Difficulties with the Meaning of Equality, Non-Discrimination and Participation in the CRPD, and their Application to the Abolition with Support Model

Abstract

Chapter 7 considers the difficulties with the meaning of equality and non-discrimination in the CRPD and what this means for the call for the abolition of mental health law. These difficulties include determining the equality of what, equality with respect to whom and finding an appropriate comparator, determining whether involuntary detention and treatment is a benefit or detriment, and how to address the difference and sameness of persons with mental impairments. Specifically, whether the difference between persons with and without mental impairments is real and whether supported decision-making is sufficient to make persons with mental impairments equal to those without disabilities. It also introduces and discusses the third limb of the interpretive compass, the right to participation. It argues that the right to participation is a right for persons with disabilities and their organizations to be consulted with in good faith about policy and individual health decisions and for their views to be taken seriously. It does not mean that States Parties have to do everything persons with disabilities want, nor is it a power of veto. That said, States Parties should probably implement the wishes of persons with disabilities unless there is a good reason not to. Even so, the right to participation raises a number of difficulties in determining whether disabled persons organizations are sufficiently representative of their constituents and all persons with disabilities generally, including those with intersecting identities.