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.
Mad in America hosts blogs by a diverse group of writers. These posts are designed to serve as a public forum for a discussion—broadly speaking—of psychiatry and its treatments. The opinions expressed are the writers’ own.