4(B)(iv). Non-discrimination

People with mental disabilities have historically been placed in institutions because of their perceived incompetence to take care of themselves. Equality underpins Article 19 of the CRPD, which establishes an “equal right” of persons with disabilities to live in the community “with choices equal to others”.

The CRPD prohibits discrimination which it defines as “any distinction, exclusion or restriction on the basis of disability which has the purpose or effect of impairing or nullifying the recognition, enjoyment or exercise, on an equal basis with others, of all human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field. It includes all forms of discrimination, including denial of reasonable accommodation”. Reasonable accommodation means “necessary and appropriate modification and adjustments not imposing a disproportionate or undue burden, where needed in a particular case, to ensure to persons with disabilities the enjoyment or exercise on an equal basis with others of all human rights and fundamental freedoms”.^[20]

Governments must implement the right to non-discrimination immediately. This means that governments cannot progressively realise the right: they must immediately put laws and policies in place to prohibit and prevent any discriminatory act.^[21]

A leading case which establishes that segregation of people with disabilities constitutes discrimination is the 1999 United States Supreme Court case of Olmstead v. L.C.^[22] This case held that public entities must provide community-based services to persons with disabilities when (1) such services are appropriate; (2) the affected persons do not oppose community-based treatment; and (3) community-based services can be reasonably accommodated, taking into account the resources available to the public entity and the needs of others who are receiving disability services from the entity.^[23] In that case, the U.S. Supreme Court found that segregation in institutions constituted discrimination against people with mental disabilities because they were forced to give up their liberty in order to obtain services.

The placement of people with mental disabilities in institutions rather than providing services for them in the community is often a failure to provide reasonable accommodation. As noted above, Article 5(3) of the CRPD sets out an obligation on governments to take steps to provide such adjustments in order to promote equality and eliminate discrimination.^[24]

Similarly, Article 14 of the ECHR sets out a right to non-discrimination in the application of all other ECHR rights. A lawyer could argue that placement in an institution is a violation of the right to liberty, and that because it is only people with mental disabilities who are subjected to this arbitrary form of detention, there is a violation of the right to non-discrimination under Article 14 of the ECHR. Unlike Article 14 of the ECHR itself, the more recent prohibition on discrimination contained in Protocol 12 to the ECHR is not limited to the enjoyment of other rights.

Discrimination arguments are more difficult to put together than they first seem. The State will likely argue that institutions do not constitute discrimination in a similar way that hospitals do not discriminate against ill people or schools discriminate against young people: they will argue that institutions provide services for people in need, a welcome service because the alternative is no services. In response, lawyers representing people with disabilities in such cases will need to argue that the failure to provide services in the community constitutes discrimination in the enjoyment of the right to community living.

One of the central arguments likely to be posed by governments is that institutional care is beneficial to the person with a mental disability. Challenging such claims require some effort, including producing testimony and medical evidence showing the negative impact on their physical or psychological health, as well as research and statements from international bodies on the benefits of community living. The latter can be found from numerous sources, including the Council of Europe Committee of Ministers Resolutions, UN General Assembly Resolutions, and reports of Special Rapporteurs. Lawyers may also wish to cite promising practices from pilot projects on the right to community living.