Document Type

Article

Publication Date

2008

Abstract

The quality of counsel assigned to represent individuals facing involuntary civil commitment to psychiatric hospitals is, in most American jurisdictions, mediocre or worse. In many other nations, it is non-existent, or so minimal as to offer only the illusion of legal safeguards. (Perhaps) remarkably, there has been virtually no mention of this latter scandal in the legal literature. Also, there has been little attention paid to this development by the clinical education movement (domestically and globally).

A variety of interrelated factors, however, may shed some light on this scandal, and may, encouragingly, lead to social change in the future:

- emerging caselaw construing the European Convention on this issue

- the publication of the United Nations Convention on the Rights of Persons with Disabilities which will eventually focus international attention on this issue

- the first burst of professional interest in this issue, as evidenced by programs, workshops and panels at the Congress of the International Academy of Law and Mental Health, and other interdisciplinary groups that focus on questions of psychology, psychiatry and law

- the focus by mental disability law-specific NGOs (e.g., Mental Disability Rights International; Mental Disability Advocacy Center) on institutional conditions in Central and Eastern Europe and in Central and South America, calling attention to this issue, and

- the emergence of the Global Alliance for Justice Education as a factor in the promotion of socially relevant legal education, similarly calling attention to these issues.

This paper will proceed in this manner. In Part I, I will review developments in the United States, with special focus on the Montana case of In the Matter of the Mental Health of K.G.F., without doubt the most comprehensive decision on the scope of and meaning of the right to counsel in this context from any jurisdiction in the world. In Part II, I will survey an array of other jurisdictions (common law, civil law, and mixed), and consider the range of findings (from nations in which there is no counsel, to perfunctory-at-best-counsel, to almost-adequate counsel). In Part III, I will consider other major legal, political and social developments that may, it is hoped, shine some light on these issues. In Part IV, I will examine these issues from the perspective of clinical legal education. In Part V, I will consider the impact of sanism and pretextuality on these developments. Finally, I will offer some modest conclusions.

Sanism is 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. See infra Part V.

Pretextuality defines the ways in which courts accept (either implicitly or explicitly) testimonial dishonesty and engage similarly in dishonest (and frequently meretricious) decisionmaking. See infra Part V.

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