International Human Rights and Mental Disability Law: When the Silenced are Heard

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1 University Press Scholarship Online You are looking at 1-5 of 5 items for: keywords : pretextuality International Human Rights and Mental Disability Law: When the Silenced are Item type: book acprof:oso/ Society is largely blind to the ongoing violations of international human rights law in the context of the institutional commitment and treatment of persons with mental disabilities. Notwithstanding a robust set of international law principles, standards, and doctrines, people with mental disabilities live in some of the harshest conditions that exist in any society. The recent ratification of the United Nations Convention on the Rights of Persons with Disabilities forces all nations to take seriously these issues, and the conditions that are faced on a daily basis by persons worldwide who are institutionalized because of mental disability. These conditions are the product of neglect, lack of legal protection against improper and abusive treatment, and, primarily social attitudes ( sanism and pretextuality ) that demean, trivialize, and ignore the humanity of persons with disabilities. This book draws attention to these issues, to shed light on a shame that governments continue to ignore, and to invigorate the debate on a social policy issue that remains beneath the radar for most of the world s nations by examining the mistreatment of persons with mental disabilities around the world. This book matters, not simply to institutionalized persons and their families, but to all concerned citizens of the world. Governmental inaction (in some cases, through benign neglect; in others, because of malignant motives) demeans human dignity, denies personal autonomy, and disregards the most authoritative and comprehensive prescription of human rights obligations. These issues should matter to all citizens of the world who take human rights seriously, and who care about how we treat those who remain, in many nations, locked away in facilities that violate any concept of fundamental fairness in conditions that still shock the human conscience. They should matter to policymakers, to governmental officials, to mental health professionals, to human rights advocates and activists, and to scholars. Page 1 of 5

2 International Human Rights Law in Perspective: Legal Issues and Social Constructs acprof:oso/ This chapter offers a short overview of international human rights law that relates generally to mental disability law. It begins with a short background of early UN documents and conventions, discusses more specialized civil rights documents, and explores some of the conceptual dichotomies. It sets the stage for the consideration of the mental disability law specific questions that follow; the CRPD must be seen in the context of prior UN conventions, covenants, and declarations, and the application of rights to persons with disabilities must be seen in the context of the application of rights to other often-disenfranchised minorities. As ratified, the CRPD calls for respect for inherent dignity. The final subsection of this chapter further discusses this. This chapter also explores two concepts central to the understanding of mental disability law: sanism and pretextuality. Sanism is an irrational prejudice of the same quality and character of other irrational prejudices that cause (and are reflected in) prevailing social attitudes of racism, sexism, homophobia, and ethnic bigotry. It permeates all aspects of mental disability law and affects all participants in the mental disability law system: litigants, fact finders, counsel, and expert and lay witnesses. Pretextuality defines the ways in which courts accept (either implicitly or explicitly) testimonial dishonesty and engage similarly in dishonest (and frequently meretricious) decision making. All of the topics discussed in subsequent chapters are tainted by the pervasive corruption of sanism, and each reflects the blinding pretextuality that contaminates legal practice in this area. The Use of Mental Disability Law to Suppress Political Dissent acprof:oso/ Page 2 of 5

3 For many years, institutional psychiatry was a major tool in the suppression of political dissent. Moreover, while the worst excesses of the past have mostly disappeared, the problem is not limited to the pages of history. The revelations of the worst of these abuses (and the concomitant rectification of many of them) may, paradoxically, have created the false illusion that all the major problems attendant to questions of institutional treatment and conditions in these nations have been solved. This is decidedly not so. This chapter poses this question: To what extent has institutional, state-sponsored psychiatry been used as a tool of political suppression, and what are the implications of this pattern and practice? It discusses the first revelations of the dehumanization inflicted on persons with mental disabilities, primarily (but not exclusively) in Soviet bloc nations; developments after these revelations were publicized; the extent to which the postrevelation reforms have been effective and meaningful; and the significance of sanism and pretextuality in this context. It concludes that the political use of state psychiatry and the wretched conditions in which nonpolitical individuals are held and treated in state psychiatric facilities cannot be understood as two discrete and unrelated issues. The Russian state (and other Soviet bloc nations) used (and China continues to use) state psychiatry as a means of silencing dissidents for multiple reasons: so as to allow the state to circumvent the (minimal) procedural safeguards that would have to attend a criminal trial, to allow for indefinite confinement, and to stigmatize and thus discredit potential political threats. The very same states treat patients in public psychiatric hospitals in ways that utterly fail to meet minimal standards of human decency, and that violate international law by avoiding procedural safeguards (as to fair hearing and periodic review) and freely perpetuate these actions because the persons who are institutionalized are stigmatized as a result of their mental illness the inevitable endproduct of sanism and are thus discredited as human beings. The UN Convention: The Role of Counsel acprof:oso/ If there has been any constant in modern mental disability law in its near-forty-year history, it is the near-universal reality that counsel assigned to represent individuals at involuntary civil commitment cases Page 3 of 5

4 is likely to be ineffective. In many nations, there simply is no mental disability law, and, even where there is such a law on the books, the promise of counsel is often little more than an illusion. Moreover, the lack of meaningful judicial review makes the commitment hearing system little more than a meretricious pretext. Encouragingly, though, a variety of interrelated factors may shed some light on this scandal and lead to positive social change in this area: the new, robust case law from the European Court on Human Rights on virtually all aspects of mental disability law, the ratification of the CRPD, and the publication of the World Health Organization Resource Book on Mental Health; the work done by mental disability law specific NGOs (e.g., Mental Disability Rights International; Mental Disability Advocacy Center) on institutional conditions in central and eastern Europe and in Central and South America, and greater interest globally in what can broadly be called access to justice issues. This chapter surveys an array of international jurisdictions (common law, civil law, and mixed) and considers the range of findings (from nations in which there is no counsel, to perfunctory-atbest counsel, to almost-adequate counsel). It considers other major legal, political, and social developments that might illuminate these issues, and the impact of sanism and pretextuality on these developments. It concludes that the legislative and judicial creation of rights both positive and negative is illusory unless there is a parallel mandate of counsel that is (1) free and (2) regularized and organized. Without the presence of such counsel, any rights articulated by a court, human rights commission, or legislature become, again, merely paper victories. The presence of sanism and the technical complexity of most mental disability law cases (involving, often, expert testimony by mental health professionals and subtle predictions about future dangerousness or about institutional conditions) further augments the necessity and importance of adequate representation in such cases. Conclusion acprof:oso/ This chapter summarizes the entire book. It underscores that, while the shameful state of affairs described is mostly not on the reform agenda of the culpable governments, and while sanism, as the hallmark of society s views about mental disability and persons with mental Page 4 of 5

5 disability, persists (the label of patient or ex-patient continuing to be a scarlet letter in most parts of the world), there are some beacons of light and hope. Among the most significant are these: (1) the ratification of the CRPD and the greater acceptance of a social model of disability; the emergence of authentic grassroots advocacy movements; (2) a comprehension on the part of some individual judges and courts that the issues before them matter that they involve real people, and that enforcement of international human rights in cases dealing with this population is as important as the enforcement of human rights in cases that revolve around issues of gender, age, sexual orientation, or ethnic minority status; (3) a burgeoning case law in the United States and Europe, and some case law in the Inter-American and African regional court/commission systems; and (4) the first steps taken in Asia to create a tribunal that will give persons with mental disabilities (and those with other disabilities) similar access to a regional adjudicatory body to which they can bring their complaints when discriminated against because of disability. These are important first steps, but, globally, progress still remains modest, and, in this area of law and policy, International human rights reality still routinely lags behind human rights aspirations. Therapeutic jurisprudence has the far-reaching potential to allow us to come to grips with the pernicious power of sanism and pretextuality and to offer us an opportunity to make coherent what has been incoherent and to expose what has been hidden for far too long. TJ offers the best possible means of redemption and remediation of the issues issues of basic human dignity under discussion in this volume. Page 5 of 5