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Art.14 Liberty and Security of the Person

Michael Perlin, Eva Szeli

From: The UN Convention on the Rights of Persons with Disabilities: A Commentary

Edited By: Ilias Bantekas, Michael Ashley Stein, Dimitris Anastasiou

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2023. All Rights Reserved. Subscriber: null; date: 08 June 2023

Right to liberty and security of person — Disability — Jurisdiction

(p. 402) Article 14  Liberty and Security of the Person

  1. 1.  States Parties shall ensure that persons with disabilities, on an equal basis with others:

    1. (a)  Enjoy the right to liberty and security of person;

    2. (b)  Are not deprived of their liberty unlawfully or arbitrarily, and that any deprivation of liberty is in conformity with the law, and that the existence of a disability shall in no case justify a deprivation of liberty.

  2. 2.  States Parties shall ensure that if persons with disabilities are deprived of their liberty through any process, they are, on an equal basis with others, entitled to guarantees in accordance with international human rights law and shall be treated in compliance with the objectives and principles of this Convention, including by provision of reasonable accommodation.1

1.  Introduction

Article 14 has become one of the most controversial articles in the CRPD, and it is essential that the contrasting positions be understood if we are to come to grips with the ultimate significance of this provision. Paragraph 1 (a)—which broadly states the fundamental right to liberty and security2—has not inspired much contention, but the remainder of the article—fraught with ambiguities about restrictions of this right—has. Paragraph 1 (b) seeks to ensure that any deprivation of liberty is lawful, systematic, and non-discriminatory, while paragraph 2 seeks to outline rights—protective conditions of deprivation—including reasonable accommodations. In this chapter, we trace the (p. 403) legislative history of article 14 and, in an analysis of its provisions and interpretations, seek to understand its application in light of these complexities.

We begin with some explanatory background in an effort to flesh out the meaning of the different phrases and clauses of article 14. ‘On an equal basis with others’ means basically the same as ‘equal recognition before the law, … the right to be heard and acknowledged on an equal basis with others in making one’s own decisions’.3 The phrase ‘liberty and security of the person’ is, according to the Supreme Court of Canada, ‘illustrative of the meaning of the principles of fundamental justice’.4 The relationship between ‘reasonable accommodation’ and detention in this context should be read to follow the holding of the European Court on Human Rights’ (ECtHR) decision in Ashingdane v United Kingdom,5 that held that a patient was detained ‘in the sense that his liberty, and not just his freedom of movement, [had] been circumscribed both in fact and in law …, even though he [had] been permitted to leave the hospital on frequent occasions’.

Importantly, the ‘liberty and security’ clause of this Article empowers the Committee on the Rights of Persons with Disabilities ‘to question governments on a broad range of potential violations, including civil commitment proceedings, compulsory medical treatment, and conditions inside medical and detention facilities’.6 Certainly, when the European Court on Human Rights was created, ‘the intention of the drafters was to protect people from arbitrary detention’.7 The right to liberty of person and the right to security of person have been described as two aspects of the same right, physical liberty being the substantive aspect and security the means of protection or the procedural aspect.8 The United States Supreme Court—in Lawrence v Texas—has articulated the core of this right: ‘Liberty protects the person from unwarranted government intrusions into a dwelling or other private places. … Freedom extends beyond spatial bounds. Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct.’9

2.  Background and Travaux Préparatoires

What is of special interest is that there has been so little scholarly analysis of the pre-submission negotiations that led to the articulation of the language of this article.10 However, the procedural history and preparatory documents provide a timeline of its (p. 404) evolution during Working Group meetings and Ad Hoc Committee sessions.11 By 2004, an early draft of the Convention12 included the following version of article 10 (as article 14 was originally denominated):

  1. 1.  States Parties shall ensure that persons with disabilities:

    1. (a)  Enjoy the right to liberty and security of the person, without discrimination based on disability;

    2. (b)  Are not deprived of their liberty unlawfully or arbitrarily, and that any deprivation of liberty shall be in conformity with the law, and in no case shall be based on disability.

  2. 2.  States Parties shall ensure that if persons with disabilities are deprived of their liberty, they are:

    1. (a)  Treated with humanity and respect for the inherent dignity of the human person, and in a manner that takes into account the needs they have because of their disabilities;

    2. (b)  Provided with adequate information in accessible formats as to the reasons for their deprivation of liberty;

    3. (c)  Provided with prompt access to legal and other appropriate assistance to:

      1. (i)  Challenge the lawfulness of the deprivation of their liberty before a court or other competent, independent and impartial authority (in which case they shall be provided with a prompt decision on any such action);

      2. (ii)  Seek regular review of the deprivation of their liberty;

    4. (d)  Provided with compensation in the case of unlawful deprivation of liberty, or deprivation of liberty based on disability, contrary to this Convention.

Early recommendations from the Working Group to the Ad Hoc Committee included consideration of:

  1. (a)  whether civil and criminal cases should be dealt with separately;

  2. (b)  whether the text need[ed] further elaboration on civil cases of deprivation of liberty; and

  3. (c)  whether, for criminal cases, the clauses in this text dealing with procedural matters need[ed] strengthening.13

Specifically, the Working Group suggested that the Ad Hoc Committee consider whether paragraph 1(b) prohibited—or should prohibit—civil commitment,14 and also recommended ‘adding a provision that [would oblige] states to reform laws and procedures that perpetuate the arrest and detention of persons with disabilities on the basis of disability’.15

Later in 2004, during its third session, the Ad Hoc Committee considered these recommendations of the Working Group, and in addition proposed amendments set forth (p. 405) by participating states and observers.16 This included Canada’s proposal for the insertion of the word ‘solely’ in paragraph 1(b), stipulating that ‘… any deprivation of liberty shall be in conformity with the law, and in no case shall be based solely on disability’ (emphasis added).17 Over the following two years, participating states and observers discussed and debated the content and language of the article. Daily summaries of discussions during Ad Hoc Committee sessions highlighted differences of opinion and focus among stakeholders.18 Concerned about dehumanization and abuse, Inclusion International sought revisions to ensure ‘that no law could force people to live in institutions’. Disabled Peoples’ International agreed, emphasizing that ‘No level of institutionalization should be necessary.’ Meanwhile, Save the Children focused on clarifying the grounds for permissible deprivation of liberty—and expressed general concern that the article was not providing adequate protection for persons with disabilities. Most notably, the World Network of Users and Survivors of Psychiatry (WNUSP) and Support Coalition International opposed the addition of the word ‘solely’ to the Working Group’s draft of Article 10:

Deprivation of liberty based on disability encompasses civil commitment and forced institutionalization as well as private deprivation of liberty. If the [Ad Hoc Committee] adds the term ‘solely’, it would open the door for States to deprive persons with disabilities of their liberty for being ‘a danger to society’, which is discriminatory because people without disabilities are not subject to the same standard. If there is no crime, a State cannot lock up person who is not considered mentally [i]ll or intellectually disabled. PWD should not be subject to a different standard. There is a moral obligation to move society toward inclusiveness. If a person with a disability is deprived of liberty, that imposes a social disadvantage and therefore, under the social model, that is discrimination.19

During its fifth session, in 2005, the Ad Hoc Committee discussed article 10 in depth, including further proposals by participating states and observers.20 The re-drafted article 10 read as follows, with proposed text in brackets:

  1. 1.  States parties shall ensure that persons with disabilities, on an equal basis with others:

    1. (a)  Enjoy the right to liberty and security of person;

    2. (b)  Are not deprived of their liberty unlawfully or arbitrarily, and that any deprivation of liberty is in conformity with the law and in no case [based solely [exclusively] on disability] [shall the existence of a disability justify a deprivation of liberty].

  2. 2.  States parties shall ensure that if persons with disabilities are deprived of their liberty [through a civil, criminal, administrative or other process], they have at least the following guarantees:

    1. (a)  To be treated with humanity and respect for the inherent dignity and worth of the human person, and in a manner that respects their human rights, conforms with the objectives and principles of this Convention, and reasonably accommodates their disability;

    2. (b)  To be provided [promptly] with adequate accessible information as to their legal rights and the reasons for the deprivation of their liberty;

    3. (p. 406) (c)  To be provided with prompt access to legal and other appropriate assistance to:

      1. (i)  Challenge the lawfulness of the deprivation of their liberty [and to receive a fair hearing, including the right to be heard] before a court or other competent, independent and impartial authority (in which case, they shall be provided with a prompt decision on any such action);

      2. [(ii)  Seek review on an equal basis with others of the deprivation of their liberty, including periodic review as appropriate;]

    4. [(d)  To be provided with compensation in the case of deprivation of liberty contrary to this Convention.]

  3. [3.  Any person with a disability who has been the victim of unlawful deprivation of liberty shall have an enforceable right to compensation.].

By the seventh session of the Ad Hoc Committee one year later, the working text of article 14 (now re-numbered) was largely in its final form. Paragraphs 1(a) and 2 had been simplified, but the word ‘solely’ (and its proposed variants) had been struck from paragraph 1(b), creating a controversy that persists over a decade later.

3.  Paragraph 1(a)

Paragraph 1(a) states, straight-forwardly, that state parties must ensure that persons with disabilities, ‘on an equal basis with others, … [e]njoy the right to liberty and security of person’.21 This is certainly uncontroversial as a broad statement;22 the difficulty comes in how this ‘fits’ with interpretations of the far-more complex paragraphs 1(b) and (2).23 It is also important to note that this declaration is ‘new business’ in much of the world; at this point in time, globally, only nine percent of constitutions explicitly guarantee the right to liberty to persons with disabilities.24 While paragraph 1 asserts the broad right to liberty and security of the person, as well as the conditions under which this right may be restricted, paragraph 2 addresses the guarantees and the rights protected while liberty is denied. When read together, these paragraphs of article 14 CRPD ‘empower … the Committee [on the Rights of Persons with Disabilities] to question governments on a broad range of potential violations, including civil commitment proceedings, compulsory medical treatment, and conditions inside medical and detention facilities’.25

Scholars have turned to article 14 CRPD as a basis for providing legal protection for, variously, persons in prison,26 LGBTI immigration detainees,27 ‘the enjoyment of home life’,28 and the community integration mandate set out in domestic anti-discrimination (p. 407) legislation and court decisions,29 and have questioned the extent to which it protects religious rights.30 The controversy here comes when a more difficult series of questions is addressed, namely whether article 14 prohibits, in toto, forced or compulsory treatment or living situations such as institutionalization.31 By way of example from the CRPD jurisprudence to date, in Mr X v Argentina, the CRPD Committee concluded that Argentina failed to meet its obligations under article 14 CRPD in a case where the appellant, who had suffered a stroke, argued that he should be released from prison and placed under house arrest.32 The Committee’s analysis focused on the conditions of detention—under paragraph 2 of article 14—rather than the justification for it, and the Committee pointed out that ‘states parties have a special responsibility to uphold human rights when prison authorities exercise significant control or power over persons with disabilities who have been deprived of their liberty by a court of law’.33 This issue is particularly relevant to persons with mental disabilities (both psychiatric and intellectual), as they are most vulnerable to restrictions of liberty that are related to the nature of their disabilities. At the time of the writing of this chapter, there were at least four pending cases that might shed some light on or test the exact contours of this article 14.34

Since the CRPD has entered into force, article 14 has been available as relevant international law in deprivation of liberty cases brought under article 5 of the European Convention on Human Rights (ECHR).35 In a 2013 case before the European Court of Human Rights (ECtHR), this was one of the cornerstones of an intervention by third parties36 endorsing a ‘dynamic interpretation’ of the ECHR in light of the CRPD and arguing that ‘any denial of liberty where disability is a factor [is] a deprivation of the right to liberty and thus in conflict with article 14 [CRPD]’.37 As such, the CRPD served not only to reinforce the universal liberty rights protected in the ECHR, but to highlight the specific need for ‘rigorous scrutiny of any deprivation of liberty of persons with disabilities’.38(p. 408) Moreover, in a 2014 concurring opinion, Judge András Sajó of the ECtHR emphasized that ‘[t]he paradigm shift to a rights-based approach to disability encapsulated by the CRPD pose[d] potential challenges for the existing legal frameworks governing involuntary placement and involuntary treatment’.39

By 2015, in reviewing the detention of a mentally ill criminal offender, the ECtHR was citing the CRPD Committee’s statement on article 14 from the previous year,40 and concluding that ‘[d]eprivations of liberty based on the existence of a disability are intrinsically discriminatory’.41 As such, there seems to be increased reliance on the CRPD as applicable international law, with particular attention paid to evolving guidelines in the application of article 14 CRPD.

4.  Paragraph 1(b)

4.1  Unlawful and Arbitrary Deprivation of Liberty

The key question underlying article 14(1)(b) CRPD is whether its protection against ‘arbitrary and unlawful deprivation of liberty’42 encompasses all forms of institutionalization,43 or only some circumstances, and subsequently whether involuntary hospitalization is permissible if an individual poses a serious risk of harm to himself or others.44 Alternatively, does it simply ensure that persons with disabilities are not deprived of their liberty unlawfully or arbitrarily, and that any deprivation of liberty is ‘consistent with the spirit of the law’?45 The text is silent, thus making resolution of this important question difficult.46

Although the UN Office of the High Commissioner for Human Rights (OHCHR) tersely stated in 2009 that article 14 CRPD requires that ‘legislation authorizing the institutionalization of persons with disabilities on the grounds of disability without their free and informed consent must be abolished’,47 Professor Peter Bartlett notes that the (p. 409) OHCHR ‘was at pains to say that this did not necessarily preclude persons with disabilities from being subject to preventive detention’.48 In this context, the OHCHR continued by stating that:

This should not be interpreted to say that persons with disabilities cannot be lawfully subject to detention for care and treatment or to preventive detention, but that the legal grounds upon which restriction of liberty is determined must be de-linked from the disability and neutrally defined so as to apply to all persons on an equal basis.49

Significantly, in its concluding observations the CRPD Committee has consistently interpreted article 14 as requiring parties to repeal legal provisions authorizing deprivation of liberty based on psychosocial or intellectual disability and to ensure that mental health services are based on free and informed consent of the person concerned.50 In this context, it has urged countries as diverse as Austria, El Salvador, and Australia to ‘take all necessary legislative, administrative and judicial measures to ensure that no one is detained against their will in any kind of mental health facility’.51 Similarly, the Committee has called on both Tunisia and Spain to reform their mental health laws, moving away from a system of detention based on disability.52 It is clear, however, that this interpretation ‘is far from crystallized at the level of state practice’.53

During its twelfth session in 2014, the CRPD Committee adopted a statement to summarize and clarify its commentary on state reports regarding article 14.54 It ‘unpacked’ article 14 as follows:55

  1. 1.  The absolute prohibition of detention on the basis of disability. There are still practices in which states parties allow for the deprivation of liberty on the grounds of actual or perceived disability. In that regard, the Committee has established that article 14 does not permit any (p. 410) exceptions whereby persons may be detained on the grounds of their actual or perceived disability. However, the legislation of several states parties, including mental health laws, still provide instances in which persons may be detained on the grounds of their actual or perceived disability, provided there are other reasons for their detention, including that they are dangerous to themselves or to others. Such practice is incompatible with article 14 as interpreted by the jurisprudence of the Committee.56

  2. 2.  Mental health laws that authorize detention of persons with disabilities based on the alleged danger to themselves or to others. Through all its considerations of state party reports, the Committee has established that it is contrary to article 14 to allow for the detention of persons with disabilities based on a perceived danger to themselves or to others. The involuntary detention of persons with disabilities based on presumptions of risk or dangerousness tied to disability labels is contrary to the right to liberty.57 For example, it is wrong to detain someone just because they are diagnosed with paranoid schizophrenia.58

  3. 3.  Detention of persons unfit to plead in criminal justice systems. The Committee has established that declarations of unfitness to stand trial and the detention of persons based on that declaration is contrary to article 14 CRPD59 since it deprives the person of his or her right to due process and safeguards that are applicable to every defendant.60

  4. 4.  Reasonable accommodation and prisons. The Committee is of the view that persons with disabilities who are sentenced to imprisonment for committing a crime should be entitled (p. 411) to reasonable accommodation in order not to aggravate conditions of incarceration based on disability.61

The following year, during its fourteenth session in 2015, the CRPD Committee adopted guidelines on article 14, intended to re-affirm, expand and replace its previous statement.62 Its most notable conclusion was that ‘[A]rticle 14(1)(b) prohibits the deprivation of liberty on the basis of actual or perceived impairment even if additional factors or criteria are also used to justify the deprivation of liberty’.63

It is critical here to consider the interpretation posed by Professor Bernadette McSherry, who concluded that by: ‘shifting the focus away from involuntary detention and treatment, to providing and funding high quality services and support systems adapted to individual needs, the CRPD highlights that there may just be a midway point between these two extremes’.64

4.2  ‘in conformity with the law’

In the United States, civil commitment must be predicated both on a finding of mental illness and, as a result of that mental illness, dangerousness to self or others.65 The US Supreme Court has recognized that involuntary civil commitment is a ‘massive (p. 412) curtailment of liberty’66 that requires legal justification. The Fourteenth Amendment of the United States Constitution attaches both substantive and procedural due process requirements67 to state infringements on individual liberty in the commitment process,68 thereby ensuring that due process principles are applicable in protecting the rights of those citizens with mental illness or mental disorder who are subject to involuntary hospitalization. The Fourteenth Amendment’s due process clause applies to both the nature and duration of any civil commitment.69

In the landmark case of O’Connor v Donaldson,70 the US Supreme Court established that due process limits the state’s civil commitment authority, since ‘involuntary commitment to a mental hospital, like involuntary commitment of an individual for any reason, is a deprivation of liberty which the state cannot accomplish without due process of law.’71 Under an O’Connor substantive due process analysis, ‘[a] finding of “mental illness” alone cannot justify a state’s locking a person up against his will and keeping him indefinitely in simple custodial confinement. Assuming that that term can be given a reasonably precise content and that the “mentally ill” can be identified with reasonable accuracy, there is still no constitutional basis for confining such persons involuntarily if they are dangerous to no one and can live safely in freedom.’72 The Supreme Court emphasized that ‘… a state cannot constitutionally confine without more a non-dangerous individual who is capable of surviving safely in freedom by himself or with the help of willing and responsible family members or friends’.73 As such, the deprivation of liberty on the basis of mental status alone is constitutionally impermissible.

Based on the Supreme Court’s O’Connor analysis, the substantive criteria for involuntary civil commitment can be generally organized under two prongs, or standards. The first prong concerns mental illness.74 The definition of this first prong, explicitly articulated in almost every state civil commitment statute,75 generally contains both inclusionary and exclusionary criteria. Such definitions are, in part, an attempt to clarify which particular sub-groups of individuals who may carry a label of mental illness are most likely to be functionally affected in such a way as to potentially require civil commitment. While a treatable mental illness is a threshold constitutional requirement for involuntary civil commitment,76 in no state is the establishment of mental illness alone adequate for involuntary hospitalization under pertinent civil commitment statutes.77 In each instance, there must be a causal connection between such mental illness and dangerousness.78

(p. 413) The second prong in civil commitment statutes is critical in establishing a functional test to determine if a person with mental illness meets some standard to make involuntary hospitalization appropriate and necessary. The legal justification for the empowerment of a state to effect the involuntary civil commitment of a particular sub-sample of its citizens is grounded in Aristotelian philosophy79 and is based on two principles. The first concerns the state’s police power to protect itself and its citizens from danger and other forms of serious harm,80 whereas the second concerns its parens patriae power over those who are dependent on the government for protection, sustenance, or care.81

The civil commitment statutes in all fifty US states and the District of Columbia allow involuntary civil commitment under the state’s police power when there is mental illness, plus evidence of dangerousness or serious harm to self or others.82 These standards outline functional parameters of danger, serious harm, or injury that may result from mental illness and are, per se, constitutional under O’Connor.83

Many states also allow involuntary civil commitment under a standard that invokes the state’s parens patriae authority. Eleven states explicitly incorporate a grave disability standard.84 Unlike the dangerousness standard, which is based on the prediction of future behaviour grounded in observations of past or current behaviour, the grave disability standard generally requires current proof of a functional incapacity to care for oneself.85 Such standards have withstood constitutional challenges86 and are clearly based on an individual’s functional limitations as a result of mental illness.

Additionally, many states also include other second prong standards under the state’s parens patriae responsibility, by including criteria encompassing serious deterioration that specifically endangers the individual with mental illness, or otherwise taking into account a functional inability to exercise self-care due to the mental illness.87 While such statutes have been the subject of some constitutional challenges, the leading case in this area, (p. 414) Colyar v Third Judicial District Court,88 has outlined the constitutional contours of the civil commitment power in applying such standards based on the parens patriae power. These include a showing of mental illness; an immediate danger to self, ‘which may include the inability to provide the basic necessities of life’, and ‘an inability to make a rational treatment decision due to mental illness’.89 As with other legal justifications under the parens patriae authority of the state, these standards are grounded in functional limitations suffered by the individual as a result of mental illness.

Furthermore, to ensure that substantive due process standards are met—and, thus, individual liberties are protected—procedural due process requirements mandated under the Fourteenth Amendment are implemented through numerous procedural protections incorporated into all involuntary civil commitment statutes, most significantly the right to a hearing,90 the right to counsel,91 the right to notice,92 the right to recordation and/or a transcript of the commitment hearing,93 the right to cross-examine witnesses,94 an elevated burden of proof,95 and the right to appeal.96

There is significant scholarly controversy on the extent to which pre-CRPD international human rights law adequately provides legal protections to persons facing civil commitment.97 Looking specifically at the case of Herczegfalvy v Austria,98 Professor David Hewitt has concluded that that the ECtHR has interpreted the European Convention ‘very restrictively in psychiatric cases’.99 On the other hand, Professor Gerard Quinn has concluded that the due process protections of the ‘negative right to liberty … are very robust under the Convention’.100 The focus here is not on whether or not rights have been granted to their fullest capacity, but rather, on whether there is an opportunity to have a (p. 415) debate about those rights, and to consider the extent to which human rights have been protected.

4.3  Therapeutic Jurisprudence

Finally, no consideration of article 14 CRPD is complete without a consideration of the interplay between this provision and the school of thought known as therapeutic jurisprudence.101 One of the most important legal theoretical developments of the past three decades has been the creation and dynamic growth of therapeutic jurisprudence (TJ).102 Therapeutic jurisprudence presents a new model for assessing the impact of case law and legislation, recognizing that, as a therapeutic agent, the law can have therapeutic or anti-therapeutic consequences.103

Therapeutic jurisprudence asks whether legal rules, procedures and lawyer roles can or should be reshaped to enhance their therapeutic potential while not subordinating due process principles.104 David Wexler clearly identifies how the tension inherent in this inquiry must be resolved: ‘the law’s use of mental health information to improve therapeutic functioning [cannot] impinge upon justice concerns’.105 Such an inquiry into therapeutic outcomes does not mean that ‘therapeutic concerns “trump” civil rights and civil liberties’.106

(p. 416) Using TJ we ‘look at law as it actually impacts people’s lives’107 and assess law’s influence on emotional life and psychological wellbeing.108 One governing TJ principle is that ‘law should value psychological health, should strive to avoid imposing anti-therapeutic consequences whenever possible, and when consistent with other values served by law should attempt to bring about healing and wellness’.109 TJ supports an ethic of care.110 One of the central principles of therapeutic jurisprudence is a commitment to dignity.111 Professor Amy Ronner describes the ‘three Vs’: voice, validation, and voluntariness,112 arguing that:

What ‘the three Vs’ commend is pretty basic: litigants must have a sense of voice or a chance to tell their story to a decision maker. If that litigant feels that the tribunal has genuinely listened to, heard, and taken seriously the litigant’s story, the litigant feels a sense of validation. When litigants emerge from a legal proceeding with a sense of voice and validation, they are more at peace with the outcome. Voice and validation create a sense of voluntary participation, one in which the litigant experiences the proceeding as less coercive. Specifically, the feeling on the part of litigants that they voluntarily partook in the very process that engendered the end result or the very judicial pronunciation that affects their own lives can initiate healing and bring about improved behavior in the future. In general, human beings prosper when they feel that they are making, or at least participating in, their own decisions.113

The question to be posed here is this: does article 14 promote TJ values? Does it encourage voice and does it lead to validation of individuals’ decisions? There have been prior inquiries into the relationship between TJ and the CRPD in general,114 and—while the relationship between TJ and article 14 specifically has not yet been explored—there has been extensive discussion in the TJ literature on the rights that article 14 CRPD seeks to protect.115. Our conclusion is that both paragraphs of article 14 are imbued with these values. First, the ‘right to liberty and security of person’ (article 14.1 (a)) is, without question, a TJ value.116 Over fifteen years ago, the late Professor Bruce Winick noted that, a therapeutic jurisprudence model of civil commitment would lead to ‘reforms in mental (p. 417) health law and practice that will both protect individual liberty and promote improved mental health and psychological well-being’.117 Recently, one of the co-authors of this chapter (Michael Perlin), writing with another co-author, concluded that: ‘therapeutic jurisprudence’s ultimate goal, in this area specifically, is to recognize the flaws in our perceptions and practices in order to create a better approach to achieving guaranteed rights and liberties for all persons’.118 In addition, TJ demands that persons not be ‘deprived of their liberty unlawfully or arbitrarily’ (article 14(1) (b)). From its earliest days, TJ has focused upon the ‘undue emphasis on deprivations of liberty associated with civil commitment of persons with mental illness’.119 As the late Professor Bruce Winick—one of the two ‘founding fathers’ of TJ—has written:

Therapeutic jurisprudence considerations frequently will converge with many of the principles underlying international human rights protections for those with mental illness, such as the protection of liberty against arbitrary deprivation and a commitment to procedural fairness.120

There is no ‘TJ position’ on whether civil commitment needs to be abolished, but there is a robust TJ literature on how civil commitment hearings must be reshaped to avoid the unlawful or arbitrary use of state power at such hearings.121

Finally, with respect to the explicit obligation in paragraph 1(b) of article 14 whereby ‘the existence of a disability shall in no case justify a deprivation of liberty’ we believe that therapeutic jurisprudence firmly supports the view that this obligation does not require the abolition of the insanity defense or the incompetency status.122 Such abolition ‘deprives this population of authentic due process, participation in fair trials, and having a voice’,123 among the core elements of therapeutic jurisprudence.124

(p. 418) 5.  Paragraph 2

The most important controversy that has arisen with regard to paragraph 2 relates to its relationship to criminal law and procedure, an area that has not been the focus of substantial international human rights law scholarship (other than as it relates to procedures in the international criminal court).125 Thus, the questions (and some suggested answers) that arise in the context of criminal law are even more muddled. It is necessary to begin with some background, first on the insanity defense,126 and then on the incompetency status.127

Although there are a handful of American states and a few other nations that have abolished the insanity defense, it remains seen as a reflection of ‘the fundamental moral principles of our criminal law’,128 resting on ‘assumptions that are older than the Republic’129 and ‘beliefs about human rationality, deterrability and free will’,130 and as a bulwark of the law’s ‘moorings of condemnation for moral failure’.131 The insanity defense has been ‘a major component of the Anglo-American common law for over 700 years’.132 Rooted in Talmudic, Greek, and Roman history, its forerunners actually can be traced back over 3,000 years.133 The sixth century Code of Justinian explicitly recognized that the insane were not responsible for their acts, and also articulated the early roots of the temporary insanity and diminished capacity doctrines.134 By the ninth century, the ‘Dooms of Alfred’ acknowledged that an impaired individual—who could not ‘acknowledge or confess his offenses’—was absolved from personally making restitution.135 In pre-Norman England, the law similarly shifted reparations responsibility in the event that a ‘man fall out of his senses or wits, … and kill someone’.136 Writing about the defense recently, one of the co-authors (MLP) has said:

(p. 419)

Perhaps no other question in criminal law goes to the heart of concepts of responsibility, blameworthiness, free will, and punishment as does the insanity defense. Throughout history, questions of a defendant’s responsibility for otherwise criminal acts have plagued legal systems and have raised seemingly intractable public policy questions, which, if anything, have only intensified with the passage of time. This history must be considered in the resolution of any and all insanity defense issues.137

Few principles are as firmly embedded in Anglo-American criminal jurisprudence as the doctrine that an ‘incompetent’ defendant may not be put to trial.138 The doctrine is traditionally traced to mid-seventeenth century England,139 with commentators generally focusing on: (1) the incompetent defendant’s inability to aid in his defence;140 (2) the parallels to the historic ban on trials in absentia;141 and (3) the parallels to the problems raised by defendants who refused to plead to the charges entered against them.142

Substantively, US jurisprudence in this area is controlled by the case of Dusky v United States,143 where the Court asked whether the defendant ‘has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding—and whether he has a rational as well as a factual understanding of the proceedings against him’.144 Procedurally, it is axiomatic that the conviction of an accused person who is mentally incompetent violates the due process clause, per Pate v Robinson.145 It is important to note that there is no connection between raising of this status and factual guilt.146

In short, the insanity defense has been part of the fabric of the law since (before) ‘time immemorial, as has the incompetency status been for at least. four hundred years. On the other hand, the official commentary to article 14 CRPD states that detention is ‘unlawful’ when it ‘is grounded in the combination between a mental or intellectual disability and other elements such as dangerousness, or care and treatment’.147 The commentary explains that: ‘[s]ince such measures are partly justified by the person’s disability, they are to be considered discriminatory and in violation of the prohibition of deprivation of liberty on the grounds of disability … prescribed by article 14’.148 Moreover, the General (p. 420) Comments relating to article 14 state unequivocally that: ‘declarations of unfitness to stand trial and the detention of persons based on that declaration’ violate article 14149 and that ‘recognition of the legal capacity of persons with disabilities requires abolishing a defense based on the negation of criminal responsibility because of the existence of a mental or intellectual disability’.150 This view has been enthusiastically endorsed by Tina Minkowitz, president and founder of the Center for the Human Rights of Users and Survivors of Psychiatry and representative of the World Network of Users and Survivors of Psychiatry in the CRPD drafting process.151 In Minkowitz’s view, the insanity defense is contrary to article 12 CRPD ‘because it undermines the equal recognition of persons with disabilities before the law as individuals with mutual obligations towards others and an equal right to participate in defining and negotiating those obligations’.152 Faced with these pronouncements, Professor Christopher Slobogin then reasonably asks:

Should the government nonetheless be barred, as the CRPD indicates, from enacting statutes that authorize preventively detaining and treating people with mental disability who are perceived to be dangerous to others or themselves? And if a person who commits an offense has a mental disability, may the criminal courts formally ignore that fact, as the CRPD seems to dictate, without violating the near-universal assumption that blameworthiness is the linchpin of criminal liability?153

Subsequently, speaking about the likely denouement if the incompetency to stand trial status were to be abolished, he concludes as follows:

Abandoning the concept of incompetency, as the CRPD nonetheless seems to do, would permit decision-making that would denigrate both individual dignity and the autonomy principle itself. To take an extreme example, a person who understood nothing about his or her situation, which (p. 421) might be the case with people who have a serious intellectual disability, should not be permitted to make decisions about that situation, with or without supportive personnel.154

Although the Committee has been silent on criminal law issues, the High Commissioner has taken the view that current legal approaches must be changed:

In the area of criminal law, recognition of the legal capacity of persons with disabilities requires abolishing a defence based on the negation of criminal responsibility because of the existence of a mental or intellectual disability. Instead disability-neutral doctrines on the subjective element of the crime should be applied, which take into consideration the situation of the individual defendant. Procedural accommodations both during the pretrial and trial phase of the proceedings might be required in accordance with article 13 of the Convention, and implementing norms must be adopted.155

Professor Peter Bartlett, writing from a UK perspective, summarizes the salient issues well:

The requirement that criminal law move away from engagement with mental disability is counter-intuitive. Usually, the argument has been that people with mental disabilities are already over-represented in criminal law generally and in the prison population in particular, in circumstances where their real responsibility for the crime at issue is at best questionable. Insofar as a move away from disability-based criminal law will reduce the scope of these defences, this problem will be exacerbated. If this is true in the United Kingdom, the perceived injustice is even more pronounced in other countries, where conditions of detention may be profoundly substandard, and where fewer legal protections (such as an effective system of legal aid) assist people with mental disabilities in the criminal justice system. The situation in countries that retain capital punishment is even more stark: if disability-based defences are removed without provision of equally extensive alternatives, more people will be executed who are doubtfully responsible for the crimes of which they are accused.156

In a recent law review article, one of the authors of this chapter (Michael Perlin) expressed the following observation:

These Comments have been embraced by some members of the disability-rights community, and the abolitionist movement is growing. This position is wrongheaded in every possible way. If adopted, it will make a mockery of any modicum of fair-trial rights for the population in question, and will likely lead to torture of this population in the jails and prisons in which it will languish. The statement in the GCs—‘that declarations of unfitness to stand trial … is contrary to article 14 of the [CRPD] since it deprives the person of his or her right to due process and safeguards that are applicable to every defendant’—is the single most wrongheaded (and potentially destructive) statement uttered by any supporter of the CRPD since its initial drafting.157

In further support of this argument, in the same recent article, the same co-author focused on the ways that abolition of this status will further enhance the likelihood that factually innocent people (as asserting the incompetency status in no way is a concession of factual guilt of the underlying crime) will be convicted and imprisoned—likely for far longer than persons without mental disabilities for like offenses—and that factually guilty defendants will be robbed of their opportunities to make important choices such as choosing to knowingly, voluntarily, and intelligently entering into a plea bargain.158(p. 422) All of this ‘will make a mockery of any modicum of fair-trial rights for the population in question’.159

5.1  Human Rights Guarantees

The requirement that human rights guarantees be applied to the deprivation of liberty of disabled persons encompasses all those guarantees—and established case law—found in universal and regional human rights treaties.160 The application of such human rights guarantees entails an obligation on states parties to adapt their laws to the requirements of article 14(2) and even abolish or repeal conflicting legislation. The abolition of statutes that violate the right of liberty of persons, as this applies to disabled persons as described above, forces us to focus on what happens to persons with mental disabilities when they are imprisoned. A recent exhaustive report erases any shred of doubt that persons with mental disabilities are regularly brutalized and tortured in prison settings.161 Persons with mental disabilities are frequently and disproportionally the victims of violence and abuse inside correctional settings.162 The GC’s interpretation of article 14 will lead to more of this sort of violence and abuse.163

Beyond this, it is black-letter law that any piece of legislation must be read in pari materia. Statutes ‘must, to the extent possible, ensure that the statutory scheme is coherent and consistent’.164 A consideration of other articles of the CRPD—ones that mandate ‘[r]espect for inherent dignity’,165 ‘[f]reedom from torture or cruel, inhuman or degrading treatment or punishment’,166 ‘[f]reedom from exploitation, violence and abuse’,167 a right to protection of the ‘integrity of the person’,168 and the retention of any provisions ‘more conducive to the … rights of persons with disabilities’—makes it clear that any interpretation of article 14 that makes it more likely that factually innocent individuals will be convicted and incarcerated and which in turn makes it less likely that the individual’s trial will be ‘fair’ must be rejected.169

(p. 423) The contrary interpretation also ignores article 4(4) CRPD, which mandates that ‘[n]othing in the present Convention shall affect any provisions which are more conducive to the realization of the rights of persons with disabilities and which may be contained in the law of a state party or international law in force for that state’.170 There is no mention of article 4 in any of the literature that suggests—as Minkowitz and others have urged—that the CRPD requires the abolition of the insanity defense, the incompetency status, or both.171

Some of the above-mentioned issues have been addressed in Europe as well, under article 5 ECHR. Several cases decided by the ECtHR illuminate this tension.172 In Winterwerp v Netherlands, the Court found that in order to detain ‘persons of unsound mind’ in accordance with article 5(1)(e) ECHR, there must be a finding that the disorder requires confinement and the disorder must be diagnosed using objective medical expertise.173 The ECHR also found that it is essential for the person concerned to have access to a court and the opportunity to be heard either in person or, where necessary, through some form of representation.174 In Aerts v Belgium, the Court concluded that the ECHR provided a right to be held in an institution not destructive of the individual’s mental health.175 Professors Gostin and Gable note this case suggests that ‘persons with mental illness must be confined in a minimally therapeutic environment’.176

The ECtHR has also found that ordering detention in a psychiatric institution without prior medical opinion violates the ECHR, and particularly that mental disability must be of sufficient seriousness to justify deprivation of liberty177 and that individuals have a right, under article 5 ECHR, to initiate a review of their detention.178 In E v Norway, the ECtHR held that a delay of eight weeks violates the right to speedy review by a court.179 And in Megyeri v Germany, it found that in order for a periodic review of commitment to be effective, there might need to be procedural safeguards present. In the case at hand the ECtHR found a breach of the ECHR because no lawyer was assigned to represent the patient.180 There must also be judicial process involved in determining whether detention (p. 424) under article 5 is lawful.181 Moreover, ECHR case law imposes requirements on state authorities to protect the health of persons deprived of liberty182 and limits the period of detention of mentally ill prisoners during their time on remand.183

More recently, in Stanev v Bulgaria,184 the ECtHR found that the plaintiff, who had been partially deprived of his legal capacity and institutionalized without his consent, could proceed with his case.185 The plaintiff, who had never been evaluated to determine whether he was capable of living on his own, was placed in the guardianship of the institution’s director who was given authority to control the patient’s finances and identity papers and to determine his place of residence.186 The plaintiff alleged violations of his rights under the ECHR, including a violation of his right not to be subject to inhuman and degrading treatment, his right to liberty, his right to a fair hearing, his right to respect for home and private life and his right to an effective remedy.187 The ECtHR found multiple violations of his liberty rights under Article 5 ECHR, noting in particular the arbitrariness of his detention188 and the lack of independent judicial review of its lawfulness.189

5.2  Therapeutic Jurisprudence in Paragraph 2

Article 14(2) resonates with TJ values.190 The requirements that persons with disabilities be deprived of their liberty must be ‘on an equal basis with others,’ that they are ‘entitled to guarantees in accordance with international human rights law’ and that they be treated in compliance with the entire CRPD, ‘including by provision of reasonable accommodation’191 all speak to core TJ principles.192

(p. 425) Conclusion

While the broad contours of recognizing and guaranteeing the fundamental right to liberty and security of the person seem fairly clear, application of article 14 to restrictions of this right remains contentious and unresolved. As the CRPD closes out its first full decade in force, it remains to be seen how states parties will respond to directives from the Committee to reform their laws in unprecedented ways—and how the Committee will respond to ongoing resistance from states parties on these issues.


1  UN General Assembly, Convention on the Rights of Persons with Disabilities: UNGA Res 61/106 (24 January 2007) (sometimes CRPD).

2  See eg Richard M Duffy and Brandon D Kelly, ‘Rights, Laws and Tensions: A Comparative Analysis of the Convention on the Rights of Persons with Disabilities and the WHO Resource Book on Mental Health, Human Rights and Legislation’ (2017) 54 Int’l J L and Psychiatry 26, 30.

3  Christopher P Guzelian, Michael Ashley Stein, and Hagop S Akiskal, ‘Credit Scores, Lending, and Psychosocial Disability’ (2015) 95 BUL Rev 1807, 1849.

4  R v Rose [1998] 3 SCR 262 para 95.

5  Ashingdane v United Kingdom [1985] 7 EHRR 528. See generally, Lawrence O Gostin and Lance Gable, ‘The Human Rights of Persons with Mental Disabilities: A Global Perspective on the Application of Human Rights Principles to Mental Health’ (2004) 63 Md L Rev 20, 58.

6  Carole Peterson, ‘The Convention on the Rights of Persons with Disabilities: Using International Law to Promote Social and Economic Development in the Asia Pacific’, (2013) 35 U Haw L Rev 821, 836.

7  See also Rhonda Louise Powell, ‘The Right to Security of Person in European Court of Human Rights Jurisprudence’, (2007) 12 Eur Hum Rts L Rev 649, 651.

8  Ophelia Claude, ‘A Comparative Approach to Enforced Disappearances in the Inter-American Court of Human Rights and the European Court of Human Rights Jurisprudence’ (2010) 5 Intercultural Hum Rts L Rev 407, 448 fn 226.

9  539 US 558, 562 (2003).

10  In the law review scholarship, these negotiations have only been considered carefully in Sheila Wildeman, ‘Protecting Rights and Building Capacities: Challenges to Global Mental Health Policy in Light of the Convention on the Rights of Persons with Disabilities’ (2013) 41 J L Med and Ethics 48, 56–57; see infra text accompanying note 46. But see Maya Sabatello and Marianne Schulze (eds), Human Rights and Disability Advocacy (Univ of Pennsylvania Press 2014) 50, 84, 205 (only three references to Art 14 in the leading text on these negotiations). In his book, International Human Rights and Mental Disability Law: When the Silenced Are Heard (OUP 2011) 38, one of the co-authors (Michael Perlin) notes that the drafting process—via the Ad Hoc Committee, see (n 11), relied on perspectives of observers such as Prof Aaron Dhir. See Aaron A Dhir, ‘Human Rights Treaty Drafting Through the Lens of Mental Disability: ‘The Proposed International Convention on Protection and Promotion of the Rights and Dignity of Persons with Disabilities’ (2005) 41 Stan J Int’l L 181, 182, who argues that ‘degrading living conditions, coerced “treatment”, scientific experimentation, seclusion, restraints—the list of violations to the dignity and autonomy of those diagnosed with mental disabilities is both long and egregious’.

11  See the online United Nations Audiovisual Library of International Law, available at: <http://legal.un.org/avl/ha/crpd/crpd.html> and the Ad Hoc Committee’s website, available at: <http://www.un.org/esa/socdev/enable/rights/adhoccom.htm> for documentation of the negotiations.

12  UN General Assembly, ‘Report of the Working Group to the Ad Hoc Committee on a Comprehensive and Integral International Convention on the Protection and Promotion of the Rights and Dignity of Persons with Disabilities’ UN Doc A/AC265/2004/WG 1 (27 January 2004).

13  ibid at 16 fn 35.

14  ibid at 16 fn 36.

15  ibid at 16 fn 37.

16  UN General Assembly, ‘Report of the Third Session of the Ad Hoc Committee on a Comprehensive and Integral International Convention on the Protection and Promotion of the Rights and Dignity of Persons with Disabilities’ UN Doc A/AC265/2004/5 (9 June 2004).

17  ibid at 24.

18  See eg UN CRPD Third session of the Ad Hoc Committee—Daily summary of discussions related to Article 10: Liberty and Security of the Person, Vol 4 No 3 (26 May 2004).

19  ibid.

20  UN General Assembly, ‘Report of the Ad Hoc Committee on a Comprehensive and Integral International Convention on the Protection and Promotion of the Rights and Dignity of Persons with Disabilities on its Fifth Session’ UN Doc A/AC265/2005/2 (23 February 2005).

21  The right to liberty is an integral part of all international human rights law. See eg Art 12 ICCPR; Art 5 ECHR. It appeared in at least eight international covenants and conventions prior to the ratification of the CRPD. See Lucien J Dhooge, ‘Lohengrin Revealed: The Implications of Sosa v Alvarez-Machain for Human Rights Litigation Pursuant to the Alien Tort Claims Act’ (2006) 28 Loy Int’l and Comp L Rev 393, 460–61.

22  See Peter Bartlett, ‘The United Nations Convention on the Rights of Persons with Disabilities and Mental Health Law’ (2012) 75 Mod L Rev 752, 772.

23  See text accompanying (fns 42–64).

24  Amy Raub et al, ‘Constitutional Rights of Persons with Disabilities: An Analysis of 193 National Constitutions’ (2016) 29 Harv Hum Rts J 203, 227.

25  Petersen (n 6) 836.

26  Kathryn DeMarco, ‘Disabled by Solitude: The Convention on the Rights of Persons with Disabilities and Its Impact on the Use of Supermax Solitary Confinement’ (2012) 66 U Miami L Rev 523, 545.

27  Shana Tabak and Rachel Levitan, ‘LGBTI Migrants in Immigration Detention: A Global Perspective’ (2014) 37 Harv J L and Gender 1, 31.

28  Anna Lawson, ‘The United Nations Convention on the Rights of Persons with Disabilities: New Era or False Dawn?’ (2007) 34 Syracuse J Int’l L and Comm 563, 612.

29  Megan Flynn, ‘Olmstead Plans Revisited: Lessons Learned from the UN Convention on the Rights of Persons with Disabilities’ (2010) 28 Law and Ineq 407, 432.

30  See eg Sylvie Langlaude, ‘Children and Religion Under Article 14 UNCRC: A Critical Analysis’ (2008) 16 Int’l J Children’s Rights 475.

31  See Vandana Peterson, ‘Understanding Disability under the Convention on the Rights of Persons with Disabilities and Its Impact on International Refugee and Asylum Law’ (2014) 42 Ga J Int’l and Comp L 687, 697; Bernadette McSherry, ‘Regulating Seclusion and Restraint in Health Care Settings: The Promise of the Convention on the Rights of Persons with Disabilities’ (2017) 53 Int’l J L and Psychiatry 59.

32  Mr X v Argentina UN Doc CRPD/C/11/D/8/2012 (18 June 2014) para 9. In at least one non-institutionalization case, the CRPD Committee has rejected consideration of an Art 14 claim by an individual with a physical disability seeking building permission for the construction of a hydrotherapy pool on grounds of incompatibility of the extension in question with the city development plan. See H M v Sweden UN Doc CRPD/C/7/D/3/2011 (21 May 2012), with the Committee simply stating, see para 7.4 ‘[appellant’s] claims are insufficiently substantiated’.

33  ibid para 9.9.

34  Pending Art 14 cases include consideration of issues that are more directly related to mental disabilities, such as the institutionalization of persons with intellectual impairment (Australia), the incarceration of persons with intellectual impairment declared unfit to stand trial (Australia), forced hospitalization and treatment including electroshock (Australia), and hospitalization in psychiatric hospital and appointment of guardian without consent (Germany), available at: <http://www.ohchr.org/EN/HRBodies/CRPD/Pages/Tablependingcases.aspx>.

35  See eg Asalya v Turkey [2014] ECHR 398.

36  Including the European Disability Forum, the International Disability Alliance, and the World Network of Users and Survivors of Psychiatry.

37  Mihailovs v Latvia [2013] ECHR 65 para 124. The applicant—a man with psychological symptoms secondary to epilepsy—successfully argued that he had been deprived of his liberty while under guardianship and detained in a state-run social care institution without judicial review.

38  See ibid para 126.

39  Ruiz Rivera v Switzerland [2014] ECHR 156.

40  Kuttner v Austria (App No 7997/08) judgment (16 October 2015) citing the CRPD.

41  ibid para 2.

42  There is not a general consensus as to what ‘arbitrary’ means in this context. See eg Derek P Jinks, ‘The Anatomy of an Institutionalized Emergency: Preventive Detention and Personal Liberty in India’ (2001) 22 Mich J Int’l L 311, 355 (‘patterns of actual state practice suggest widespread disagreement as to the meaning of “arbitrary”’), citing, inter alia, Diane Amman, ‘Harmonic Convergence? Constitutional Criminal Procedure in an International Context’ (2000) 75 Indiana LJ 809 (2000) and Li-Ann Thio, ‘Implementing Human Rights in ASEAN Countries: “Promises to Keep and Miles to Go Before I Sleep”’ (1999) 2 Yale Hum Rts and Dev LJ 1 (1999).

43  See Peterson (n 31) 697–98.

44  Rebecca Zarett, ‘To Work and to Love: How International Human Rights Law Can Be Used to Improve Mental Health in the United States’ (2016) 40 Fordham Int’l L J 191, 208. See eg Sascha Mira Callaghan and Christopher Ryan, ‘Is There a Future for Involuntary Treatment in Rights-Based Mental Health Law?’ (2014) 21 Psychiatry, Psychol and L 747 (2014) (arguing that the CRPD does allow for involuntary treatment in some instances, and that ‘failing to account for it in law will jeopardise rights more than it protects them’).

45  Ana Elena Abello Jiminez, ‘Criminalizing Disability: The Urgent Need of a New Reading of the European Convention on Human Rights,’ (2015) 30 Am U Int’l L Rev 285, 290.

46  See Wildeman (n 10) 54–61. Compare Michael L Perlin and Meredith Schriver, ‘You Might Have Drugs at Your Command: Reconsidering the Forced Drugging of Incompetent Pre-trial Detainees from the Perspectives of International Human Rights and Income Inequality’ (2015) 8 Albany Gov’t L Rev 381, 390 (‘the question of whether involuntarily medicating a forensic patient violates, in the words of the CRPD, the “integrity of the person” is, under any circumstances, an important one that we must take seriously’) (referring to parallel provisions in Art 17 CRPD).

47  Bartlett (n 22) 772, citing UN OHCHR, ‘Annual Report’, UN Doc A/HRC/10/48 (26 January 2009) para 48.

48  ibid at 773.

49  ibid citing UN Doc A/HRC/10/48 (26 January 2009) para 48. Elsewhere, Bartlett asks: ‘Care of people with severe dementia, for example, may well result in deprivation of liberty; are we really to say that we allow these people to wander away from their place of care, in the name of rights?’—see Peter Bartlett, ‘The United Nations Convention on the Rights of Persons with Disabilities and the Future of Mental Health Law’ (2009) 8 Psychiatry 496, 498; see also CRPD Committee, ‘Concluding Observations on Spain’, UN Doc CRPD/C/ ESP/CO/1 (19 October 2011) para 36, as discussed in FRA (European Union Agency for Fundamental rights), ‘Involuntary Placement and Involuntary Treatment of Persons with Mental Health Problems’ (2012) 16.

50  See Cleveland Ferguson III et al, ‘International Human Rights’ (Spring 2014) 48 Year in Rev (ABA) 453, citing CRPD Committee, ‘Concluding Observations on the Initial Periodic Report of Hungary’, UN Doc CRPD/C/HUN/CO/1 (22 October 2012) para 28; CRPD Committee, ‘Concluding Observations on the Initial Report of Spain’, UN Doc CRPD/C/ESP/CO/1 (19 October 2011) para 36; CRPD Committee, ‘Concluding Observations on the Initial Report of China’ UN Doc CRPD/C/CHN/CO/1 (15 October 2012) para 26. On the implications of the CRPD for domestic laws, see Gregor Maucec, Tackling Disability-based Discrimination in International and European Law, (2013) 13 Int’l J Discrim & L 34, 38 (‘Its provisions bind EU institutions and will also bind the EU member states when they are applying EU law.’).

51  CRPD Committee, ‘Concluding Observations on the Initial Report of Austria’ UN Doc CRPD/C/AUT/CO/1 (13 September 2013) paras 29–30; UN Committee, ‘Concluding Observations on the Initial Report of El Salvador’ UN Doc CRPD/C/SLV/CO/1 (8 October 2013) para 32; CRPD Committee, ‘Concluding Observations on the Initial Report of Australia’ UN Doc CRPD/C/AUS/CO/1 (4 October 2013) para 34.

52  Bartlett (n 22) 773; for Tunisia, see CRPD Committee, ‘Concluding Observations on the Initial Report of Tunisia’ UN Doc CRPD/C/TUN/CO/1 (13 May 2011); for Spain see CRPD Committee, ‘Concluding Observations on the Initial Report of Spain’ UN Doc CRPD/C/ESP/CO/1 (19 October 2011).

53  Janet E Lord, ‘Shared Understanding or Consensus-Masked Disagreement? The Anti-Torture Framework in the Convention on the Rights of Persons with Disabilities’ (2010) 33 Loy LA Int’l and Comp L Rev 27, 56.

54  Report of the CRPD Committee on its Twelfth Session (15 September–3 October 2014) UN Doc CRPD/C/12/2 (5 November 2014).

55  ibid at Annex IV (footnotes in block quote added by authors).

56  See CRPD Committee, ‘Concluding Observations on the Initial Report of Sweden’ UN Doc CRPD/C/SWE/CO/1 (12 May 2014) para 35: ‘The Committee is concerned that Swedish law allows for a person to be confined against his or her will in a medical facility if he or she has a psychosocial disability and is considered to be a danger to himself or herself or to others.’.

See also CRPD Committee, ‘Concluding Observations on the Initial Report of Austria’ UN Doc CRPD/C/AUT/CO/1 (30 September 2013) para 29: ‘The Committee is deeply concerned that Austrian law allows for a person to be confined against his or her will in a psychiatric institution if he or she has a psychosocial disability and is considered to be a danger to himself or herself or to others. The Committee is of the opinion that the legislation is in conflict with article 14 of the Convention because it allows a person to be deprived of liberty on the basis of actual or perceived disability.’

57  See CRPD Committee, ‘Concluding Observations on the Initial Report of El Salvador’ UN Doc CRPD/C/SLV/CO/1 (8 October 2013) para 32: ‘The Committee calls on the State party to abolish the rules that allow for deprivation of liberty on grounds of disability, which portray persons with disabilities as potentially dangerous to themselves or others or as being in need of care or treatment.’

58  But, on the question of the abolition of involuntary detention, see Bernadette McSherry, ‘Mental Health Laws: Where to from Here?’ (2014) 40 Monash U L Rev 175, 197, who notes that: ‘The abolition of mental health laws raises the spectre that there will be more lives lost to suicide and/or more persons with mental impairments brought within the criminal justice system via laws of preventive detention.’ See also generally, Bernadette McSherry and Kay Wilson, ‘Detention and Treatment Down Under: Human Rights and Mental Health Laws in Australia and New Zealand’ (2011) 19 Medical L Rev 548 (on why civil commitment need not be abolished under Art 14).

59  See CRPD Committee, ‘Concluding Observations on the Initial Report of Australia’ UN Doc CRPD/C/AUS/CO/1 (21 October 2013) para 31: ‘The Committee is concerned that persons with disabilities who are deemed unfit to stand trial due to an intellectual or psychosocial disability can be detained indefinitely in prisons or psychiatric facilities without being convicted of a crime and for periods that can significantly exceed the maximum period of custodial sentence for the offence.’

60  On the need for formal procedural accommodations to make court proceedings accessible for accused persons with cognitive disabilities, and ‘to ensure dispositions are on an equal basis with others’, see Piers Gooding et al, ‘Unfitness to Stand Trial and the Indefinite Detention of Persons with Cognitive Disabilities in Australia: Human Rights Challenges and Proposals for Change’ (2017) 40 Melb U L Rev 816, 821. On the issue of the quality of representation made available to persons at competency-to-stand-trial hearings, see Michael L Perlin and Heather Ellis Cucolo (eds), Mental Disability Law: Civil and Criminal (LexisNexis 3rd edn, 2017), § 13-1.5.4, at §§ 13-60 to 13-61, quoting Professor William T Pizzi, ‘Competency to Stand Trial in Federal Courts: Conceptual and Constitutional Problems’ (1977) 45 U Chi L Rev 21, 27 (‘For practical reasons, the key to the competency issue is the defense attorney.’); see also eg Norma Schrock, ‘Defense Counsel’s Role in Determining Competency to Stand Trial’ (1996) 9 Geo J Legal Ethics 639.

61  See CRPD Committee, ‘Concluding Observations on the Initial Report of El Salvador’ UN Doc CRPD/C/SLV/CO/1 (8 October 2013) para 32:The Committee calls on the State party to establish a mechanism to monitor the situation of persons with disabilities in prisons and other detention centres and to set up a legal framework for the provision of reasonable accommodation that preserves their dignity. See eg In the Matter of María Inés Chinchilla Sandoval (Guatemala), Case 12.739, Inter-American Commission on Human Rights (2 April 2014), (finding that, despite the special obligations incumbent upon the state when it incarcerates a person with disabilities, the state did not provide her with the conditions necessary to protect her rights (prisoner, a wheelchair user, fell down steps, and proper medical services were not subsequently provided).

62  ‘Guidelines on Article 14 of the Convention on the Rights of Persons with Disabilities: The right to liberty and security of persons with disabilities’, adopted during the CRPD Committee’s 14th session, held in September 2015.

63  ibid para 7. Additionally, there was a notable shift in the language used by the Committee, replacing the term ‘disability’ with ‘impairment’: ‘Impairment in these guidelines is understood as a physical, psycho-social, intellectual, or sensory personal condition which may or may not come with functional limitations of the body, mind or senses. Impairment differs from what is usually considered the norm. Disability is understood as the social effect of the interaction between individual impairment and social and material environment as described in Art 1 CRPD.’ibid at fn 1.

64  McSherry (n 58) 197; see also ibid at 185: ‘It appears unlikely in the short term that mental health legislation as it currently exists will be repealed, given the focus of policymakers on law reform rather than abolition, but the Committee’s statements interpreting art 14 indicate that mental health laws that enable the involuntary detention of those with mental impairments are incompatible with this Article.’ It is important to note that disability rights activists have focused on the role of the medical profession in ensuring that the CRPD is implemented. See Lindsay Roberts and Christopher Tansey, ‘Interview with Oliver Lewis, Executive Director of the Mental Disability Advocacy Center,’ (Winter 2012) 19 Hum Rts Brief 30, 31: ‘Given that nothing will change if the medical fraternity digs in its heels, I think the UN Committee on the Rights of Persons with Disabilities should reach out to the psychiatric community, and bring them into the discourse and provide clearer guidance. There are logistical and political hurdles to overcome, but it is possible.’ Also in this context, see Lucia A Silecchia, ‘The Convention on the Rights of Persons with Disabilities: Reflections on Four Flaws that Tarnish Its Promise’ (2013) 30 J Contemp Health L and Pol’y 96, 114–15: ‘[T]he CRPD’s steadfast rejection of the medical/charitable model means that it regrettably fails to provide much guidance on the rights of those whose disabilities are so profound that lifelong care and support are required. The CRPD does not speak to these circumstances in any detail. Yet, in reality, the best intentions and the most advanced adaptations may still not be able to eliminate the effects of some physical and mental impairments. Virtually ignoring these scenarios in the CRPD leads to a failure to frame realistically the rights of those least able to protect themselves.’

65  See generally Perlin and Cucolo (n 60) §§ 3.3–3.7. In some jurisdictions, ‘dangerousness to property’ is an acceptable basis as well; ibid § 3.8.

66  Humphrey v Cady,405 U.S. 504, 509 (1972).

67  Due process includes both substantive and procedural elements. Substantive due process depends on the criteria that must be met—or justifications that must be established—before liberty may be restricted, while procedural due process focuses on the various steps in effecting such a restriction of liberty. Erwin Chemerinsky, Constitutional Law Principles and Policies (Aspen, 3d edn 2006) 545.

68  Jackson v Indiana 406 US 715 (1972).

69  ibid at 738.

70  422 US 563 (1975).

71  ibid at 580, citing Specht v Patterson 386 US 605, 608 (1967).

72  Chemerinsky, (n 67) at 575.

73  ibid.

74  Terminology used in state civil commitment statutes includes ‘mental illness’, ‘mental disorder’, ‘mental disability’, and ‘psychiatric disabilities’. See Perlin and Cucolo (n 60) § 3-3.2, at §§ 3-18 to 3-43.

75  See ibid § 3-3.1.

76  Foucha v Louisiana 504 US 71, 86 (1992).

77  See Perlin and Cucolo (n 60) § 3-4.1; O’Connor 422 US at 575.

78  On the meaning of ‘dangerousness,’ see ibid Perlin and Cucolo § 3-4.1, at §§ 3-47 to 3-48. No question in the area of the involuntary civil commitment process has proven to be more vexing than the definition of the word ‘dangerousness’ or the related issue of whether it is truly a legal or a medical concept.

79  Aristotle, Nicomachean Ethics, Book V Ch 8.

80  See Hugh A Ross, ‘Commitment of the Mentally Ill: Problems of Law and Policy’ (1959) 57 Mich L Rev 945, 955. For general and classic statements, see District of Columbia v Brooke, 214 US 138, 149 (1909): ‘In the case at bar, we are dealing with an exercise of the police power—one of the most essential of powers, at times the most insistent, and always one of the least limitable of the powers of government.’ See also, Jacobson v Massachusetts 197 US 11 (1905); John Q LaFond, ‘An Examination of the Purposes of Involuntary Civil Commitment’ (1981) 30 Buffalo L Rev 499, 501.

81  See LaFond (n 80) at 504–05.

82  See eg Lessard v Schmidt 349 F Supp 1078 (E D Wis 1972) (civil commitment can be justified where dangerousness is based upon a finding of a recent overt act, attempt or threat to do substantial harm to oneself or another); see generally, Sarah Gordon, ‘The Danger Zone: How the Dangerousness Standard In Civil Commitment Proceedings Harms People With Serious Mental Illness’ (2016) 66 Case W Res L Rev 657 (2016).

83  See text accompanying (nn 73–81).

84  Alaska, Arizona, California, Colorado, Connecticut, Hawaii, Idaho, Indiana, Lousiana, New Mexico (‘grave passive neglect’), and Washington.

85  See John Parry, Civil Mental Disability Law, Evidence and Testimony: A Comprehensive Reference Manual for Lawyers, Judges and Mental Disability Professionals (American Bar Ass’n 2010) 478; see also David Wexler and Bruce Winick, Essays in Therapeutic Jurisprudence (Carolina Academic Press 1991).

86  See eg Doe v Gallinot, 486 F Supp 983, 991 (C D Cal 1979), aff’d, 657 F 2d 1017 (9th Cir 1981), relying in part on O’Connor, to support commitment where the threat of harm to oneself ‘may be through neglect or inability to care for oneself’.

87  See Carol Trevey, ‘“Prisoners of the Mind”?: The Inappropriateness of Comparing the Involuntarily Committed Mentally Ill to Pretrial Detainees in Fourth Amendment Analyses,’ (2011) 13 U Pa J Const L 1435, 1462–63. Many of the provisions in such statutes specifically link such functional limitations to a risk of danger or serious harm or injury to the person.

88  469 F Supp 424 (D Utah 1979).

89  ibid at 432.

90  See generally Perlin and Cucolo (n 60) § 4-2.2.1 for a discussion of the constitutional requirement of a judicial hearing for an order of civil commitment.

91  See generally ibid, ch 6, for an overview of the role of counsel and its constitutional underpinnings.

92  See ibid § 4-

93  See ibid § 4-

94  See ibid § 4-

95  In recognition of the liberty interest at stake, the burden of proof for meeting the substantive criteria for civil commitment was elevated by the U.S. Supreme Court from preponderance of the evidence to clear and convincing evidence, since ‘civil commitment … constitutes a significant deprivation of liberty that requires due process protection.’

Addington v Texas, 441 US 418, 425 (1979). See Perlin and Cucolo (n 60) §§ 4-2.3 to 4-

96  See ibid § 4-; see also ibid § 4- (right to habeas corpus) and § 4- (right to periodic review). There are other critical procedural areas in which US courts are split; see eg ibid § 4- (right to jury trial), ibid §§ 4- to 4- (right to assert privilege against self-incrimination), and ibid §§ 4- (application of hearsay exception in rules of evidence).

97  See Michael L Perlin, ‘Promoting Social Change in Asia and the Pacific: The Need for a Disability Rights Tribunal to Give Life to the UN Convention on the Rights of Persons with Disabilities’ (2012) 44 Geo Wash Int’l L Rev 1, 10, fn 50.

98  Herczegfalvy v Austria (1992) 15 EHRR 437 (although the European Court on Human Rights noted that the position of inferiority and powerlessness typical of patients confined to psychiatric hospitals, calling for increased vigilance, it ultimately did not find a violation of Article 3 of the European Convention, which prohibits torture and inhuman treatment, but noting that, in that case, the use of ‘handcuffs and security bed … appears worrying.’

99  David Hewitt, ‘Do Human Rights Impact on Mental Health Law?’, (2001) 151 New LJ 1278, 1278.

100  Gerard Quinn, ‘Civil Commitment and the Right to Treatment under the European Convention on Human Rights’ (1992) 5 Harv Hum Rts J 1 48. Professor Bruce Winick has bridged the gap between Hewitt and Quinn by arguing that, even in the absence of case law, many of the ongoing ‘abusive practices’ of commitment, treatment, and institutional conditions still common in Eastern Europe ‘can be understood to violate the [European Convention] and other evolving principles of international human rights law’—Bruce Winick, ‘Therapeutic Jurisprudence and the Treatment of People with Mental Illness in Eastern Europe: Construing International Human Rights Law’ (2002) 21 NY L Sch J Int’l and Comp L 537, 572.

101  Text accompanying (nn 102–20) is generally adapted from Michael L Perlin and Alison J Lynch, ‘“All His Sexless Patients”: Persons with Mental Disabilities and the Competence to Have Sex,’ (2014) 89 Wash L Rev 257; Mehgan Gallagher and Michael L Perlin, ‘“The Pain I Rise Above”: How International Human Rights Can Best Realize the Needs of Persons with Trauma-Related Mental Disabilities’ (2018) Fla J Int’l L (forthcoming), available at: <http://ssrn.com/abstract=3021044>, and Michael L Perlin and Naomi Weinstein, ‘“Said I, But You Have No Choice”: Why a Lawyer Must Ethically Honor a Client’s Decision About Mental Health Treatment Even if It Is Not What S/he Would Have Chosen’ (2016–2017) 15 Cardozo Public L, Pol’y and Ethics J 73. Further, it distills the work of one of the co-authors over the past two decades-plus, beginning with Michael L Perlin, ‘What Is Therapeutic Jurisprudence?’ (1993) 10 NY L Sch J Hum Rts 623.

102  See eg David B Wexler, Therapeutic Jurisprudence: The Law as a Therapeutic Agent (Carolina Academic Press 1990); David B Wexler and Bruce J Winick, Law in a Therapeutic Key: Recent Developments in Therapeutic Jurisprudence (Carolina Academic Press 1996); Bruce J Winick, Civil Commitment: A Therapeutic Jurisprudence Model (Carolina Academic Press 2005). Wexler first used the term in a paper he presented to the National Institute of Mental Health in 1987—see David B Wexler, ‘Putting Mental Health into Mental Health Law: Therapeutic Jurisprudence’ (1992) 16 Law and Hum Behav 27, 27, 32–33 (Wexler, Putting Mental Health); David B Wexler, ‘Therapeutic Jurisprudence Forum: The Development of Therapeutic Jurisprudence: From Theory to Practice’ (1999) 68 Rev Jur UPR 691, 693–94.

103  See Michael L Perlin, ‘“His Brain Has Been Mismanaged with Great Skill”: How Will Jurors Respond to Neuroimaging Testimony in Insanity Defense Cases?’ (2009) 42 Akron L Rev 885, 912 (2009); see also Kate Diesfeld and Ian Freckelton, ‘Mental Health Law and Therapeutic Jurisprudence’, in Ian Freckelton and Kate Peterson (eds), Disputes and Dilemmas in Health Law (Federation Press 2006) 91 (for a transnational perspective).

104  Michael L Perlin, ‘“Everybody Is Making Love/Or Else Expecting Rain”: Considering the Sexual Autonomy Rights of Persons Institutionalized Because of Mental Disability in Forensic Hospitals and in Asia’ (2008) 83 Wash L Rev 481 (Perlin, Making Love); Michael L Perlin, ‘“And My Best Friend, My Doctor, Won’t Even Say What It Is I’ve Got”: The Role and Significance of Counsel in Right to Refuse Treatment Cases’ (2005) 42 San Diego L Rev 735, 751; see also, Ian Freckelton, ‘Therapeutic Jurisprudence Misunderstood and Misrepresented: The Price and Risks of Influence’ (2008) 30 T Jefferson L Rev 575, 585–86.

105  David B Wexler, ‘Therapeutic Jurisprudence and Changing Concepts of Legal Scholarship,’ (1993) 11 Behav Sci and L 17, 21; see also eg David B Wexler, ‘Applying the Law Therapeutically’ (1996) 5 Appl and Prevent Psychol 179.

106  Michael L Perlin, ‘A Law of Healing’ (2000) 68 U Cin L Rev 407, 412 (Perlin, Healing); Michael L Perlin, ‘“Where the Winds Hit Heavy on the Borderline”: Mental Disability Law, Theory and Practice, Us and Them’ (1998) 31 Loyola LA L Rev 775, 782.

107  Bruce J Winick, ‘Foreword: Therapeutic Jurisprudence Perspectives on Dealing with Victims of Crime,’ (2009) 33 Nova L Rev 535, 535.

108  David B Wexler, ‘Practicing Therapeutic Jurisprudence: Psychological Soft Spots and Strategies,’ in Daniel P Stolle, David B Wexler, and Bruce J Winick, Practicing Therapeutic Jurisprudence: Law as a Helping Profession (Carolina Academic Press 2006) 45.

109  Bruce Winick, ‘A Therapeutic Jurisprudence Model for Civil Commitment’ in Kate Diesfeld and Ian Freckelton (eds), Involuntary Detention and Therapeutic Jurisprudence: International Perspective on Civil Commitment, Ashgate 2003) 23, 26.

110  See eg Bruce J Winick and David B Wexler, ‘The Use of Therapeutic Jurisprudence in Law School Clinical Education: Transforming the Criminal Law Clinic’ (2006) 13 Clinical L Rev 605, 605–07.

111  See Bruce J Winick, Civil Commitment: A Therapeutic Jurisprudence Model (Carolina Academic Press 2005) 161.

112  Amy D Ronner, ‘The Learned-Helpless Lawyer: Clinical Legal Education and Therapeutic Jurisprudence as Antidotes to Bartleby Syndrome’ (2008) 24 Touro L Rev 601, 627; on the importance of ‘voice,’ see also Freckelton (n 104) 588.

113  Amy D Ronner, ‘Songs of Validation, Voice, and Voluntary Participation: Therapeutic Jurisprudence, Miranda and Juveniles’ (2002) 71 U Cin L Rev 89, 94–95; see generally, Amy D Ronner, Law, Literature and Therapeutic Jurisprudence (Carolina Academic Press 2010).

114  See eg Michael L Perlin, ‘“Striking for the Guardians and Protectors of the Mind”: The Convention on the Rights of Persons with Disabilities and the Future of Guardianship Law’ (2013) 117 Penn St L Rev 1159 (Perlin, Striking); Perlin (n 97).

115  See sources cited at (nn 116–24).

116  On why TJ values do not and cannot undermine individual liberty values, see Astrid Birgden, ‘Therapeutic Jurisprudence and Offender Rights: A Normative Stance Is Required’ (2009) 78 Rev Jur UPR 43, 53.

117  Winick (n 100) 572 (emphasis added).

118  Michael L Perlin and Heather Ellis Cucolo, ‘“Tolling for the Aching Ones Whose Wounds Cannot Be Nursed”: The Marginalization of Racial Minorities and Women in Institutional Mental Disability Law’ (2017) 20 J Gender, Race and Justice 431, 457 (emphasis added); see also, Emily R Murphy, ‘Paved with Good Intentions: Sentencing Alternatives from Neuroscience and the Policy of Problem-Solving Courts’ (2013) 37 Law and Psychol Rev 83, 117, characterizing the therapeutic jurisprudence framework as ‘a focus on empirically verifiable results with respect for due process protections for personal liberty and autonomy’.

119  Fred Cohen and Joel A Dvoskin, ‘Therapeutic Jurisprudence and Corrections: A Glimpse’ (1993) 10 NYL Sch J Hum Rts 777, citing Wexler, Putting Mental Health (n 102).

120  Winick (n 100) 544.

121  For an exhaustive consideration, see Bruce J Winick, ‘Therapeutic Jurisprudence and the Civil Commitment Hearing’ (1999) 10 J Contemp Legal Issues 37. On the therapeutic jurisprudence potential of a civil commitment hearing, see John J Ensminger and Thomas D Liguori, ‘The Therapeutic Significance of the Civil Commitment Hearing: An Unexamined Potential’ (1978) 6 J Psychiatry and L 5.

122  See Michael L Perlin, ‘“God Said to Abraham/Kill Me a Son”: Why the Insanity Defense and the Incompetency Status Are Compatible with and Required by the Convention on the Rights of Persons with Disabilities and Basic Principles of Therapeutic Jurisprudence’ (2017) 54 Am Crim L Rev 477, 517: ‘I believe that TJ requires a robust and expansive insanity defense. It demands a reconsideration of policies that punish defendants for raising the defense, reject testimony as to the causal relation between mental disability and the commission of otherwise-criminal acts, and incarcerate “successful” insanity pleaders in maximum-security forensic institutions for far longer than the maximum sentence for the underlying crime, which is often a trivial one.’

123  ibid at 483.

124  On due process and TJ, see Perlin, Making Love (n 104) 10, at fn 139. On fair trials and TJ, see Perlin, Healing (n 106) 421. On voice and TJ, see Michael L Perlin, ‘“Wisdom Is Thrown into Jail”: Using Therapeutic Jurisprudence to Remediate the Criminalization of Persons with Mental Illness,’ (2013) 17 Mich St U J Med and L 343, 364: Ronner (n 112).

125  See eg Mac Darrow and Louise Arbour, ‘The Pillar of Glass: Human Rights in the Development Operations of the United Nations’ (2009) 103 Am J Int’l L 446, 481, discussing ‘the embryonic (at best) state of the scholarship’ in this area. There is some irony here in that, in recent constitutional cases involving the death penalty, the US Supreme Court has been more likely to use international human rights law norms in support of decisions curtailing the use of that penalty; see eg Michael L Perlin, ‘“Yonder Stands Your Orphan with His Gun”: The International Human Rights and Therapeutic Jurisprudence Implications of Juvenile Punishment Schemes’ (2013) 46 Texas Tech L Rev 301, 301–03, discussing US Supreme Court’s use of international human rights law in Miller v Alabama, 132 S Ct 2455, 2475 (2012) (ruling on mandatory life without parole for homicide in juvenile cases); Graham v Florida 130 S Ct 2011, 2034 (2010) (ruling on life without parole for crimes other than homicide in juvenile cases), and Roper v Simmons 543 U.S. 551, 577 (2005) (ruling on the juvenile death penalty); see also, Beth Caldwell, ‘Twenty-Five to Life for Adolescent Mistakes: Juvenile Strikes as Cruel and Unusual Punishment’ (2012) 46 U SF L Rev 581, 599, focusing on the Court’s ‘greater willingness to consider international human rights standards and practices when assessing sentencing practices within the United States’.

126  See generally, Perlin and Cucolo (n 60) § 14-1.1, at §§ 14-4 to 14-10.

127  ibid § 13-12, at 13-4 to 13-7.

128  United States v Lyons, 739 F 2d 994 (5th Cir 1984) (Rubin, J dissenting). The majority opinion in Lyons is found at 731 F 2d 243 (5th Cir 1984), cert denied 469 U.S. 930 (1984).

129  ibid 739 F 2d at 995 (citing 1 Hale, The History of Pleas of the Crown 14–15 (1736)).

130  Richard Bonnie and Christopher Slobogin, ‘The Role of Mental Health Professionals in the Criminal Process: The Case for Informed Speculation’ (1980) 66 Va L Rev 427, 448.

131  John Monahan, Abolish the Insanity Defense—Not Yet,’ (1973) 26 Rutgers L Rev 719, 731.

132  See Robert Sadoff and Frank Dattilio, ‘Criminal Responsibility,’ in Eric Drogin et al (eds), Handbook of Forensic Assessment: Psychological and Psychiatric Perspectives (Wiley Press 2011) 121.

133  Jacques Quen, ‘The Insanity Defense: How Far Have We Strayed?’ (1995) 5 Cornell J L and Pub Pol’y 27. For an overview, dating back to the Code of Hammurabi, from a clinician’s perspective, see Daniel Greenfield, ‘Criminal Responsibility from a Clinical Perspective’ (2009) 37 J Psychiatry and L 7.

134  See Sadoff and Dattilio (n 132) 121.

135  Nigel Walker, Crime and Insanity in England (Edinburgh Univ Press 1968) 219.

136  Thorpe, Laws and Institutes of England (Additamenta 1840) 29.

137  Perlin and Cucolo (n 60) § 14-1.1, at 14-10.

138  Kathryn LaFortune and Robert Nicholson, ‘How Adequate Are Oklahoma’s Mental Health Evaluations for Determining Competency in Criminal Proceedings? The Bench and Bar Respond,’ (1995) 23 J Psychiatry and L 231, 232.

139  See Bruce Winick and Terry DeMeo, ‘Competency to Stand Trial in Florida’ (1980) 35 U Miami L Rev 31, 32 at fn 2.

140  See eg William Blackstone, Commentaries (9th edn, Clarendon 1783) 24; Matthew Hale, The History of the Pleas of the Crown (1847) 34.

141  This issue is discussed fairly fully in People v Berling 251 P 2d 1017 (Cal App 1953).

142  Until the late eighteenth century, if the court concluded that a defendant was remaining ‘mute of malice,’ it could order him subjected to the practice of peine forte et dure, the placing of increasingly heavy weights on the defendant’s chest to ‘press’ him for an answer. See eg Ralph Slovenko, ‘The Developing Law on Competency to Stand Trial,’ (1977) 5 J Psychiatry and L 165, 168–69.

143  362 U.S. 402 (1960).

144  ibid.

145  383 U.S. 375, 385 (1966).

146  See Perlin (n 122) 489: ‘It also needs to be stressed that incompetency is a status, not a defense, and raising it is in no way a concession of factual guilt like invocation of the insanity defense,’ citing Criminal Justice Standards on Mental Health ch 7, pt IV (Am Bar Ass’n 2015). On the other hand, raising the insanity defence is a concession that the defendant committed the underlying act—see Jones v United States, 463 US 354, 363 (1983) (‘A verdict of not guilty by reason of insanity establishes two facts: (i) the defendant committed an act that constitutes a criminal offense, and (ii) he committed the act because of mental illness.’).

147  UN Secretary-General and High Commissioner for Human Rights, Human Rights Council, ‘Thematic Study by the Office of the United Nations High Commissioner for Human Rights on Enhancing Awareness and Understanding of the Convention on the Rights of Persons with Disabilities’ UN Doc A/HRC/10/48 (26 January 2009) para 48.

148  ibid.

149  CRPD Committee, ‘Statement on Article 14 of the Convention on the Rights of Persons with Disabilities (September 2014), available at: <http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=15183&LangID=E>. The Committee has also criticized individual governments for maintaining procedures that permit a defendant to be deemed ‘unfit’ to stand trial and subsequently detained; see eg CRPD Committee, ‘Concluding Observations on the Initial Report of New Zealand’ UN Doc CRPD/C/NZL/CO/1 (31 October 2014) para 33.

150  UN Human Rights Council, ‘Thematic Study by the United Nation High Commission for Human Rights on Enhancing Awareness and Understanding on the Convention on the Rights of Persons with Disabilities’ UN Doc A/HRC/10/48 (26 January 2009) para 47, see also ibid para 48, which reads:

The Convention radically departs from this approach by forbidding deprivation of liberty based on the existence of any disability, including mental or intellectual, as discriminatory. Article 14, paragraph 1 (b), of the Convention unambiguously states that ‘the existence of a disability shall in no case justify a deprivation of liberty’.

151  See eg Tina Minkowitz, ‘Some Thoughts on the Insanity Defense’ (12 July 2014), available at: <http://www.madinamerica.com/2014/07/thoughts-insanity-defense/>; Tina Minkowitz, ‘Rethinking Criminal Responsibility from a Critical Disability Perspective: The Abolition of Insanity/Incapacity Acquittals and Unfitness to Plead, and Beyond’ (2014) 23 Griffith L Rev 434 (2014) (Minkowitz, Rethinking Responsibility).

152  Minkowitz, Rethinking Responsibility (n 151) 447. Interesting, elsewhere Minkowitz writes this: ‘Article 14 says nothing about prevention detention per se or detention for care and treatment per se, so long as any such grounds are not linked in legislation to the existence of a disability and so long as they are not designed or applied with discriminatory intent or impact towards persons with disabilities. A law providing for involuntary care and treatment for the general population that was predominantly applied in the mental health context would violate Article 14.’ Tina Minkowitz, ‘Prohibition of Compulsory Mental Health Treatment and Detention under the CRPD’ at 8, available at <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1876132>.

153  Christopher Slobogin, ‘Eliminating Mental Disability as a Legal Criterion in Deprivation of Liberty Cases: The Impact of the Convention on the Rights of Persons with Disability on the Insanity Defense, Civil Commitment, and Competency Law’ (2015–16) 40 Law and Psychol Rev 297, 300.

154  ibid at 315.

155  Bartlett (n 22) 776, quoting UN High Commissioner for Human Rights, ‘Annual Report’ UN Doc A/HRC/10/48 (26 January 2009) para 47.

156  Bartlett (n 22) 776.

157  Perlin (n 122) 480.

158  Perlin (n 122) 480–81.

159  Perlin (n 122) 480; see also Gooding et al (n 60) 861: ‘Given articles 4(1)(f) and 13, it seems premature to argue that the [CRPD] could not accommodate some kind of modified process for situations where a person cannot independently participate, instruct counsel, and so on. Further, it would be misguided (and counterproductive) to suggest therapeutic approaches are antithetical to rights-based efforts to secure equal recognition before the law.’.

160  See eg Arts 9–11 ICCPR; Art 5 ECHR; Art 7 American Convention on Human Rights.

161  Perlin (n 122) 506, citing Lea E Johnston, ‘Vulnerability and Just Desert: A Theory of Sentencing and Mental Illness’ (2013) 103 J Crim L and Criminology 147; Lea E Johnston, ‘Conditions of Confinement at Sentencing: The Case of Seriously Disordered Offenders’ (2014) 63 Cath U L Rev 625; and Jonathan D LeCompte, ‘When Cruel Becomes the Usual: The Mistreatment of Mentally Ill Inmates in South Carolina Prisons’ (2015) 66 SC L Rev 751.

162  Henry A Dlugacz, ‘Correctional Mental Health in the USA’ (2014) 10 Int’l J Prisoner Health 3, 10 (citing Steven K Hoge et al, ‘American Psychiatric Association:, Outpatient Services for the Mentally Ill Involved in the Criminal Justice System’ (2009)).

163  For a comprehensive discussion of how jail and prison staff regularly use ‘unnecessary, excessive, or malicious … force against prisoners with mental disabilities’ see United States: ‘Force Against Prisoners with Mental Illness’ (12 May 2015) Hum Rts Watch 4, available at: <https://www.hrw.org/news/2015/05/12/united-states-force-against-prisonersmental-illness>. See also, Perlin (n 54) 508–09 (discussing how this interpretation will likely lead to increases in prison suicides).

164  Statutes must be ‘taken, read, and construed together, each enactment in reference to the other, as though they were parts of one and the same law’—see Peraza v State, 467 S W 3d 508, 520 n 29 (Tex Crim App 2015) (quoting Jones v State 396 S W 3d 558, 561–62 (Tex Crim App 2013)).

165  Art 3(a) CRPD.

166  ibid Art 15.

167  ibid Art 16.

168  ibid Art 17.

169  Perlin (n 122) 496; accordingly, see Meron Wondemaghen, ‘Testing Equality: Insanity, Treatment Refusal and the CRPD’ (2017)—Psychiatry, Psychol and L—(2018) Issue 2 174–85: ‘Adherence to Article 12 demands that persons with mental and psychosocial disabilities are recognised as free agents with legal capacity who may or may not choose to employ the defence of insanity to negate reasoning, not as a perpetual and continuous state, but solely at the time of the commission of a criminal act. It is concerning that the current calls for the abolition of the defence are making these choices for persons with mental disability, ironically engaging in the very assumptions the Convention stands to eliminate’.

170  Art 4(4) CRPD.

171  Perlin (n 122) 485. See also, Carole J Petersen, ‘Addressing Violations of Human Rights in Forensic Psychiatric Institutions: Philosophical and Strategic Debates, Remarks Before the American Society of International Law’ (2015) 109 American Society of International Law: Proceedings of the Annual Meeting 82 (expressing doubt that any legislature would adopt Minkowitz’s position, and concluding that it would be ‘more prudent to propose reforms to the current defenses, providing stronger safeguards and more regular review of detention orders for defendants who are either deemed unfit for trial or relied upon disability-based defenses’).

172  See generally, Michael L Perlin, ‘“Abandoned Love”: The Impact of Wyatt v Stickney on the Intersection between International Human Rights and Domestic Mental Disability Law’ (2011) 35 Law and Psychol Rev 121, 132–33.

173  Winterwerp v Netherlands (1979) 2 EHRR 387 para 39.

174  ibid.

175  Aerts v Belgium (1998) 29 EHRR 50.

176  Gostin and Gable (n 5) 87–88.

177  Varbanov v Bulgaria, (2000) ECHR 457, discussed extensively in Krassimir Kanev, ‘State, Human Rights, and Mental Health in Bulgaria’ (2002) 21 NYL Sch J Int’l and Comp L 435.

178  Rakevich v Russia (2003) ECHR 558.

179  E v Norway (1990) 17 EHRR 30, 57–58; see also Gostin and Gable (n 5) 73–74.

180  Megyeri v Germany (1992) 15 EHRR 584, 590–92; see also, Kris Gledhill, ‘Human Rights Instruments and Mental Health Law: The English Experience of the Incorporation of the European Convention on Human Rights’ (2007) 34 Syracuse J Int’l L and Com 359, 367.

181  X v United Kingdom (1981) 4 EHRR 188, 206–07.

182  Keenan v United Kingdom (2001) 33 EHRR 913.

183  Kudla v Poland [GC] (2000) 135 EHRR 198, para 94.

184  Stanev v Bulgaria, (2010) ECHR 1182.

185  ibid para 21.

186  ibid paras 12, 16.

187  ibid paras 87–90.

188  ibid paras 143–60.

189  ibid at paras 168–78.

190  For a discussion of the implications of international human rights instruments—including, but not limited to, the CRPD—for forensic patients and correctional inmates in general, see Astrid Birgden and Michael L Perlin, ‘“Where the Home in the Valley Meets the Damp Dirty Prison”: A Human Rights Perspective on Therapeutic Jurisprudence and the Role of Forensic Psychologists in Correctional Settings’ (2009) 14 Aggression & Violent Behav 256, 257–58; Astrid Birgden and Michael L Perlin, ‘“Tolling for the Luckless, the Abandoned and Forsaked”: Therapeutic Jurisprudence and International Human Rights Law as Applied to Prisoners and Detainees by Forensic Psychologists’ (2008) 13 Legal and Criminological Psychol 231, 234–38; Michael L Perlin and Henry A Dlugacz, ‘“It’s Doom Alone That Counts”: Can International Human Rights Law Be an Effective Source of Rights in Correctional Conditions Litigation?’ (2009) 27 Behav Sci and L 675, 691–94.

191  Art 14(2) CRPD.

192  On how questions of access to justice and equality serve as a foundation for TJ teaching, see Michael L Perlin and Alison J Lynch, ‘How Teaching about Therapeutic Jurisprudence Can Be a Tool of Social Justice, and Lead Law Students to Personally and Socially Rewarding Careers: Sexuality and Disability as a Case Example’ (2015) 16 Nevada LJ 209, 223; see generally, Michael L Perlin and John Douard, ‘“Equality, I Spoke That Word/As If a Wedding Vow”: Mental Disability Law and How We Treat Marginalized Persons’ (2009-09) 53 NYL Sch L Rev 9. On the relationship between TJ and international human rights law in general, see Michael L Perlin, ‘“The Ladder of the Law Has No Top and No Bottom”: How Therapeutic Jurisprudence Can Give Life to International Human Rights,’ (2014) 37 Int’l J L and Psychiatry 535. On the relationship between TJ and the CRPD, see Perlin, Striking (n 114) and Gallagher and Perlin (n 101). On the relationship between TJ and reasonable accommodation principles in general, see Rose A Daly-Rooney, ‘Designing Reasonable Accommodations Through Co-Worker Participation: Therapeutic Jurisprudence and the Confidentiality Provision of the Americans with Disabilities Act’ (1994) 8 JL and Health 89.