1. Liberty and prohibition of discriminatory detention
Tina Minkowitz
CRPD course fall 2017
©Tina Minkowitz 2017

2. Text and origin of Article 14
Issues:
Prohibition of involuntary hospitalization/institutionalization as discriminatory detention
Guarantee of non-discrimination in processes and conditions of arrest and detention, especially related to criminal charges
Enjoyment of CRPD rights as part of humane treatment
Enjoyment of liberty and security of person on equal basis with others
Security of person is alternate basis in addition to legal capacity (Art 12) and freedom from torture (Art 15) for prohibition of forced treatment in mh services

3. Text, equal enjoyment and no discriminatory detention
1. States Parties shall ensure that persons with disabilities, on an equal basis with others:
(a)  Enjoy the right to liberty and security of person;
(b)  Are not deprived of their liberty unlawfully or arbitrarily, and that any deprivation of liberty is in conformity with the law, and that the existence of a disability shall in no case justify a deprivation of liberty.

4. Text, equality in criminal and other detention settings
2. States Parties shall ensure that if persons with disabilities are deprived of their liberty through any process, they are, on an equal basis with others, entitled to guarantees in accordance with international human rights law and shall be treated in compliance with the objectives and principles of the present Convention, including by provision of reasonable accommodation.

5. Drafting history WNUSP advocacy paper and text proposals
Psychiatric incarceration as discriminatory because targets and uniquely applied to PWD
No deprivation of liberty based on disability
Picked up in influential Bangkok meeting draft and in Chair’s draft for Working Group, then in WG text which WNUSP participated in writing
Some states proposed to add ‘solely’ or ‘exclusively’ which would have allowed modern mental health legislation that detains people based on mh diagnosis plus alleged danger to self/others or need for care/treatment
These proposals were rejected at two separate stages
WG Chair summarized discussion by characterizing 14.1.b as a pure non-discrimination provision and a balanced text, saying that a PWD who is a danger to others should be treated the same as anyone else endangering community
Ad Hoc Committee Chair’s Comments

6. Development of early jurisprudence
SRT (Nowak) report 2008, para 44: involuntary treatment and involuntary confinement contrary to CRPD
OHCHR 2009 thematic study on legislation, paras 48-49
CRPD Concluding Observations Spain 2011
36. The Committee recommends that the State party: review its laws that allow for the deprivation of liberty on the basis of disability, including mental, psychosocial or intellectual disabilities; repeal provisions that authorize involuntary internment linked to an apparent or diagnosed disability; and adopt measures to ensure that health-care services, including all mental-health-care services, are based on the informed consent of the person concerned.
CRPD Concluding Observations Austria 2013
29. The Committee is deeply concerned that Austrian law allows for a person to be confined against his or her will in a psychiatric institution if he or she has a psychosocial disability and is considered to be a danger to himself or herself or to others. The Committee is of the opinion that the legislation is in conflict with article 14 of the Convention because it allows a person to be deprived of liberty on the basis of actual or perceived disability.
30. The Committee urges the State party to take all necessary legislative, administrative and judicial measures to ensure that no one is detained against their will in any kind of mental health facility. It further urges the State party to develop de-institutionalization strategies based on the human rights model of disability.

7. CRPD GC1 and Guidelines on Article 14
GC1 – paras 7, 8, 40, 41, 42
Institutionalization without person’s specific consent violates Articles 12 and 14 (40)
Psychiatric or other treatment without person’s free and informed consent violates Article 14, infringes Articles 15/16/17 (42)
See also Minkowitz presentation on free and informed consent linked in course content for segment 3
A14G – entire, see especially paras 6, 10, 11, 12,
Absolute prohibition of detention based on actual or perceived impairment, including for reasons such as ‘danger to self/others’ – discriminatory and arbitrary (6)
Rejection of ‘solely’
Involuntary commitment on mh grounds violates ban on disability-based detention (Art 14) and also violates right to exercise free and informed consent in health care (Arts 12 and 25) (10)
Ensure mh services provided based on person’s free and informed consent, eliminate forced treatment as violation of Article 15 (11-12)

8. Guidelines on Article 14 cont’d
Detention based on danger to self/others, need for care/treatment, or other reasons linked to impairment or health diagnosis is contrary to Article 14 (13, 14, 15)
PWPSD perceived as dangerous when they resist treatment
Everyone has duty to do no harm, criminal and other law applies – laws that divert PWPSD to separate track, including mh laws, typically have inferior due process and violate Articles 13 and 14
Freedom to make choices includes freedom to take risks and make mistakes
Reiterates GC1 obligation to respect and support PWD’s decision-making in emergency and crisis situations, abolish forced treatment, provide accurate information about service options and make available non-medical approaches (22)
Best interpretation if not practicable to determine will and preferences (23)

9. Article 14 and criminal charges
Humane living conditions in institutions and in prisons (17)
Right to live independently and participate fully in life in detention setting, equal access to areas and services (18)
Declarations of unfitness to plead or incapacity to be found criminally responsible, and detention based on such declarations, incompatible with Article 14 and should be repealed (16)
Eliminate security measures on those found criminally non-responsible, including those that involve forced medical and psychiatric treatment (20)
Restorative justice and diversion preferred, must not transfer to mh commitment or require participation in mh services (21)

10. Access to justice
Monitoring of institutions and review of detention do not condone forced institutionalization; monitoring required under 16.3 and 33; review is to challenge arbitrary detention and obtain immediate release, should not extend the arbitrary detention (19)
Right to remedy and reparation (24); quotes from Working Group on Arbitrary Detention Basic Principles and Guidelines:
(d) Individuals who are currently detained in a psychiatric hospital or similar institution and/or subjected to forced treatment, or who may be so detained or forcibly treated in the future, must be informed about ways in which they can effectively and promptly secure their release including injunctive relief;
(e) Such relief should consist of an order requiring the facility to release the person immediately and/or to immediately cease any forced treatment, as well as systemic measures such as requiring mental health facilities to unlock their doors and inform persons of their right to leave, and establishing a public authority to provide for access to housing, means of subsistence and other forms of economic and social support in order to facilitate de-institutionalization and the right to live independently and be included in the community. Such assistance programs should not be centred on the provision of mental health services or treatment, but free or affordable community-based services, including alternatives that are free from medical diagnosis and interventions. Access to medications and assistance in withdrawing from medications should be made available for those who so decide;
(f) Persons with disabilities are provided with compensation, as well as other forms of reparations, in the case of arbitrary or unlawful deprivation of liberty. [in footnote: This includes deprivation of liberty based on disability or perceived disability, particularly on the basis of psychosocial or intellectual disability or perceived psychosocial or intellectual disability.]

11. Other UN standards
Standard Minimum Rules on the Treatment of Prisoners, revised (Mandela Rules) 2015
WNUSP only DPO participating in reform discussions (also useful submission from SRT Méndez), limited success but SMR retains provisions contrary to CRPD (and to WGAD BP&G)
Relevant SMR provisions, compare with CRPD:
Rule 5.2 Prison administrations shall make all reasonable accommodation and adjustments to ensure that prisoners with physical, mental or other disabilities have full and effective access to prison life on an equitable basis.
Rule 32.1 The relationship between the physician or other health-care professionals and the prisoners shall be governed by the same ethical and professional standards as those applicable to patients in the community, in particular:
(b)  Adherence to prisoners’ autonomy with regard to their own health and informed consent in the doctor-patient relationship;
(c)  The confidentiality of medical information, unless maintaining such confidentiality would result in a real and imminent threat to the patient or to others;
(d)  An absolute prohibition on engaging, actively or passively, in acts that may constitute torture or other cruel, inhuman or degrading treatment or punishment, including medical or scientific experimentation that may be detrimental to a prisoner’s health, such as the removal of a prisoner’s cells, body tissues or organs.

12. SMR continued
Correctional model of imprisonment (Rules 91-95), medical model of mental health (e.g. Rules 25, 30, 32.1.a, 33, 39.3)
Rule 109
1. Persons who are found to be not criminally responsible, or who are later diagnosed with severe mental disabilities and/or health conditions, for whom staying in prison would mean an exacerbation of their condition, shall not be detained in prisons, and arrangements shall be made to transfer them to mental health facilities as soon as possible.
2. If necessary, other prisoners with mental disabilities and/or health conditions can be observed and treated in specialized facilities under the supervision of qualified health-care professionals.
3. The health-care service shall provide for the psychiatric treatment of all other prisoners who are in need of such treatment.
Rule 110: It is desirable that steps should be taken, by arrangement with the appropriate agencies, to ensure if necessary the continuation of psychiatric treatment after release and the provision of social-psychiatric aftercare.

13. CRPD and other HR mechanisms
A14 Guidelines prompted in part by contradiction from other mechanisms (including SMR)
Also contrary to CRPD:
Involuntary hospitalization as last resort - Human Rights Committee (ICCPR) GC35 para 19 (2014)
Involuntary confinement and involuntary treatment as necessary to safeguard right to health and freedom from torture/ill-treatment, functional capacity test – Subcommittee on Prevention of Torture (OPCAT), Approach of SPT on the rights of persons institutionalized and medically treated without informed consent
Working Group on Arbitrary Detention (2015)Basic Principles and Guidelines on Remedies and Procedures on the Right of Anyone Deprived of Their Liberty to Bring Proceedings Before a Court, Principle 20 and Guideline 20: obligation of courts to uphold CRPD prohibition of impairment-based detention; no unfitness to plead in criminal trials; legal capacity; mh services based on person’s free and informed consent
Decision in NZ case, discriminatory detention based on disability
Urgent Appeal in Norway case (with SRRPWD and SRH), detailed case of forced psychiatry
Country report on US
Special Rapporteur on Right to Health 2017 HRC report – create non-coercive support measures and eventually eliminate coercion (useful, but not compliant with CRPD immediate obligation to release)
WHO – not hr mechanism but influential, advising states that involuntary hospitalization/treatment contrary to CRPD

14. GC5 on Article 19
Para 15(d) [Barriers to Art 19 include:] Physical and regulatory institutionalization, including of children and forced treatment in all its forms.
Para 27 [Article 19 is] is linked to the absolute prohibition of detention on the basis of disability as enshrined in Article 14 and elaborated in the respective guidelines. [Fn to A14G]
Para 34 Access to housing means having the option to live in the community just like one is.
Para 48 [obligation to respect Art 19 rights] … entails the obligation to release all individuals who are being confined against their will in mental health services or other disability-specific forms of deprivation of liberty. It further includes the prohibition of all forms of guardianship and the obligation to replace substituted decision-making regimes by supported decision-making alternatives.
Para 58 [Deinstitutionalization includes] eliminating institutionalising regulations….
Para 98(a) [National implementation] Repeal all laws that prevent any person with disabilities, regardless of type of impairment, to choose where and with whom and how to live, including the right not to be confined on the basis of any kind of disability.