1. Summary
Photo: Maroš Matiaško, Lawyer and MDAC Legal Monitor in the Czech Republic. © MDAC.
“I believe that law is a very good tool for change: the combination of strategic litigation, advocacy activities and raising awareness has proved that.”
Maroš Matiaško, Lawyer and MDAC Legal Monitor
This handbook is a practical tool for lawyers in Europe who wish to help clients with mental disabilities leave institutions so that they can live with supports in the community. The process of “deinstitutionalisation” is not simply a good thing to do, but an obligation on governments. The right to independent living in the community is just that – a human right, guaranteed by international law.
The United Nations Convention on the Rights of Persons with Disabilities (CRPD) was adopted in 2006 and establishes that everyone has the right to choose where and with whom they live on an equal basis with others. Article 19 of the CRPD goes further, requiring that governments also provide disability-specific services, and obliging them to ensure the accessibility of general public services to all people with disabilities.
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People with mental disabilities By ‘people with mental disabilities’, MDAC means people with intellectual, developmental, cognitive, and/or psycho-social disabilities. People with intellectual disabilities generally have greater difficulty than most people with intellectual and adaptive functioning due to a long-term condition that is present at birth or before the age of eighteen. Developmental disability includes intellectual disability, and also people identified as having developmental challenges including cerebral palsy, autism spectrum disorder and fetal alcohol spectrum disorder. Cognitive disability refers to difficulties with learning and processing information and can be associated with acquired brain injury, stroke and dementias including Alzheimer’s disease. People with psycho-social disabilities are those who experience mental health issues or mental illness, and/or who identify as mental health consumers, users of mental health services, survivors of psychiatry, or mad. These are not mutually exclusive groups. People with intellectual, developmental or cognitive disabilities may also identify, or be identified as, having psycho-social disabilities, or vice versa. Whilst this handbook has primarily been written to address the rights of people with mental disabilities, the contents may also be useful for people with other disabilities too, including those with physical, sensory or multiple impairments. |
The right to independent living in the community, like all others, is enforceable. This means that the legal systems of countries which have ratified the CRPD must ensure that people with disabilities can seek redress and legal remedies where they have been denied this right. Yet, the right to independent living in the community is multi-faceted, and requires legal representatives to take a comprehensive and holistic rights-based approach.
Where a person with a disability is forced to live in an institution, one of the key remedies will be to get them out of the institution so that they can live in the community. If a person is under guardianship, which prevents them from making legally valid decisions about their lives, the remedy sought might be to remove the guardianship. And if the person has suffered abuse, violence or exploitation, the remedies might be compensation and an order for rehabilitation.
Despite the complexities, legal action and issuing court proceedings for clients with mental disabilities can be successful and have a transformative effect on their lives. Invariably, successful cases need a team of smart lawyers who argue effectively using the law and the facts. This handbook provides a number of potentially powerful legal arguments which can be employed to secure for people with mental disabilities the right to live in the community.
Reflecting the variety of situations which clients may need assistance with, this handbook provides argumentation on community support services, liberty, privacy, integrity and dignity, non-discrimination, access to justice and fair trial. The arguments can be used in a number of ways, including securing a clients’ release from an institution, gaining services required to enable them to live independently or where parents of a child with disabilities are wondering what will happen when their child turns eighteen and there are no adult services.
Many cases will present numerous practical hurdles which require careful strategising on the part of legal representatives. These include how to represent someone under guardianship when the domestic law does not allow them to instruct a lawyer directly; how to get instructions from a client who is inside an institution and barred from accessing the outside world; how to protect a client who is being harmed or at risk of retaliation; how to get in place supports so that the client can actually live outside an institution; and how to support the client successfully to avoid them feeling ‘litigation fatigue’ and from withdrawing their legal claims.
Lawyers who wish to discuss case strategies should contact MDAC’s litigation team via www.mdac.org or by email support@mdac.org.
Acknowledgments
MDAC conveys its thanks to the following people for contributing expertise, information and ideas which made this handbook possible.
Aneta Genova, Lawyer and MDAC Legal Monitor, Bulgaria
Aleksandra Ivanković -Tamamović, external advisor
Maroš Matiaško, Lawyer and MDAC Legal Monitor, Czech Republic
Barbara Méhes, MDAC Legal Officer
Katherine Morley, MDAC Project Manager
Lycette Nelson, former MDAC Litigation Director
Ádám Szklenár, MDAC Digital Media and Communications Assistant
Paige Casaly and Frances McCormack, MDAC interns
Ann Campbell, MDAC Litigation Director, is the primary author of the handbook. Steven Allen, MDAC Advocacy and Communications Director, and Oliver Lewis, MDAC Executive Director, assisted with structure and editing.