World Network of Users and Survivors of Psychiatry WNUSP
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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
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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.
I am faced with a great dilema concerning this act because I know that some people that are labeled mentally ill are indeed demonically possessed agaisnt their will by real live people. I also know that high technologies are used to faciliate this sometimes.
I have always believed a person is responsible for their own actions. But when someone pushes you off a cliff and you land on their brother are you responsible for the brothers injury?
The answer is, you should have been left alone or the cause and effect would have never happened.
And how can you ever prove that you were pushed off a cliff?
Thomas Paul Murphy
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