How to Enabling the legal preconditions for DI towards inclusion.?
Mental health law, where they exist, continue to be the biggest legal barrier towards inclusion. At the core of mental health law, is coercion. A de-institutionalized person always runs the risk of re-institutionalization coercively, resulting in the ‘revolving door’ phenomenon or trans-institutionalization. Discharge procedures, having to appear in the court, parole, Leave of Absence, guardianship and legal incapacity matters complicate living a life with dignity in the community. De-institutionalized persons are often given larger doses of medicines, as ‘one or two for the road’. In some countries, there has been successful resistance from grassroots DPOs to the drafting of mental health legislations (e.g., Nepal) where none existed. Some countries have adopted Article 19 of the CRPD into their disability or amended mental health legislations (e.g., India) without necessarily explicating these provisions legally or through case or constitutional law. Petitions have been filed in the constitutional court in some countries (Indonesia, S Korea) challenging involuntary commitment. DPOs and the wider human rights movements (e.g., South Africa) have challenged the lack of any policy or law to guide DI processes, resulting in harm to persons interned in custody and released without any development entitlements, or human rights safeguards into open communities. Within the scope of NHRI institutions and women’s rights commissions, the issue of mini-institutions, shackling practices, and human rights violations have been sporadically addressed by higher order courts. These are rarely governed or regulated for violations by common law.
Even if discharged into the community, de-institutionalized persons struggle with obtaining the necessary personal documentation, disability card, voter id, national identity number, social security ID etc. etc. These are the requirements before de-institutionalized persons can get other legitimate services (e.g. financial inclusion, housing, etc.) The legal incapacity shadow continues long after the de-institutionalization process, posing high restriction of participation in civic and social life, rendering people homeless. Some countries succeeded in reforming their legal capacity law by replacing substitute by supported decision making (e.g. Peru). In some countries, the scope of legal incapacity law is restricted to a few areas, and not all embracing. However, in several countries, the scope of disqualification is universal.
A lot remains to be done in terms of removing legal barriers, repeals and reparations, new legal solutions and creating new jurisprudence that will free persons bound under incapacity, guardianship, and civil commitment laws, on the basis of disability. There is a high need to sensitize the judicial systems, law faculties and other technical agencies, worldwide, to address this area of transforming legal systems towards inclusion, on urgent basis.
While psychiatry is reforming its act and reconsidering coercion in the last years, however, the reform movement has not paid heed to reparation of harms caused to millions of people, in the name of care and medical treatment. The movement of persons with psychosocial disabilities worldwide is asking for reparation for the harms caused from states parties and from the professional associations.
For the #WhatWENeed 2021 campaign, articles on the ‘How to’ of legal reform, removing legal barriers, and more specifically, on reparations, are welcome.