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International Human Rights and Comparative Mental Disability Law: The Role of Institutional Psychiatry in the Suppression of Political Dissent

Published online by Cambridge University Press:  04 July 2014

Michael L. Perlin
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Abstract

For many years, institutional psychiatry was a major tool in the suppression of political dissent. Moreover, it appears painfully clear that, while the worst excesses of the past have mostly disappeared, the problem is not limited to the pages of history. What is more, the revelations of the worst of these abuses (and the concomitant rectification of many of them) may, paradoxically, have created the false illusion that all the major problems attendant to questions of institutional treatment and conditions in these nations have been solved. This is decidedly not so.

Remarkably, the issue of the human rights of persons with mental disabilities had been ignored for decades by the international agencies vested with the protection of human rights on a global scale. Within the legal literature, it appears that the first time disability rights were conceptualized as a human rights issue was as recently as 1993 when, in a groundbreaking article, Eric Rosenthal and Leonard Rubenstein first applied international human rights principles to the institutionalization of people with mental disabilities.

For people with mental disabilities, in particular, the development of human rights protections may be even more significant than for people with other disabilities. Like people with other disabilities, people with mental disabilities face degradation, stigmatization, and discrimination throughout the world today. But unlike people with other disabilities, many people with mental disabilities are routinely confined, against their will, in institutions, and deprived of their freedom, dignity, and basic human rights. People with mental disabilities who are fortunate enough to live outside of institutions often remain imprisoned by the social isolation they experience, often from their own families. They are not included in educational programs, and they face attitudinal barriers to employment because they have not received the education and training needed to obtain employment or because of discrimination based on unsubstantiated fears and prejudice. Only recently have disability discrimination laws and policies in the United States and elsewhere focused on changing such attitudes and promoting the integration of people with disabilities into our schools, neighborhoods, and workplaces.

The question remains, however: to what extent has institutional, state-sponsored psychiatry been used as a tool of political suppression, and what are the implications of this pattern and practice? After an Introductory section (Part I), I discuss, in Part II, the first revelations of the dehumanization inflicted on persons with mental disabilities, primarily (but not exclusively) in Soviet Bloc nations. In Part III, I discuss developments after these revelations were publicized. In Part IV, I weigh the extent to which the post-revelation reforms have been effective and meaningful. In Part V, I explain the meanings of sanism and pretextuality, and discuss how they relate to the topic at hand. Then, in Part VI, I raise questions that have not yet been answered, and that, I believe, should help set the research agendas of those thinking about these important issues.

Type
Research Article
Information
Israel Law Review , Volume 39 , Issue 3 , Winter 2006 , pp. 69 - 97
Copyright
Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 2006

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Footnotes

*

Professor of Law, New York Law School, the Director, International Mental Disability Law Reform Project and the Director, Online Mental Disability Law Program. The Author can be contacted at mperlin@nyls.edu. The Author wishes to thank Daniel Gershburg for his excellent research assistance and Barak Medina for his helpful comments and critique. Portions of this paper were presented as part of the Faculty Seminar Series, Hebrew University (December 2005), and at a lecture sponsored by the American Constitution Society, the Human Rights Program, and the Institute for Law, Psychiatry, and Public Policy at the University of Virginia Law School (February 2006).

References

1 Alexander, George, International Human Rights Protection Against Political Abuses, 37 Santa Clara L. Rev. 387, 392 (1997)Google Scholar.

2 Id.

3 Addington v. Texas, 441 U.S. 418, 429-430 (1979); see generally 1 Perlin, Michael L.: Mental Disability Law: Civil and Criminal § 2C-5.1a, at 395–400 (2nd ed. 1998)Google Scholar. 1 critique what I characterize as the “pretextual assumptions” of Addington in Perlin, Michael L., The Hidden Prejudice: Mental Disability on Trial 95–96 (2000)CrossRefGoogle Scholar [hereinafter Perlin, THP]. On the meaning of “pretextuality” in this context, see infra Part V.

4 As Richard Bonnie explains:

Psychiatric incarceration of mentally healthy people is uniformly understood to be a particularly pernicious, form of repression, because it uses the powerful modalities of medicine as tools of punishment, and it compounds a deep affront to human rights with deception and fraud. Doctors who allow themselves to be used in this way (certainly as collaborators, but even as victims of intimidation) betray the trust of society and breach their most basic ethical obligations as professionals.

Bonnie, Richard, Political Abuse of Psychiatry in the Soviet Union and in China: Complexities and Controversies, 30 J. Amer. Acad. Psychiatry & L. 136, 136 (2002)Google ScholarPubMed.

5 But not entirely. See infra text accompanying notes 84-90.

6 Perlin, Michael, International Human Rights and Comparative Menial Disability Law: the Universal Factors, Syracuse J. Int'l L. & Commerce (in press 2007)Google Scholar.

7 Text infra accompanying notes 8-20 is mostly adapted from Perlin, Michael L. et al. , International Human Rights and Comparative Mental Disability Law: Cases and Materials ch. 1 (2006)Google Scholar.

8 Degener, Theresia, International Disability Law—A New Legal Subject on the Rise: The Interregional Experts' Meeting in Hong Kong, December 13-17, 1999, 18 Berkeley J. Intl. L. 180, 187 (2000)Google Scholar. The three instruments are the Universal Declaration of Human Rights (1948) (UDHR), the International Covenant on Civil and Political Rights (1966) (ICCPR), and the International Covenant on Economic, Social and Cultural Rights (1966) (ICESCR).

9 Degener, supra note 8, at 181.

10 See Ramacharan, B.G., Strategies for the International Protection of Human Rights in the 1990s, 13 Hum. Rts. Q. 155 (1991)CrossRefGoogle Scholar. Ramacharan is former deputy UN high commissioner for human rights.

11 Kumar, C. Raj, Moving Beyond Constitutionalization and Judicial Protection of Human Rights— Building on the Hong Kong Experience of Civil Society Empowerment, 26 Loy. L.A. INT'L & Comp. L. Rev. 281, 281–282 (2003)Google Scholar.

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13 See Cohen, Pamela Schwartz, Psychiatric Commitment in Japan: International Concern and Domestic Reform, 14 UCLA Pac. Basin L. J. 28, 35 n.48 (1995)Google ScholarPubMed.

14 See Moncada, Angelika C., Involuntary Commitment and the Use of Seclusion and Restraint in Uruguay: a Comparison with the United Nations Principles for the Protection of Persons with Mental Illness, 25 U. Miami Inter-Am. L. Rev. 589, 591 n.6 (1994)Google Scholar.

15 See City of Cleburne v. Cleburne Living Center, 573 U.S. 432, 462 (1985) (Marshall, J., dissenting in part), arguing that “The mentally retarded have been subject to a ‘lengthy and tragic history’ of segregation and discrimination that can only be called grotesque,” and describing a regime of state-mandated segregation and degradation … that in its virulence and bigotry rivaled, and indeed paralleled, the worst excesses of Jim Crow.

16 See e.g., Perlin, Michael L., “What's Good Is Bad, What's Bad Is Good, You'll Find out When You Reach the Top, You're on the Bottom:” Are the Americans with Disabilities Act (and Olmstead v. L.C.) Anything More than “Idiot Wind,“? 35 U. Mich. J. L. Ref. 235 (2001–2002)Google Scholar; Perlin, Michael L., “I Ain't Gonna Work on Maggie's Farm No More:” Institutional Segregation, Community Treatment, the ADA, and the Promise of Olmstead v. L.C, 17 T.M. Cooley L. Rev. 53 (2000)Google Scholar; Perlin, Michael L., “For the Misdemeanor Outlaw” The Impact of the ADA on the Institutionalization of Criminal Defendants with Mental Disabilities, 52 Alabama L. Rev. 193 (2000)Google Scholar; Perlin, Michael L., “Their Promises of Paradise.” Will Olmstead v. L.C. Resuscitate The Constitutional Least Restrictive Alternative Principle in Mental Disability Law?, Houston L. Rev. 999 (2000)Google Scholar [hereinafter Perlin, Paradise], all discussing the Americans with Disabilities Act, see 42 U.S.C. §§ 12101 et seq.

17 Perlin, THP, supra note 3, at 21-58.

18 Id. at 59-76.

19 See, e.g., Perlin, Michael L., She Breaks Just like a Little Girl: Neonaticide, the Insanity Defense, and the Irrelevance of “Ordinary Common Sense,” 10 Wm. & Mary J. Women & L. 1, 6 n. 188 (2003)Google Scholar; see generally infra Part V.

20 See, e.g., Perlin, Michael L., Things Have Changed: Looking at Non-institutional Mental Disability Law Through the Sanism Filter, 46 N.Y.L. Sch. L. Rev. 535, 539 (2002–2003)Google Scholar discussing the recent “explosion of case law and commentary” in this area of the law; see also Kanter, Arlene S., The Globalization of Disability Rights Law, 30 Syr. J. Int'l L. & Comm. 241, 268 (2003)Google Scholar noting that in recent years the situation has changed dramatically as “the principle of non-discrimination and equality for people with disabilities has entered center stage in the international arena.”

21 See generally, 1-5 Perlin, supra note 3; Perlin, THP, supra note 3; Perlin, Michael L., Mental Disability Law: Cases and Materials (2nd ed. 2005)Google Scholar.

22 Symposium Transcript, The Application of International Human Rights Law to Institutional Mental Disability Law 21, N.Y.L. Sch. J. Int'l & Comp. L. 387, 391 (2002)Google Scholar (Comments of Eric Rosenthai):

I began my research… by examining the human rights studies of non-governmental organizations such as Human Rights Watch and Amnesty International. I also looked at the U.S. Department of State's Country Reports on Human Rights Practices. What I found is shocking: those human rights organizations and human rights reports criticized governments when political dissidents were put in psychiatric facilities, but they did not speak out about the abuses against other people who may or may not have mental disabilities.

See also, Kanev, Krasimir, State, Human Rights, and Mental Health in Bulgaria, 21 N.Y.L. Sch. J. Int'l & Comp. L. 435, 435 (2002)Google Scholar. Amnesty International first involved itself in this issue in Bulgaria in 2001.

23 Foucault, Michel, Madness and Civilization: A History of Insanity in the Age of Reason 46–57 (Howard, Richard trans. 1965)Google Scholar.

24 Id. at 47.

25 Id. at 55.

26 Id.

27 Bloch, Sidney & Reddaway, Peter, Psychiatric Terror: How Soviet Psychiatry is Used to Suppress Dissent 280–330 (1977)Google Scholar.

28 Bloch, Sidney & Reddaway, Peter, Soviet Psychiatric Abuse: The Shadow Over World Psychiatry (1984)Google Scholar.

29 Bloch, Sidney & Reddaway, Peter, Psychiatrists and Dissenters in the Soviet Union, in The Breaking of Bodies and Minds: Torture, Psychiatric Abuse, and the Health Professions 132, 147–158 (Stover, Eric & Nightingale, Elena O. eds., 1985)Google Scholar.

30 Id.

31 Id.

32 Compare Addington v. Texas, 441 U.S. 418 (1979).

33 On how it is socially acceptable to use pejorative labels to describe and single out persons with mental illness, see Perlin, Michael L., “Where the Winds Hit Heavy on the Borderline:” Mental Disability Law, Theory and Practice, Us and Them, 31 Loyola L.A. L. Rev. 775, 786 (1998)Google Scholar.

34 Compare State v. Fields, 390 A. 2d 574 (N.J. 1978) (establishing right to periodic review of commitments at which state bears burden of proof); see generally, 1 Perlin, supra note 3, § 2C-6.5c, at 456-62.

35 See Alexander, supra note 1, at 391.

36 Bonnie, supra note 4, at 140.

37 Gostin, Lawrence O. & Gable, Lance, The Human Rights of Persons With Mental Disabilities: A Global Perspective on the Application of Human Rights Principles to Mental Health, 63 Md. L. Rev. 20, 21 (2004)Google ScholarPubMed. See also Bonnie, supra note 4, at 140. “The Soviet experience was significant because it provided a vivid illustration of the risks associated with unchecked psychiatric power, and the importance of erecting institutional safeguards to minimize these risks in the context of involuntary hospitalization and treatment.”

38 Bloch and Reddaway explain that Soviet psychiatrists who rendered such diagnoses (referred to as “core psychiatrists”) received many contingent benefits for cooperating with the authorities:

The rewards of the good life include access to a variety of privileges and benefits not available to ordinary Soviet citizens. The core psychiatrist is likely to travel abroad, as a tourist or as an attendant at a conference, to have access to stores selling luxury goods at moderate prices, to have a country cottage, and to take vacations at special sanatoria. Their salaries are about three times higher in real terms than those of ordinary psychiatrists.

Bloch & Reddaway, supra note 27, at 322.

39 Bonnie, Richard J. & Polubinskaya, Svetlana V., Unraveling Soviet Psychiatry, 10 J. Contemp. Leg. Iss. 279, 279 (1999)Google Scholar. See also Bonnie, Richard, Soviet Psychiatry and Human Rights: Reflections in the Report of the U.S. Delegation, 18 Law, Med. & Health Care 123 (1990)CrossRefGoogle ScholarPubMed.

40 See generally, Baker, Jerry D., Nonimputability in Soviet Criminal Law: The Soviet Approach to the Insanity Plea, 11 Law & Psychol. Rev. 55 (1987)Google Scholar.

41 RSFSR arts. 58-61 (Criminal Code) (1962) reprinted in The Soviet Codes of Law 88–89 (Berman, Harold J. & Spindler, James W. trans., Simons, William B. ed., 1980) Soviet CodesGoogle Scholar; RSFSR arts. 410-413 (Code of Criminal Procedure 1962) reprinted in Soviet Codes of Law, id. at 315-316.

42 Bonnie & Polubinskaya, supra note 39, at 280-282.

43 Id. at 283-284.

44 Id.

45 These were ones who were associated primarily with Moscow's Serbskii Institute for General and Forensic Psychiatry. Id.

46 Id.

47 Id. at 283-84 (most footnotes omitted). See id. at 284-285:

The roots of the problem lie much deeper in the attitudes and training of Soviet psychiatrists, and in the role of psychiatry in Soviet society. Repression of political and religious dissidents was only the most overt symptom of an authoritarian system of psychiatric care in which an expansive and elastic view of mental disorder encompassed all forms of unorthodox thinking, and in which psychiatric diagnosis was essentially an exercise of social power.

48 Id. at 287-288.

49 On the multiple textures of the word “danger” in this context, see 1 Perlin, supra note 3, § 2A-4.1, at 92-101. To be subject to involuntary civil commitment, one must be seriously mentally ill, and, as a result of that mental illness, a likely danger to self or others. See id. § 2A-4.2, at 101-04.

On the relationship between involuntary civil commitment and the United Nations' Principles for the Protection of Persons with Mental Illness and the Improvement of Mental Health Care (MI Principles), see Winick, Bruce, Therapeutic Jurisprudence and the Treatment of People with Mental Illness in Eastern Europe: Construing International Human Rights Law, 21 N.Y.L. Sch. J. Int'l & Comp. L. 537, 556–559 (2002)Google Scholar; Rosenthal, Eric & Sundram, Clarence J., International Human Rights in Mental Health Legislation, 21 N.Y.L. Sch. J. Int'l & Comp. L. 469, 527–531 (2002)Google Scholar.

50 Kanev, supra note 22, at 439.

51 Romania Decree Law 12. See generally International Association on the Political Use of Psychiatry, Information Bulletin NO. 6 (Mar. 1983). Article 166 stated:

Propaganda of a Fascist nature and propaganda against the socialist state, committed by any means in public, is punished by a sentence of imprisonment from 5 to 15 years and the forfeiture of certain rights. Propaganda or the undertaking of any action with the aim of changing the Socialist system or activities which could result in a threat to the security of the state will be punished by a sentence of imprisonment from 5 to 15 years and the forfeiture of certain rights.

Article 245 provided:

Entering or leaving the country through illegal crossing of the frontier will be punished by a sentence of imprisonment from 6 months to 3 years. The acquisition of means or instruments of the undertaking of measures from which it unequivocally follows that the offender intends to cross the frontier illegally will also be regarded as an attempt.

Loue, Sana, The Involuntary Civil Commitment of Mentally Ill Persons in the United States and Romania: A Comparative Analysis, 23 J. Legal Med. 65 (1996)Google Scholar.

52 Id.

53 Id., quoting Thersa C. Smith & Thomas A. Ouszreuk. No Asylum: State Psychiatric Repression in the Former Ussr 65 (1996).

54 Ochberg, Frank M. & Gunn, John, The Psychiatrist and the Policeman, 10 Psych. Annals. 35 (1980)Google Scholar.

55 Munro, Robin, Judicial Psychiatry in China and Its Political Abuse, 14 Colum. J. Asian L. 1, 26–27 (2000)Google Scholar. As of the time of the writing of this Article, Munro was director of the Hong Kong office of Human Rights Watch; he subsequently was appointed to be senior research fellow at the Centre of Chinese Studies of the University of London.

56 Id. at 26.

57 Id. at 26-27.

58 Id.

59 Id. at 84.

60 Id. at 84-85.

61 See Bonnie, supra note 4, at 138: “One of the important purposes of mental health law reform in the 1960s and 1970s was to bring coercive psychiatry within reach of the rule of law.”

62 Bonnie & Polubinskaya, supra note 39, at 280.

63 Id.

64 Id. at 292; see Bonnie, Richard J., Law of the Russian Federation on Psychiatric Care and Guarantees of Citizens' Rights in its Provision, 27 J. Russian & E. European Psychiatry 69 (1994) (reprinting text of law)Google Scholar.

65 Bonnie & Polubinskaya, supra note 39, at 292-93.

66 Moncada, supra note 14, at 591 n.5 (1994):

The U.N. General Assembly acknowledged Human Rights Commission Resolution 10 A XXXIII (of March 11, 1977), requesting the Subcommission on Prevention of Discrimination and Protection of Minorities [hereinafter the Subcommission] study the problem of those detained on the grounds of mental illness with a view towards creating some guidelines for their protection. G.A. Res. 33/53, U.N. GAOR, 33d Sess., U.N. Doc. A/33/475, Dec. 14, 1978. The study by the Subcommission's Special Rapporteur, Erica-Irene A. Daes, revealed that:

(a) Psychiatry in some States of the international community is often used to subvert the political and legal guarantees of the freedom of the individual and to violate seriously his human and legal rights; (b) In some States, psychiatric hospitalization and treatment is forced on the individual who does not support the existing political régime of the State in which he lives; (c) In other States persons are detained involuntarily and are used as guinea pigs for new scientific experiments; and (d) Many patients in a great number of countries who should be in the proper care of a mental institution because they are a danger to themselves, to others, or to the public, are living freely and without any supervision.

Principles, Guidelines and Guarantees for the Protection of Persons Detained on Grounds of Mental Ill-Health or Suffering from Mental Disorder, U.N. ESCOR, Comm'n on Hum. Rts., Sub-Comm'n on Prevention of Discrimination and Protection of Minorities, Report prepared by Erica-Irene A. Daes at 28, U.N. Doc. E/CN.4/Sub.2/17/Rev.1 (1983) [hereinafter Daes Report].

The Daes Report incorporates replies submitted by various governments and non-governmental organizations. … In this vein, the reply by Amnesty International underlined the abuse of psychiatry for political purposes and present[ed] concrete complaints concerning the treatment of prisoners of conscience and other persons inside psychiatric hospitals in the Soviet Union.

Daes Report, id. at 16.

67 Principles for the Protection of Persons with Mental Illness and for the Improvement of Mental Health Care, G.A. Res. 119, U.N. GAOR, 46th Sess., Supp. No. 49, Annex, at 188-92, U.N. Doc. A/46/49 (1991).

68 On the significance of soft law in the development of international human rights, see Courtis, Christian, Disability Rights in Latin America and International Cooperation, 9 Sw. J.L. & Trade Am. 109 (2002–2003)Google Scholar. Soft law may guide the interpretation, elaboration, or application of hard law; constitute norms that aspire to harden; serve as evidence of hard law; exist in parallel with hard law obligations and act as a fall-back; or serve as a source of relatively hard obligations through acquiescence or estoppel. See Alvarez, Jose, The New Dispute Settlers: (Half) Truths and Consequences, 38 Tex. Int'l L.J. 405, 421 (2003)Google Scholar.

69 Victor Rosario Congo v. Ecuador, Case 11.427, Inter-Am. C.H.R., OEA/Ser.L/V/II.95 Doc.7 rev. at 475, para. 111 (1998).

70 Rosenthal & Sundram, supra note 49, at 488.

71 Id. at 489, citing MI Principles 3, 7(1), 8(2), 15, 15, 18, & 24.

72 Id. citing MI Principles 9(2), 9(4), & 22.

73 Convention for the Protection of Human Rights and Fundamental Freedoms, as amended by Protocol No. 11, Nov. 1, 1998, available at http://www.echr.coe.int/NR/rdonlyres/D5CC24A7-DC13-4318-B457-5C9014916D7A/0/EnglishAnglais.pdf (last visited September 25, 2006).

74 On the relationship between the MI Principles and the ECHR, see Rosenthal & Sundram, supra note 49, at 530:

Jurisprudence from the European Court of Human Rights demonstrates how similar many of the provisions of the MI Principles are to the requirements of convention-based law. In some cases, convention-based rights under the…ICCPR or the European Convention on Human Rights (ECHR) may provide greater protections than do the MI Principles …. The line of cases established under article 5 of the ECHR helps clarify many points not specifically mentioned in the MI Principles.

75 Article 5— Right to Liberty and Security:

Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

a. the lawful detention of a person after conviction by a competent court;

b. the lawful arrest or detention of a person for non- compliance with the lawful order of a court or in order to secure the fulfilment (sic) of any obligation prescribed by law;

c. the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;

d. the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority;

e. the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants;

f. the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition.

See European Convention for the Protection of Human Rights and Fundamental Freedoms, (ETS No.5), 213 U.N.T.S 222, signed at Rome, Nov. 4, 1950, entered into force Sept.3, 1953, as amended by Protocol No. 11, entered into force Nov. 1, 1998. Reprinted in, Perlin, Michael L. et al. , International Human Rights and Comparative Mental Disability Law: Documents Supplement 161 (2006)Google Scholar.

76 See generally, Gostin & Gable, supra note 37, at 65-66.

77 Winterwerp v. The Netherlands, 33 Eur. Ct. H.R. Series A (1979) (Cf), at 16; O'Connor v. Donaldson, 422 U.S. 563, 575 (1975):

May the State fence in the harmless mentally ill solely to save its citizens from exposure to those whose ways are different? One might as well ask if the State, to avoid public unease, could incarcerate all who are physically unattractive or socially eccentric. Mere public intolerance or animosity cannot constitutionally justify the deprivation of a person's physical liberty.

78 Perlin, Michael L., Chimes of Freedom: International Human Rights and Institutional Mental Disability Law, 21 N.Y. L. Sch. J. Int'l & Comp. L. 423, 428–429 (2002)Google Scholar, citing Perlin, THP, supra note 3, at 59-76; Morris, Grant & Meloy, J. Reid, Out of Mind? Out of Sight: The Uncivil Commitment of Permanently Incompetent Criminal Defendants, 27 U.C. Davis L. Rev. 1 (1993)Google Scholar; Perlin, Paradise, supra note 16, at 1046-1047.

79 See Perlin, supra note 6, at 849-859, 859-863, & 873-886.

80 Amnesty International, Romania, Memorandum to the Government Concerning Inpatient Psychiatric Treatment (2004), available at http://www.web.amnesty.org/library/print/engeur390032004 (last visited September 25, 2006)Google Scholar.

81 Amnesty International press release, Bulgaria: Disabled Women Condemned to “Slow Death,” Al-index: EUR 15/002/2001.

82 Lewis, Oliver, Menial Disability Law in Central and Eastern Europe: Paper, Practice, Promise, 8 J. Mental Health L. 293, 294 (2002)Google Scholar.

83 Id.; See also Mental Disability Advocacy Center, Mental Health Law of the Kyrgyz. Republic and Its Implementation, § 4.1.1 (2004)Google Scholar report prepared by Dr. Arman Vardanyan, Deborah A. Dorftnan, & Craig Awmiller), MDAC Report available at http://www.eurasiahealth.org/health/resources/81502/ (last visited September 25, 2006). See also Perlin, supra note 6, at manuscript at 7 n.24:

On a site visit to a Nicaraguan public hospital in 2003, I observed male patients walking on wards totally naked (with both male and female staff present). Female patients were brought outside the hospital for lunch. They were wearing “doctor's office” type gowns, exposing their breasts and buttocks. Food was passed around in large bowls, and there were no utensils. Each patient had to reach in and scoop out food (some sort of vegetable stew) with her hands.

84 Appelbaum, Paul S., Law & Psychiatry: Abuses of Law and Psychiatry in China, 52 Psychiat. Serv. 1297 (2001)CrossRefGoogle ScholarPubMed.

85 Falun Gong is a movement that describes itself as emphasizing five sets of yoga-type exercises designed to “cultivate” one's mind, body, and spirit and thereby gain access to one's inner energy. See Jones, Darryll K., The Neglected Role of International Altruistic Investment in the Chinese Transition Economy, 36 Geo. Wash. Int'l L. Rev. 71, 132 n.232 (2004)Google Scholar.

86 Leavy, Mark J., Discrediting Human Rights Abuse as an “Act of State”: A Case Study on The Repression of the Falun Gong in China and Commentary on International Human Rights Law in U.S Courts, 35 Rutgers L.J. 749, 760–761 (2004)Google Scholar; See also Chaney, Christopher, The Despotic State Department in Refugee Law: Creating Legal Fictions to Support Falun Gong Asylum Claims, 6 Asian-Pac. L. & Pol'y J. 4 (2005)Google Scholar: “According to the Falun Gong, hundreds of its practitioners have been confined to psychiatric institutions and forced to take medications or undergo electric shock treatment against their will.” And see Chu, Theresa, Justice Against Crime of Genocide, paper presented at the International Academy of Law and Mental Health, Paris, July 2005 Google Scholar.

87 Dangerous Minds: Political Psychiatry in China Today and its Origins in the Mao Era, available at http://hrw.org/reports/2002/china02 (last visited September 25, 2006).

88 Id. See also a document by Physicians for Human Rights, Dual Loyalty & Human Rights in Health Professional Practice: Proposed Guidelines and Institutional Mechanisms reprinted and available at http://www. phrusa.org/healthrights/dl.html (last visited September 25, 2006).

89 But see supra text accompanying notes 85-87, and infra notes 91 (citing to continued abuses in Russia), and 115 (discussing the institutional ization of members of the Falun Gong in China).

90 See e.g., Winick, supra note 49, at 538 (discussing current conditions in facilities in Hungary, and concluding that they are “reminiscent of the state of American mental health facilities thirty-five or more years ago” (and see also id.: “many diagnosed as mentally disabled are permanently institutionalized in Hungarian psychiatric facilities, although perhaps 50% of them could live safely in the community with suitable care.”). See generally, Perlin, supra note 7 at 844-846.

91 Bonnie, supra note 4, at 142. Recent revelations make clear that this is not simply a relic of the past. See Finn, Peter, In Russia, Psychiatry Is Again a Tool Against Dissent, Washington Post, Sept. 30, 2006, available at http://www.washingtonpost.com/wp-dyn/content/article/2006/09/29/AR2006092901592_pf.html (last visited September 9, 2006)Google Scholar.

92 See generally Perlin, supra note 7, at ch. 2.

93 See, e.g., Mental Disability Rights International, Human Rights & Mental Health: Mexico (2000)Google Scholar; Mental Disability Rights International, Children in Russia's Institutions: Human Rights and Opportunities for Reform (1999)Google Scholar; Mental Disability Rights International, Human Rights & Mental Health: Hungary (1997)Google Scholar; Mental Disability Rights International, Human Rights & Mental Health: Uruguay (1995)Google Scholar; Rosenthal, Eric et al. , Not on the Agenda: Human Rights of People with Mental Disabilities in Kosovo (2002)Google Scholar.

94 See supra text accompanying notes 17-19.

95 Perlin, Michael L., “Half-Wracked Prejudice Leaped Forth”: Sanism, Pretextuality, and Why and How Mental Disability Law Developed As It Did, 10 J. Contemp. Legal Issues. 3, 26 (1999)Google Scholar. I address these issues extensively in Perlin, THP, supra note 3, and in a series of law review articles. See, e.g., Perlin, Michael L., Morality and Pretextuality, Psychiatry and Law: Of “Ordinary Common Sense,” Heuristic Reasoning, and Cognitive Dissonance, 19 Bull. Am. Acad. Psychiatry & L. 131 (1991)Google ScholarPubMed; Perlin, Michael L., On “Sanism,” 46 Smu L. Rev. (1992) 373 Google Scholar; Perlin, Michael L., Pretexts and Mental Disability Law: The Case of Competency, 47 U. Miami L. Rev. 625 (1993)Google Scholar; Perlin, Michael L., Therapeutic Jurisprudence: Understanding the Sanist and Pretextual Bases of Mental Disability Law, 20 N. Eno. J. Crim. & Civ. Confinement 369 (1994)Google Scholar; Perlin, Michael L., The ADA and Persons with Mental Disabilities: Can Sanist Attitudes Be Undone? 8 J.L. & Health 15 (1993–1994)Google Scholar; Perlin, Michael L, The Sanist Lives of Jurors in Death Penalty Cases: The Puzzling Role of “Mitigating” Mental Disability Evidence, 8 Notre Dame J. L. Ethics & Pub. Pol'y 239 (1994)Google Scholar; Perlin, supra note 19; Perlin, Michael L., There's No Success Like Failure and Failure's No Success at All: Exposing the Pretextuality of Kansas v. Hendricks, 92 Nw. U. L. Rev 1247 (1998)Google Scholar; Perlin, supra note 16; Perlin, Michael L., You Have Discussed Lepers and Crooks: Sanism in Clinical Teaching, 9 Clinical L. Rev. 683 (2003)Google Scholar [hereinafter Perlin, Lepers and Crooks]; Perlin, Michael L., And My Best Friend, My Doctor/ Won't Even Say What It Is I've Got: The Role and Significance of Counsel in Right to Refuse Treatment Cases, 42 San Diego L. Rev. 735 (2005) [hereinafter Perlin, Best Friend]Google Scholar.

96 I discuss this issue extensively in Michael L. Perlin, “The Chimes of Freedom Flashing”: Mental Disability and International Human Rights (book manuscript in progress); see also Perlin, supra note 7, at ch. 6.

97 (1) Lack of comprehensive legislation to govern the commitment and treatment of persons with mental disabilities, and failure to adhere to legislative mandates; (2) Lack of independent counsel and lack of consistent judicial review mechanisms made available to persons facing commitment and those institutionalized; (3) A failure to provide humane care to institutionalized persons; (4) Lack of coherent and integrated community programs as an alternative to institutional care, and (5) Failure to provide humane services to forensic patients. See Perlin, supra note 7, at ch. 8.

98 Perlin, supra note 6, at manuscript at 1.

99 http://www.un.org/esa/socdev/enable/rights/ahc8adart.htm (last visited, October 14, 2006). For a thoughtful and comprehensive predecessor article, see Dhir, Aaron, Human Rights Treaty Drafting Through the Lens of Mental Disability: The Proposed International Convention on Protection and Promotion of the Rights and Dignity of Persons with Disabilities, 41 Stan. J. Int'l L. 181 (2005)Google Scholar.

100 Degener, Theresia & Quinn, Gerard, A Survey of International, Comparative and Regional Disability Law Reform, in Disability Rights Law & Policy: International and National Perspectives 3, 18 (Breslin, Mary Lou & Yee, Silvia eds., 2002)Google Scholar.

101 Bonnie & Polubinskaya, supra note 39, at 280-822.

102 See supra text accompanying notes 55-60.

103 See e.g., Lewis, supra note 82, at 293-294, and see infra text accompanying notes 106-112.

104 See Alexander, George, Big Mother: The State's Use of Mental Health Experts in Dependency Cases 24, Pac. L.J. 1465, 1475 (1993)Google Scholar; see also Robitscher, Jonas, The Powers of Psychiatry, 104–109 (1980)Google Scholar.

105 Alexander, supra note 104, at 1475.

106 Available at http://www.mdac.info/news_reports/news_reports.htm (last visited September 25, 2006).

107 On the question of whether “voluntary” admissions are, in fact, voluntary, see 1 Perlin, supra note 3, § 2C-7.2, at 482-83, discussing Herr, Stanley, Civil Rights, Uncivil Asylums and the Retarded, 43 U. Cin. L. Rev. 679, 722 (1974)Google Scholar, (distinction between voluntary and involuntary often “illusory,”) and Wexler, David B., Foreword: Mental Health Law and the Movement Toward Voluntary Treatment, 62 Cal. L. Rev. 671, 676 (1974)CrossRefGoogle Scholar, (distinctions between voluntary and involuntary hospitalization often “murky.”).

108 Article 34 of Law on Psychiatric Care, and Article 304 of The Civil Code of the Russian Federation.

109 Available at http://www.mdac.info/documents/MDAC%20Shadow%20Report%20on%20Estonia% 20for% 20HRC%202003 (last visited September 25, 2006).

110 Email from Oliver Lewis, legal director, MDAC (February 28, 2006) (on file with Author).

111 See also, e.g., http://www.mdac.info/documents/PR_RuAppealCourt_20051216_eng.pdf (press release, last visited September 20, 2006) “Russian Appeal Court Declares State's Denial to Provide Services to Children with Disabilities Unlawful;” http://www.mdac.info/documents/PR_SvRussia_20050804_eng.pdf (press release last visited September 20, 2006) Russia's guardianship system challenged at the European Court of Human Rights.”

112 Bonnie, supra note 4, at 142.

113 See supra text accompanying notes 85-87.

114 Bonnie, supra note 4, at 143. Rather, he sees Chinese psychiatry as the key to amelioration: “Instead, the only available path, in the short term, is through, Chinese psychiatry, using the collegial pressure of international psychiatric and medical organizations.” Id.

115 Kahn, Joseph, Sane Chinese Put in Asylum, Doctors Find, N.Y. Times, March 17, 2006 Google Scholar. (“Dutch psychiatrists have determined that a prominent Chinese dissident who spent 13 years in a police-run psychiatric institution in Beijing did not have mental problems that would justify his incarceration, two human rights groups said Thursday.”)

116 See generally, 1 Perlin, supra note 3, § 2B-1 to §2B-15, at 191-292; see also, e.g., Perlin, Michael L., Fatal Assumption: A Critical Evaluation of the Role of Counsel in Mental Disability Cases, 16 Law & Hum. Behav. 39 (1992)CrossRefGoogle Scholar; Perlin, Lepers and Crooks, supra note 95; Perlin, Best Friend, supra note 95. In this context, see especially, id. at 738, discussing the “meaningful and complex performance standards for counsel in such cases,” set by the Montana Supreme Court in In re the Mental Health of K.G.E, 29 P.3d 485 (Mont. 2001).

117 See, e.g., 2 Perlin, supra note 3, at ch. 3; Perlin, supra note 7, at ch. 2.

118 See, e.g., 1 Perlin, supra note 3§ 2B-12, at 271-73 and see MDAC Report, supra note 83, 4.1.2 §. ii) Lack of Clear Procedures for Judicial Review of Involuntary Civil Commitment Applications) (“reporting on lack of periodic review of commitment findings in Kyrgyz Republic.”)

119 See Perlin, supra note 7.

120 Bonnie, supra note 4, at 142.

121 See Bonnie & Polubinskaya, supra note 39.

122 Behind Closed Doors: Human Rights Abuses in the Psychiatric Facilities, Orphanages and Rehabilitation Centers of Turkey (2005), available at www.mdri.org/projects/turkey (last visited September 25, 2006).

123 See European Union Calls on Turkey to Improve Rights of People with Mental Disabilities, reprinted at http://www.disabilityworld.org/12-01_06/mdriturkey.shtml (last visited September 25, 2006).

124 See http://www.mdri.org/projects/turkey/MDRI_EU_PressRelease.pdf (last visited September 25, 2006):

It is extremely important that the EU has raised concerns about the human rights of people with disabilities in Turkey,” said Eric Rosenthal, Executive Director of Mental Disability Rights International. “Abuses that take place behind the closed doors of institutions are all too often overlooked by the public and international oversight bodies. By raising these concerns, the EU report ensures that egregious abuses against children and adults with mental disabilities will be taken into account as Turkey applies for EU accession.

See also, Smith, Craig, Abuse of Mentally Ill Is Reported in Turkey, N.Y. Times, Sept.28, 2005 Google Scholar:

The report, by Mental Disability Rights International, an advocacy group based in Washington, is likely to complicate the EU talks because many European officials are already wary of letting Turkey join the Union and will use any evidence that the country falls short of European standards to argue against its membership. But the authors of the report hope that the pressure will bring a quick end to the worst abuses. “We realized Turkey was a great opportunity for using that process to have some influence,” said Eric Rosenthal, Mental Disability Rights International's founder…

125 See Perlin, supra note 7, at ch. 8.

126 See Alexander, supra note 1; Alexander, supra note 104.

127 See Munro, supra note 55.

128 See Bloch & Reddaway, supra note 27; Bloch & Reddaway, supra note 28; Bloch & Reddaway, supra note 29.

129 See Bonnie, supra note 4; Bonnie, supra note 39.

130 See Bonnie & Polubinskaya, supra note 39.

131 See supra notes 93 & 122 (MDRI), and notes 83, 106, & 118 (MDAC).

132 See Bloch & Reddaway, supra note 29, at 152.

133 See generally supra note 74, and see e.g., cases cited in Gostin & Gable, supra note 37; Rosenthal & Rubenstein, supra note 12, and Rosenthal & Sundra, supra note 49, passim.

134 See supra note 118.

135 See Falter v. Veterans' Admin., 502 F. Supp. 1178, 1185 (D.N.J. 1980) (central inquiry is “how [persons with mental disabilities] are treated as human beings”), discussed in this context in Perlin, supra note 20, at 541 n.49.

136 Except, of course, in China.

137 Rosenthal & Rubenstein, supra note 12, at 260.

138 Symposium: International Human Rights Law and the Institutional Treatment of Persons with Mental Disabilities: The Case of Hungary, 21 N.Y.L. Sch. J. Int'l & Comp. L. 361, 381 (2002) (remarks of Jean Bliss)Google Scholar.