1 second chamber of the national supreme court of justice re: supporting opinion, amicus curiae, in a trial for involuntary hospitalization of persons with disabilities in psychiatric hospitals in mexico, queja 7/2023 _______________________________________ validity foundation – mental disability advocacy centre 14 november 2023 2 honourable court, i. introduction 1. validity foundation hereby submits an amicus curiae to the complaint no. 7/2023 concerning the claims of persons with intellectual and/or psychosocial disabilities who had been admitted and treated involuntarily in the psychiatric hospital adolfo m. nieto tepexpan. the submitting international ngo would like to provide the court with more information on the relevant international obligations stemming from the united nations convention on the rights of persons with disabilities (“crpd” or “the convention”) and other relevant documents of international law in the following areas: (i) the absolute prohibition of detention on the basis of impairment, (ii) the importance and requirements of access to justice, with special regard to the right to procedural accommodations, and (iii) the relevance of the implementation of deinstitutionalisation processes for the areas above. 2. the submitting organisation would also like to highlight that mexico ratified the crpd and the optional protocol on 17 december 2007 and recently reaffirmed its commitment to it in the 15th session of the conference of states parties to the convention on the rights of persons with disabilities (cosp15-crpd), held at un headquarters in new york on 17 june 2022. 3. validity foundation – mental disability advocacy centre (“validity”) is an international non-governmental human rights organisation which uses legal strategies to promote, protect and defend the human rights of adults and children with intellectual and psychosocial disabilities. validity’s vision is a world of equality where emotional, mental and learning differences are valued equally; where the inherent autonomy and dignity of each person are fully respected; and where human rights are realised for all persons without discrimination of any form. validity holds participatory status at the council of europe, and special consultative status at ecosoc. 4. the protection of the human rights of persons with disabilities – with particular regard to people with intellectual and psychosocial disabilities – has been a priority issue for validity for more than two decades. when it comes to persons with psychosocial disabilities, validity has consistently pointed to institutionalisation and coercion in mental health services as a persistent source of human rights violations and urged member states through its advocacy and litigation activities to eliminate these practices in favour of community-based services based on consent and ensure the right of people with disabilities to live independently in the community, as set out in article 19 of the crpd. in line with this mission, validity has represented many cases highlighting similar issues as the present one at national and international courts, 3 including the european court of human rights.1 validity has also intervened before national and international courts to offer its expertise for the benefit of a proper examination of the case.2 5. the submitting organisation considers that the present case raises issues of a general nature regarding the impact on the enjoyment of human rights of the use of coercion in psychiatry, as well as of reliance on an institution-based mental health system characterised by services concentrated in psychiatric hospitals. in addition, there is clearly a strong international legal dimension to this case, an area in which validity is an expert. we believe that the organisation’s extensive experience and expertise in the field of disability rights would provide valuable assistance to the court in the present case. 6. therefore, the submitting organisation respectfully requests the suprema corte de justicia de la nacion to accept this submission and take into account our observations before reaching its decision in the case. ii. involuntary placement of people with disabilities in institutions, including psychiatric institutions under the crpd 7. firstly, the submitting organisation, with respect to the present case, would like to underline that the crpd explicitly prohibits institutionalisation of people with disabilities. detaining people in psychiatric institutions, “regardless of size, purpose or characteristics, or the duration of the placement,”3 can therefore only be regarded as unlawful under international law binding on mexico. 8. article 14 of the crpd, which establishes the fundamental right to liberty and security of a person, sets out clearly that “states parties shall ensure that persons with disabilities, on an equal basis with others (…) are not deprived of their liberty unlawfully or arbitrarily, and that any deprivation of liberty is in conformity with the law [including the relevant international provisions], and that the existence of a disability shall in no case justify a deprivation of liberty.” 1 by way of example, stanev v. bulgaria (gc, application no. 36760/08, judgment of 17 january 2012), shtukaturov v. russia (application no. 44009/05, judgment of 27 march 2008), červenka v. the czech republic (application no. 62507/12, judgment of 13 october 2016). 2 e.g., amicus curiae in miscellaneous cause no. 222 of 2021 to the high court of uganda at kampala – civil division and amicus curia to the constitutional court of romania (file no. 695d/2017, nabosnyi alexandru stefan francisc). 3 crpd/c/5, para 17. 4 9. in addition, the guidelines on article 14, adopted in 2015 by the un committee on the rights of persons with disabilities (“crpd committee”), which provides the authoritative interpretation of the convention, further emphasises the absolute prohibition of detention on the basis of impairment.4 the committee draws attention to the fact that legislation of several states parties – despite having ratified the convention – “still provide instances in which persons may be detained on the grounds of their actual or perceived impairment, provided there are other reasons for their detention, including that they are deemed dangerous to themselves or others (…).” the committee emphasises that “this practice is incompatible with article 14; it is discriminatory in nature and amounts to arbitrary deprivation of liberty.”5 10. where involuntary or non-consensual commitment in mental health institutions is concerned, the committee stresses that “involuntary commitment of persons with disabilities on health care grounds contradicts the absolute ban on deprivation of liberty on the basis of impairments (article 14(1)(b)) and the principle of free and informed consent of the person concerned for health care (article 25). the committee has repeatedly stated that states parties should repeal provisions which allow for involuntary commitment of persons with disabilities in mental health institutions based on actual or perceived impairments.”6 11. the submitting organisation also stresses that repealing and/or amending national legislation is – in itself – still not sufficient to ensure compliance with the crpd, with special regard to the prohibition of institutionalisation and the right to live independently in the community. in that regard, the guidelines on deinstitutionalization including in emergencies, (crpd/c/5, adopted by the committee on 10 october 2022, hereinafter di-guidelines)7 explicitly state that “states parties should (…) modify or abolish customs and practices that prevent persons with disabilities from living independently and being included in the community.” 12. in the context of the present case, it is also important to note that institutionalization is not only a discriminatory practice, contrary to article 5 of the crpd, but is a form of violence against persons with disabilities that must be recognised as such by the state parties.8 4 crpd committee: 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 committee’s 14th session, held in september 2015, chapter iii. 5 ibid. para 6. 6 ibid. para 10. 7 crpd/c/5: guidelines on deinstitutionalization including in emergencies(2022) (crpd/c/5), available at: https://www.ohchr.org/en/documents/legal-standards-and-guidelines/crpdc5-guidelines-deinstitutionalization-including , last accessed 7november 2023. 8 crpd/c/5, para 6. 5 13. in line with the above, state parties – as laid down in the di-guidelines – “should abolish all forms of institutionalization, end new placements in institutions and refrain from investing in institutions. institutionalization must never be considered a form of protection of persons with disabilities, or a ‘choice’.”9 14. the committee makes it clear that “persons with disabilities experiencing individual crises should never be subjected to institutionalization. individual crisis should not be treated as a medical problem requiring treatment or as a social problem requiring state intervention, forced medication or forced treatment.” 10 the committee also emphasises that “state parties should immediately provide individuals with opportunities to leave institutions, revoke any detention authorized by legislative provisions that are not in compliance with article 14 of the convention, whether under mental health acts or otherwise, and prohibit involuntary detention based on disability.”11 15. in the light of the above, the detention of residents subject to present procedure is undoubtably incompatible with mexico’s international legal obligations. iii. access to justice for people with disabilities in detention, with special regard to procedural accommodations in the administration of justice 16. in case a person with disability happens to be detained in an institution, despite the clear legal prohibition outlined above, ensuring their right to access to justice is of upmost importance. access to justice for persons detained in institutions – isolated from the outside world – must be understood broadly so as to ensure maximum protection for all human rights and implemented through systemic and preventive mechanisms, such as independent monitoring, access to legal aid, ensuring respect of legal capacity and supported decision-making, among other measures. 17. as the council of europe commissioner for fundamental rights has pointed out, “access to justice for persons with intellectual and mental disabilities remains a central concern, particularly, but not exclusively, for those residing in large, remote and impersonal psychiatric institutions.” (…) “people with intellectual [and psychosocial] disabilities tend to be among the most marginalised. they are rarely consulted or even listened to; they are often prevented from making choices about their health, well-being and how and where they want to live. in general, they have 9 crpd/c/5, para 8. 10 crpd/c/5, para 10. 11 crpd/c/5, para 13. 6 limited possibilities to make themselves heard and this has contributed to making their situation a hidden human rights crisis.”12 18. worldwide, “many barriers prevent persons with disabilities from accessing justice on an equal basis with others. such barriers include restrictions on the exercise of legal capacity; lack of physical access to justice facilities, such as courts and police stations; lack of accessible transportation to and from these facilities; obstacles in accessing legal assistance and representation; lack of information in accessible formats; paternalistic or negative attitudes questioning the abilities of persons with disabilities to participate during all phases of the administration of justice; and lack of training for professionals working in the field of justice.”13 19. due to the specificities of the present case, it should be also borne in mind that “women with disabilities are at a heightened risk of violence, exploitation and abuse compared with other women, and of gender-based violence and harmful practices, such as forced contraception, forced abortion and sterilization, during institutionalization. they are denied the right more often than men with disabilities and more often than other women to exercise their legal capacity, leading to denial of access to justice, choice, and autonomy.”14 in this regard, the crpd committee highlights that “access to justice, particularly for women and girls living in or leaving institutions who experience gender-based violence, is key in deinstitutionalization.”15 20. as residents of closed psychiatric settings are often isolated and have no or very little contact with the outside world, the role of independent monitoring mechanisms, including monitoring carried out by civil society organisations, in preventing institutionalisation and guaranteeing access to justice is paramount and should be ensured by states parties.16 based on the di-guidelines “all monitoring mechanisms should be allowed to freely investigate conditions and human rights violations within public and private institutions” and states parties should address human rights violations – including the absence of informed consent to hospitalisation and non-consensual treatment – identified through them in a timely and effective manner.17 12 third party intervention by the council of europe commissioner for human rights under article 36, paragraph 3, of the european convention on human rights, application no. 47848/08, the centre for legal resources on behalf of valentin câmpeanu v. romania, p. 8 and 3. 13 ohchr: international principles and guidelines on access to justice for persons with disabilities, p. 6. 14 crpd/c/5, para 42. 15 crpd/c/5, para 56. 16 crpd/c/5, para 131. 17 crpd/c/5, para 132 and 133. 7 21. as it was mentioned above, people with disabilities face a wide range of barriers in access to justice. effective and accessible complaint mechanisms provided for people with disabilities, especially for those residing in institutions, are essential in that regard. in relation to these mechanisms too, it must be emphasised that state parties shall remove all “environmental, attitudinal, legal, communicational, and procedural barriers (…) across all legal domains. reasonable and procedural accommodation, including but not limited to easy read and plain language, should be made available.”18 22. in addition, the crpd di-guidelines provide – with particular relevance to present case – that in cases where “children or adults with disabilities are unable to file complaints themselves, national human rights institutions and advocacy organizations may be authorized to take legal action [including court procedures]. this should happen only on the basis of the person’s free and informed consent or, when the person’s rights are at stake and it has not been feasible to obtain an expression of will from the person concerned, despite real efforts on the basis of the best interpretation of the person’s will and preferences.”19 23. where court procedures are concerned, the di-guidelines underline that de jure as well as de facto “legal standing in courts and tribunals and the provision of free and accessible legal representation should be ensured” by state parties.20 concerning the latter, the committee has repeatedly suggested to states parties to ensure persons with disabilities placed in institutions have access to free legal aid21 which naturally entails that lawyers’ access to these institutions cannot be denied. especially in the view that the committee considers “the right to legal aid is essential to enabling persons with disabilities to participate in legal proceedings and to achieve effective access to justice.”22 24. furthermore, fair trial guarantees, i.e., standards regarding procedural access to justice, must also be honoured. the right to be heard by a competent, independent, and impartial tribunal established by law are the key components to ensure due process. 25. in the disability context, “in order to enjoy effective access to justice, persons with disabilities must be treated equally before the law and have equal opportunities to participate in the justice system.”23 this means that “states must ensure equal access to justice for all persons with disabilities by providing the necessary 18 crpd/c/5, para 56. 19 crpd/c/5, para 57. 20 crpd/c/5, para 56. 21 crpd/c/alb/co/1, para 25; crpd/c/sen/co/1, para 23-24; crpd/c/pol/co/1, para 22. 22 professor eilionóir flynn, dr. catríona moloney , dr. janos fiala-butora, irene vicente echevarria: final report – access to justice of persons with disabilities (december 2019), p. 14. 23 julinda beqiraj, lawrence mcnamara and victoria wicks, access to justice for persons with disabilities: from international principles to practice, international bar association (october 2017), p. 15. 8 substantive, procedural, and age- and gender-appropriate accommodations and support.”24 this is also explicitly set out in article 13 of the crpd. 26. procedural and age-appropriate accommodations are indispensable for guaranteeing the effective role of people with disabilities in the procedure. procedural accommodations are “all 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 disabilities on an equal basis with others.”25 procedural accommodations have a dual character: one is that of systemic realization in terms of transforming judicial systems to be accessible for and inclusive of persons with disabilities, and another that provides for the immediate provision of accommodation in legal proceedings in order to avoid that the right to access to justice becomes void in a particular situation. 27. it must be noted that the denial of procedural accommodation is a form of discrimination. conducting an assessment of capacities to allow a person to participate in a is also a form of discrimination, if linked to a person’s disability. the process of identifying appropriate procedural accommodations should focus on an assessment of individualized requirements and barriers which need to be overcome through the provision of individualised support measures during the proceeding. 28. ensuring procedural accommodations adequate to the person’s individual needs is an immediate duty and must be upheld free of charge for the person concerned. it is not possible to liberate from this duty with reference to insufficient resources or difficulties in implementation, because procedural accommodations play a vital role in making sure persons with disabilities can enjoy access to justice on equal footing with others. procedural accommodations must enable direct participation and the possibility to make independent decisions within judicial and administrative proceedings. accommodations must be tailored to the person’s individual needs, while respecting their will and preferences. 29. in conclusion, the implementation of human-rights-based responses within the framework of crpd obligations to ensure access to justice for persons with psychosocial or intellectual disabilities – as explained above – is of critical importance for preventing and redressing unlawful disability-based detention. 24 ohchr: international principles and guidelines on access to justice for persons with disabilities, p. 6. 25 ohchr: international principles and guidelines on access to justice for persons with disabilities, p. 9 iv. the restoration of the lawful situation through the implementation of deinstitutionalisation processes 30. first, it must be noted that the crpd committee – in its di-guidelines – stresses that “releasing persons with disabilities from disability-based detention and preventing new detentions are immediate obligations, and not subject to discretionary judicial or administrative procedures”26 and that “states parties should provide emergency assistance to persons with disabilities to enable them to leave places where they are arbitrarily detained.”27 in this context, “states parties should recognize that the risk of homelessness and poverty is very high for persons leaving institutions. a robust social protection package should be provided to all persons with disabilities leaving institutions to cover immediate and mid-term needs for resettlement.”28 31. this comprehensive compensatory package provided for people with disabilities leaving the institution should comprise “goods for daily living, cash, food vouchers, communication devices and information about services available, immediately upon departure. such packages should provide basic security, support, and confidence to persons with disabilities leaving institutions, in order that they can recover, seek support when they require it, and have an adequate standard of living in the community without risk of homelessness or poverty.”29 32. however, states’ responsibility to act to ensure compliance with their international obligations, stemming from article 19 of the crpd, in the long term is obviously broader. the convention stipulates that: “states parties to the present convention recognize the equal right of all persons with disabilities to live in the community, with choices equal to others, and shall take effective and appropriate measures to facilitate full enjoyment by persons with disabilities of this right and their full inclusion and participation in the community, including by ensuring that: a) persons with disabilities have the opportunity to choose their place of residence and where and with whom they live on an equal basis with others and are not obliged to live in a particular living arrangement, b) persons with disabilities have access to a range of in-home, residential and other community support services, including personal assistance necessary to support living and inclusion in the community, and to prevent isolation or segregation from the community, and 26 crpd/c/5, para 57. 27 crpd/c/5, para 58. 28 crpd/c/5, para 105. 29 crpd/c/5, para 31. 10 c) community services and facilities for the general population are available on an equal basis to persons with disabilities and are responsive to their needs.” 33. adopting clear and targeted strategies and concrete action plans for deinstitutionalization and developing adequate services, with specific time frames and adequate budgets, in order to eliminate all forms of isolation, segregation and institutionalization of persons with disabilities, is a key and also immediate obligation on the states. 30 34. under the crpd requirements, state parties must create an environment for people with disabilities which ensures and promotes both aspects of article 19, i.e., to live independently and be included in the community. this clearly includes ensuring safe, accessible and affordable housing in the community, through public housing or rental subsidies, for persons leaving institutions. it must be noted that these housing arrangements cannot be under the control of the mental health system or other service providers that have managed institutions. 31 moving people with disabilities from one form of institution to another institution is not deinstitutionalisation and breaches the un crpd obligations. 35. the guidelines provides examples for acceptable housing arrangements, such as, for example, “social housing, self-managed co-housing (…). for housing to be considered adequate, it must meet minimum criteria concerning legal security of tenure, availability of services, materials, facilities and infrastructure, affordability, habitability, accessibility, location and cultural adequacy.”32 36. moreover, access to housing needs to be complemented by making available community-based and other type of support services – aiming at ensuring equality and non-discrimination in the exercise by persons with disabilities of their rights – for article 14 and 19 to be fully realised. 37. the di-guidelines provide extensive description, requirements, and examples of these services. the most critical characteristics of these which must be emphasised are that “support services should be developed in accordance with a human rights model [and not with the medical approach], respecting the will and preferences of persons concerned, (…) and it should remain subject to the choice and control of that person and not be imposed involuntarily.”33 in addition, states parties should 30 general comment no. 5 (2017) on living independently and being included in the community (crpd/c/gc/5), para 39, 57, and para 97 point g). 31 crpd/c/5, para 32. 32 crpd/c/5, para 33. 33 crpd/c/5, para 75 and 80. 11 prioritize the development of a range of high-quality, individualized [and person-centred] support such as support persons, support workers, direct support professionals and personal assistance. 38. furthermore, the obligation of deinstitutionalisation does not only cover the mandatory provision of the abovementioned support measures, but it includes ensuring access to mainstream services – in all aspects of life – as well. 39. all the community-based services, including any form of “supported living”, need to comply with the features explained above. however, certain services, such as so-called supported housing schemes or group homes, are sometimes presented as being services in the community, while clearly maintaining institutional character. this problem is also addressed by the di-guidelines when emphasising that institutions, including psychiatric institutions, have defining elements, such as, among others “obligatory sharing of assistants with others and no or limited influence as to who provides the assistance; isolation and segregation from independent life in the community; lack of control over day-to-day decisions; lack of choice for the individuals concerned over with whom they live; rigidity of routine irrespective of personal will and preferences (….).”34 40. the committee therefore stresses that “the absence, reform or removal of one or more institutional elements cannot be used to characterize a setting as community-based35 nor when renaming a de-facto institution to “supported housing.” 41. for example, the crpd committee – in its inquiry report36 condemning hungary for its grave and systematic violations of disability rights – stressed that the right to independent living excludes the concept of any form of institutions, including group homes or other small-scale institutions even if they are named as “supported housing” and underpinned that trans-institutionalisation is non-compliant with the crpd. 42. many states have been developing their community-based support services schemes, more or less compliant with the un crpd requirements. the state of new brunswick in canada provides a promising example, ensuring availability of a wide range of community-based social services, such as a home support worker, respite, personal supports, and assistance within and outside the home, supports for community involvement and participation, personal living skills training, or transportation supports that are disability specific. these services are provided within 34 crpd/c/5, para 33. 35 crpd/c/5, para 17. 36 un committee on the rights of persons with disabilities ‘inquiry concerning hungary under article 6 of the optional protocol to the convention’ (17 september 2020) crpd/c/hun/ir/1. 12 the framework of various disability programs for children and adults37 as well as community-based mental health services through fourteen community mental health centres. 43. in this context, it must be noted that the guidelines require the states to primarily provide community-based services outside of the health care system. these primary services – such as, for example, support related to distress or unusual perceptions, including crisis support, decision-making support, or support to heal from trauma, – should be made available without the need for mental health diagnosis or treatment in the individual’s own community.38 people leaving institutions should be provided with additional health-care support as needed and requested which may include assistance to withdraw from psychiatric medication and to gain access to nutritional and fitness programmes.39the use of any support service must always be based on informed consent according to the will and preferences of the individual. any form of coercion is unlawful. 44. when it comes to community-based mental health services, identifying promising examples is challenging. mental health services around the world typically operate in a power structure whereby a person with a psychosocial disability receives a diagnosis as well as a treatment protocol by medical professional, who thus gets to determine the available options. such approach inevitably compromises the paradigm of self-determination and self-directed support required by the un crpd. promising examples of mental health services must operate outside of such structure, allowing people to seek support they need without a diagnosis and rigid treatment protocols. elements of existing models may be worth exploring, though. while not fully in line with the above un crpd requirements, the triest-model40 from italy is anchored in a promising open-door approach, offering a hybrid set of inpatient and outpatient service options the user can freely choose from.41 after the introduction of the community-based mental health centres as the core of their system, the region reduced psychiatric hospital admissions.42 45. to conclude, states have a clear legal obligation to end unlawful disability-based detention in institutions. the above paragraphs argued that redressing such unlawful detention must comprise from not only releasing people from institutions – or moving them to a different institution – but by introducing a range of person-centred, 37 disability support program, community based services for children with special needs and some supports and services are currently provided under other government programs, such as, for example, major home adaptations or subsidized housing, mental health services. 38 crpd/c/5, para 76. 39 crpd/c/5, para 103. 40 who: guidance on community mental health services: promoting person-centred and rights-based approaches, available at: https://www.who.int/publications/i/item/9789240025707 , last accessed on 6 november 2023. 41 ibid. p. 166. 42 portacolone, elena, et al. “a tale of two cities: the exploration of the trieste public psychiatry model in san francisco.” culture, medicine, and psychiatry 39 (2015): 680-697., p. 683. 13 individualised, community-based services in line with the un crpd. full realization, of course, requires structural changes, and the supreme court now has a strong opportunity to bring national legislation, policies and practice into line with international obligations undertaken by the mexican state. v. conclusion 46. we respectfully ask the court to consider our submission and urge the state to take effective measures to outlaw and redress the continuing unlawful disability-based detention in psychiatric institutions. 47. such measures should include, inter alia, releasing unlawfully detained persons and reforming legislation to eliminate “de facto” substituted decision-making as well as establishing efficient monitoring of mental health services, complaint mechanisms, guaranteeing access to a lawyer, and ensuring that persons with disabilities have equal opportunities to participate in the justice system through the provision of procedural accommodations. concerning de-institutionalisation measures, they should encompass the adoption of targeted de-institutionalisation plans, establishing moratoria against new placements in institutions of persons with disabilities, the establishment of community-based, recovery-oriented mental health services based on the clear and informed consent of all persons. 48. the organisation concludes that the supreme court can take effective guidance in this respect from the crpd committee, particularly its di-guidelines, which require shifting of financial resources from institutions to mentioned alternatives and implementing the required processes with the active involvement of disability rights organisations, and in particular of persons with lived experience of institutionalisation. steven allen executive director on behalf of the validity foundation
