Legal Capacity for Persons with Psychosocial Disabilities: Reclaiming Personhood Through UNCRPD – Sudarshan R. Kottai

“It is a worthy quest to not simply develop a sense of identity, but become the magnanimous version of the self.” ― Kilroy J. Oldster, Dead Toad Scrolls

“I am what I am. So, take me as I am”-Johann Wolfgang von Goethe, German philosopher.

Existential philosophers have aided us in understanding the precariousness of existence and its entwinement with the external world or the ecology of mind. Each of us exists because our existence is acknowledged by others around us.  The moment we cease to be recognized by others around us, we cease to belong to this world.  When we are neither acknowledged nor recognized, we tend to question our own existence. The resultant overwhelming anxiety can lead to existential terror.  Even though these can be brought about by an ostracizing environment and unsatisfactory interpersonal relationships, institutionalized structures can transmogrify persons to “non-persons” thereby amplifying the effect of existential terror

People with psychosocial disability have been victims of existential death for over two centuries as colonial laws deprived them legal personhood or the capacity to act on one’s behalf (Davar, 2012). Deprivation of personhood under the law is a fundamental issue that forces people with psychosocial disabilities to remain stoic in the face of “legal” violations of human rights. Unlike other health care subjects, people with psychosocial disabilities become subjects of law the moment a psychiatric diagnosis is made, often leading to violence (detentions and forced “treatment”) in the name of care.

There are two kinds of persons in the eyes of the law. “Personhood, as commonly known, is not limited to people, who are only one of the two main types of persons. Apart from human beings, who are natural (or physical) persons, the law recognizes the so-called legal (artificial, juristic) persons” (Pietrzy kowski, 2018). In 2017 the Uttarakhand High Court bestowed Ganga and Yamuna with legal personhood (Livelaw News Network, 2017).  In 2019 the High Court of Punjab and Haryana ruled that the entire animal kingdom has a “distinct legal persona with corresponding rights, duties, and liabilities of a living person” (Bhattacharya, 2019).  At a time when legal personhood is being extended from humans to non-humans, people with psychosocial disability live a life equivalent to dead people as incapacity laws with the clause of “unsound mind” still continue un-repealed creating immense barriers to attain full personhood.

In the Asia Pacific regions such as India, hundreds of colonial laws (both criminal and civil laws such as family laws) including mental health laws have been discriminatory towards people with psychosocial disability.  In these colonial countries including India, a psychiatric diagnosis is powerful enough to disrupt the person’s relationship with the state transforming the person into a non-citizen without a right to vote, inherit property, marry, run for public office or head an institution of choice (Davar, 2012). If I am not a person, then what happens to me in daily life? If I am not a person, I can’t own anything that I can call my own.  My chair is not my chair; house, body, mind, nothing is mine.  In a nutshell, the core of me, the “I”, becomes obsolete.  Davar, poignantly observes this fact about the oppressive legal statutes associated with people with psychosocial disabilities: “A law on the settlement of property-related matters of dead, missing or unsound persons in the military forces provides that a person of unsound mind is to be treated as a “dead person” from the day unsoundness is ascertained. I have found this to be the most inexplicable representation of people with psychosocial disabilities within the law” (2012).

UNCRPD, personhood and mental health

UNCRPD, ratified by India has been cognizant of the human rights violations perpetuated by the mental health systems themselves. UNCRPD has given a whole new language to talk about mental health care. Mental illness now framed as “psychosocial disability” from a human rights perspective, is a paradigm shift from the biomedical model to the social model of disability.  It has moved mental health discourses from the sole territory of the powerful psychiatric infrastructures to every other stakeholder including those who are living with a psychosocial disability.

The makers of the CRPD were cognizant of the legally sanctioned discrimination against people with psychosocial disability and sought to end this legal oppression that deprives personhood. The CRPD is fast forward in reclaiming personhood for all human beings irrespective of the labels attached to them.  Article 12 of the CRPD -equal recognition before law- confers legal personhood to all people with disabilities without exception.  Article 12.1  reaffirms that   “persons with disabilities have the right to recognition everywhere as persons before the law” and the Article 12.2 recognizes  that “persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life”. The Universal Declaration of Human Rights, International Covenant on Civil and Political Rights, Convention on the Elimination of All Forms of Discrimination against Women are unanimous in ensuring right to equality before law. The CRPD envisages a human rights-based model of disability towards “a shift from the substituted decision-making paradigm to one that is based on supported decision making” (General comment 1, Article 12, UNCRPD, 2014, p.1).  The CRPD distinguishes between legal capacity and mental capacity unlike other international conventions to clarify that “unsoundness of mind” should not be used to deny legal capacity. The contention that mental capacity is a prerequisite for legal capacity is dismissed by recognizing the fact that mental capacity is not an “objective, scientific and naturally occurring phenomenon” but one which “is contingent on social and political contexts, as are the disciplines, professions and practices which play a dominant role in assessing mental capacity” (General comment 1, Article 12, CRPD, 2014, p.4). The UNCRPD mandates states parties to offer support in the exercise of legal capacity.  Also, “best interests” paradigm is replaced by “will and preferences” paradigm to ensure that persons with disabilities are not deprived of their agency in enjoying their right to legal capacity. Article 12 is subject to immediate realization as the delayed progressive realization clause doesn’t apply to this article.  Coercive treatment without free and informed consent commonly applied on persons with psychosocial disabilities is deemed to be in violation of Article 12 also.  According to Minkowitz, “Article 12 supports acts of resistance by persons with disabilities against institutional structures that exercise dominance over them in matters of everyday life” (2017).

Article 19 of the CRPD is crucial as it talks about living independently and being included in the community focusing on an intersectional, rights-based approach. The freedom to choose and control one’s life is the soul of this article. It envisages community living as per one’s aspirations with the necessary personal assistance as deemed fit by the individual.  CRPD cautions deflecting of resources to institutionalized care without addressing the impact of attitudinal barriers, poverty and social exclusion. The socio-politico-economic issues confronted by people with psychosocial disability must be addressed by mental health systems as stressors related to marginalization are critical to mental health. The CRPD offers a very broad definition of independent living. “Independent living is an essential part of the individual’s autonomy and freedom and does not necessarily mean living alone. It should also not be interpreted solely as the ability to carry out daily activities by oneself. Rather, it should be regarded as the freedom to choose and control, in line with the respect for inherent dignity and individual autonomy as enshrined in article 3 (a) of the Convention” (General Comment 5, Article 19 of CRPD, p, 4).  Right to choose where, how and whom to live with and the right to non-confinement makes Article 19 potent in realizing full human rights for all persons with disabilities.

Mental Health Laws: The elephant in the room

Addressing social justice, UN Sustainable Development Goals 2015-2030 and human rights are vital in realizing inclusion for all. Alignment with the CRPD to take mental health reforms forward is easy and straightforward in countries where mental health infrastructure is not guided by archaic colonial mental health laws. Here, direct implementation of UNCRPD is possible without negotiating with the already existing laws. India’s new Mental Health Care Act 2017 which replaced the Mental Health Act 1987 has not imbibed the CRPD in its true spirit preventing emancipation of mental health systems from a coercive, custodial, penal model to a human right based, value-laden, inclusive model. In order to fulfil the mandate of the CRPD to have a zero coercive mental health system we need to redirect mental health to multidimensional infrastructures from mental health framework by first repealing the mental health laws (as guided by the CRPD committee in innumerable country contexts). Mental health laws that predominantly situate mental health within a restrictive penal mental health system as against rights-based health care systems pose unnecessary tensions and challenges for mental health professionals, as they navigate between aggression and care because, the penal mental health law, is always in effect like gravity, in the day -to-day conduct of mental health professionals. “Helping staff who are expected to do no harm are forced to deal with inmates in fashion contrary to their instincts because of the “control and command” regimen set up by the MHA [Mental Health Act]. The system becomes violent in effect, even if not in purpose, leaving both staff and patients disempowered and unable to connect on a shared space of empathy and compassion. This violence is inherent to the institutional design itself, and the over determination of this system by a penal law” (Davar, 2012, p. 127).

The Article 21 (1) of Mental Health Care Act 2017 states that “Every person with mental illness shall be treated as equal to persons with physical illness in the provision of all healthcare”. This clause is antithetical to the CRPD provision of equality (Article 12, UNCRPD) because there is no right to refuse treatment for people with psychosocial disabilities unlike their counterparts in health care. The Mental Health Care Act continues with the “impairment only” biomedical definition as opposed to the disability definition of UNCRPD that recognizes the environmental barriers that constitute psychosocial disability.  The Mental Health Care Act 2017 is replete with such blatant dilutions and violations of UNCRPD statutes in terms of discrimination against mental health patients vis-à-vis healthcare patients including the much-hyped clause of advance directives. ”The MHC only recognizes the equality of people with psychosocial disabilities with people with health problems, and not citizens in general” (Davar, 2012, p. 129).  Such a mental health ecosystem where cure becomes a necessity than negotiation becomes a breeding ground for what Eunjung Kim refers to as “curative violence


The way forward: Mental health to inclusion

The mental health systems under the garb of providing “treatment” for “patients” are highly commercializing in the neoliberal era thanks to neo colonial mental health law that allow easy detention and difficult discharge, creating lucrative opportunities for the profit-oriented mental health industry. This has deleterious consequences for people with psychosocial disability as the mental health laws remain potent to reify psychosocial disability, commodify mental health care and increase the lack of accountability. We witness mushrooming of short-term online psychotherapies and workshops (spanning 2 hours to 2 days) that offer heavily paid solutions to anxiety, depression, worries, tensions and all daily hassles resulting in heavy medicalization of social sufferings.   The lack of a strong user-survivor voice in mental health circles is also an important reinforcing factor for provider-centric mental health care that pays no attention to affirming dignity and personhood to people with psychosocial disabilities.  The CRPD is losing its traction as industrialization of mental health has become too rampant supported by the neo colonial state.  The only way forward is to raise a collective voice and critical consciousness for realization of full inclusion by front-staging UNCRPD compliance, for, “no mental health without human rights” (UN SR Report, 2020).

Acknowledgement:  I am very grateful to Dr. Bhargavi Davar for sharing her experiences and thoughts on working for/with UNCRPD which have acted as fodders for me in penning this article.


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Bionote: Sudarshan R Kottai is a RCI licensed clinical psychologist and has worked in the same capacity at Lokopriyo Gopinath Bordoloi Regional Institute of Mental Health, Tezpur, Assam, a tertiary mental health care institution. Currently, he is teaching at the department of psychology, Jain (deemed-to-be) University, Bangaluru, India.  Sudarshan’s doctoral work, carried out at the Department of Liberal Arts, Indian Institute of Technology Hyderabad revolves around everyday narratives and practices of mental health care and chronicity that are constructed by official discourses of state and bio-medicine. His research has been published in peer-reviewed journals such as Medical Anthropology: Cross-Cultural Studies on Health and Illness, Indian Journal of Medical Ethics and Economic and Political Weekly.  Sudarshan speaks to the following areas of scholarship: psy-interventions with marginalized/minority population, mental health in the context of gender, disabilities and sexualities, and intersections in (public) mental health from multidisciplinary perspectives. He follows issues related to public administration that have direct consequences to life in general and human mentation in particular. Travelling, listening to music, reading literature and spending time with his pet dogs and other nonhumans on his farmland are sources of immense contemplations for him.

Sudarshan Kottai

Sudarshan Kottai