Law and Psychiatry in the Age of the Convention on the Rights of Persons with Disabilities (CRPD)
| Author | H. Archibald Kaiser |
| Pages | 1333-1353 |
CHAPTER 60
Law and Psychiatry in
the Age of the Convention on
H. Archibald Kaiser
I. INTRODUCTION
Among people with disabilities and their advocates, a palpable excitement has surrounded the negotia-
tions and ultimate agreement on the text of the Convention on the Rights of Persons with Disabilities
(CRPD, 2006) by the United Nations General Assembly. Having experienced centuries of discrimination,
poverty, exclusion, coercion, and violence, the acceptance by the world community of the need for an
international convention “to promote and protect the rights and dignity of persons with disabilities” in
order to redress their “profound social disadvantage” and to promote “their participation in the civil,
political, economic, social, and cultural spheres” (CRPD, 2006, Preamble, s. (y)) represents a huge bench-
mark in the last great civil and human rights str uggle (Driedger, 1989, p. 1). Although one cannot expect
the CR PD to rectify all of the societal sins of omission and commission toward persons with disabilities,
the Convention is nonetheless a singular achievement in international human rights law that should ul-
timately result in an epochal shi in the relationships between law and psychiatry and persons with men-
tal health problems and intellectual disabilities. While no doubt there will be some resistance to change
among elements of the legal and mental health care professions, the CRPD will oxygenate many others
who have uncomfortably witnessed the historic suppression of the human rights of this vulnerable com-
munity. In 2011, even in the face of the inertia that has been consistently displayed by law and psychiatry,
it does not seem Pollyannaish to predict that the walls of recalcitrance must now begin to crumble.
In this chapter, the latter-day history of international human rights law in relation to the problems
of this minority will be briey reviewed, followed by an account of the CRPD as a modern response to
what has seemed to be an eternal inequity. Next, the range of expectations surrounding the Convention
will be surveyed, with a view to marking the optimism characterizing its reception. An overview of the
principal policy direction mandated by the CRPD will be presented, explaining the dramatic movement
toward understanding people with disabilities from a human rights perspective. is section will be ac-
companied by a more detailed discussion of the substance of the Convention, in eect a guided tour of
its major articles. Several vital areas where the CRPD has direct implications have been selected for more
detailed analysis: capacity, involuntary measures, access to justice, and poverty. Finally, in order to assess
the grounding of the Convention in the Canadian legal landscape, the domestic pathways for reception
of international human rights law will be explained. While this article cannot aspire to comprehensive-
ness, many of the major issues suggested by the Convention will be identied, with a view to helping legal,
medical, and other readers comprehend the range of obligations mandated by this contemporary human
rights treaty.
II. THE LONG AND WINDING ROAD TO THE CONVENTION
e notion of creating an international agreement to protect and advance human rights is of compara-
tively recent origin, and including people with disabilities is even more novel. e adoption by the United
H. Archibald Kaiser
Nations of the Universal Declaration of Human Rights in 1948 recognized “the inherent dignity” and the
“equal and inalienable rights of all members of the human family” (Preamble, para. 1), but persons with
disabilities were not among those groups specically cited as deserving its protections “without distinc-
tion” (Art. 2). Subsequent instruments identied other marginalized segments of humanity, such as the
Convention on the Elimination of All Forms of Discrimination Against Women (1979), the Convention
on the Rights of the Child (1989), and the International Convention on the Elimination of All Forms of
Racial Discr imination (1965), but the United Nations was slow to consider the needs of people with dis-
abilities in general, and persons with mental health problems in particular. Some conventions, which
may have been adapted to the settings of psychiatric facilities or institutions housing people with intel-
lectual disabilities, such as the Convention Against Torture (1984), were never suciently invigorated to
provide protection against the “other forms of cruel, inhuman or degrading treatment or punishment”
(Art. 16) occurring within their walls. Ironically, prisoners were given special consideration as early as
1955; although the Standard Minimum Rules comprehends “all categories of prisoners, criminal or civil”
(United Nations, Art. 4(1)), medical or rehabilitative detainees did not benet.
When the United Nations did begin attending to the interests of people with disabilities, its actions
were mainly declaratory (Declaration on the Rights of Disabled Persons, 1975), neither providing a ful-
some recognition of rights, nor obligating member states to undertake any fundamental measures of
redress. More specic statements, such as the 1982 World Programme of Action Concerning Disabled
Persons exhorted Member States to promote “the right of disabled persons to participate fully in the
social life and development of their societies” (para. 3), but such devices failed to truly galvanize world
opinion and i nspire meaningf ul legal initiatives.
An important outcome of the various UN activities was the slowly emerging but “strong moral and
political commitment on behalf of States to take action for the equalization of opportunities for persons
with d isabilitie s” (Standard Rules, 1993, Rule 14), although not yet through “a legally binding instrument”
(United Nations Enable, 2007, para. 1). e Standard Rules (1993), as a complement to previous UN ef-
forts, was intended to ensure that persons with disabilities “may exercise the same rights and obligations
as others” and observed that States had the responsibility “to take appropriate action to remove such
obstacles” preventing full societal participation (Annex, s. 15). Other declarations directed at persons
with mental illness (Principles for the Protection, 1991), while beginning to develop some worthwhile
principles, such as the “right to be treated in the least restrictive environment and with the least restrict-
ive or intrusive treatment” (Principle 9(1)), were mired in the wildly divergent standards across the world
community and, rather than propelling human rights advances, have been portrayed as “justifying the
coercive use of medical power and undermining mental patients’ rights” (Harding, 2000, p. 28). Cumu-
latively, international human rights law has been characterized as “largely ineectual” in responding to
service abuses and legislative neglect (Dhir, 2008, p. 106).
It was not until 2002 that the UN Commission on Human Rights requested the then High Commis-
sioner, Mary Robinson, “to examine what might be done to strengthen both the protection and the mon-
itoring of the human rights of persons with disability” (para. 2). e UN study concluded that “the time
is right for a stock-taking of the current use and future potential of the United Nations human rights
instruments in the context of disability” (Quinn & Degener, 2002, p. 2). e authors recommended the
marrying of “social justice with the freedom agenda” (p. 296) in a disability-specic treaty that “would
mark a huge step forward” (p. 297) and would underpin other human rights protections. While explicitly
anticipating this study, the General Assembly recorded its concerns about the “disadvantaged and vul-
nerable situation faced by 600 million persons with disabilities” and the “need to advance in the elabora-
tion of an international instrument” and established an Ad Hoc Committee “to consider proposals for
a comprehensive and integral international convention to promote and protect the rights and dignity of
persons with disabilities” (Comprehensive and integral, 2001, p. 1).
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