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Canada: A human rights violator

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In Canada, we pride ourselves on our human rights record. That noted, while this is hardly the only area where we badly slip up, there is one area where we habitually fall into the abuser category with almost no one noticing.

Did you know that every single mental health law in Canada contravenes human rights as understood by the UN? Our practice in this area is likewise in contravention. Nor is there any discussion of this infraction. Correspondingly, not only are we doing nothing to remedy it, in the name of promoting "good mental health," we are constantly advancing changes which magnify the violation.  

More particularly, there are a number of instruments of the United Nations which have made rulings that we ignore. To focus in on the most significant, I would draw readers' attention to the Convention for the Rights of People with Disabilities of which Canada is a signatory. We contravene a huge number of articles therein, but I would focus in on two -- articles 12 and 14 -- for their contravention is integral to how we approach what is called "mental health."  

Article 14 reads:

State parties shall ensure that people with disabilities, on an equal basis with others:

      a. Enjoy the right to liberty and security of the person

      b. Are not deprived of their liberty unlawfully or arbitrarily … and that the existence  of a disability shall in no way justify a deprivation of liberty.

Given this provision -- and note, we signed this Convention -- every single mental health act in Canada violates our convention obligations for indeed, enabling deprivation of liberty, facilitating involuntary lockup is the mainstay of our mental health legislation. Now people may think that what is happening here is okay because it is done under the auspices of carefully worded laws or because the "mentally illness" area is somehow exempt. The Committee responsible for monitoring compliance, however, is clear that is precisely these laws and the practices thereby authorized that are unacceptable. In this regard, it provides the following guidelines:

Involuntary commitment of disabled people based on health-care grounds totally violates the absolute ban placed on deprivation of liberty on the basis of impairments ... The Committee has repeatedly stated that the State parties should repeal provisions which allow for involuntary commitment of persons with disabilities in mental health institutions based on actual or perceived impairment.

And to place this issue on an ethical rather than just a legal footing, even had we not signed such a provision, it minimally should worry us that our everyday practices constitute a human rights violation according to a human rights authority as credible as the United Nations.

Now the violation of Article 14 is cut and dry. Judging Canada's noncompliance with Article 12 is more complicated.

Article 12 unequivocally bans all involuntary psychiatric "treatment." That is, it states, "State parties shall recognize that persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life."

Enjoying legal capacity on an equal basis, to be clear, means being equally entitled to make one's own decisions, and again, it is precisely depriving people of the right to make their own decisions on matters like "treatment" on the basis of deemed incapacity which is core to our mental health legislation.

Now throughout Canada we have built in very minimalist approximations of human rights protection via a mechanism known as "substitute decision-making." People are entitled to appoint a substitute decision-maker to make decisions for them in the event of being deemed "incapable." To be clear, in no way is this in keeping with the UN ruling, as the Canadian officials signing the Convention were well aware.

Accordingly, Canada stipulated a reservation on article 12, stating that we understand it to mean that substitute decision-making is allowed. Which led to the Committee responsible for monitoring compliance to provide the following clarification:

"The Committee shall ensure that the provision of health services, including mental health services are based on free and informed consent of the person concerned … States have an obligation not to permit substitute decision-makers to provide consent on behalf of persons with disabilities." (article 11)

With this clarification, Canada's reservation "kicked in." As a signatory, it in essence protected us from being forced to truly honour the human right in question. That said, the moral imperative remains. Nor, I would add, is the CRPD the only UN instrument whose rulings on issues like involuntary treatment we as Canadians are defying.

In this regard, the U.N.'s Special Rapporteur on Torture, for example, declared the involuntary subjection of people to antipsychotics (major class of psychiatric drugs) a form of torture (see chapter by Tina Minkowitz, in Bonnie Burstow, Brenda LeFrançois, and Shaindl Diamond's Psychiatry Disrupted). And torture, note, is paradigmatic human rights violation.

The fact that we are so far from compliance with international standards should give us pause.

Now I am aware that the United Nations determinations may be alarming to some. How can we protect ourselves if we do not lock people up when they are psychotic?, some might wonder. And how can those so "impaired" possibly have the wherewithal to make reasonable choices for themselves? While I cannot adequately address all such concerns in one short article, I would point out that research shows that people deemed mentally ill are no more dangerous than anyone else.

Correspondingly, while of course looking out for people in emotional difficulty is a "must," given that the choices made on their behalf have them hooked on brain-damaging drugs, it is hard to believe that on average those deemed "mentally ill" would make any worse choices for themselves than are currently being made for them (not that enjoying basic human rights can ever be contingent on making "good decisions").

And lest people think the CRPD is licensing benign neglect, I would point out the CRPD explicitly specifies that if people need help making decisions, it behooves the state to assist them, much as one might assist a physically disabled person to gain entrance to a building.

In other words, the UN is not being naïve or thoughtless here. While I personally would prefer that the state not be the help mechanism but the community itself, providing assistance as needed is transparently part of the Convention obligation.

That said, not only do we do nothing of this nature, we routinely drag people to "hospital" against their will, drug people against their will, and indeed control their every move. Correspondingly, we interpret all objections to such treatment as evidence of "incapacity." Nor are we as a country discussing such issues, never mind making plans on how to bring ourselves into compliance. In fact, quite the opposite, we keep looking for ever new ways to make it easier to violate people's rights. Nowhere is this more obvious than with Ontario's Bill 95.

A piece of legislation which has already received second reading, Bill 95 would authorize a special committee to propose legislation that would further erode the already woefully inadequate rights that psychiatrized people currently enjoy. In the name of ensuring good mental health for everyone, it would make it easier to both commit and to treat involuntarily.

For example a change is proposed to what is called the A criteria whereby even a "perceived" danger to self or other that is in no way physical in nature would be grounds for involuntary commitment. And instead of "involuntary treatment" being held in abeyance while the person was under initial observation, it would allow for immediate involuntary treatment.

Moreover, parental consent for "treating" children would be unnecessary. Additionally, in the name of prevention, it would unleash armies of "mental health professionals" into our schools, all poised to swoop down on youth and deprive them of rights.

In other words, it would be intensifying our human rights violation.

As such, it is time for the average citizen to take a long hard look at what is being done in our name. A good beginning is asking ourselves these questions:

How do we feel about Canada being in such profound violation? Why do our elected representatives not attend to the violation? How is it that we have become so comfortable with compulsion and detention that we have lost sight of the importance of basic human rights? Is it really okay to deprive folk of rights just because we are scared of them or for them? How is it that that the most esteemed international body in the world can not only conceive of but actually legislate what the Canadian state appears to find unthinkable?

As you ponder this, I ask you to avoid pat answers like it behooves us to ensure that everyone enjoys "good mental health" for besides that the underlying concepts lack validity, it is precisely such discourse which has landed us in the current untenable situation. 

In ending, I would touch once again on Bill 95. It is clearly promoting an agenda that is a danger to everyone -- but not equally. Who are especially targeted as needing extra help (read: extra intrusion)? Children. Seniors. The Aboriginal community. All of which should sound an alarm.

Which brings me to two final questions: Is the rampant and ever-increasing violation of the human rights of vulnerable populations what we want our country to stand for? And do we really think that it is the only way?

(If your answer is no, please contact your elected representatives and make your objection known.)

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