The disability community, including users and survivors of psychiatry, has sent a letter (drafted and circulated by WNUSP) to the UN Human Rights Committee urging that treaty monitoring body to follow the Committee on the Rights of Persons with Disabilities in prohibiting all mental health detention. The signatories came from all regions of the world and include user/survivor organizations, disability organizations, other human rights organizations and individual experts. The Special Rapporteur on Disability sent his own statement elaborating this point, and the organization Autistic Minority International has also submitted an excellent paper. All these submissions can be found on the website of the Human Rights Committee.

Since our letter is quite technical in pointing out the divergence of the Human Rights Committee’s position from that of the CRPD, which is a higher standard of human rights protection, I would like to bring out some additional points that may be helpful in our advocacy.

Why Do We Say That Mental Health Detention is Discrimination, and Why is it Prohibited Under the CRPD?

Detention in the mental health context is discrimination because the threshold criterion for such detention is the existence of an actual or perceived disability as evidenced by a psychiatric diagnosis. Indeed, UN standards in force prior to the CRPD, such as the Principles for the Protection of Persons with Mental Illness and for the Improvement of Mental Health Care (MI Principles), permitted mental health detention only of individuals who are so diagnosed according to international standards. This criterion that is similarly found in mental health legislation throughout the world exposes mental health detention per se as a discriminatory detention regime that is contrary to the Convention on the Rights of Persons with Disabilities.

Mental health detention cannot be disability-neutral in theory or in practice. Its raison-d’être is to confine people with psychosocial disabilities. The individuals so confined are subjected to a regime of medical supervision, as well as to medical and psychological interventions without their free and informed consent. Medical personnel have a decisive influence in determining how long the person remains under detention, according to medical opinion about the person’s behavior and decision-making skills. This represents a medical model approach to psychosocial disability, which is contrary to the CRPD and in particular contrary to Article 12 as explained in General Comment No. 1 of the Committee on the Rights of Persons with Disabilities.

People who experience difficulties in living that are labeled as madness or mental illness, or whose behavior and self-expression are perceived as such by others, are people with disabilities under the CRPD and under the earlier non-binding Standard Rules for the Equalization of Opportunities of Persons with Disabilities. It is untenable to claim that a mental health detention regime, which exclusively targets such individuals for deprivation of liberty and medical interventions against the person’s will, is anything other than discrimination.

Mental health laws typically include criteria in addition to the existence of a psychiatric diagnosis, in particular a forecast that the person may harm oneself or others. It is important to underline that this is a secondary criterion, applied only to individuals who have been labeled with a psychiatric diagnosis. Neither the international standards in force prior to the CRPD nor any domestic mental health legislation would countenance the detention in mental health facilities of any individual who is not labeled with a psychiatric diagnosis, even if there is reason to believe that the person may harm oneself or others. Police and the criminal justice system are the usual mechanism to deal with threats to others; if they are not adequate the society needs to debate the balance of public safety and individual freedoms and develop more effective measures that do not discriminate based on disability. Danger to oneself is addressed either by laws that apply to the entire population (such as laws requiring the use of seatbelts) or by harm-reduction campaigns that promote safer behaviors while respecting individual autonomy.

A preventive detention regime that does not target people with psychosocial disabilities and does not rely on a medical model of psychosocial disability for its definition and functioning, would not be discriminatory. The CRPD does not prevent any state from adopting a preventive detention regime by which security personnel (not medical personnel) identify and incarcerate individuals who are believed to be dangerous to society. Persons with disabilities would be subject to such detention on an equal basis with others, with no violation of CRPD unless there were a disproportionate impact or hidden purpose to confine people on the de facto basis of psychosocial disability. However, even a disability-neutral regime would raise questions as to legitimate aim and proportionality of detention based on a prediction of future behavior, which can never be effectively disproven and is thus likely to be arbitrary.

In sum, the essential nature of mental health detention as a discriminatory regime of detention cannot be hidden or legitimized by combining it with secondary criteria. Discrimination plus disability-neutral criteria still equals discrimination. As applied by the Committee on the Rights of Persons with Disabilities, CRPD Article 14 prohibits all mental health detention, including detention regimes that characterize persons with psychosocial disabilities as being dangerous to oneself or others.

Mental health detention has been regulated by civil commitment laws and also under laws of criminal procedure. Mental health detention is no more legitimate when used as a security measure pursuant to criminal proceedings, than it is in the civil context. The CRPD Committee has stated that persons with psychosocial disabilities who are subject to criminal proceedings must have the same guarantees and penalties that are applied to others, thus ruling out the use of medicalized security regimes such as mental health detention. Beyond this standard, it is expected that the CRPD Committee along with disabled people’s organizations and others will develop an appropriate framework to take account of concerns for substantive fairness in the attribution of criminal liability in ways that do not single out people with psychosocial disabilities or characterize them offensively as being incapable of moral judgment and thus dangerous to the community.