'You that Hide Behind Walls': The Relationship between the Convention on the Rights of Persons with Disabilities and the Convention Against Torture and the Treatment of Institutionalized Forensic Patients

Persons institutionalized in psychiatric institutions and facilities for persons with intellectual disabilities have always been hidden from view. Facilities were often constructed far from major urban centers, availability of transportation to such institutions was often limited, and those who were locked up were, to the public, faceless and often seen as less than human. Although the last forty years has seen an explosion of case law involving persons institutionalized in civil psychiatric hospitals, much of this case law ignores forensic patients entirely. Such patients remained isolated and hidden from view. This state of affairs, however, must be radically reconsidered in light of the ratification of the United Nations’ Convention on the Rights of Persons with Disabilities (CRPD), the most revolutionary international human rights document ever created that applies to persons with disabilities, and one that recognizes the right of people with disabilities to equality in most every aspect of life, endorsing a social model of disability and reconceptualizing mental health rights as disability rights -- a clear and direct repudiation of the medical model that traditionally was part-and-parcel of mental disability law. The ratification of this Convention must be read hand-in-glove with the United Nations Convention Against Torture (CAT). Together, these documents make it more likely -- or should make it more likely -- that, for the first time, attention will be paid to the conditions of confinement, world-wide, of forensic populations, how those conditions regularly violate international human rights law, and how those who are in charge of these institutions do so with impunity. Importantly, the relationship between the CAT and the CRPD has begun to come under scrutiny. By way of example, the Special Rapporteur on Torture has indicated that involuntary treatment and confinement are contrary to Articles 14 and 15 of the CRPD. In this paper, we focus on the relationship between the CRPD and the CAT in questions related to the treatment of institutionalized forensic patients (those admitted to psychiatric institutions following involvement in the criminal justice system), highlight some of the key issues that must be examined in this context, examine the issues in question through the lens of therapeutic jurisprudence, and conclude with some recommendations.As part of this enterprise, we consider six core issues that must be “on the table” if the scope of the underlying problems is to be understood: a. Although there is a robust literature on the CRPD and on the CAT, there is virtually no mention of the plight of forensic patients. So, even within the world of those who focus broadly on these human rights issues, this population has remained invisible. b. Conditions at forensic facilities around the world continue to “shock the conscience,” and it is essential that any “anti-torture” publication (such as this one) highlight this. c. Even when regional courts and commissions have found international human rights violations in cases involving forensic patients (e.g., Victor Rosario Congo v. Ecuador), the discussion of these cases largely ignores the plaintiffs’ statuses as forensic patients. d. There are few lawyers and fewer “mental disability advocates” providing legal and advocacy services to this population. e. There is little mention in the survivor movement literature about the specific plight of forensic patients. f. Forensic patients in facilities for persons with intellectual disabilities are particularly absent from the discourse.