AFFIDAVIT OF ATTORNEY TINA E. MINKOWITZ
STATE OF NE,W YORK
COUNTY OF WARREN
)
) SS:
)
I, Tina E. Minkowirz, of lawful age, being first duly sworn Llpon my oath, allege
and state as follows:
t. I am an attorney licensed to practice in the state of New York since 2007. My
professional work has focused on the Convention on the Rights of Persons with
Disabilities (CRPD), a core human rights treaty of the United Nations, which was
adopted by the General Assembly on December 13,2006 and entered into force
on May 3, 2008.
My knowledge of the CRPD derives from an involvement in its drafting and in
subsequent work on its implementation and monitoring at the internationalevel,
both before and after my admission to the bar. In particular, i participated in a 40-
member working group that developed a draft text for negotiation, and
represented the World Network of Users and Survivors of psychiatry (wNUSp)
and the International Disability Caucus throughout the drafting and negotiation
process. I have eontributed as an invited expert to trN bodies including the
Conference of States Parties to the CRPD, the committee on the Rights of
Persons with Disabilities, the office of the High commissioner for Human
Rights, the Special Rapporteur on Torture, and the open-Ended working Group
on Ageing. Continuing to represent WNUSP (the lnternational Disability Caucus
became inactive upon the conclusion of the negotiations), I have made numerous
written submissions and spoken interventions to UN mechanisms on the rights of
persons with disabilities. I have presented lectures and workshops on the CRPD
throughout the world, and provide information and resources through a non-profit
organization that I founded in2009, the Center for the Human Rishts of Users
and Survivors of Psychiatry.
This affidavit aims to set out international law regarding the prohibition of
nonconsensual psychiatric interventions. Such a prohibition is derived from an
application of the principle of non-discrimination based on disability to
universally recognized human rights to equal recognition before the law, to liberty
and security of the person, freedom from torture and ill-treatment and free and
informed consent in health care, which has as its corollary the right to refuse
treatment. This analysis has itself come into international law in the provisions of
the Convention on the Rights of Persons with Disabilities, and in the application
of this Convention by the Committee on the Rights of Persons with niiabilities, a
group of independent experts authorized to make recommendations for its
implementation.
z.
a
J.
4. The Convention on the Rights of Persons with Disabilities (CRPD) sets out stare
obligations necessary to ensure the rights of persons with disabilities on an equal
basis with others. As such, it provides authoritative guidance supplementing
other core human rights treaties. The CRPD has been applied as an integral
component of international human rights standards by tN mechanisms such as
the Special Rapporteur on Torture,l and by regional human rights mechanisms in
Europe and in the Americas. The European Court of Human Rights, referring to
the CRPD, found that a worldwide consensus existed to protect persons with
disabilities against discriminatory treatment, despite the fact that the country
involved had not signed or ratified the Convention.2 An OAS body charged with
monitoring the implementation of the Inter-American Convention on the
Elimination of All Forms of Discrimination against Persons with Disabilities
found that a provision stating that a declaration of legal incompetence did not
constitute discrimination was rendered obsolete by the CRPD, which follows an
alternative paradigm of supported decision-making. The oAS committee
adopted an interpretive criterion design to annul the offending provision i1
practrce.-
5. The GRPD enjoys widespread support, having been signed by l5g countries,
including the United States, of which 145 have gone to ratification. The CRpD,
as an instrument adopted by the General Assembly, is entitled to at least the same
weight given to non-binding declarations of that body, with respecto countries
that have not signed or ratified the convention. In particular, the cRpD
supersedes earlier non-binding declarations such as the Declaration of Principles
for the Protection of Persons with Mental Illness and for the Improvement of
Mental Health Care of 1991 (A/RE31461119), which had acceptid the legitimacy
of involunta.ry treatment and involuntary confinement.a
6. A prohibition of nonconsensual psychiatric interventions arises under several
provisions of the CRPD. Article l2 (equal recognition befbre the law) provides
that all persons have legal capacity on an equal basis with others, and measures
related to the exercise of legal capacity must respecthe rights, will and
preferences of the person. States are obligated to respecthe equal legal capacity
of persons with disabilities, to provide access to support thut triy be ieeded to
exercise such capacity, and to establish saf-eguards to prevent abuse. The
Committee on the Rights of Persons with Disabilities consistently interprets
article 12 to require the replacement of substitutedecision-making regimes by
supported decision-making, which respects the autonomy, will und pr.f...nces of
' Report of the Special Rapporteur on Torture, 1 February 2013, AlHRCl22/53 flfl 27-35,
17-67' 89; Interim Report of the Special Rapporteur on Torture, 28 July 200g, A163l175.
'Glor v Switzerland, buropean Ciof Hu.un Rightr, Application No. 13444104,30 April 2049. 3 Committee on the Elimination of All Forms of Discrimination Against persons with Disabilities, General Observation No. l, CEDDIS/doc.l2(l-E/11) a [v.], 2g April 2011. xtuxcz2tfi n 58; At63n75It44.
the person.s Legal-capacity includes the right to give or withdraw consent to
medical treatment,o and mental health laws that permit forced treatment are
considered a form of substitutedecision-making and must be repealed.t The
Committee on the Rights of Persons with Disabilities has recently elaborated a
General Comment on Article l2 to clarify its normative content and requirements
for implementation, which will be explained in greater detail below.
7. Article l4 guarantees the right to liberty and security of the person, and provides
that the existence of a disability shall in no case justify a deprivation of iiberty.
The Committee on the Rights of Persons with Disabilities considers that
institutionalization against a person's will constitutes arbitrary detention and
violates both arlicle 12 and article 14.6 The Committee derives from Article l4 an
obligation "to ensure that no one is detained in any kind of mental health facility,,
and to repeal legal provisions authorizingdetention and compulsory treatment in
mental health services.e Legal provisions authorizing detention based on a
characterization of the person as dangerous to oneself or others or as beins i1
need of care and treatment are viewed as incompatible with article 14.10
s committee on the Rights of Persons with Disabilities (CRPD) concluding observations
on Azerbaijan, I I Aprll20t4, cRpDic/ AZElcoil T 27; cRpD concludini
observations on costa Rica, 11 April 2014, cRPD/c/cRI/co/l fl 22; cRrb concluding Observations on Sweden, 11 April2014, CRPD/C/SWE/CO/1 fl i+; Cn1ln Concluding
observations on Australia,4 october 2013, cRPD/c/AUS/co/l fl 25; cRpD concluding observations on Aqsrria, l3 september 2013, cRpD/c/ArJTlcoll fl 2g; cRpD
Concluding Observations on El Salvador, 13 September 2013, CRptiC/SLV/CO/l fl 2g; CRPD Concluding Observations on Paraguay, 15 May 2013,CRPD/C/PRy/CO/l ,|]i 30; CRPD concluding observations on Argentina, 27 Septemb er 2012,
CRPD/C/ARG/CO/l 1T20; CRPD Concluding Observations on China, 27 September
2012, cRPDiC/CHN/co/l fl 22; cRpD concluding observations on Hungary,2T
September 2012, CRPD/C/HLJN/CO/l fl 26; CRPD Concluding Observatiinr on peru, 9
May 2012, CRPD/C/PER/CO/l fl 25; CRPD Concluding Observations on Spain,z0ll, CRPD/C/ESP/COi 1 fl 34; CRPD Concluding Observations on Tuni sia,29 April 201l, CRPD/C/TLN/CO/I 1123. u cntprc/cRi/co/l lTzz, cnpo/c/swE/co n Jl34;cRpD/c/AUS/co/l fl 25; cRPDic/AUTlcotl fl 28; cRpD/c/pRy/co/l fl 30; cRpD/c/HUN/co/t t 1126. CRPD General Comment No. 1, CRPD/C/GC/I (advanced unedited version), t I April 2014 (GCl) 1T7, 38.
'GCI tT36.
n cRporcl AZErcon fl 2e; cRpDic/swn/co/l lifl 35-36; cRpD/c/AUS/co/l llll 33- 34; CRPD/C/AUT/COII flT:29-31, CRPD/C/SLV/CO/1 fl 32; CRPD/C/HUN/COi 1 fl 28; cRPD/c/cHN/co/l fl 26; cRPD/C/pEvco fi l,29; cRpD/c/ESp/co/t fl 36; CRPD/C/TLN/CO/1 tT25.
'o cRPD/c/swE/co/ I lJfl 3 5 -3 6; cRpD/c/A ur r co r | fln 29 -3r ; cRpD/cislv/co/r,,,T 2,)
Several provisions of the CRPD address the right to physical and mental integrity
and the actions that must be taken to ensure these rights to persons with
disabilities on an equal basis with others. These include Article l5 on freedom
from torture and ill'treatment, Article l6 on freedom from exploitation, violence
and abuse, and Article 17 on integrity of the person. Article 25 addresses the
right to health and requires that health care services be provided to persons with
disabilities on the basis of free and informed consent. The Committee on the
Rights of Persons with Disabilities has found an obligation to abolish involuntary
institutionalization, compulsory psychiatric treatment and other coercive practices
in mental health services under article l5,rr article 17,t2 and article 25.r3 This is
echoed by the lN Special Rapporteur on Torture, who calls for an absolute ban
on the use of nonconsensual interventions against persons with disabilities,
including psychosurgery, electroshock and mind-altering drugs such as
neuroleptics and notes that such practices always amount to ill-treatment and
arguably meet the criteria for torture.'o The Special Rapporleur had stated in an
earlier report that such interventions, because they are medical treatments of an
intrusive and irreversible nature aimed at correcting or alleviating a disability,
may amount to torlure when enforced or administered without the free and
informed consent of the person concerned. ls
As mentioned above, the Committee on the Rights of Persons with Disabilities
has recently issued General Comment No. I on Article 12, Equal recogrrition
before the law. A General Comment is considered to have significant normative
value within the human rights system, as a clarification of the legal obligations of
states parties to atreaty"by the body that is authorized to play oversee compliance
with those obligations.'o It also has practical value, given the generalanguage of
human rights treaJy provisions, to set out detailed content to guide states parties in
implementation." General comment No. lwas elaborated following broad
consultation with experts, state parties, disabled people's organizations, nongovernmenral organrzations, other treaty monitoring committees and LN
agencies. It sets out the normative content of the right to equal protection before
the law, details the obligations of states parties related to law reform and
establishment of a system of supporl for the exercise of legal capacity, and the
relationship between article l2 and other provisions of the CRpD.
" ccl fl 7, 38; cRpD/c/cRl/co/t !1fl 33-3a; cRpD/c/swE/co/l nn37-40;
CRPD/C/AUS/CO/l flfl 35-36, CRPD/CIAUT/COi 1 ,|l1fl 32-33; CRPD/C/SLV/CO/t !1fl
?]-3+; CRPD/CiCHN/CO/l ll 27 -2s CRPD/C/PEzuCO/t,,llfl 30-3 I .
' " CRPD/C/TLrN/COi 1 fll 28-29.
'3 cRpDic/ARG/co/t u 4l-42; cRpD/c/cHN/co/1 ,fl38.
'o ArHrtcl22l:; n 81, 89.
'.'. A163n75 n1l40.47.
'o James Crawford, Brownlie's Principles of Public International Law, 8th ed. (2012) 640;
Kerstin Mechlem, Treaty Bodies and the Interpretation of Human Rights, 42 Vanderbilt
J. of Transnational Law 905. 929-930. 17 Mechlem. id.
8.
9.
10. In General Comment No. 1, the Committee on the Rights of Persons with
Disabilities establishes clearly and conclusively that legal capacity is a universal
right that cannot be denied based on a person's disability.'o Under the CRPD the
right to legal capacity - both the legal standing to hold rights and duties and the
legal agency to exercise those rights and duties - is distinct from a person's actual
or perceived decision-making skill, which is sometimes referred to,
controversially, as mental capacity or competence.'n Instead of restricting a
person's right to make decisions based on an assessment of mental capacity, the
CRPD requires that supporl be provided for decision-making in accordance with
the person's own will and preferences.t0 When the person's will and preferences
cannot be known with certainty, the standard to be followed is "best interpretation
of will and preferences" rather than "best interests."2r
^
I l. Following from the premise that the right to decide about medical treatment is a
component of legal capacity, states must ensure that health care personnel,
including psychiatric professionals, respecthe decisions made by persons with
disabilities, and do not allow substitute decision-makers to provide consent on
their behalf.22 Forced treatment, which is an infringement of tn. right to be free
from torture, is acknowledged to be a particular problem in the context of mental
health services:
Forced treatment is a particular problem for persons with psychosocial,
intellectual and other cognitive disabilities. State parties must abolish
policies and legislative provisions that allow or perpetrate forced
treatment, as it is an ongoing violation found in mental health laws across
the globe, despite empirical evidence indicating its lack of effectiveness
and the views of people using mental health systems who have
experiencedeep pain and trauma as a result of forced treatment.
12. Instead of permitting forced treatment,
State Parties must... respecthe legal capacity of persons with disabilities
to make decisions at all times, including in crisis situations, ensure that
accurate and accessible information is provided about service options and
that non-nredical approaches are made available, and provide access to
independent support. . .. The Committee recommends that State parties
ensure that decisions relating to a person's physical or mental integrity can
't ccl lTu 8, 9.
]l ccl 1T1 r I . t2. t2bis. li.
.: GC I cll I 3. 14.2s(b).
.: GCI !l l8bis.
" GCI1136,37,39.
only be taken with the free and informed consent of the person
concerned."
13. Support can take many forms but must respecthe person's rights, will and
preferences and should never amount to substitute decision-making.2a The
Committee sets out some examples of support:
ersons with disabilities may choose one or more trusted support persons
to assist them in exercising their legal capacity for certain types of
decisions, or may call on other forms of support, such as peer support,
advocacy (including self-advocacy support). or assistance with
communlcation.. Supporto persons with disabilities in the exercise of
their legal capacity might include measures relating to universal design
and accessibility... in order to enable persons with disabilities to perform
the legal acts required to open a bank account, conclude contracts or
conduct other social transactions, Support can also constitute the
development and recognition of diverse, non-conventional methods of
communication, especially for those who use non-verbal forms of
communication to express their will and preferences. For many persons
with disabilities, the ability to plan in advance is an important form of
support, whereby they can state their will and preferences which should be
followed at a time when they may not be in a position to communicate
their wishes to others.... The point at which an advance directive enters
into force (and ceases to have effect) should be decided by the person in
the text of the directive and should not be based on an assessment that the
person lacks mental capacity.
14. The right to supporl itself is subject to the will and preferences of the person and
cannot be required as a condition for the person's exercise of legal capacity.2s
The person has the right^to refuse sllpport and to ternlinate or change the suppo(
relationship at any time."' The approach taken in relation to advance directives is
a compromise that may allow people who wish to bind themselves to some future
course of action to do so; however, it remains to be seen whether such a doctrine
can truly be reconciled with the right to legal capacity and other fundamental
rights such as the right to personal integrity.
15. Article l9 on living independently in the community, which recluirestates to
provide access to supports such as personal assistance, and also cor-rtemplates the
recognition of naturally-occurring support networks in the community,2T eanbe
" GCI fl 38. See also fl 16 for the premise that the person retains capacity in crisis
situations.
1i cc I .l 15.
" GCl fl 16, 17,39.
'o GC1 1T25(g).
'' GCI n 41.
invoked as an alternative to the framework of health care in order to move further
away from the medical model of mental health. For example, community support
networks, including peer support, could help a person to meet basic needs while
experiencing severe crisis or distress, and could also support the person to make
ongoing decisions as long as may be desired.
16. To summarize, under the standards found in the Convention on the Rights of
Persons with Disabilities, interpreting and applying universal human rights
without discrimination based on disability, there exists an absolute right to refuse
any unwanted psychiatric treatment or hospitalization, subject only to the person's
own exercise of decision-making. Involuntary commitment and compulsory
treatment violate the right to equal protection before the law and the right to
liberty and security of the person, and may amount to ill-treatment or tortue.
{Jnder the CRPD, and arguably under the jus cogens norm prohibiting torture and
ill-treatment, there is an obligation to repeal legal provisions authorizing
involuntary commitment and compulsory mental health treatment. Instead of
permitting forced treatment, states must ensure that the decision-making of
persons with disabilities is respected at all times, including in crisis situations, and
must make support available for decision-making both with respecto mental
health service options and in any area of life, according to the person's own
wishes.
Tina E. Minkowitz.
New York Attorney Reg. No. 4030169
44 Palmer Pond Rd.
Chestertown. NY 12817
SUBSCRIBED AND swoRN to befbre me this fudrauy of Janr,rary. 2015. /'- .T\
/ .\J , -7.)n /
/ *fr'*za/ tl {rwf,-
'{l,thq IP}AL{m q tuLu'L/d-