1. The Right to Community Services
As this paper observes, FSW with mental disabilities may be sentenced to prison because of
behaviour caused by their disability. They may also be classed as high security and isolated from
the rest of the prison population because of their disability. In some ways then, prisons have
become the modern day version of non-voluntary mental institutions and asylums.
Unlike earlier days though, current law protects the rights of persons with mental disabilities.
Thus the de facto institutionalization of women with mental disabilities must be carried out in
accordance with human rights principles. Both the CHRA and the Charter protect the right of
persons with disabilities to benefit equally from public services. Moreover, there is an emerging
body of support at both the international and state level that reinforces the right of persons with
disabilities to receive service in their community.85 Set out below is a brief description of some of
the international and state developments that offer legal reinforcement for the principle of
community integration.
a. International Developments
Since the International Year of Disabled Persons in 1981, the United Nations has taken a number
of significant steps to demonstrate its commitment to the promotion and recognition of the
human rights of people with disabilities. This paper will not examine all United Nations activities.
Rather, it will highlight a few examples that may be particularly relevant to the predicament of
FSW with disabilities.
Principles for the Protection of Persons with Mental Illness and for the Improvement of
Mental Health Care
In 1991, the United
Nations passed a non-binding resolution adopting the principles for
the Protection of Persons with Mental Illness and for the Improvement
of Mental Health Care (“the MI Principles”).86 Despite
their non-binding status, these principles offer poignant guidance regarding
the treatment of FSW with mental disabilities. Principle 20 specifies
that the MI Principles apply to persons serving sentences of
imprisonment for criminal offences. The MI Principles further stipulate
that, as far as possible, every person with a mental disability should
have the right to be treated and cared for in the community in which
he or she lives.87 This support for community living is reinforced
by the duty to treat persons with mental illness in the least restrictive
setting in their own community and to preserve and enhance their autonomy.88
The MI Principles prohibit discrimination on the grounds of
mental illness and define discrimination as "any distinction, exclusion
or preference that has the effect of nullifying or impairing equal enjoyment
of rights."89
The MI Principles
may therefore serve as a useful framework for enforcing a claim of discrimination
by FSW with mental disabilities. Essentially, they could argue that
they are being discriminated against by governments that rely primarily
on the institutional prison system to provide services rather than respecting
their right to benefit from suitable community services.
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