Academic

Perlin & Szeli on Mental Health Law & Human Rights

By Lawrence Solum

Michael L. Perlin and Eva Szeli (New York Law School and New York Law School) have posted Mental Health Law and Human Rights: Evolution and Contemporary Challenges on SSRN.  Here is the 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, 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 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 factors" that appear to corrupt mental disability law in virtually every nation in the world. Finally, we will focus on the pernicious and corrosive power of sanism, which arguably underlies every major challenge faced in this field, and we will conclude that, only by confronting and dealing with sanism?s omnipresence, will be have any meaningful chance of redeeming this issue of law and policy.

Full post as published by Legal Theory Blog on May 13, 2008 (boomark / email).