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Mental Health Law and Human Rights: Evolution and Contemporary Challenges

Mental Health Law and Human Rights: Evolution and Contemporary Challenges

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Published by N R Dewi Nurmayani
Abstract:
In this chapter, we will consider the question of how mental health law and human rights law first "met," and then will move on to the challenges facing those who seek to extend international rights protections to persons with mental disabilities. Our thesis is this: the issue of the human rights of people with disabilities had been ignored for decades by the international agencies vested with the protection of human rights on a global scale. A cluster of recent developments - political, legal, social and cultural - have altered the contours of the "playing field" in a such a way as to, finally, help create an environment that is potentially hospitable to a movement that "extends" (the quotation marks are intentionally provocative) human rights to this population. But these rights are often ignored, and other times granted only on paper. We contend that the cause of this is sanism: 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, that infects both our jurisprudence and our lawyering practices, that is largely invisible and largely socially acceptable, and that is based predominantly upon stereotype, myth, superstition, and deindividualization, and is sustained and perpetuated by our use of alleged "ordinary common sense" (OCS) and heuristic reasoning in an unconscious response to events both in everyday life and in the legal process.

These developments are extraordinarily recent: within the legal literature, it appears that the first time disability rights was conceptualized as a human rights issue was as recently as 1993. For people with mental disabilities, in particular, the development of human rights protections may be even more significant than for people with other disabilities. Like people with other disabilities, people with mental disabilities face degradation, stigmatization, and discrimination throughout the world today. But unlike people with other disabilities, many people with mental disabilities are routinely confined, against their will, in institutions, and deprived of their freedom, dignity, and basic human rights. The challenge we face is to give life to international human rights for this population.

In our chapter, we will present a brief overview of the origins and history of mental disability law, tracing the origins of a civil-rights-protective, legal approach to this "health" issue. We will consider the "missing link" between international human rights law and mental disability law, focusing on the reluctance of mainstream human rights groups to take on the rights of persons with mental disabilities (especially those institutionalized) as a human rights issue. Next, we will trace the "discovery" and the acknowledgment of this "missing link," by examining important reports and UN documents, and the early work of important non-governmental organizations, especially Mental Disability Rights International (MDRI).

We will then consider subsequent developments and accomplishments in this field, including:
* the work of international and local advocacy organizations,
* the impact of publicity and media coverage of human rights abuses in this arena,
* the work of a handful of heroic lawyers and judges in this area of the law,
* the relevant caselaw from regional human rights bodies, and
* the development of recent important international and domestic legislation and policy, especially the UN Convention on the Rights of Persons with Disabilities.

We will next consider the challenges that need to be addressed in the 21st century, including the thorny issue of limited resources, the need for the creation of meaningful deinstitutionalization and community integration programs, and the absence (or lack of enforcement) of rights-protective mental health legislation. Along with this, we will consider what we term the "universal fact
Abstract:
In this chapter, we will consider the question of how mental health law and human rights law first "met," and then will move on to the challenges facing those who seek to extend international rights protections to persons with mental disabilities. Our thesis is this: the issue of the human rights of people with disabilities had been ignored for decades by the international agencies vested with the protection of human rights on a global scale. A cluster of recent developments - political, legal, social and cultural - have altered the contours of the "playing field" in a such a way as to, finally, help create an environment that is potentially hospitable to a movement that "extends" (the quotation marks are intentionally provocative) human rights to this population. But these rights are often ignored, and other times granted only on paper. We contend that the cause of this is sanism: 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, that infects both our jurisprudence and our lawyering practices, that is largely invisible and largely socially acceptable, and that is based predominantly upon stereotype, myth, superstition, and deindividualization, and is sustained and perpetuated by our use of alleged "ordinary common sense" (OCS) and heuristic reasoning in an unconscious response to events both in everyday life and in the legal process.

These developments are extraordinarily recent: within the legal literature, it appears that the first time disability rights was conceptualized as a human rights issue was as recently as 1993. For people with mental disabilities, in particular, the development of human rights protections may be even more significant than for people with other disabilities. Like people with other disabilities, people with mental disabilities face degradation, stigmatization, and discrimination throughout the world today. But unlike people with other disabilities, many people with mental disabilities are routinely confined, against their will, in institutions, and deprived of their freedom, dignity, and basic human rights. The challenge we face is to give life to international human rights for this population.

In our chapter, we will present a brief overview of the origins and history of mental disability law, tracing the origins of a civil-rights-protective, legal approach to this "health" issue. We will consider the "missing link" between international human rights law and mental disability law, focusing on the reluctance of mainstream human rights groups to take on the rights of persons with mental disabilities (especially those institutionalized) as a human rights issue. Next, we will trace the "discovery" and the acknowledgment of this "missing link," by examining important reports and UN documents, and the early work of important non-governmental organizations, especially Mental Disability Rights International (MDRI).

We will then consider subsequent developments and accomplishments in this field, including:
* the work of international and local advocacy organizations,
* the impact of publicity and media coverage of human rights abuses in this arena,
* the work of a handful of heroic lawyers and judges in this area of the law,
* the relevant caselaw from regional human rights bodies, and
* the development of recent important international and domestic legislation and policy, especially the UN Convention on the Rights of Persons with Disabilities.

We will next consider the challenges that need to be addressed in the 21st century, including the thorny issue of limited resources, the need for the creation of meaningful deinstitutionalization and community integration programs, and the absence (or lack of enforcement) of rights-protective mental health legislation. Along with this, we will consider what we term the "universal fact

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Published by: N R Dewi Nurmayani on Jun 27, 2013
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07/19/2013

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New York Law School
Legal Studies Research Paper Series
 
Research Paper Series 07/08 # 28
Mental Health and Human Rights:Evolution and Contemporary Challenges
By: Michael L. Perlin,Professor, New York Law School
(http://www.nyls.edu/mperlin)
 AndEva Szeli,Professor, Arizona State University
(eszeli@asu.edu
)
 This paper can be downloaded free of charge from theSocial Science Research Network at:http://ssrn.com/abstract= 1132428New York Law School’s website can be accessed athttp://www.nyls.edu 
 
Mental Health Law and Human Rights: Evolution and Contemporary Challenges(to be published in
M
ENTAL
H
EALTH AND
H
UMAN
IGHTS
(Michael Dudley ed. 2008) (in press)
(Oxford U. Press).
Prof. Michael L. PerlinDirector, International Mental Disability Law Reform ProjectDirector, Online Mental Disability Law Program New York Law School57 Worth St. New York, NY 10013212-431-2183mperlin@nyls.eduÉva Szeli, PhD, JDAdjunct Professor of Law, New York Law SchoolFaculty, Lecturer, Arizona State University Department of Psychology950 S. McAllister Ave.Tempe, AZ 85287-1104+1-602-308-9395eszeli@asu.edu
 
1
The first section of this article is adapted from M
ICHAEL
L.
 
P
ERLIN ET AL
,
 
I
 NTERNATIONAL
H
UMAN
IGHTS AND
C
OMPARATIVE
M
ENTAL
D
ISABILITY
L
AW
...-...
 
(2006).
2
Theresa Degener,
International Disability Law - A New Legal Subject on the Rise: The Interregional Experts' Meeting in Hong Kong, December 13-17, 1999,
18 B
ERKELEY
J.
 
I
 NTL
.
 
L.180, 187 (2000).As recently as fifteen years ago, disability was not acknowledged as a human rights issue.Instead, disability was seen only as a medical problem of the individual requiring a treatment or cure. By contrast, viewing disability as a human rights issue requires us to recognize theinherent equality of all people, regardless of abilities, disabilities, or differences, and obligatessociety to remove the attitudinal and physical barriers to equality and inclusion of people withdisabilities.
1
 Remarkably, the issue of the human rights of people with disabilities – particularly people with mental disabilities – had been ignored for decades by the international agenciesvested with the protection of human rights on a global scale. Early developments in globalinternational human rights law following World War II – and the various forms of human rightsadvocacy that emerged in the decades that followed – failed to focus on mental disability rights.As Dr. Theresa Degener, a noted disability scholar and activist, has observed:[D]rafters of the International Bill of Human Rights did not include disabled persons as a distinct group vulnerable to human rights violations. None of theequality clauses of any of the three instruments of this Bill, the UniversalDeclaration of Human Rights (1948) (hereinafter UDHR), the InternationalCovenant on Civil and Political Rights (1966) (hereinafter ICCPR), and theInternational Covenant on Economic, Social and Cultural Rights (1966)(hereinafter ICESCR), mention disability as a protected category.
2

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