Catalina Devandas
Special Rapporteur on the Rights of Persons with Disabilities

As a human rights expert in the area of persons with disabilities, my comments will focus on the Commission’s reflection on the human rights framework for the global mental health response, in particular when it refers to the UN Convention on the Rights of Persons with Disabilities (CRPD).

 

The adoption of the CRPD in 2006 represented a milestone in international human rights law and a breakthrough moment for the disability community. The CRPD moves away from medical and paternalistic approaches to disability towards a human rights-based approach, which calls for making all human rights a reality for all persons with disabilities, including those with psychosocial disabilities. They are no longer considered as patients or recipients of care and charity but as autonomous rights holders, entitled to claim and realize all human rights on an equal basis with others, as members of the human family.

 

While the Lancet Commission on Global Mental Health and Sustainable Development highlights the importance of adopting a human rights-based approach, it fails to understand the potential of the CRPD to reframe, transform and enhance the global response to mental health in light of the rights of persons with disabilities. I welcome the Commission’s recognition that it is now time to focus on the practical steps required to implement the CRPD principles in the full range of settings where people with psychosocial disabilities receive mental healthcare. However, in spite of this commitment, the Commission puts significant emphasis on the critical voices questioning the CRPD standards regarding legal capacity and deprivation of liberty. Moreover, the Commission fails to acknowledge the effect of widespread violations of those rights within the framework of mental health services worldwide.

 

Contrary to the views presented by the Commission, the CRPD challenges individualistic approaches to human rights, emphasizing the interaction between individual and the social environment. Indeed, the notion of support embedded in the CRPD is transformative in its focus on the relational aspects of autonomy and represents a unique opportunity for the development of innovative practices in the mental health context. For example, the support paradigm of the CRPD offers a rights-based approach to deal with complex situations of emotional crisis and severe distress. Whereas the current default response in most jurisdictions is to override the legal capacity of the individual and to authorize forced psychiatric interventions in closed facilities, the CRPD paradigm proposes non-coercive support responses within and outside the health sector. Despite the growing evidence as to the effectiveness of these practices , the Lancet Commission does not reference or consider them.

 

The Commission also suggests a disconnection between “advocates of the CRPD” and “people working on the ground in LMIC”, which I am concerned implies that the human rights-based discourse does not respond to the real needs of people with disabilities in developing countries. However, the reality shows that CRPD has been a catalyst for change and empowerment of persons with disabilities across the world, particularly in low and middle-income countries. In fact, different networks of persons with psychosocial disabilities continue to emerge and galvanise around the CRPD in these countries -including the Pan-African Network of People with Psychosocial Disabilities, TCI Asia Pacific and an emerging network of (ex-)users and survivors of psychiatry in Latin America- advocating for their full and effective participation and inclusion in society on an equal basis with others. Significantly, all these efforts share a mutual concern regarding the movement towards global responses to mental health and its call for scaling up mental health services without fully aligning to the CRPD standards.

 

Moreover, it is worth noting that low and middle-income countries are leading the implementation of the most challenging aspects of the CRPD. Costa Rica and Peru, for example, recently recognised the full legal capacity of all persons with disabilities and introduced regimes of supported decision-making, eliminating all forms of guardianship from their legal systems. Similarly, in Kenya, joint efforts between the Government and organizations of persons with psychosocial disabilities have allowed the expansion of peer support groups to promote supported decision-making and community living.

 

One final concern is the role of mental health legislation. Since the adoption of the CRPD, there are a significant number of countries that have adopted or are considering adopting mental health legislation. Contrary to what the Commission states, those laws are not aligned with the CRPD. Regardless of their rights-based rhetoric and increased procedural safeguards, mental health laws confer on medical professionals the capacity to make decisions on behalf of persons with disabilities, particularly persons with psychosocial disabilities, thus legitimizing coercive practices (A/HRC/37/56). This legislation is increasing the prevalence of coercion in mental health systems, even beyond the confines of mental health facilities.

 

Against this background, although I welcome efforts to reframe the global mental health agenda -addressing key issues such as deinstitutionalization, social determinants, the biomedical approach and the limited impact of pharmacological and other clinical interventions- there is a still a significant gap in respect of measures to ensure a human rights-based approach to disability in those efforts. The CRPD represents the most advanced international standards on the rights of persons with disabilities. The 2030 Agenda for Sustainable Development and the CRPD are complementary and should be mutually implemented to guarantee the full inclusion and participation of persons with disabilities. If the Lancet Commission and the global mental health movement aim to uphold the highest standards of the right to health and the rights of persons with disabilities, they should refrain from questioning the CRPD standards and instead join forces with the disability rights community to fully implement the CRPD.