Understanding the Intersection between International Human Rights and Mental Disability Law: The Role of Dignity

Traditionally, disability was not regarded as a human rights issue. As recently as 19 years ago, it was not so broadly acknowledged. Although there had been prior cases decided in the United States and in Europe that, retrospectively, had been litigated from a human rights perspective, the characterization of "disability rights" (especially the rights of persons with mental disabilities) as a social issue was not discussed in a global public, political, or legal debate until the early 1990s. Instead, disability was seen only as a medical problem of the individual requiring a treatment or cure. By contrast, viewing disability as a human rights issue requires us to recognize the inherent equality of all people, regardless of abilities, disabilities, or differences, and obligates society to remove the attitudinal and physical barriers to equality and inclusion of people with disabilities. The ratification of the United Nations Convention on the Rights of Persons with Disabilities (CRPD) forces us to restructure our views of the rights of this population, and requires us to come to grips with a history of mistreatment, stigmatization, and marginalization. In this context, it is necessary to focus on the important issue of dignity. As ratified, the Convention calls for “respect for inherent dignity.” The Preamble characterizes "discrimination against any person on the basis of disability [as] a violation of the inherent dignity and worth of the human person...." And these provisions are consistent with the entire Convention’s rights-based approach focusing on individual dignity, placing the responsibility on the State to tackle socially created obstacles in order to ensure full respect for the dignity and equal rights of all persons. A dignitary perspective compels societies to acknowledge that persons with disabilities are valuable because of their inherent human worth.The test of whether the CRPD will have authentic meaning or will be little more than a “paper victory” will be whether, as a result of the ratification of the Convention, persons with mental disabilities – especially institutionalized persons with mental disabilities (both those institutionalized civilly and those in forensic facilities)– are, in fact, treated with that level of dignity that they are owed as a key component of international human rights law. It is far too early to come to any conclusions, but the question will be before us for the indefinite future.In this chapter, I first consider the growth of disability rights as a civil liberties issue over the past two decades. Next, I look at the concept of “dignity” both in a criminal justice and disability context. I then examine the UN Convention and evaluate it as a means of insuring dignity to the population in question. Following this, I examine the concepts of sanism and pretextuality in an effort to better explain why the current state of affairs has developed as it has in the context of the universal factors that permeate the practice of mental disability law worldwide. After that, I evaluate these issues through the prism of therapeutic jurisprudence (TJ). I conclude by discussing the interplay between the forensic mental health system, international human rights and mental disability law from a TJ perspective.