarding mental illness is clear: the value of diagnosis; the value of hospitalization; the value of medication; the value of how we are represented in the media. But the world needs to address the almost unchecked power of psychiatry, which in the past meant forced hospitalizations, forced medications, forced treatments, and forced supervisions through the self-appointed bodies of psychiatry. It is time for us to be heard. As our British colleagues might say, “Good on you, love!”

  8. UN just gives me hope for the future. I just wish their resolutions had more effect on the real legislation instead of being largely ignored and the adaption of them postponed into the far future by the people in power.

  9. Bob Whitaker recently wrote a piece here titled “The Fat Lady Has Sung”, which pointed out that the evidence is now overwhelming that the long-term use of so-called anti-psychotic drugs does more harm than good. Tina, you could have titled your announcement here “The Fat Lady Sings Again”. With the passage of the General Comment on Article 12, a new international human rights standard has been established that psychiatric force is unequivocally a breach of our fundamental human rights. This is a major breakthrough, even for countries that have not ratified the CRPD or those that have ratified it but violate it in their domestic laws – which is most countries, including Australia where I live.

    Our opposition to psychiatric force now occupies the moral high ground. No longer must we beg for justice in our advocacy, we can demand it. During my advocacy efforts here in Australia, one of the most disheartening obstacles I encountered was the various human rights organisations that endorsed psychiatric force. These are the organisations that should have been powerful allies in our advocacy but who betrayed us when they betrayed their own human rights principles by choosing to read Article 12 as permitting psychiatric force. I’m tempted to name names here but instead call upon these organisations to observe the General Comment and join us in the campaign to abolish psychiatric force.

    Similarly, this General Comment gives great strength to our advocacy in individual cases as they come before courts and tribunals, whether our country has ratified the CRPD or not. No doubt many ugly fights will have to be fought to establish all the precedents required to finally achieve our goal of the total abolition of all psychiatric force. But this day is coming. With this General Comment, and all the incredible work that has been done to achieve it, this goal is now inevitable.The fat lady has sung (again).

  10. Tina,
    Thank you so very much for the incredible work you continue to do. I’m sharing this article with the attorney representing the upcoming trial for the employee ” whistleblower” against the hospital my son entered in 2011.
    My 24 y/o son was kept against his will, in a locked psych ward, in a Los Angeles psych hospital/ drug rehab. Once my son’s medical records were subpoenaed ( NOT released by the hospital attorneys until AFTER the statue of limitations expired) I found out the truth. My son was assessed, and cleared to enter for the drug rehab program pre-arranged by me, the day before his admission. I had to provide my son’s PPO insurance and since the hospital was ” out of network” we, his parents, had to pay $12, 500 for our son to be admitted for drug rehab. Less than 24 hrs later, he was coerced to their locked unit, drugged mercilessly with multiple neuroleptics…. while no info from the p-doc was communicated ( despite the HIPAA waiver signed) until I stormed the Admin to pressure a returned phone call to me. LIES- only from the p-doc the two times, only, he made contact. The records list my son as ” voluntary” adm despite he pulled the fire alarm , attempted to push the exit doors, numerous statements recorded in his medical records by the staff of my son begging to be released, that he won’t survive what’s being done to him….My son was placed on AWOL, and elopement precautions- while his stay remains ” voluntary” the staff telling us our son was so sick. The p-doc promised to transfer him within 48 hrs to drug rehab, NEVER occurred. My son was ” dumped” on the 13th day, once ins refused further stay. The same p- doc, a week after my son was discharged, in the out-pt office visit took my son off ALL neuroleptics!” Doesn’t need them” of course not once out of that locked hellhole, my son began to slowly regain his mental clarity, once NOT drugged with toxic psychotropics!
    I’m not a lawyer, but I know my son’s basic civil and human rights were flagrantly abused! I will continue to seek justice for my son as I fully believe violations occurred daily, especially after combing thru his medical records and see the unscrupulous, egregious violations done to my son, while lying to his family the entire hospitalization. My son’s death 7 months after discharge, I absolutely hold this MH ” business” fully culpable.
    Again, thank you for your heroic efforts. I could easily retreat, bury my head in the sand, but the TRUTH must be exposed. I only want to continue living in the U.S.A. if we abolish psychiatric force.

  11. Thank you for keeping us informed of these important developments Tina.

    I attended a community mental health forum on Monday night the topic being prevention. It was all nice and comfortable stuff about a healthy body healthy mind. During the q and a at the end of the speakers i asked a question about the UN concluding observations about Australia last year. There were some very shocked faces among the speakers, and the crowd.

    It sparked a vigorous debate and I’m sure many will have left the forum and looked into matters further.

    I guess what I’m saying is that without your work, and keeping us informed, I would not have been able to even raise the issue with these people. Thank you.