disability

Are Danger Laws The Way Forward For Equal Human Rights?

by Admin on AUGUST 15, 2012 in MENTAL HEALTH

FOLLOW MADPRIDEIRELAND

I have written in previous blogs about my belief that mental health laws are discriminatory and therefore do not sit with the provisions of the United Nations Convention of the rights of people with disabilities (UNCRPD) which clearly states in:

Article 5
Equality and non-discrimination

1. States Parties recognize that all persons are equal before and under the law and are entitled without any discrimination to the equal protection and equal benefit of the law.
2. States Parties shall prohibit all discrimination on the basis of disability and guarantee to persons with disabilities equal and effective legal protection against discrimination on all grounds.
3. In order to promote equality and eliminate discrimination, States Parties shall take all appropriate steps to ensure that reasonable accommodation is provided.
4. Specific measures which are necessary to accelerate or achieve de facto equality of persons with disabilities shall not be considered discrimination under the terms of the present Convention.

Now Ireland has signed up to the UNCRP, we are currently drafting 'Capacity' legislation and are reviewing the Mental Health Act 2001. But the question that is starting to be asked more and more in international legal circles is 'Can Ireland (or any State) fully sign up to the UNCRP if we retain legislation based on disability which are inherently discriminatory in nature?' I would argue that we cannot as it makes no difference if the intention of Mental Health Laws is toward positive discrimination, discrimination is at their core.

So what are the potential consequences for the State if they continue down this road? Well simply put litigation. Many of those involved in this debate in international legal circles feel that Ireland is setting itself up for numerous challenges that will be taken by users who have undergone forced treatment or forced incarceration within the system protected by the Mental Health Act. These individuals will be able to argue that their human rights were breached under the UNCRP, and remember we have as a country signed up to this legal agreement which states in:

Article 17
Protecting the integrity of the person
Every person with disabilities has a right to respect for his or her physical and mental integrity on an equal basis with others.
So what can the Irish government do to avoid this potential legal nightmare? And of course on a more human level what can they do in order to ensure the equal human rights of all its citizens (I realise this in some ways will be a secondary benefit…)

Well removing specific Mental Health Laws and introducing Danger Laws is one possible road. In any conversation of the necessity of Mental Health Law the point will continuously be made 'What do we do in the case of someone who is a danger to themselves or others?' This is in itself a valid question however, the question and be put equally to the wider community. Cormac O'Keefe writing in today's Irish Examiner about an instance where an individual, known to Gardaí, was stopped at a checkpoint and found to have both cable ties and duct tape. The Gardaí were fearful he may be a 'danger to society' but powerless to do anything, two weeks later following the rape of two women in Dublin this man is now the prime suspect –

If there were specific Danger Laws on the statute books the Gardaí may have been in a position to act differently, and with their hands untied may have been able to prevent the brutal crimes. Now do not get me wrong Danger Laws come with their own set of problems, issues like Orwellian thought crime come to mind, and yes that is a valid concern. However, I would argue that these issues exist today for the mad community. Those who have been through the system live forever in fear that their future behaviour will be diagnosed by family, friends, colleagues or society as potentially being a 'danger to themselves or others' and will result in incarceration and treatment.

If wider society suddenly saw the consequences of 'odd' behaviour maybe their perceptions would change, their tolerance would increase and their relationship with emotional distress and all it brings would grow. There will always be the crisis situation, there will always be those of us who decide to make the ultimate decision to take our own lives, there will be those times where stress and distress lead to anger and violence. Changing our legal system will not end this but it may change our perspective on how we deal with the consequences of these actions.

The ethos of the UNCRPD is to garner a cultural change in how society deals with human rights on an equal basis. Therefore it is not just about changing laws it is about changing attitudes but unfortunately attitudes will not change as long as the state continues to enshrine inequality on the statute books sanctioning human rights abuses. So again the call is for all of society to step up take on the responsibility that Danger Laws bring and call on the government to end the human rights vacuum created by Mental Health laws. I am sure we will be having this debate for a while yet (at least till the first case is taken and won against the state…