The UN Convention: The Role of Counsel

Abstract

If there has been any constant in modern mental disability law in its near-forty-year history, it is the near-universal reality that counsel assigned to represent individuals at involuntary civil commitment cases is likely to be ineffective. In many nations, there simply is no mental disability “law,” and, even where there is such a law “on the books,” the promise of counsel is often little more than an illusion. Moreover, the lack of meaningful judicial review makes the commitment hearing system little more than a meretricious pretext. Encouragingly, though, a variety of interrelated factors may shed some light on this scandal and lead to positive social change in this area: the new, robust case law from the European Court on Human Rights on virtually all aspects of mental disability law, the ratification of the CRPD, and the publication of the World Health Organization Resource Book on Mental Health; the work done by mental disability law–specific NGOs (e.g., Mental Disability Rights International; Mental Disability Advocacy Center) on institutional conditions in central and eastern Europe and in Central and South America, and greater interest globally in what can broadly be called “access to justice” issues. This chapter surveys an array of international jurisdictions (common law, civil law, and mixed) and considers the range of findings (from nations in which there is no counsel, to perfunctory-at-best counsel, to almost-adequate counsel). It considers other major legal, political, and social developments that might illuminate these issues, and the impact of sanism and pretextuality on these developments. It concludes that the legislative and judicial creation of rights—both positive and negative—is illusory unless there is a parallel mandate of counsel that is (1) free and (2) regularized and organized. Without the presence of such counsel, any rights articulated by a court, human rights commission, or legislature become, again, merely “paper victories.” The presence of sanism and the technical complexity of most mental disability law cases (involving, often, expert testimony by mental health professionals and subtle predictions about “future dangerousness” or about institutional conditions) further augments the necessity and importance of adequate representation in such cases.