The Concept of “Mental (In)capacity” can never be a basis to deprive people with psychosocial disabilities and mental health problems of “legal capacity”

by Jagannath Lamichhane

Last week, I came across a Facebook post of a dear friend, which moved me to tears. Gabor Gombos, a former United Nations member of the Committee on the Rights of Persons with Disabilities (CRPD) — and a man whom I always looked at with high esteem as a source of knowledge and inspiration for the millions of people in the mental health and psychosocial disability rights movement across the world — was in a state of utter despair.

Gabor had written on his wall page: “Doctors say there is no hope for Kati, my only wife in my life, my co-worker, the mother of our child, who survived three days. We jointly did what I became famous of. We had hard times recently as well. Now she is slowly dying. I am dying too. Life is meaningless and impossible”.

His message affected me deeply and I felt depressed the entire day. I never thought I’d have to read such words of despair coming from a man of such strength and accomplishment in the field. Gabor had even gone as far as to indicate he was most inclined to hang himself. In response, there were hundreds of comments on his Facebook page praying for the good health of his wife and his own strength. I also wrote a few words: “My prayers Gabor, stay strong’.

A few days passed through which time and again I would think of Gabor and the loss to the movement and myself were he to really take his own life. I was quite worried actually.

A couple of days later, I heard about the United Nations Committee on the CRPD General Comment on article 12 ie legal equality (legal capacity) of people with disabilities, including psychosocial and mental health problems.  Although article 12 of the disability convention was already a revolutionary article giving equal legal recognition of people with disabilities — including mental health problems and psychosocial disabilities — in absence of the United Nations CRPD Committee’s authoritative interpretation of the article, its interpretation remained controversial since the adoption of the CRPD in 2006.

However, this general comment brought an end to the ongoing controversy, endorsing equal rights and equal recognition of people with disabilities before the law. The general comment has explicitly interpreted that legal discrimination on the basis of disability or in the name of mental (in)capacity is clearly a violation of human rights and against international human rights principles. The general comment has highlighted that there has been a general failure to understand that the human rights-based model of disability implies a shift from the substitute decision-making paradigm to one that is based on supported decision-making.

The general comment discards the concept of “mental capacity” as a social and political construct lacking an objective, scientific and naturally occurring phenomenon. The CRPD Committee explicitly recommends the state parties to guarantee civil and political rights for people with disabilities, even if they might require support in decision-making. While developing a policy framework in the country level, the Committee clearly recommends that support in decision-making must not be used as a justification for limiting other fundamental rights of persons with disabilities, especially the right to vote, the right to marry (or establish a civil partnership) and found a family, reproductive rights, parental rights, medical treatment and the right to liberty.

Most importantly, the interpretation heralds an end to the era of forced psychiatry, a long and much-awaited battle in the fields of psychiatry and human rights. Following this committee report, involuntary detention in psychiatric or mental health facilities without consent is now considered a violation of human rights and punishment can be sought.

It was great news. I had not expected such a bold and clear interpretation of the article 12 of the CRPD so early. And it is because of people like Gabor and so many others, who fought their whole lives to establish equal rights and stop the practice of involuntary detention, that the interpretation has been possible. This general comment is the greatest victory yet for the thousands of millions of people living with psychosocial disabilities and mental health problems across the world.

But while the community was celebrating this this historical moment, I couldn’t help but think of Gabor’s tragic situation. All of the sudden, I saw a thank you message from Gabor on his Facebook page–full of emotion, hope and victory. He wrote: “thank you all for your empathy, love and support. That means a lot. Kati’s health is slightly improved. No immediate danger. This morning, she was much more attentive than before. I spoke to her about the General Comment on the CRPD article 12. I can’t know how much she understood. Once I heard about the general comment I felt some peace. Pain is very much there and sorrow, but also peace”.

It was upon reading this that my eyes filled with tears. I reminded myself how indispensable liberty and freedom is in an individual’s life.  We do not have control over our future and destiny and at any time, we might suffer from disease, disability, mental illness, tragedy and the like. However, no misery can be a cause to take away an individual’s right to live as he/she pleases. Now a new era has begun where mental illness cannot be the reason or justification to deprive people of equal legal and human rights. I salute Gabor and the countless others who made it possible.