Law and Psychiatry in the Age of the Convention on the Rights of Persons with Disabilities
United Nations Convention on the Rights of Persons with Disabilities, Disability Rights, Mental Health, Access to Justice, Application of International Law, Human Rights Treaties, International Obligations
Among people with disabilities and their advocates, a palpable excitement has surrounded the negotiations and ultimate agreement on the text of the Convention on the Rights of Persons with Disabilities (CRPD, 2006) by the United Nations General Assembly. Having experienced centuries of discrimination, poverty, exclusion, coercion, and violence, the acceptance by the world community of the need for an international convention “to promote and protect the rights and dignity of persons with disabilities” in order to redress their “profound social disadvantage” and to promote “their participation in the civil, political, economic, social, and cultural spheres” (CRPD, 2006, Preamble, s. (y)) represents a huge benchmark in the last great civil and human rights struggle (Driedger, 1989, p. 1). Although one cannot expect the CRPD to rectify all of the societal sins of omission and commission toward persons with disabilities, the Convention is nonetheless a singular achievement in international human rights law that should ultimately result in an epochal shift in the relationships between law and psychiatry and persons with mental health problems and intellectual disabilities. While no doubt there will be some resistance to change among elements of the legal and mental health care professions, the CRPD will oxygenate many others who have uncomfortably witnessed the historic suppression of the human rights of this vulnerable community. In 2011, even in the face of the inertia that has been consistently displayed by law and psychiatry, it does not seem Pollyannaish to predict that the walls of recalcitrance must now begin to crumble. In this chapter, the latter-day history of international human rights law in relation to the problems of this minority will be briefly reviewed, followed by an account of the CRPD as a modern response to what has seemed to be an eternal inequity. Next, the range of expectations surrounding the Convention will be surveyed, with a view to marking the optimism characterizing its reception. An overview of the principal policy direction mandated by the CRPD will be presented, explaining the dramatic movement toward understanding people with disabilities from a human rights perspective. This section will be accompanied by a more detailed discussion of the substance of the Convention, in effect a guided tour ofits major articles. Several vital areas where the CRPD has direct implications have been selected for more detailed analysis: capacity, involuntary measures, access to justice, and poverty. Finally, in order to assess the grounding of the Convention in the Canadian legal landscape, the domestic pathways for reception of international human rights law will be explained. While this article cannot aspire to comprehensiveness, many of the major issues suggested by the Convention will be identified, with a view to helping legal, medical, and other readers comprehend the range of obligations mandated by this contemporary human rights treaty.
H Archibald Kaiser, "Law and Psychiatry in the Age of the Convention on the Rights of Persons with Disabilities" in Richard Schneider & Hy Bloom, eds, Law and Mental Disorder: A Comprehensive and Practical Approach (Toronto: Irwin Law, 2013) 1333.