• the Insaity defense “must be abolished” (see Article 47 below)
• and that the “Convention radically departs ” from the UN resolution …on treatment of “mental patients” (see Article 48 below)
• that all mental health laws using the pretex “as the likelihood of them posing a danger to themselves or others” “must be abolished” (see Article 49 below)

“47. 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.41 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.5. Right to liberty and security of the person

48. A particular challenge in the context of promoting and protecting the right to liberty and security of persons with disabilities is the legislation and practice related to health care and more specifically to institutionalization without the free and informed consent of the person concerned (also often referred to as involuntary or compulsory institutionalization). Prior to the entrance into force of the Convention, the existence of a mental disability represented a lawful ground for deprivation of liberty and detention under international human rights law.42 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”. Proposals made during the drafting of the Convention to limit the prohibition of detention to cases “solely” determined by disability were rejected.43 As a result, unlawful detention encompasses situations where the deprivation of liberty is grounded in the combination between a mental or intellectual disability and other elements such as dangerousness, or care and treatment. Since 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, and the right to liberty on an equal basis with others prescribed by article 14.

49. Legislation authorizing the institutionalization of persons with disabilities on the grounds of their disability without their free and informed consent must be abolished. This must include the repeal of provisions authorizing institutionalization of persons with disabilities for their care and treatment without their free and informed consent, as well as provisions authorizing the preventive detention of persons with disabilities on grounds such as the likelihood of them posing a danger to themselves or others, in all cases in which such grounds of care, treatment and public security are linked in legislation to an apparent or diagnosed mental illness.…

41 Often referred to as “insanity defence”.
42 See for reference the Principles for the Protection of Persons with Mental Illness and the Improvement of Mental Health Care, A/RES/46/119, available at: http://www.un.org/documents/ ga/res/46/a46r119.htm.
43 In the course 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, proposals were made to add the word “solely” to then draft article 10, paragraph 1 (b), so it would read “any deprivation of liberty shall be in conformity with the law and in no case shall be based solely on disability.

Bron: IAAPA