The UN Convention on the Rights of Persons with Disabilities effectively prohibits guardianship, psychiatric detention and forced treatment, and adopts a support model of legal capacity as the alternative. The Special Rapporteur on Torture says that forced psychiatric interventions may constitute torture or ill-treatment. In this workshop, Tina Minkowitz, one of the drafters of the CRPD, explains the new paradigm of legal capacity and the relevance of the international framework on torture, and will suggest ways that U.S. activists, advocates, and lawyers can bring the CRPD standards into domestic law. This teleconference is part of the USNUSP "Community Education and Skill-Building Initiative," a series of teleconferences designed to help users and survivors of psychiatry to build the skills and knowledge for effective human rights activism.

1. Human Rights of Users and Survivors of Psychiatry Tina Minkowitz Center for the Human Rights of Users and Survivors of Psychiatry

2. Paradigm Shift Old paradigm: Took for granted the “need” for coercive measures Human rights meant standardizing and subjecting to the rule of law New paradigm: Coercive measures are incompatible with equality and inherent dignity Human rights means abolishing coercion and creating new types of support

3. Paradigm Shift 2 Old paradigm associated with “Principles for the Protection of Persons with Mental Illness and for the Improvement of Mental Health Care” (non-binding UN declaration) New paradigm associated with Convention on the Rights of Persons with Disabilities CRPD supersedes MI Principles to the extent of conflict, e.g. on involuntary treatment

4. What Changed? Non-discrimination as central principle Social model of disability – change society and not the person Participation of users and survivors of psychiatry as part of international disability community

5. Concept of Legal Capacity Old paradigm: Capacity for rights vs. capacity to act “Having” vs. exercising legal capacity Legal capacity vs. mental capacity/competence New paradigm: Legal capacity as right to make decisions and be held responsible for one’s acts Universal; cannot be denied based on disability Limitations in ability met with support

6. Basis of New Paradigm Equality Human development requires agency Social solidarity and interdependence Abuses in guardianship and incapacity framework: Civil and social death Enforced powerlessness facilitates victimization Acknowledgement of human imperfection

7. What about “Best Interest”? PWD have equal rights as others to make decisions with risky or harmful consequences Forgoing medical treatment even if condition worsens or death results Use of mind-altering drugs Extreme sports Sexual and relationship choices including unsafe sex and pain infliction, by mutual free and informed consent

8. Engagement Harm reduction is more effective if non-coercive Domestic violence – shelters, responsive law enforcement, counseling HIV/AIDS – anonymous testing, needle exchange Drugs/alcohol – availability of rehab, learn by example, change social surroundings Why is “mental health” different?

9. Engagement 2 Old paradigm: Medical diagnosis/labeling “Evidence-based” treatment Mechanistic approach to mind by treating the brain New paradigm: Human engagement – curiosity and interest Judicious use of drugs when desired for particular results, feedback, low dose and shortest duration

10. Engagement 3 How to do support or create mental health alternatives: Peer support Residential models User-run respite/crisis hostel Soteria Counseling and psychotherapy successful for people labeled with schizophrenia “Open Dialogues” approach – use with caution as it can be authoritarian

11. Gender and Race Perspectives Avoid stereotyping about social interactions and qualities For example: women “are” or “should be” emotional and like to interact socially Escaping gender and race stereotypes may be seen as risky by others Intersecting discrimination – whose abilities and competencies are mistrusted?

12. Creating New Legal Frameworks Abolish mental health and incapacity laws – stereotyping, discriminatory, violate CRPD Systematically reform all laws dealing with capacity or competence Identify what is the risk protected against Use disability-neutral alternative Provide access to supported decision-making and prevent abuse of such support

13. Remedies Torture prevention framework – international and national CAT articles 1 and 16 may prohibit forced psychiatric drugging and electroshock, psychiatric detention Special Rapporteur on Torture Manfred Nowak, 2008 Interim Report to UNGA

14. Participation User/survivor participation in implementing new paradigm essential Expertise by experience, mutual support, lifelong advocacy CRPD requires close consultation (Article 4.3) Human rights education for user/survivor communities

15. United States context U.S. signed CRPD, expected to ratify RUDs: reservations, understandings and declarations Universal Periodic Review NGOs 5-10 pg report on human rights violations Other treaty monitoring U.S. has ratified Convention against Torture, International Covenant on Civil and Political Rights Special Rapporteur on Torture Urgent appeal in particular cases, overview of systemic violations

16. U.S. context 2 Indirect enforcement – no claim in U.S. court for violation of human rights under a treaty Courts increasingly receptive to international law as persuasive if not binding Interpret U.S. law whenever possible to be consistent with international obligations Need legislative enactment or judicial rulings to abolish forced treatment and commitment

17. U.S. context 3 Proposal for federal inter-agency working group on human rights Could promote legislative and policy changes at state level Build capability to make effective political demands Develop our own program for transformation of law, policy and services Legislative advocacy problem for 501c3 nonprofits Awareness-raising as obligation under CRPD

18. Information www.chrusp.org tminkowitz@earthlink.net