I support this Act, There is more to these people than you could ever
know.
World Network of Users and Survivors of Psychiatry WNUSP
Secretarial:c/o LAP, Store Glasvej 49, DK-5000 Odense C
http://www.wnsup.net/
Tel 45 66 19 45 11
Email:
ad...@wnusp.net
Legal Capacity as Right, Principle and Paradigm
Submission to the Committee on the Rights of Persons with Disabilities
in response to its Call for Papers on theoretical and practical
applications of Article 12
Following the principle asserted by WNUSP and others in the
International Disability Caucus (IDC) throughout the CRPD drafting and
negotiations, users and survivors of psychiatry claim that we define
our human rights, identify violations and provide guidance as to
remedies. 1. What is needed for Article 12 implementation? For users
and survivors of psychiatry, it is not necessary to create an
elaborate model of supported decision-making in order to implement
Article 12.
Article 12 implementation starts with the recognition of equal legal
capacity. This means that users and survivors of psychiatry/ people
with psychosocial disabilities have the same legal capacity to act as
everyone else. The capacity to act entails also the right to exercise
that capacity directly, by one's own expressed wishes, and to be
accommodated by having all forms of communication accepted as
meaningful, relevant and valid (Article 21). People with psychosocial
disabilities may need accommodation for strong emotional expression,
metaphorical language, or complex narratives, to a greater extent than
the general population, and we may also need other types of
accommodation and support in interacting with bureaucratic or formal
systems (Articles 2, 5, 9 and 13). 2. Significance of the capacity to
act
The capacity to act entails a right to have the content of one's
choices respected as valid, and to be finally responsible for having
made those choices. The relationship of psychosocial disability to
trauma means that many of us have never had the experience of making
truly self-affirming choices about our own lives, and we may
experience destructive self-doubts in even the smallest decisions.
Taking away responsibility and authority to govern one's own life
severely circumscribes the scope for breaking free of abuse and coming
to terms with the highs and lows of life - resulting in enforced
marginalization, segregation, deprivation of opportunities, and
despair. 3. Enforced mental health treatment as violation of legal
capacity Enforced mental health treatment inflicts multiple violations
of legal capacity. It represents a judgment that one's behavior and
self-expression merit distrust; it prevents a person from defending
herself against assault by mind-altering drugs that change brain and
body chemistry and seem to change one from the inside out (or the more
permanent changes wrought by electroshock and psychosurgery) -
involuntarily blurring the boundaries between self and not-self; and
it constitutes a refusal to accept as valid the person's own choice
about a highly intrusive and controversial medical treatment that has
potentially irreversible consequences. Enforced mental health
treatment is incompatible with Article 12, as well as with Articles
14, 15, 16, 17, 19 and 25, and meets the UN definition of torture (see
IDC Information Note on Forced Interventions, available at
www.chrusp.org;
see also Report of the UN Special Rapporteur on Torture A/63/175,
maintaining that forced psychiatric interventions may constitute
torture or ill-treatment). There is no need for any formalized
supported decision-making model to be put in place regarding mental
health treatment decisions - simply put, enforced treatment (including
hospitalization and institutionalization) has to be abolished and the
laws that permit such treatment have to be repealed.
Mental health treatment and hospitalization may continue to be
administered with the free and informed consent of the person
concerned - that is, only if the person gives affirmative consent
after receiving satisfactory information, with no implied consent or
substituted consent possible - and there must be effective remedies
available to enforce the right to be free from nonconsensual
treatment. At the policy level resources and priority must be shifted
away from medical model treatment to services and supports in keeping
with the social model of madness/ psychosocial disability (such as
psychotherapy, respite houses, intentional peer support, and
phenomenological approaches reflected in the Hearing Voices Network
and Soteria). Resource limitations cannot excuse the failure to
implement such a policy shift; both reallocation of resources and
international cooperation need to be fully explored and utilized. 4.
Support and its relationship to the exercise of legal capacity Support
to exercise legal capacity in general (i.e. in relation to financial,
legal and medical matters beyond the right to be free from enforced
mental health treatment) likewise does not need to be formalized or
established as a legal institution in order to recognize the legal
capacity of people with psychosocial disabilities on an equal basis
with others. In fact, in response to serious and persistent patterns
of abuse experienced by many of us (in home, community, mental health
services, law and justice systems, and society), the hallmarks of our
best practices in support are: avoidance of bureaucracy;
confidentiality (including anonymity if desired); loyalty to the
person served; non-hierarchical relations; and non-judgmental
engagement with each other's reality. These values contrast with legal
oversight, record-keeping (unless necessary to perform a requested
service, in which case ownership belongs to the person concerned), and
accountability to any parties outside the support relationship. People
with psychosocial disabilities may want to use written plans, and/or
designated advocates, to communicate their wishes if direct
communication is impeded for any reason, or to serve as a reminder of
desired courses of action. These plans or advocacy agreements cannot
take precedence over a person's current wishes; Article 12
conclusively presumes that she has the right to continue exercising
the legal capacity to change her mind. 5. Article 12 as paradigm for
all types of support The paradigm established by Article 12 is
reflected throughout the CRPD and has implications for all forms of
support offered to people with psychosocial disabilities (e.g.
Articles 19, 26 and 28). This paradigm recognizes the boundaries
between individuals - "the independence of persons" (Article 3(a)) -
and requires pro-active engagement with each other as interdependent
human beings, without infringing on any person's autonomy or physical,
mental or moral integrity (Articles 3(a), 12.3, 12.4 and 17). It is
the same paradigm adopted by harm-reduction approaches to HIV/AIDS
prevention (e.g. distributing free needles), by services to people
living rough (homeless), and to people in situations of domestic
violence. Best practices in social services generally are coming to a
position that provides support of a nature that the person will
accept, rather than trying to enforce the dictates of top-down social
policy that may simply not work as people find ways to avoid services
that are irrelevant, harmful or an assault on their dignity. While
good practices of this nature exist also at the margins of the mental
health system, mostly in isolated and small alternatives to the
medical model, and in peer support and advocacy, the mental health
system needs to catch up and abandon the paternalistic asylum model
that currently prevails even in community-based services - in
ghettoized mental health housing and case-management services that
subsume all aspects of life, and in laws allowing enforced treatment
in the community. The Article 12 paradigm is also simply the
interdependence between negative rights and positive rights, and the
recognition that social solidarity is necessary to create the
conditions for the "free development of the personality" of each
individual (UDHR Article 22). All human rights, negative and positive,
belong to the individual, and there can be no justification for
depriving a person of legal capacity on the ground that it is
necessary to fulfill the right to health or the right to an adequate
standard of living, or vice versa. The positive rights imply the
negative ones - the right to health includes the right to control
one's own body and health (CESCR GC No. 14) - and vice versa - the
right to legal capacity requires, ultimately, a right to the economic,
social and political conditions necessary for the exercise of autonomy
to be affirmative and not just a choice of "the lesser evil". (This is
certainly subject to progressive realization and is even more in the
nature of a third-generation right, related to the right to
development and the right to peace, nevertheless it is at least partly
reflected in UDHR Article 22 which refers to "realization of those
economic, social and cultural rights necessary for the free
development of the personality".) 6. Other rights related to the
exercise of legal capacity Further aspects of legal capacity are the
rights to political participation, marriage and parenting
relationships, and employment. People with psychosocial disabilities
cannot be excluded from having the right to vote and to stand for
election (Article 29), and psychosocial disability cannot be a basis
for denying the right to marry or for separating parents from our
children (Article 23.4). People with psychosocial disabilities have
the right to participate in the general workforce and/or to engage in
self-employment and entrepreneurship according to our own choices, and
cannot be denied the right to make contracts for employment, nor can
we be segregated in "sheltered workshops" that exploit our labor for
less than the regulatory minimum wage under supervision of mental
health workers, violating our rights and dignity as workers and as
human beings (Article 27). 7. Responsibility of individual to society
Responsibility is a consequence of equal participation in society.
Legal exemptions from responsibility such as the insanity defense
often result in harsher and less constrained methods of social control
- forensic psychiatric prisons that invalidate people as both "mad"
and "bad." We do not call for rigid enforcement of "law and order,"
but instead look to the duty to accommodate, to an exploration of
mitigating circumstances, and to the example of good practices found
in some services for people with intellectual disabilities, in which
disruptive and even violent acts are taken as having communicative
value rather than as automatically warranting punishment. The nature
of crimes as defined and as enforced, which often disadvantage
populations living in poverty and otherwise oppressed, including
people with psychosocial disabilities, needs to be questioned and
challenged for a just social order. As a matter of principle, people
with psychosocial disabilities who violate just laws should be held
responsible subject to mitigating factors and procedural justice,
while we continue to work for abolition of prisons and of all systems
that perpetuate trauma by depriving people of control of their own
lives whether as punishment, for reasons based on discrimination or
any other reason. 8. The paradigm shift with respect to psychosocial
disability The concept of "danger to self or others" needs to be laid
to rest, in law and in policy. Human rights advocates reject
preventive detention in general as unacceptable in a just society, and
likewise reject demographic profiling of any individual as violent
based on race, gender, age or disability. People with psychosocial
disabilities have a right to equal benefit of all laws (Article 5),
including the presumption of innocence until proven guilty, and the
persistence of the myth that madness implies a propensity to crime and
violence needs to be named and eradicated as discrimination (Article
8). Suicide and self-harm, on the other hand, need to be approached
with sensitivity to the difference between first- and third-person
perspectives, learning from experiential insight into the nature of
these experiences, their meaning, and how others might helpfully
engage with a person who is suicidal or who practices self-harm. 9.
For more information about good practices mentioned here, please see:
PO-Skåne
http://www.po-skane.org/ombudsman-for-psychiatric-patients-30.php
Hearing Voices Network
http://www.intervoiceonline.org/ Intentional
Peer Support
http://www.mentalhealthpeers.com/ Soteria
http://www.moshersoteria.com/
Thinking About Suicide
http://www.thinkingaboutsuicide.org/ Voices of
Heart
http://www.voicesoftheheart.net/ Sister Witness International
http://www.sisterwitness.org/ Runaway House
http://www.weglaufhaus.de/weglaufhaus/
Eindhoven Project
http://www.mindrights.org/ NOTE: These resources
include work to reduce harm within the existing system that still
practices coercion and enforced treatment, and we believe that the
underlying approaches are relevant to creating services and supports
entirely free of force and coercion.
Prepared for WNUSP by Tina Minkowitz, International Representative
June 1, 2011
****
The World Network of Users and Survivors of Psychiatry is a democratic
organization of users and survivors of psychiatry that represents this
constituency at the global level. In our Statutes, "users and
survivors of psychiatry" are self-defined as people who have
experienced madness and/or mental health problems, or who have used or
survived mental health services.
WNUSP had its beginnings in 1991 and became a full-fledged
organization
with a democratic global structure on adopting its statutes in 2001.
Currently we have members in over 50 countries, spanning every region
of the world.
WNUSP is a member of the International Disability Alliance (IDA), and
is represented on the Panel of Experts of the UN Special Rapporteur on
Disability.
WNUSP was involved in the work on the Convention on the Rights of
Persons with Disabilities (CRPD) since the inter-regional expert
meeting convened by the Mexican government before the 1st session of
the Ad Hoc Committee (the UN forum in which the CRPD was negotiated),
and has been active and successful in achieving our aims for the
Convention, especially with regard to legal capacity, liberty,
integrity and free and informed consent, as well as principles of
autonomy, human diversity and equality reflected not only in article 3
but throughout the Convention. WNUSP brought over 20 users and
survivors of psychiatry to the UN, from every region of the world, in
addition to representatives of other user/survivor organizations that
worked closely with us, such as Mind Freedom International and People
Who.
WNUSP was among the organizations that created the International
Disability Caucus, and served on its steering committee; it is also
currently on the steering committee of the IDA CRPD Forum. WNUSP was
also one of the organizations represented in the 2004 working group
that produced the first official draft text of the CRPD, and was
represented as one of two civil society speakers at the adoption of
the CRPD by the General Assembly.
Since the adoption of the CRPD, WNUSP has produced an Implementation
Manual from a user/survivor perspective (available on our website),
and continues to work with the rest of the international disability
community, especially through the Legal Capacity Task Force, a working
group of the IDA CRPD Forum.
WNUSP has Special Consultative Status with the Economic and Social
Council of the United Nations (ECOSOC).
Please see our website
www.wnusp.net for more information. *****
Endorsers: Center for the Human Rights of Users and Survivors of
Psychiatry (USA),
www.chrusp.org
Fundación Mundo Bipolar, Madrid (Spain),
http://bipolarweb.com
IMPERO (Ireland)
Intentional Peer Support (USA)
MindFreedom International
ThinkingAboutSuicide.org
TUSPO (Tanzania)
Voices of the Heart, Queensbury, NY (USA)
We Shall Overcome (Norway),
www.wso.no
European Network of (ex-) Users and Survivors of Psychiatry,
www.enusp.org
Fundatia Orizonturi, Romania,
www.orizonturi.org
LAP Copenhagen/Frederiksberg Denmark
http://www.psykiatribrugere.dk/
I support this act, there is more to these people than you could ever
know.
Many people are silenced in the name of wealth creation.
Thomas Paul Murphy
Posted by THOMAS at 9:54 AM
Labels: I support this Act