Equal Legal Capacity or ‘Supported Decision-Making’?


At a recent conference on legal capacity, I was struck by the failure of another invited expert to adhere to the paradigm of supported decision-making as articulated by the CRPD Committee in General Comment No. 1. We still need to work to ensure that this paradigm is well understood and appreciated, despite the progress made in national reforms (see evaluation of Peruvian Legal Capacity Reform), the policy shift at WHO to promote the elimination of coercion in mental health settings, and the phenomenal mobilization of opposition to the draft Oviedo Protocol to the Council of Europe Convention on Bioethics, including a resolution by the European Parliamentary Assembly calling for the development of non-coercive mental health practices and eventual abolition of coercion.

I would like to¬†focus on the principle of equality and non-discrimination as the overarching theme of CRPD Article 12,1 and what this means for our understanding of ‘supported decision-making’.

Supported decision-making

Supported decision-making is distinguished from substituted decision-making in that support respects the autonomy, will and preferences of the person concerned.2 Supported decision-making refers both to particular arrangements for support in the exercise of legal capacity, which anyone may enter into, and to the legal and programmatic regime¬†that recognizes the¬†legal capacity of persons with disabilities on an equal basis with others and sets out a framework for support arrangements and safeguards based on respect for the person’s will and preferences.3

Some lawyers and advocates still promote¬†a view of supported decision-making as a decision-making status. This view is paired with¬†a¬†theory of legal capacity that treats the existence of support as part of the equation together with the person’s individual decision-making skills in order for someone to determine whether they ‘have’ the legal capacity to perform a particular act (such as giving/refusing informed consent, or signing a contract).

This is plainly contrary to the CRPD, which views legal capacity, including both standing (the capacity¬†to hold rights and duties) and agency (the capacity¬†to exercise rights and duties) as a universal right of adults, irrespective of their disability or their actual or perceived decision-making skills. Support is a positive measure that is designed to make the exercise of legal capacity more satisfying to the person concerned; it cannot be required¬†as a condition precedent for the recognition of any adult’s legal capacity to make decisions for themselves. Separate statuses create a hierarchy of decision-makers¬†‚ÄĒ not only between those deemed ‘independent’ and those deemed to require¬†more or less support, but implicitly between all¬†adults and those who are mandated to make the meta-decisions about their own and others’ status as decision-makers! It is this meta-level of decision-making that is both taken for granted and obfuscated in pre-CRPD approaches to legal capacity that conflated legal capacity with so-called ‘mental capacity’ or (actual or perceived) decision-making skills.

‘Supported decision-making’, as a phrase used to characterize the¬†CRPD-compliant regime¬†that recognizes the legal capacity of all adults and offers support that respects the person’s will and preferences, is convenient to distinguish it from substitute decision-making regimes, which remove legal capacity from an individual whether for all decisions or¬†for even one decision.4 Yet it can be misleading to emphasize support as a feature of CRPD-compliant¬†regimes, since the right to legal capacity is recognized as¬†a first premise, prior to the question of whether or not an individual seeks out¬†or accepts an offer of support. While some activists in the movements of people with psychosocial disabilities view support as essential¬†‚ÄĒ whether from peers or as therapy/counseling¬†‚ÄĒ others rely on self-support or view support as being¬†essentially subsidiary to their own process and of unpredictable value (sometimes valuable, at other times not, therefore not central in their lives).5

It is equal legal capacity, and not support per se, that grounds the CRPD paradigm of legal capacity. The distinction between support and substitute decision-making emerges from the equality paradigm, not vice versa. It is because we are equals before the law, as human beings each with our own subjectivity, that we deny the moral and legal authority of another person to second-guess our personal decisions or our right to make them, while accepting on an egalitarian basis, from one fallible human being to another, the possibility of support that respects our own will and preferences.

Centralizing support while de-emphasizing equality and non-discrimination in the right to legal capacity (which is fundamentally about the equality of people with psychosocial, cognitive or intellectual disabilities and other people¬†in law and in society)¬†results in an approach I call¬†‘legal capacity lite’¬†‚ÄĒ while claiming to uphold Article 12,¬†it undermines the right to¬†legal capacity on an equal basis with others¬†in two ways.

1. Standpoint as an aspect of equality imperative

First, the ‘lite’ approach¬†views legal capacity from an external rather than internal standpoint¬†‚ÄĒ from a perspective of legal and social actors administering a regime, rather than that of people with disabilities whose legal capacity has been put into question. This¬†may seem like a subtle point, but it underscores the fact that most lawyers and researchers participating in this discourse are not¬†persons with psychosocial disabilities (or people with intellectual or cognitive disabilities) themselves. Pointing this out is not¬†impolite: disability rights law, as much as feminist jurisprudence, critical race theory and Third World approaches to international law, should¬†take as an uncontroversial maxim that¬†standpoint matters and that neutrality is not possible. In other fields, it is predominantly scholars who have lived the standpoint in question¬†that set the tone and agenda; however in theory pertaining to legal capacity the reverse is true. In asking why, we encounter the discriminatory denial of subjectivity and authorship that underlies both the denial of legal capacity to these constituencies and their relative absence from both theoretical and political¬†leadership positions of any kind¬†‚ÄĒ even on issues pertaining to themselves.

We badly¬†need to develop a cohort of legal and political theorists¬†who develop critical positions towards the systems that oppress us and towards the society as a whole, from an outsider standpoint as people with psychosocial disabilities. (For example, I’d like to see the¬†vision of Mad Pride articulated by Rodrigo Fredes and Ilse Rodriguez¬†brought into the realm of law and policy¬†‚ÄĒ a tall order, which I’m not sure those individuals would even agree with.) There are a few of us, but we are dispersed and overworked. Scholars who are not themselves¬†people with psychosocial disabilities need to first de-emphasize themselves as authors or authorities, and second, question your approach to theory, law and politics as to whether it is standing alongside people with disabilities, looking outward in the same direction they are facing, or looking ‘at’ them from the standpoint of states, mental health system operators, legal system operators, family members, members of the public¬†‚ÄĒ who all bring histories and practices of objectification.

Standpoint¬†‚ÄĒ shifting the ground of subjectivity and authorship¬†‚ÄĒ is an aspect of equality and non-discrimination in its collective dimension. When law and policy are made by others¬†‘about us, without us’, there is a democratic deficit that results in biased law and policy, which may then become taken for granted even by the oppressed group itself. In contrast, when an oppressed group breaks out of this cage, as happened during the CPRD drafting and negotiations process, there is a need to incorporate the many layers and dimensions of the resulting shift in paradigm. We need both everyone’s independent explorations of the¬†richness of the CRPD and some way to put these visions in dialogue with each other constructively, that centers the diverse visions of mad people/people with psychosocial disabilities.

2. Erasure of the protagonism of people with psychosocial disabilities, and re-introduction of coercive-paternalistic model

The second way that¬†‘legal capacity lite’ undermines CRPD equality jurisprudence is through the simultaneous¬†erasure of people with psychosocial disabilities as a distinct constituency that has articulated theory influentially within the process of international lawmaking (erasing the actuality of our authorship in the discourse that resulted in the CRPD standard of universal legal capacity), alongside¬†the promotion of limitations on legal capacity¬†that, coincidentally or not, impact most directly on people with psychosocial disabilities.

One aspect of this¬†is most likely inadvertent¬†‚ÄĒ a conflation of people with psychosocial disabilities and people with intellectual disabilities, while people with cognitive disabilities (dementia and autism) are often not addressed at all. The most common¬†understanding of supported decision-making as an alternative to guardianship is based in practice developed by¬†family members of people with intellectual disabilities¬†together with¬†people with intellectual disabilities themselves. Family members who are supportive understand that people with disabilities are more capable than¬†they are generally believed to be, and are entitled to take risks and move about in the world, supposing that the person has enough support and/or has had enough attention to building their decision-making abilities in the developmental process from childhood to adulthood. This view is centralized at the point in time of transition from childhood to adulthood, when under current guardianship laws in many countries, parents routinely obtain guardianship so that their adult children never have the ordinary status of adults with respect to their legal capacity.

People with intellectual disabilities as well as many autistic people have been viewed incorrectly as lifelong children; the CRPD rejected that approach.6¬†Yet the transition from childhood to adulthood itself, though formally based on the objective criterion of age, also often¬†entails a struggle between the emergent adult and the parents who maintain an attitude of vigilance or concern. This transition point can be critical for people with psychosocial disabilities as well, since teenage years and young adulthood are a common stage of life for people to first¬†experience crisis and enter the mental health system. How societies address this transition, and its relationship to dominance relations under patriarchy, class society, and states,¬†and to the regime of legal capacity as a means by which states have distinguished between ‘equals’ and ‘non-equals’ before the law, needs to be explored at a later time. For now, I want to point out that the role played by this transition point in advocacy for the legal capacity of people with intellectual disabilities may contribute to paternalism.

The¬†articulated perspectives, theory, and practice of people with psychosocial disabilities as protagonists (hard to find¬†in academia, rarely¬†funded in projects for legal capacity reform, and found primarily outside disability rights discourse in¬†‘mental health alternatives’ or ‘mad studies’¬†‚ÄĒvaluable in themselves but disconnected from the CRPD¬†normative¬†paradigm) are erased when the model developed by families and self-advocates¬†with intellectual disabilities is taken as universal and applied to all people with disabilities as the ‘CRPD approach’ to legal capacity as supported decision-making.7 This conflation leads to¬†assumptions about the role of support¬†in the right to legal capacity (see above),¬†and about the character of support needs (assessed by an expert, or understood through¬†a conversation with the person to explore their subjective support needs and aim to meet them). It also centers¬†the kind of support that entails either summarizing information to make it easier to understand or interpreting the person’s will based on idiosyncratic non-verbal communication, and de-centers¬†support that relates to the interplay between reason and emotion, distinguishing between possibility and impossibility (an act of discernment, not an objective fact to be discerned). (In a short paper I explore Discernment as Process, but ‘act’ is preferable to ‘process’ as it underscores the subjective character of discernment as an action by an individual relating to oneself, or that of a group relating to itself, impenetrable to external observers).

The assumed universal nature of types of support that are not central to people with psychosocial disabilities¬†leads to the second problematic result of emphasizing ‘supported decision-making’ rather than equality as the fulcrum of the legal capacity paradigm shift. Without a coherent understanding of how the full CRPD model¬†‚ÄĒ equality plus support based on individual will and preferences¬†‚ÄĒ applies to people with psychosocial disabilities, some scholars and advocates seek to¬†reincorporate aspects of our legal capacity within the rejected model of coercive paternalism implicated in both guardianship and forced psychiatric interventions. With an external perspective rather than one aligned¬†with people with psychosocial disabilities as persons equal to others before the law, and with a model that has not yet fully¬†incorporated at theoretical and conceptual levels the lived experiences of people with psychosocial disabilities, they reach for solutions that appear readily available. The least problematic of these is¬†an undue reliance on advance directives to do the work of supported decision-making in crisis situations, in particular on ‘Ulysses’-type advance directives that bind¬†one’s own future will.

Advance directives that allow the person to change their mind at any time including during the crisis situation itself are one form of support but insufficient as primary¬†policy because they cannot address emergent needs¬†‚ÄĒ crisis is by definition unexpected, and not everything can be anticipated; furthermore, not everyone will choose to make advance plans. Those that bind the person’s future will pose legal and moral problems that call into question¬†the right to exercise legal capacity ‘at all times including in crisis situations.’ This type of advance directive¬†seeks to avoid the problem through a managerial solution¬†‚ÄĒ just do what the directive says¬†‚ÄĒ when we need instead¬†to explore¬†how to interact with people with crisis situations in ways that respect their legal capacity, seek to explore with them their will and preferences, and provide desired and acceptable kinds of support.

Advance planning documents¬†can be used as a starting point for discussion when a crisis or other emergent situation presents itself, and as a default approximation when the ‘best interpretation of will and preferences’ is required (when, after significant efforts, it has proven to be unfeasible to determine the person’s will, the standard articulated in General Comment No. 1 para 21;¬†‘best interpretation’ is not substitute decision-making; if the person starts objecting, correct your interpretation). However, we need to address squarely the particularities of psychosocial crisis situations as interpersonal phenomena that require creativity and not management.

Key elements for support in crisis situations

In a series of brief schematic writings, I propose that the key elements are 1) supported decision-making practices specifically for crisis situations, encompassing potentially natural supports, formally designated supports, and transactional/skilled supports, all based on respect for the person’s autonomy, will and preferences; 2) non-discriminatory and non-violent conflict resolution to deal with the interpersonal conflict that has been discriminatorily characterized as the person being ‘dangerous to others’; 3) practical supports including advocacy and defense¬†to create¬†safer space for the person to navigate crisis well¬†and reduce potential harms¬†‚ÄĒ also based on respect¬†for the person’s autonomy, will and preferences in contrast to the discriminatory characterization of being ‘dangerous to oneself’ or ‘at imminent risk of harm’. (See¬†the set of notes titled ‘Towards Positive Policy,‘¬†the brief paper ‘Positive policy to replace forced psychiatry,’ and¬†my intervention from the floor at the 2019 CRPD Conference of States Parties. I expect to continue developing this framework.)

While advance directives represent a credible though flawed attempt to address psychosocial crisis within the CRPD framework and from the standpoint of people with psychosocial disabilities,¬†some scholars have turned¬†a managerial gaze on people with disabilities and invoke¬†a proportionality argument to justify forced interventions against individuals deemed to be¬†‘dangerous to self or others.’8 This is simply¬†an outcome-based deprivation of legal capacity (restriction of decision-making based on a predicted outcome judged as undesirable by an observer), that will either amount to a paternalistic and arbitrarily restrictive measure against the population as a whole, setting up some elite meta-decision-makers to judge everyone, or it will be applied discriminatorily to people with disabilities and others who may be viewed as causing social disorder through their unmet needs or divergent or oppositional behavior. It would inevitably be used similarly to that standard in existing mental health laws, to restrict the freedom of people in crisis situations, as is the undoubted purpose underlying such proposals even when they attempt ‘disability-neutral’ terminology.9

Just as¬†the CRPD Committee came to reject deprivation of legal capacity based on a ‘functional assessment’ of decision-making skill¬†‚ÄĒ which had earlier been claimed as a ‘disability-neutral’ approach to the restriction of legal capacity¬†‚ÄĒ as a discriminatory violation of the right to equal recognition before the law, we need to recognize as discriminatory any attempts to justify the reintroduction of arbitrary detention and substitute decision-making regimes¬†against people with psychosocial disabilities, including those that address crisis situations. My proposed framework¬†aims to meet the needs that society has wrongly placed in the hands of medical-legal institutions of both coercive paternalism and outright¬†social control with a paternalistic cover story,¬†to parse out the needs which should be met, from the substantive and formal discrimination that has to be rejected. We have overcome discrimination time and time again in creating the evolving norm of legal capacity in the CRPD, and we must continue to do so.

Lastly, it has been problematic that much of the theory and practice regarding legal capacity reform has been based on a de-linking of¬†Article 12 (equal recognition before the law; legal capacity) from Article 14 (liberty; prohibition of disability-based detention including involuntary mental health admissions). At an early stage, a number of influential actors¬†deliberately set¬†aside the abolition of¬†forced psychiatric interventions as part of legal capacity reform (despite its being naturally encompassed under the guarantee of legal capacity ‘in all aspects of life’ in Article 12 paragraph 2).10¬†While the CRPD Committee’s General Comment No. 1 recognized that forced psychiatric interventions violate legal capacity, including in emergency situations (GC1 para 42), and their Guidelines on Article 14 and subsequent General Comments¬†continued to develop¬†the absolute prohibition of forced psychiatric interventions,¬†the deliberate marginalization¬†of this issue, combined with the unequal access by¬†people with psychosocial disabilities to funding and institutional power,¬†set the stage for our current work and explains in part why we are lagging behind.


We should¬†remind ourselves of the origins of the CRPD as a constitutional moment that allowed people with¬†disabilities, and¬†people with psychosocial disabilities in particular, to emerge as protagonists in international law. This emergence rectifies long-standing discrimination that treated us in effect as objects of the law, absent from its discourses, while enshrining norms about legal capacity¬†that cemented our exclusion. For related to power inequalities, including some that are persistent and structural and others that are circumstantial, we have been marginalized even in post-CRPD legal capacity discourse. (On the positive side, our own movement has used the time to flesh out still-under-appreciated diverse theory and practice using the CRPD.) This has led to an incomplete and flawed theory and practice of¬†legal capacity and supported decision-making by scholars and advocates, to an erasure of the specific barriers facing people with psychosocial disabilities from disability rights discourse and their transfer to the ‘human rights in mental health’ context (which re-objectifies us as objects of the legal-medical/clinical gaze), to an inability of reform initiatives to address psychosocial crisis situations as an occasion of legal capacity deprivation, and to outright attempts, even by scholars claiming to work within the CRPD paradigm, to subvert the CRPD’s prohibition of substitute decision-making.

The relegation¬†of our most significant barriers of law and policy to¬†‘human rights and mental health’ (which is also related to the de-linking of Articles 12 and 14) has had serious consequences for our struggle to abolish forced psychiatric interventions. Most damagingly, it marginalizes us within¬†the collective grouping of people with disabilities¬†‚ÄĒ a marginalization¬†that we specifically fought against in our strategy for the CRPD drafting and negotiations. Our exclusion can be rectified¬†by fully exploring psychosocial crisis situations ‚ÄĒ the occasions that society seeks to justify as a predicate for forced psychiatric intervention, based on¬†‘risk to self or others’¬†‚ÄĒ in the same way that we¬†parsed legal capacity generally, by separating solidarity-based concerns (offering support and accompaniment) from discrimination, developing human rights norms from the standpoint of people with psychosocial disabilities.

We need to face squarely the nature of psychosocial¬†crisis situations and the challenges involved, and to meet them within the parameters of the CRPD paradigm of equality and non-discrimination in the exercise of legal capacity and the right to live in the community, including appropriate supports subject to the person’s will and preferences, and equality and non-discrimination in liberty and security of the person, including non-discriminatory police and justice systems and the availability of conflict resolution subject to the will and preferences of ¬†all parties concerned. My writings on positive policy linked above articulate conceptually where psychosocial crisis situations fit in the legal capacity universe and how we can counter the discriminatory tropes including medicalization, legal capacity deprivation (‘incompetence’), alleged danger to self, and alleged danger to others, with¬†positive policy while rejecting all such discrimination.

Show 10 footnotes

  1. See my paper, Norms and Implementation of CRPD Article 12.
  2. CRPD General Comment No. 1, para 26.
  3. See GC1 para 29.
  4. See GC1 para 27, corrigendum.
  5. See my paper, Legal Capacity from a Psychosocial Disability Perspective.
  6. See International Disability Alliance CRPD Forum, Principles for the Implementation of CRPD Article 12.
  7. See, e.g., Anna Arstein-Kerslake and Gerard Quinn, Legislating Personhood: The Right to Support in Exercising Legal Capacity; Anna Arstein-Kerslake and Eilionóir Flynn, The right to legal agency: domination, disability and the protections of Article 12 of the Convention on the Rights of Persons with Disabilities.
  8. See, e.g., Piers Gooding and Eilionóir Flynn, Querying the Call to Introduce Mental Capacity Testing to Mental Health Law: Does the Doctrine of Necessity Provide an Alternative?; Eilionóir Flynn and Anna Arstein-Kerslake, State intervention in the lives of people with disabilities: the case for a disability-neutral framework.
  9. See my article, CRPD and Transformative Equality.
  10. This took place in a meeting of experts convened by a donor organization in 2010.


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  1. This is serious stuff. As finally people are starting to see the fallacy of this Biomedical model. Now we are faced with this new Moral Improvement / FYOG system.

    And then we have people like this Richard Schwartz and his internal family systems theory, a deliberate doctrine to press survivors into denial and to blame themselves for their own continuing negative experiences.


    Its all a deliberate attack on survivors.

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  2. It should come as no shock to learn that, once some serious impediments to involuntary psychiatric psychiatric intervention began to be incorporated into international law, the forces of coercion would start looking for loopholes and ways of turning this around. Psychiatry after all is primarily a police force, and police don’t work very effectively without the option of coercion.

    So glad I’m not a lawyer, as it’s so difficult navigating legal verbiage, but my basic understanding of the situation, if I am correct, is that

    a) The original language designates the individual as the captain of his or her own ship in regard to medical decision-making (which by this definition includes psychiatry);

    b) As a little icing on the cake, the concept of “supported decision-making” was included in the language, ostensibly to help strengthen the ability of the individual in question to make truly autonomous decisions; then

    c) This notion of “supported” decision-making is now being turned around by some who, rather than seeing this support as being available if and when requested by the individual, are instead imposing it as a substitute for rather than an adjunct to individual autonomy; hence the original authoritarian paternalism is reestablished using new language.

    I’m glad there is resistance to this, but don’t know the answer as it’s not really my department. However I support Tina’s proposals (though I’d omit the reference to “Mad Pride”), as I’m not aware of anyone who has worked on CRPD as long and hard as Tina, or who would be a more appropriate spokesperson for the interests of survivors. It seems like a fluid situation at the moment, i.e. one that could go either way.

    I ask Tina to suggest some ways non-lawyers who support what she’s trying to do vis. a vis. CRPD can help with this effort.

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    • Thanks OldHead. Oh, it’s complicated. What non-lawyers can do: be aware of the ways that lawyers and psychiatrists who want to subvert the CRPD are developing tricky language to do this. Listen carefully and critically to anything you hear said about the CPRD. If it doesn’t smell right, if it ends up leading to a statement that some coercion is ok, or that it’s a last resort, etc., question it.

      Read General Comment No. 1 and the Guidelines on Article 14, make study groups on this if you want, to understand what the standards are that the CPRD Committee has developed. When I have read the General Comment aloud, stopping to discuss it in pieces, in a mixed group of survivors and lawyers and dissident mental health folks, people could understand what the GC was saying.

      If that’s too daunting, then take it from me – and from the WPA’s Paul Appelbaum, who conceded this point! – that the CPRD contains an absolute prohibition of forced psychiatric interventions. (Appelbaum’s acknowledgement of the absolute prohibition came in an editorial urging states to ignore or amend the CRPD.) Fight for it! In the US, you can talk about the CRPD is an advancement of the same policy position stated by the NCD 19 years ago, in ‘From Privileges to Rights: People Labeled with Psychiatric Disabilities Speak for Themselves’. Ask the NCD to take up this issue again.

      If you want to get involved with international human rights mechanisms, here is a resource on what you can do: http://www.chrusp.org/file/339476/UsingHRMechanisms.docx. The Universal Periodic Review of the US in the Human Rights Council is coming up soon and the US Human Rights Network has started putting out information and training materials about it, check it out – https://www.upr2020.org. They will have information about the process, and you can check back with me about how to argue forced psychiatry as a human rights violation in that context if you want.

      One other thing – if people support the conceptual/policy framework I’m developing, I would ask you to refer to it in relevant advocacy, discuss it, debate it, adapt it (and credit me). I think this has potential to answer the questions about so-called hard cases that some of our opponents are saying the CPRD hasn’t addressed – it has (e.g. GC1 said in two places that decision-making has to be respected in crisis situations), but the positive elements haven’t fully been brought out before.

      Thank you for your comments and support.

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  3. Stumbling into this discussion groggy so hoping I’m following this accurately….I am a survivor and have been around this site since its inception, and wanted to pick out something here as it spoke to an idea I had a while ago:

    “We badly need to develop a cohort of legal and political theorists who develop critical positions towards the systems that oppress us and towards the society as a whole, from an outsider standpoint as people with psychosocial disabilities. ”

    I realize quite a few survivors haven’t a dime to spare, but, I had thought about organizing some sort of informal scholarship type fund people could pool money into to help put select survivors through law school or other relevant disciplines such as med school, so that when they get out they can help us. Even a partial scholarship of sorts given to chosen survivors might be of benefit as an incentive for people to go through school for relevant disciplines…And aside from legal and political help we also badly need doctors who are critical of the system to among other things address the many health issues people are coming out of the system with that are iatrogenic in nature. Instead of acting to cover over the damages claiming what they are seeing is Mental Illness‚ĄĘ. Even a few doctors who are also survivors who could help out other survivors would make a fair difference.

    Aside from this I believe until we have sweeping legal changes that forbid forced psychiatry we will have to get pretty creative in terms of how to help currently detained people and how to prevent others from getting entangled in the system. More in a bit, I am too sleepy to continue writing right now…

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    • Thanks for your comment. I think that we need to strategize on how to make those sweeping legal changes even in the US. People are working on this in other countries, and from what I know Peru is the closest to being able to reach total abolition in the non-criminal context (see my earlier blog post https://www.madinamerica.com/2018/10/peruvian-legal-capacity-reform-celebration-and-analysis/). Law is created by human beings, and it can be disentangled and re-made by human beings.

      And meanwhile I agree about getting creative to help currently detained people and to prevent others from getting entangled. My conceptual/policy framework might be useful in thinking about what needs to exist as an alternative response, that could help prevent people from being put into the system. Of course many people in the survivor community are already practicing ways of supporting people to stay out of the system – and I welcome debate and critique of my framework too.

      One possibility for helping currently detained people, especially if it relates to a long-standing situation, is to make a complaint to a UN Special Rapporteur or the Working Group on Arbitrary Detention. It can take a long time for the UN to act on such complaints (technically called communications), and their opinions are not binding, but sometimes bringing international attention to a case can help. (It is possible for the person to remain anonymous at the level of publicity but they need to make their identity known to the Special Rapporteur or Working Group in order for them to be able to investigate and communicate with the relevant public officials). People can make complaints on their own behalf, or you can also do it for another person with their consent. Here is a guide that I wrote up for people wanting to make individual complaints and/or other kinds of advocacy using UN human rights mechanisms: http://www.chrusp.org/file/339476/UsingHRMechanisms.docx.

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  4. Tina, A lot of complex legalities to try understand but just want to say a big thank you for all your work and reporting involving the CRPD and the push to end discrimination and give people their human rights and autonomy.

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    • Yes, for sure. It can be crazy-making to read US case law on forced psychiatry though, but maybe they can take international law or international human rights courses and then do an independent study on CRPD.

      There is something I should mention about law study that might be interesting to people – and I’ll make a caveat afterwards. There is a Center for Disability Law and Policy at NUI-Galway (in Ireland) that has a summer school and also a one-year master’s degree program, focusing on the CRPD. The summer school is open to non-lawyers and I believe that non-lawyers can also qualify for the master’s degree (but check their website). The caveat is that, while this is probably the best that exists, it’s not perfect in terms of upholding fully the right to legal capacity, and so you have to bring your critical thinking as I wrote in my comment to oldhead above. (I wrote about my disagreement with Eilionoir Flynn, who heads the program, and her co-authors of two relevant papers Anna Arstein-Kerslake and Piers Gooding, who received their PhDs there and work closely with Eilionoir, in this paper: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=293055). And still, some people I work closely with study there and have studied there and remain associated also, so am saying it is a mixed bag, and can be worthwhile – don’t know what scholarship they options they have though, so might be prohibitive.

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        • ADA includes those ‘regarded as’ having a disability or having a ‘history of disability’, as people with disabilities. That allows me to see myself there, as a survivor of psychiatry having a history of being regarded as disabled (psych diagnosis and accompanying discriminatory violence and detention).

          CRPD doesn’t include that language but treaty body has routinely included phrases like ‘actual or perceived impairment’ especially in addressing detention, i.e. ‘detention based on actual or perceived impairment’ is prohibited.

          I believe that we can promote the total de-medicalization of distress/disturbance/crisis and diversity – what you are calling ‘mental illness’ and autism/aspergers – as an adaptation of the social model of disability. These experiences/conditions/ways of being are not linked to physical pathology unlike everything that is considered a physical, sensory or intellectual impairment. This means it is justified to take a different approach to the social model of disability, than the standard one developed by people with physical impairments in the UK (where the ‘orthodox’ social model came from – impairment plus barriers, with impairment an essential part of the understanding).

          This is one way I think my conceptual framework is useful – by conceptualizing the needs in crisis situations in ways that totally bypass not only the false medical narrative of chemical imbalance but also the clinical narrative of mental illness that is equally artificial and socially constructed and that takes away authority from the person over her own life and meaning. I think it is possible to advance it as an interpretation/application of the CRPD because it makes sense and fits the logic of the CRPD paradigm shift on legal capacity and its approach to abolition of psychiatric detention and forced treatment, which are now well established.

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          • ~Mental Illness~ and ~Autism / Aspergers~ I guess they could be considered as an injury. Either you are in trauma, or you have just been duped. Either type is an injury, so I guess such could be a past disability.

            I still don’t like the idea though of going into disability territory.

            Rather just see it as common tort.

            My .02

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          • PacificDawn, I appreciate your point of view but want to point out that doing it without any framework of non-discrimination didn’t get us anywhere all the time that was being tried, because discrimination existed. (e.g. there would always be a ‘medical exception’ for why administration of neuroleptic drugs, though torture against anyone else, was just fine and even good for you as a treatment if a psychiatrist said you were the kind of person that ‘needed it’.) So if disability non-discrimination is not the way to go, what else would be? Not intending to put you on the spot, it’s an open and genuine question, if you have any thoughts on that I’m interested. Any other way to address discrimination, or otherwise to get past that roadblock?

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  5. Well no I don’t have more to say. Obviously what we need are Lawyers and not Psychiatrists or Psychotherapists.

    It is always a catch 22 situation, how do you address a disability issue without calling it that?

    I think though there are ways, and that if you can get it 100% outside of the disability arena, that that will work better. But I know that this is very difficult area, and I commend you for the work you are doing.

    I think this forum should be dealing primarily with legal issues, and that the rest of it is of dubious value.

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  6. We should have a lawyer referral service for anyone who had been labeled with ~Mental Illness~ or ~Autism Aspergers~.

    I know that recovering money over such issues will be a new area, but at least people can start to learn what the issues are, and where the high water marks are in litigation.

    And while it might not be possible to sue over the original abuses which are ~Mental Illess~ and ~Autism Aspergers~, it might be possible to sue over the sham ~treatments~ and ~activism~ which propagate the concepts and the sham of life without honor.

    Still hard to get people to sue their parents. But I say that it should be pretty easy to get people to sue their psychotherapists.

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  7. “program of strategic litigation to change the law for everyone.”

    Yes, that is exactly what I mean. Is there such a thing? I want to be involved and help in any way that I can. Please tell me how.


    By strategic litigation, as I understand it, you are trying to establish case precedents to open the door for broader lawsuits. Much of tort law just comes down to case precedents, and so it is like with the big tobacco lawsuits, it took many years and many suits to finally get results. And with the Catholic clergy sexual abuse lawsuits, work is still going on to expand the envelop of suits.

    And I will just state my own view here, that Psychtherapy and Recovery are things which discourage people from looking at legal redress, and instead try to get people to see it all as a self-improvement project.


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    • Unfortunately I don’t know of anything happening in the US that is strategic litigation with the aim of abolishing all power to force someone into psychiatric facilities or so-called treatments. I am less familiar with what is going on in relation to autism.

      When you say ‘justice for the middle class family’ I’m not sure what you mean – people with lower incomes who may not be considered ‘middle class’ certainly need justice also, e.g. against social welfare agencies that look on them prejudicially based on class. Interested to know what you are concerned about here and how it relates to mental health system and autism industry.

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  8. To be middle-class does not mean to be middle-income. It means a way of thinking, really a reactionary identity scheme, something to hide behind. There really is no one in the U.S. who is not middle-class.

    The middle-class lives in Bad Faith, it does not admit that it has to create values and make choices. Rather, it looks for defensive externals, and the worst of this falls on children. So the middle-class uses the language of pedagogy manuals, ideas like “parenting.”

    And while poor people do get tougher scrutiny from social services agencies, the well off defines itself by the language of pedagogy manuals, and by hiring their own doctors. And these private practice doctors employ a business model which is based on parental exoneration. They play god, believing that they can mitigate the way the child is being used, even though they have zero authority over the parents. They don’t understand why we have mandatory reporting laws. So others in the business of child protection report that it is harder to protect the children of the well off.


    So since the middle-class family exists to exploit children, the lowest level of redress would then be to prevent disinheritance. Loss of control of your money, after you are dead. That is a very light penalty. But as it is, the US is the outlier, in most every other industrialized nation, you really cannot disinherit your child.

    So for example, in the US, the fallacious concept of “dysfunctional family” is seen as a reason for Psychotherapy, Recovery Programs, and Salvation Programs.

    Whereas in British Columbia, you don’t need any of that nonsense. You just call a lawyer.


    Trevor will send someone out to try and talk sense to the testators once. But usually they are already senile, and also suicidal. Senile-Suicidals, everything they say is defying you to kill them.

    So when talking sense fails, he files under the Wills Variation Act, originating from a 1938 Act of the British Parliament.

    And then in the Civil Law countries, the presumptive heir does not even need a lawyer. A will which attempts to disinherit is null and void, toilet paper.

    And then a forum of survivors should not have articles about whether or not psych drugs are harmful, or about advantages and disadvantages of forced treatment, or about substituting psychotherapy for psychiatry.

    It should have the latest news from the legal front, where are the high water marks, what are the strategic lawsuits of today?

    Here is one, it failed badly, but the Bar Association did watch closely:

    In New Jersey the law is somewhat more favorable. But the judge would not even let Helfand argue her case. And the father had long been quite inappropriate with his daughter.


    I don’t know how common this is, when parents have stayed married, are backing each other up, and are financially solvent, but I helped 3 girls put their father into our state penn for molesting them. And their entire Pentecostal church was standing with the parents, because most everyone in that church has at least one scapegoat child, and usually a scapegoat sibling too. And their Pastor always makes a reference to these situations in his sermons. I am sure that that church is saturated with familial child abuse. And this molestation case and its parties, are tied up with a patricide case from a decade ago, father who was abusing his 15yo son, who turned around and killed the father.

    The most important information which could be presented on this forum is legal and political information.

    In Louisiana they had had Civil Law provisions in their state constitution, but then in the 1990’s this too got changed.

    Autism is just a hoax invented by the eugenics movement. It continues to operate today because of the rise of Neo-Liberalism and because of pedagogy manuals. It serves to legitimate the abuse of children and adults.

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  9. ^^^^^ Clarification of Above:

    Autism originates with the bogus pseudo science of the eugenics movement. It is closely related to the pseudo science of Social Darwinism.

    Hans Asperger signed to have thousands of children euthanized. Other doctors who did things like that were executed. But Asperger was able to hide his past Nazi associations.

    The concept is enjoying a renaissance today, in the service of Neo-Liberalism, and because of pedagogy manuals.

    Jayne Lytel, is a frightening woman. The hatred she and the husband feel for their second son Leo in intense:

    We even have Autism being promoted on this forum in blog articles.

    Sami Timimi and his co-authors insist, “Autism does not exit”, and that there are no biological markers for it.



    Things use to be more simple. If medical personnel did something wrong, it was “malpractice”.

    If the parents were fooling doctors, we called it “Munchausen’s Syndrome By Proxy”. But the fact is that there are so many parents who want this, to find the locus of Original Sin in their child, that now we have whole specialty disciplines of doctors who promote medical child abuse. And mostly it will be with private practice doctors who cater to those who have an ability to pay.

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  10. New York’s Child Victims Act

    New York court system sets aside 45 judges to deal solely with new child sex abuse lawsuits

    Child Victims Act takes effect with many lawsuits targeting Catholic Church

    Adult Victims Of Childhood Sex Abuse In New York Can Sue Alleged Abusers

    Governor Cuomo Signs The Child Victims Act

    New York Child Victims Act Lawyers




    As good as this new change in NY is, most of the time the impact is against institutions. The majority of child sexual abuse is still perpetrated by biological parents, and this is still the least likely sort of abuse to carry penalties for the perpetrators.

    Some of it may be because of the lack of a deep pocket. But I still think it is just because ours is still a society of denial, and the anachronistic inheritance laws have got to be a part of this.

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  11. “SEN. ALESSANDRA BIAGGI: I mean, that fact alone is just remarkable and shows you what is possible when you actually do fight for the things that you know are right, and what the law can do. And so, this law is something I campaigned on. It‚Äôs something that is personal to me. I am a child sexual abuse survivor. I spoke very briefly about it in my campaign video, but I had not really spoken out as publicly as I did when I stood up on the floor of the New York state Senate in support of the bill.

    One of the most important reasons why I spoke up about it is because silence and shame are surrounded by abuse. And the trauma that it inflicts upon individuals, and the loneliness and the darkness that can really encapture your entire being if you stay silent, was something that I was done with. I am 33 years old today. I was 31 years old when I spoke out against what had happened to me. And I really did think I was going to go to my grave with this inside of me. And something happened in my life that really just propelled me to speak about it. From that point forward, I really have not only felt liberated, but felt like one of the things I could do was use my voice so that other people who had experienced this could also understand that they, too, could speak out against it, if they so choose.


    I think people are being misled if they talk about this all as “memories”. Heard something like that from Rep Elijah Cummings recently.

    Rather it should be understood as social and civil standing.

    If you say it is about memories, then all it would take is to expunge those memories then that person should be able to take their place as a cog in a NeoLiberal Capitalist System. And in some quarters you do hear it talked about like this.

    It is a person’s entire biography which makes up their social and civil standing, their public honor. Freud and his successors are just wrong in how they have approached cognition.

    And a lawsuit is an excellent way to restore social and civil standing. We should be working to open the envelop for survivor lawsuits, not talking about ~therapy~, ~healing~, ~recovery~, or ~radical neurodiversity.

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  12. PacificDawn, I hear you about families being direct enforcers and violators of rights; I see that as part of the system of patriarchy in which men appropriate and control women’s sexual and reproductive powers and related labor. I think this is all getting far afield from the original post though, so I’d rather end the discussion here. Thank you for your comments.

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  13. Tina, I agree with what you have said above.

    We get very few threads speaking from a legal perspective, instead from a therapy – recovery perspective.

    Over 500 Lawsuits Already Filed Days After Child Victims Act in New York Goes into Effect

    My greatest dream is to live to see the day when the survivors of childhood abuses are sent to lawyers and political activists so that their public honor might be restored, instead of to therapists and to recovery and salvation programs where there are only further forms of abuse.

    Doors were opened with R. D. Laing, and with D. G. Cooper, and with Alice Miller, but none of these were actually able to walk through these doors themselves.

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