Freedom of Opinion and Expression: From the Perspective of Psychosocial Disability and Madness

Abstract

This article argues that civil mental health laws operate to constrict how people think, understand, and speak about psychosocial disability, madness, and mental distress. It does so with reference to views and experiences of mental health service users and psychiatric survivors (users and survivors) and their/our accounts of disability, madness, and distress, such as those articulated by the emerging field of Mad studies. The analysis considers the application of the rights to freedom of opinion and expression that are enshrined in the International Covenant on Civil and Political Rights and other international human rights instruments to the mental health context. The article explores the suppression of freedom of opinion and expression that is effected through the symbolic violence of psychiatry and the mental health paradigm. Focusing on Australian legal frameworks, the article discusses how the material violence and coercion characterising mental health laws compound this process. It is further argued that civil mental health laws, by codifying the tenets of psychiatry and the mental health paradigm so as to render them largely unassailable, validate the ontological nullification of users and survivors. The foregoing analysis exposes the dangers of adopting a functional test of mental capacity as the pre-eminent legal standard for authorising involuntary mental health interventions. It is suggested that considering freedom of opinion and expression from the perspective of psychosocial disability and madness reinforces the Committee on the Rights of Persons with Disabilities’ interpretation that such interventions are incompatible with international human rights standards.

Keywords: Mental Health Law, Convention on the Rights of Persons with Disabilities, International Covenant on Civil and Political Rights, Psychosocial Disability, Mad Studies, Freedom of Expression, Freedom of Opinion, Coercion, Symbolic Violence, Capacity