International Association Against Psychiatric Assault
Spechtweg 1, 4125 Riehen, Switzerland
Spechtweg 1, 4125 Riehen, Switzerland
The association is a Human Rights organization that opposes psychiatric coercion and aims to abolish psychiatric coercive measures altogether, promoting the fundamental rights of self-determination, liberty, and human dignity.
WHO drops coercive psychiatry
Hidden in joint guidelines issued by the WHO together with the UN High Commissioner for Human Rights, coercive psychiatry is being dropped. This is evident from the fact that all states are called upon to abolish the psychiatric penal system and its forecourt, the assessment of incapacity. Read this part of the guidelines on page 116* and on page 111**
www.who.int/publications/i/item/9789240080737
The psychiatric prison system, in particular the psychiatric assessment as an entry requirement, has to be abolished. This has far-reaching consequences, because if a special law can no longer be applied in criminal proceedings using a psychiatric examination, then of course it can certainly not be applied in proceedings under police law, civil law or care law. From now on the abolition of forensic psychiatry takes a completely different dynamic. Now the legislator is called upon to abolish these sections of the law instantly for health reasons.
Of course the terms used by the WHO and UN "mental illnesses and psychosocial disabilities" are certainly not ours, but that will no longer matter if the special psychiatric laws are all abolished and the following applies instead:
Insane? Your own decision!
Remember: Compulsory psychiatry must be abolished not only for human rights reasons, but now also for medical reasons, not because psychiatric drugs or electric shocks etc. are harmful, but because it uses coercion and violence! This indicates that we are now taking the second step on our path to liberation: https://www.iaapa.de/liberation.htm
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* Page 116 (in the pdf not page 116 of the pdf)
Criminal responsibility
To date, the impact of the CRPD on criminal responsibility remains significantly underexamined within both disability and legal discourses. This is an area of frequent interaction between persons with mental health conditions and psychosocial disabilities, the criminal justice system, and mental health systems.
In most countries, legislation takes into account the mental state of the accused at the time of the offence when determining criminal responsibility. If the court finds that the accused did not appreciate the nature and consequences of their actions due to a mental health condition or impairment, they may be declared not guilty. However, legislation may still order a “security measure” involving admission to a forensic facility or mandatory community treatment, often based on considerations of “dangerousness” (309). This seemingly contradicts the principle of no punishment without guilt, and, in reality, those subject to security measures may spend longer periods of deprivation of liberty than those found guilty of the same crimes.
For these reasons, several stakeholders have called for a review of legislation on criminal responsibility and security measures to ensure that persons with mental health conditions and psychosocial disabilities enjoy the same substantive and procedural guarantees as every other person (321, 322). This includes repealing declarations of “insanity” and “non-responsibility on grounds of disability” and their corresponding security measures (323–326). Some human rights experts have proposed replacing them with the use of general criminal defences and prerequisites of criminal responsibility, such as “mistake of fact” or “duress” (321, 322, 327). Restorative justice schemes and non-custodial measures have also been suggested as an alternative (321).
Although people are increasingly speaking out for this to be addressed, there is no consensus on how to legislate systems of attribution of criminal responsibility adequately, so that they are responsive to the rights of persons with mental health conditions and psychosocial disabilities (328). This is an area that requires careful attention and discussion, as well as significant input from people with lived experience. Meanwhile, it is crucial to ensure that persons with mental health conditions and psychosocial disabilities enjoy all substantive and procedural safeguards recognized in international law, on an equal basis with others.
Prisoners with mental health conditions and psychosocial disabilities
Legislation can play a critical role in recognizing the obligation to provide prisoners who have mental health conditions and psychosocial disabilities with appropriate accommodations and support, including access to mental health and psychosocial support. Prisoners, including people in immigration detention facilities, should enjoy the same standards of health care that are available to others in the community, and should have access to services free of charge and without discrimination (329). This includes having the right to provide their free and informed consent prior to any medical intervention, make advance directives, and to access supported decision-making mechanisms. Visiting prisons and other detention centres should be standard practice for community teams to ensure equitable access to person-centred care and therapeutic continuity.
Legislation may also contain provisions guaranteeing prompt access to medical attention in urgent cases (330). Prisoners with mental health conditions and psychosocial disabilities who require specialized treatment or surgery should be transferred to other health facilities if they cannot be treated adequately, and on an equal basis as others, within the prison. Such measures should be based on prisoners’ free and informed consent.
Any prisoner transferred from prison to a hospital and then back to prison should have the time spent in hospital included as part of their sentence. Furthermore, such prisoners should only be detained in the hospital for the duration of their sentence. An independent monitoring body should regularly monitor the situation of persons with mental health conditions and psychosocial disabilities in prisons and other detention centres in accordance with Article 16(3) of the CRPD and the Optional Protocol to the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment. Persons with mental health conditions and psychosocial disabilities should be part of such monitoring mechanisms.
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**Page 111 (in the pdf not page 111 of the pdf)
Access to justice
Far too many people with mental health conditions and psychosocial disabilities are denied equal access to justice. Many are prosecuted and imprisoned, often for relatively minor offences; others are denied the opportunity to seek justice in court for violations of their human rights. In general, they are regularly afforded less substantive and procedural due process protection, which often results in denial of justice, incarceration, and forced treatment (309).
Transforming the justice system so that people with mental health conditions and psychosocial disabilities can exercise their rights on an equal basis with others is an objective beyond the scope of this Guidance. However, mental health and justice systems indisputably intertwine, particularly in the context of criminal law. In most countries, persons with mental health conditions and psychosocial disabilities are overrepresented in the criminal justice system and prisoners with mental health conditions and psychosocial disabilities are often victimized by other prisoners and prison staff (310, 311). People of African descent, Indigenous Peoples and racial, religious, and ethnic minorities with mental health conditions and psychosocial disabilities, in particular, face significant disparities in the criminal justice system (312). Moreover, those deemed “unfit to stand trial”, or of comprehending their criminal actions are usually placed in mental health facilities, without due process and under strict regimes, sometimes indefinitely. Legislation on mental health often lays down procedures for dealing with such situations, including within forensic mental health systems.
This section aims to reflect on these challenges and intersections, and proposes legislative provisions to ensure that persons with mental health conditions and psychosocial disabilities are guaranteed the right to a fair trial on an equal basis with others, and the right to receive appropriate accommodations and support in the justice system, including access to legal aid and quality mental health services. Nonetheless, further research and development are needed in this area to better obtain evidence-based recommendations.
Recognizing and supporting legal capacity to access justice
Effective access to justice requires courts to recognize the full capacity and right of individuals to participate in all legal proceedings. In most jurisdictions, terms such as “cognitive incapacity” and “mental incapacity” are used to restrict a person’s right to initiate proceedings or stand trial. This “incapacity” is often determined or informed by mental health professionals through functional or mental status assessments.
In the context of a criminal proceeding, the evaluation of “mental fitness” to stand trial often occurs before the start of trial, but can take place at any point during the trial. If a person is found unfit to stand trial, the law empowers the court to transfer the person to a mental health facility for treatment. Criminal proceedings may not commence until the person regains fitness, which may be an indeterminate period.
The notion of “fitness to stand trial” is intended to ensure fair trial, so that no one faces trial without understanding the nature, object, and consequences of the legal proceedings, or the ability to adequately defend themselves. However, this can lead to persons with mental health conditions and psychosocial disabilities being denied the right to access justice on an equal basis with others and to prove their innocence. Furthermore, it subjects them to an alternative track with fewer substantive and procedural guarantees, where they can be subjected to measures entailing deprivation of liberty and involuntary treatment, often indefinitely or for significantly longer periods of time than if they had been convicted of a crime in accordance with due process guarantees.
In this regard, it is important for the justice system and criminal law to recognize and assume the full legal capacity and right of persons with mental health conditions and psychosocial disabilities to participate in the proceedings of all courts and tribunals. This would involve repealing provisions that establish and apply doctrines of “unfitness to stand trial” and “incapacity to plead”, which prevent persons with mental health conditions and psychosocial disabilities from participating in legal processes.
To ensure their effective participation in all legal proceedings, legislation can establish an enforceable right to receive individually determined procedural accommodations. These are the necessary and appropriate modifications and adjustments in the context of access to justice, where needed in a particular case, to ensure the participation of persons with mental health conditions and psychosocial disabilities on an equal basis with others (313). Unlike “reasonable accommodations”, “procedural accommodations” are not limited by the concept of “disproportionate or undue burden” (313).
In this way, people can rely on the necessary adjustments and support to:
i) understand the nature and object of the legal proceedings;
ii) understand the possible consequences of the proceedings; and
iii) communicate effectively with legal counsel. For example, intermediaries or facilitators can enhance clear communication among and between persons with mental health conditions and psychosocial disabilities and the courts, tribunals and law enforcement agencies to ensure safe, fair and effective engagement and the opportunity to fully participate in legal processes (314).
The International Principles and Guidelines on Access to Justice for Persons with Disabilities (August 2020), gives examples on how to provide procedural accommodations within the criminal justice system (9).
To guarantee the right to a fair trial, legislation can also ensure free or affordable legal assistance to persons with mental health conditions and psychosocial disabilities in all legal procedures related to their fundamental rights (315). Legal assistance should be competent and available in a timely manner.
Hidden in joint guidelines issued by the WHO together with the UN High Commissioner for Human Rights, coercive psychiatry is being dropped. This is evident from the fact that all states are called upon to abolish the psychiatric penal system and its forecourt, the assessment of incapacity. Read this part of the guidelines on page 116* and on page 111**
www.who.int/publications/i/item/9789240080737
The psychiatric prison system, in particular the psychiatric assessment as an entry requirement, has to be abolished. This has far-reaching consequences, because if a special law can no longer be applied in criminal proceedings using a psychiatric examination, then of course it can certainly not be applied in proceedings under police law, civil law or care law. From now on the abolition of forensic psychiatry takes a completely different dynamic. Now the legislator is called upon to abolish these sections of the law instantly for health reasons.
Of course the terms used by the WHO and UN "mental illnesses and psychosocial disabilities" are certainly not ours, but that will no longer matter if the special psychiatric laws are all abolished and the following applies instead:
Insane? Your own decision!
Remember: Compulsory psychiatry must be abolished not only for human rights reasons, but now also for medical reasons, not because psychiatric drugs or electric shocks etc. are harmful, but because it uses coercion and violence! This indicates that we are now taking the second step on our path to liberation: https://www.iaapa.de/liberation.htm
------------------------------------------------------------------------------
* Page 116 (in the pdf not page 116 of the pdf)
Criminal responsibility
To date, the impact of the CRPD on criminal responsibility remains significantly underexamined within both disability and legal discourses. This is an area of frequent interaction between persons with mental health conditions and psychosocial disabilities, the criminal justice system, and mental health systems.
In most countries, legislation takes into account the mental state of the accused at the time of the offence when determining criminal responsibility. If the court finds that the accused did not appreciate the nature and consequences of their actions due to a mental health condition or impairment, they may be declared not guilty. However, legislation may still order a “security measure” involving admission to a forensic facility or mandatory community treatment, often based on considerations of “dangerousness” (309). This seemingly contradicts the principle of no punishment without guilt, and, in reality, those subject to security measures may spend longer periods of deprivation of liberty than those found guilty of the same crimes.
For these reasons, several stakeholders have called for a review of legislation on criminal responsibility and security measures to ensure that persons with mental health conditions and psychosocial disabilities enjoy the same substantive and procedural guarantees as every other person (321, 322). This includes repealing declarations of “insanity” and “non-responsibility on grounds of disability” and their corresponding security measures (323–326). Some human rights experts have proposed replacing them with the use of general criminal defences and prerequisites of criminal responsibility, such as “mistake of fact” or “duress” (321, 322, 327). Restorative justice schemes and non-custodial measures have also been suggested as an alternative (321).
Although people are increasingly speaking out for this to be addressed, there is no consensus on how to legislate systems of attribution of criminal responsibility adequately, so that they are responsive to the rights of persons with mental health conditions and psychosocial disabilities (328). This is an area that requires careful attention and discussion, as well as significant input from people with lived experience. Meanwhile, it is crucial to ensure that persons with mental health conditions and psychosocial disabilities enjoy all substantive and procedural safeguards recognized in international law, on an equal basis with others.
Prisoners with mental health conditions and psychosocial disabilities
Legislation can play a critical role in recognizing the obligation to provide prisoners who have mental health conditions and psychosocial disabilities with appropriate accommodations and support, including access to mental health and psychosocial support. Prisoners, including people in immigration detention facilities, should enjoy the same standards of health care that are available to others in the community, and should have access to services free of charge and without discrimination (329). This includes having the right to provide their free and informed consent prior to any medical intervention, make advance directives, and to access supported decision-making mechanisms. Visiting prisons and other detention centres should be standard practice for community teams to ensure equitable access to person-centred care and therapeutic continuity.
Legislation may also contain provisions guaranteeing prompt access to medical attention in urgent cases (330). Prisoners with mental health conditions and psychosocial disabilities who require specialized treatment or surgery should be transferred to other health facilities if they cannot be treated adequately, and on an equal basis as others, within the prison. Such measures should be based on prisoners’ free and informed consent.
Any prisoner transferred from prison to a hospital and then back to prison should have the time spent in hospital included as part of their sentence. Furthermore, such prisoners should only be detained in the hospital for the duration of their sentence. An independent monitoring body should regularly monitor the situation of persons with mental health conditions and psychosocial disabilities in prisons and other detention centres in accordance with Article 16(3) of the CRPD and the Optional Protocol to the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment. Persons with mental health conditions and psychosocial disabilities should be part of such monitoring mechanisms.
------------------------
**Page 111 (in the pdf not page 111 of the pdf)
Access to justice
Far too many people with mental health conditions and psychosocial disabilities are denied equal access to justice. Many are prosecuted and imprisoned, often for relatively minor offences; others are denied the opportunity to seek justice in court for violations of their human rights. In general, they are regularly afforded less substantive and procedural due process protection, which often results in denial of justice, incarceration, and forced treatment (309).
Transforming the justice system so that people with mental health conditions and psychosocial disabilities can exercise their rights on an equal basis with others is an objective beyond the scope of this Guidance. However, mental health and justice systems indisputably intertwine, particularly in the context of criminal law. In most countries, persons with mental health conditions and psychosocial disabilities are overrepresented in the criminal justice system and prisoners with mental health conditions and psychosocial disabilities are often victimized by other prisoners and prison staff (310, 311). People of African descent, Indigenous Peoples and racial, religious, and ethnic minorities with mental health conditions and psychosocial disabilities, in particular, face significant disparities in the criminal justice system (312). Moreover, those deemed “unfit to stand trial”, or of comprehending their criminal actions are usually placed in mental health facilities, without due process and under strict regimes, sometimes indefinitely. Legislation on mental health often lays down procedures for dealing with such situations, including within forensic mental health systems.
This section aims to reflect on these challenges and intersections, and proposes legislative provisions to ensure that persons with mental health conditions and psychosocial disabilities are guaranteed the right to a fair trial on an equal basis with others, and the right to receive appropriate accommodations and support in the justice system, including access to legal aid and quality mental health services. Nonetheless, further research and development are needed in this area to better obtain evidence-based recommendations.
Recognizing and supporting legal capacity to access justice
Effective access to justice requires courts to recognize the full capacity and right of individuals to participate in all legal proceedings. In most jurisdictions, terms such as “cognitive incapacity” and “mental incapacity” are used to restrict a person’s right to initiate proceedings or stand trial. This “incapacity” is often determined or informed by mental health professionals through functional or mental status assessments.
In the context of a criminal proceeding, the evaluation of “mental fitness” to stand trial often occurs before the start of trial, but can take place at any point during the trial. If a person is found unfit to stand trial, the law empowers the court to transfer the person to a mental health facility for treatment. Criminal proceedings may not commence until the person regains fitness, which may be an indeterminate period.
The notion of “fitness to stand trial” is intended to ensure fair trial, so that no one faces trial without understanding the nature, object, and consequences of the legal proceedings, or the ability to adequately defend themselves. However, this can lead to persons with mental health conditions and psychosocial disabilities being denied the right to access justice on an equal basis with others and to prove their innocence. Furthermore, it subjects them to an alternative track with fewer substantive and procedural guarantees, where they can be subjected to measures entailing deprivation of liberty and involuntary treatment, often indefinitely or for significantly longer periods of time than if they had been convicted of a crime in accordance with due process guarantees.
In this regard, it is important for the justice system and criminal law to recognize and assume the full legal capacity and right of persons with mental health conditions and psychosocial disabilities to participate in the proceedings of all courts and tribunals. This would involve repealing provisions that establish and apply doctrines of “unfitness to stand trial” and “incapacity to plead”, which prevent persons with mental health conditions and psychosocial disabilities from participating in legal processes.
To ensure their effective participation in all legal proceedings, legislation can establish an enforceable right to receive individually determined procedural accommodations. These are the necessary and appropriate modifications and adjustments in the context of access to justice, where needed in a particular case, to ensure the participation of persons with mental health conditions and psychosocial disabilities on an equal basis with others (313). Unlike “reasonable accommodations”, “procedural accommodations” are not limited by the concept of “disproportionate or undue burden” (313).
In this way, people can rely on the necessary adjustments and support to:
i) understand the nature and object of the legal proceedings;
ii) understand the possible consequences of the proceedings; and
iii) communicate effectively with legal counsel. For example, intermediaries or facilitators can enhance clear communication among and between persons with mental health conditions and psychosocial disabilities and the courts, tribunals and law enforcement agencies to ensure safe, fair and effective engagement and the opportunity to fully participate in legal processes (314).
The International Principles and Guidelines on Access to Justice for Persons with Disabilities (August 2020), gives examples on how to provide procedural accommodations within the criminal justice system (9).
To guarantee the right to a fair trial, legislation can also ensure free or affordable legal assistance to persons with mental health conditions and psychosocial disabilities in all legal procedures related to their fundamental rights (315). Legal assistance should be competent and available in a timely manner.
