Canadian Mental Health Legislation and the CRPD

A group of psychiatric survivors in Canada started the Mad Canada Shadow Report Group (MCSRG) in 2017, in order to tell the UN that Canada is not complying with the United Nations Convention on the Rights of Persons with Disabilities (CRPD). We want Canadian lawmakers to start doing what they promised to do, which includes having persons with “psychosocial disabilities” lead the change from psychiatric oppression to supports that people actually want. Erick Fabris and I, on behalf of MCSRG, co-authored a more legalistic version (to be sent to legislators, policy-makers and other Canadian officials) of the following. (Please note that  in December 2020, we put up a petition on change.org calling for an end to psychiatric coercion in Canada: you can sign here. )

What is the CRPD?                                                                  

The CRPD is an international agreement designed to eliminate discrimination on the grounds of disability. It states that disabled people have the same human rights as everyone else, and instructs governments on how to ensure that disabled people are able to enjoy those rights in practice.

The CRPD was adopted by the UN on December 13, 2006, and Canada ratified (become bound by) it in 2010. Canada also agreed, in 2018, to abide by the Optional Protocol (OP) to the CRPD. The OP allows Canadians whose rights have been violated on the grounds of disability to make complaints directly to the UN Committee on the Rights of Persons with Disabilities (the international committee of experts that monitors CRPD implementation).

How does the CRPD define disability?

The CRPD supports a social and human rights-based view of disability: that the challenges faced by people with disabilities are caused not by their own individual limitations but rather by barriers such as physical obstacles and discriminatory behaviour, practices, policies, or legislation. Under the CRPD, people with disabilities must be recognized as holders of human rights, rather than as objects of pity, charity, or the decisions of others with respect to their lives.

Why do people with psychosocial disabilities specifically need protection under the CRPD?

In Canada, as elsewhere, the  standard societal response to emotional, social or individual differences or difficulties is to impose biomedical and institutional interventions. But this response discriminates against us and violates our human and civil rights. The kinds of social and peer-based support systems that are actually helpful are almost non-existent, and attempts to set them up generally receive little or no funding.

The human cost of rights violations

People in extreme distress often languish in restraints or isolation for days or weeks, deprived of fresh air, freedom of movement, and human contact (other than the few minutes a day required for the provision of food and the administration of drugs), before a psychiatrist decides we’re ready to be released into the general population of the ward for further “treatment.” Imagine what this does to our sense of self, and to any expectation that we might be treated with care, respect and responsibility when we actually need help.

And the violation of our rights may not end even after release from hospital. “Community treatment” (outpatient committal) legislation permits “treatment teams” to monitor and enforce medication compliance. Many outpatients go through a humiliating ritual of “witnessed meds” at a local pharmacy, being made to take tranquillizers while a pharmacist watches us swallow. And “treatment team” members regularly invade patients’ privacy to medicate us against our will in our own homes, under threat of being returned to hospital if we fail to comply.

The degree of our willingness to acquiesce to a “treatment” regimen may determine eligibility for housing or other basic human rights. What does this do to our perceptions of human relations and civic society? How can we hope to complete our education, or find employment, when forced to take often incapacitating drugs?

All of these egregious human rights abuses, which, again, are standard procedure in Canada (as elsewhere), violate the obligations of our country as a state party to (country that has agreed to abide by) the CRPD.

What protections must be enshrined in all provincial and territorial mental health legislation?

It also acknowledges that people may at times need help to make decisions, which can include decisions related to treatment, and are legally entitled to whatever kinds of personal supports we might need for that purpose. Notably, it upholds the right to supported decision-making – as opposed to substitute decision-making, where someone else decides on our behalf. Supported decision-making means that, whatever the process, each of us  ultimately decides for ourselves. Anyone helping us decide must do so according to our wishes and preferences – even when we are in a state that is out of tune with or upsetting to others, including the person helping.

How Canada fails its citizens by ignoring the CRPD

It is a major problem that our government has made a “conditional reservation” to its acceptance of article 12 of the CRPD. This is the section on “legal capacity” – the right to make decisions that affect our lives, and especially those that affect our physical and mental integrity – which is fundamental to being legally recognized as a person. Canada’s reservation supports provincial and territorial mental health legislation in continuing to deny our legal capacity and to allow the discriminatory practice of substitute decision-making. It perpetuates the outmoded idea that, if  we refuse treatment, we are shown to “lack insight into our illness” and should therefore be forcibly treated “in our best interests.” As such, it violates the whole purpose and intent of the CRPD.

Adults have the right to say no to medical treatment. Yet Canadian law does not directly require the enforcement of international human rights treaty provisions in domestic legislation. Therefore, regardless of Canada’s “conditional reservation” to article 12, our country’s laws continue to allow clinicians to overrule the refusal of any person whom they have deemed legally “incapable” of making treatment decisions.

Canada’s obligations

Under the CRPD, Canada is obliged to eliminate all legislation and all practices that discriminate on the basis of disability. Mental health laws that authorize involuntary commitment and involuntary treatment are discriminatory because they target people with psychosocial disabilities for deprivation of liberty and for denial of control over our own bodies, minds and health, based on psychiatric opinion.

The practice of substitute decision-making is also discriminatory, in that it denies our right to legal capacity. In its 2017 Concluding Observations on Canada, the Committee on the Rights of Persons with Disabilities voices its concern about our country’s reservation to article 12, which allows the continued use of substitute decision-making. This reservation, the Committee points out, contradicts the object and purpose of the Convention and prevents Canada from fully implementing and addressing our human rights.

When will Canada act?

In light of the above, the Committee recommended in 2017, based on Canada’s report of that year, that all federal, provincial and territorial legislation be brought into line with the CRPD, and that governments should work on these issues in consultation with us, through our representative organizations. It pointed out that mental health legislation should respect our individual autonomy, and that we should be free to make choices about where and with whom we live and have access to affordable housing and to support services of our own choosing. It asked governments to set up strategies, with time frames, to close institutions and replace them with a comprehensive system of support for independent living, and to put in place legislation, plans and programs that facilitate our inclusion in our own communities and prevent our isolation and institutionalization.

Canada’s next report is due this year, and the Committee will surely question how well the government has implemented the Committee’s recommendations. In 2017, the Mad Canada Shadow Report Group was one of several non-governmental organizations that submitted parallel, or “shadow,” reports. Our report highlighted numerous human rights abuses throughout Canadian mental health practice. We recently conducted a nation-wide survey attempting to elicit the views of various relevant bodies, such as health and human-rights authorities. The lack of response was gravely disappointing.

Catalina Devandas Aguilar, the United Nations Special Rapporteur on the Rights of Persons with Disabilities, visited Canada in 2019 to meet with representatives of disabled persons’ organizations, including our group. In her End of Mission Statement, she specified that “[p]rovincial and territorial legislation across Canada provides for the involuntary hospitalization and treatment of persons with psychosocial disabilities, in contradiction to … the CRPD,” and added, “I urge the provincial and territorial governments to transform their mental health systems to ensure a rights-based approach and well-funded community-based responses, ensuring that all health care interventions are provided on the basis of free and informed consent.” Canada may think article 12 can be ignored, but other sections of the CRPD still impel legislators to stop psychiatric incarcerations and forced treatments.

We have no evidence whatsoever that any aspect of either the Committee’s 2017 recommendations or the Rapporteur’s 2019 urgings have even been discussed, much less followed, by legislators and policy planners. It is our hope that the current document will help them address and overcome this inaction.