Segment 4: Liberty

*Essential readings

Note: the recorded lectures (links at bottom of page) supplement the readings for this segment and relate to each of the topic areas.

Important: See also materials under Segment 8 on Criminal Responsibility and Intersectionality and Deinstitutionalization – Reparative Justice Approach*

Normative framework

CRPD Article 14*

CRPD Guidelines on Article 14(2015)*

Working Group on Arbitrary Detention Basic Principles and Guidelines on Remedies and Procedures on the Right of Anyone Deprived of His or Her Liberty to Bring Proceedings Before a Court (2015), Principle 20* and Guideline 20* (see also general portions)

Office of the High Commissioner for Human Rights thematic study on ratification and implementation of CRPD (2009), see paragraphs 47-49*

Special Rapporteur on Torture (2008) report on torture and persons with disabilities, paragraphs 44, 64-65*

Office of the High Commissioner for Human Rights Expert Meeting on Article 14, Background Note and Conclusions

Contrary to CRPD: Article 5.1e of European Convention on Human Rights*; Human Rights Committee (ICCPR) General Comment No. 35 (2014), para 19* (see also materials in segment on Torture)

  • Questions to consider:

What are the core components of the CRPD right to liberty and security of the person?

What is the difference between a procedural safeguards approach to involuntary psychiatric commitment, and abolition?

How should human rights defenders respond to standards contrary to the CRPD, that promote or tolerate involuntary psychiatric commitment?

Why is it necessary to specify that factors such as ‘danger’ and ‘need for treatment’ are not valid as justifications for discriminatory detention?

Would it be permissible to devise legal regimes of detention that are based on ‘danger to oneself or others’ or ‘need for care and treatment’ without any reference to disability or psychiatric diagnosis?  Would such regimes violate any other provisions of the CRPD?  Would they be acceptable generally as applied to the entire population?

What must be done in order to ensure that both the legislation authorizing involuntary psychiatric commitment and the practice itself are abolished?

What is the relationship between the norms requiring equality in the criminal justice system and the abolition of impairment-based detention?

How does the reparations framework apply to the freedom from arbitrary detention?

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Survivor (and ally) advocacy

WNUSP text proposal on liberty*

WNUSP submission on CRPD Article 14 and ICCPR Article 9 (2013)

10th International Conference on Human Rights and Psychiatric Oppression Principles*

Karlijn Roex, The Contested Freedom of the ‘Scary’*

Minkowitz, Guiderails and Reparations (blog post)

Linda Steele, Challenging Law’s Monopoly on Violence

WNUSP Discussion Paper on Prisons and MH (Hazen and Minkowitz)*

RMHL, MOMS et al., Forced Psychiatry and Psychiatric Abuse Against African Americans

  • Questions to consider:

What is the best argument that survivors use against involuntary psychiatric commitment?

Do we need to propose some ‘alternative’ to forced psychiatry in order to implement the abolition of psychiatric commitment?

What would an ‘alternative’ mean?

What are the underlying interests of the state, the mental health system, survivors ourselves, our friends and families, and the general public, that generate resistance to abolition?  How do we differentiate interests that are legitimate from those that are illegitimate?

How do the experiences and knowledge of victims of both the prison and psychiatric systems need to inform our understanding of the right to liberty and our advocacy for the abolition of psychiatric commitment?

Is restorative/transformative justice a worthwhile approach?

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Implementation

TCI-Asia, ‘No’ to Mental Health Laws that are Non-Compliant*

Minkowitz, Why Mental Health Laws Contravene CRPD

Minkowitz, What Would CRPD-Compliant Mental Health Legislation Look Like? (blog post)

Ley Nacional de Salud Mental, Argentina (not CRPD compliant but includes deinstitutionalization; in Spanish)

Minkowitz, Rethinking Criminal Responsibility from Critical Disability Perspective*

Minkowitz, CRPD and Transformative Equality*

Contrary to CRPD: George Szmukler et al., Mental Health Law and  CRPD (Fusion proposal to merge mental health legislation and capacity legislation); Christopher Slobogin, Eliminating Mental Disability as a Legal Criterion in Deprivation of Liberty Cases (Proposal for ‘disability-neutral’ preventive detention)

  • Questions to consider

What legislative measures are needed to implement the abolition of involuntary psychiatric commitment?

Is it enough to repeal the provisions of mental health legislation authorizing involuntary commitment and involuntary treatment?

Where else would you look for legal provisions that allow people to be held against their will in psychiatric settings or other institutions, that need to be repealed?

Is there any valid reason from a survivor perspective to maintain legislation particular to the field of mental health?

What is the relationship between abolishing involuntary commitment, and deinstitutionalization?

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New directions

OHCHR report on mental health and human rights*

WHO Quality Rights guidance and training modules in principle uphold abolition of involuntary commitment and involuntary treatment

Minkowitz, Positive Policy to Replace Forced Psychiatry (short paper)*

Alternatives to Suicide, webinar by Western Mass Recovery Learning Community*

Resources on Restorative Justice

  • Questions to consider:

What is the relationship between the right to liberty and positive reframing or redirection of social impulses to intervene in madness or crisis situations?

What do we lose when our advocacy for the abolition of involuntary commitment is situated in a discussion of ‘human rights in mental health’?

How can we relate ourselves to reform initiatives in mental health law and policy that have the stated aim of transforming services to comply with the CRPD abolition of involuntary commitment and involuntary treatment, while fighting for the deeper transformation of society and policy towards people with actual or perceived psychosocial disabilities according to a true social model of disability and Mad pride?

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Archived materials

Fall 2017: Recording of lecture and slides segment 4 lecture final

Spring 2017: Recording of lecture, slides segment 4 rev and pdf segment 4 rev

Assignment

Write your responses to the questions under each topic.

As we continue to work on revisions to this website, we hope to provide webforms and also forums for you to record your reflections and share them.

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(c) Tina Minkowitz 2020-2022