An examination of comparative mental disability law reveals that there are at least five dominant, universal, core factors that must be considered carefully in any evaluation of the key question of whether international human rights standards have been violated. Each of these five factors is a reflection of the shame that the worldwide state of mental disability law brings to all of us who work in this field. Each is tainted by the pervasive corruption of sanism that permeates all of mental disability law. Each reflects a blinding pretextuality that contaminates legal practice in this area.
These are the factors that I identify:
- Core factor #1: Lack of comprehensive legislation to govern the commitment and treatment of persons with mental disabilities, and failure to adhere to legislative mandates - Core factor #2: Lack of independent counsel and lack of consistent judicial review mechanisms made available to persons facing commitment and those institutionalized - Core factor # 3: A failure to provide humane care to institutionalized persons - Core factor #4: Lack of coherent and integrated community programs as an alternative to institutional care - Core factor # 5: Failure to provide humane services to forensic patients In this paper, I discuss each of these universal factors, and offer examples from many regions of the world (not primarily from caselaw nor from sophisticated jurisprudential analyses but mostly from reports done by advocacy agencies and non-governmental organizations). Although the picture I paint is bleak, there are some rays of optimism: involvement (albeit tardily) of global human rights groups such as Amnesty International, heroic work by mental disability law-specific groups such as Mental Disability Rights International and the Mental Disability Advocacy Center, the greater readiness of international human rights courts and commissions to consider the substantive claims in institutional condition cases, and the publication of the UN Convention on the Rights of Persons with Disabilities.
Syracuse Journal of International Law and Commerce, Vol. 34, Issue 2 (Spring 2007), pp. 333-358