A Regional Disability Tribunal for Asia and the Pacific?

1. A Regional Disability Tribunal for Asia and the Pacific? TERRY CARNEY University of Sydney

2. Background • Asia Pacific is the only world region without regional human rights machinery. • Serious mental health and disability needs • Asia’s mental health situation continues to be in crisis in the twenty-first century with a large diversity in the mental-health resources available among the 45 countries in Asia. Factors deterring the development of Asia’s mental health include negative attitude to mentally ill individuals, limitations in the availability of and accessibility to mental health service, very limited budgets for mental health despite increasing financial status and a state of war (Chanpattana, 2010). • But we already now have the CRPD.

3. The Argument • There is a case for a DR-TAP, based on devolution (the ‘subsidiarity’ idea), complementing CRDP, etc. • But resources are scarce; the region is culturally & politically diverse and lacking in cohesion; and governmental backing or finance is unlikely at this time. • So service development, attitudinal change, capacity building and securing positive rights to services should be the immediate priorities. • Regional initiatives should concentrate on advancement of social rights (socio-economic) rights at the national/domestic level. • Civil (and some social) rights can presently best be advanced by the CRDP.

4. The paper • A. INTRODUCTION • B. STRESS TESTING THE DR-TAP • Why disability and not inequality? Why law? • DR-TAP ‘value-adding’ & domestic reception? • DR-TAP auspice and style? • DR-TAP and ‘roles’ of regional bodies? • C. CULTURALLY SENSITIVE? • Culture and family in disability in region • Law and lawyers? • D. CONCLUSION

5. B. TESTING DR-TAP ASSUMPTIONS • DISABILITY LAW OR DEVELOPMENT? • Equality the larger and more amenable issue? • Did law save Australia from eg ‘J’ ward? • VALUE-ADDING OF REGIONAL LAW? • Readily accepted domestically? • UK ‘Bournewood’ (compliant restrained)→$1,000 pa. • Asia 0.2 psychiatrists per 100,000 (14-16 in US). • Cambodia total MH budget = cost 1 western hospital. • Better to avoid too much rights talk?

6. B. ASSUMPTIONS (Cont) • Auspice & Style • Auspice is voluntary at first, no treaty base. • So no ‘remedies’ as such. • But capacity building superior anyway? • And CRPD a more normative force for this region? • Court not a tribunal is (mistakenly) the design • Changes ‘logic’ of outcomes based on our GT research (more dignity of risk, less medical). • Social model of disability actualised by Tribunals, not by courts. • Consumers able to be represented.

7. B. ASSUMPTIONS (Cont) • Roles for regional tribunals/bodies • Some roles ‘fit’ DR-TAP (complementing CRPD, focal point, conduit); • Others don’t fit DR-TAP (culturally appropriate interp of ‘family’, capacity-building, national statistics/research, liaison); • Unclear if individual-grievance focus, or structural (systemic), and if latter, extra-legal is better anyway?

8. C. CULTURE MATTERS? • Culture and family • Family in Asia/Pacific does the work of the state or law in West (HK guardianship example of negligible ‘take-up’ of NSW model). • Mental health & disability are culturally constructed in region? In traditional Chinese societies … mental illness is often considered a punishment for misdeeds done by the individuals or their family members. Mental illness is generally viewed as a family problem rather than a societal problem ... . Because of this, families of individuals with mental illness … typically receive minimal assistance from their community and government. Some Chinese families actually choose to keep the fact that one or more family members has a mental illness a family secret rather than seek help because they know that if they reveal this information, they are likely to face stigma similar to that faced by their family member(s) with mental illness (Hsiao & Van Ripper 2010).

9. C. CULTURE (Cont) • So isn’t Stein’s ‘culturally appropriate interpretation of family’ the top priority? • Who will bring complaints credible for wider population (or governments)? • So instead concentrate on tackling the cultural component of ‘stigma’?

10. Ramsay (2010) on stigma Stigma … an overriding concern for the caregivers and their families. It manifests through the prejudiced views toward mental illness held by neighbours, work colleagues or an undifferentiated wider community. So stigmatised is mental illness in Chinese societies that [caregivers] …view[ed] the phenomenon as understandable and reasonable given the disease symptomatology and based on ‘‘historical’’ grounds. Rarely is stigma vigorously contested by caregivers. They actively conceal their family member’s illness from outsiders (including relatives who are not co-resident), even in the knowledge that their actions, such as refusing in-patient hospital treatment since it may ‘‘expose’’ the family, may be detrimental to the ill family member.

11. What about the law and lawyers? • In SE Asia only 16.7% of mental health laws post-date the 1990s (76.6% in Europe); many have none • Bartlett (2010) and irrelevance of ‘rights models’ to developing world? • DR-TAP sees legal representation as crucial; but our Australian research ranks it as ‘last cab off rank’?

12. D. CONCLUSION • There is an important place for ‘rights talk’ in redressing disadvantage of the mentally ill and disabled; • But the main contribution of rights talk is in changing the terms of the dialogue, rather service leverage won in courtrooms; • And, while there is a value in enshrining strong equal opportunity and rights protection laws and adjudicative avenues in domestic law; • Ultimately it is the political arena where money, people and services are allocated. And it is in civil society where cultural phenomena such as stigma, denial of human dignity, and neglect are embedded. • So hasten slowly on this second or third order DR-TAP priority?

13. References • Bartlett, P. (2010). ‘Thinking About the Rest of the World: Mental health and rights outside the “first world”'. In: B. McSherry and P. Weller (ed) Rethinking Rights-Based Mental Health Laws. Oxford: Hart Publishing: in press. • Chanpattana, W. (2010). 'Asia's Mental Health Crisis in the 21st Century'. The Journal of ECT,26(1): 2-4. • Hsiao, C.-Y. and M. Van Riper (2010). 'Research on Caregiving in Chinese Families Living With Mental Illness: A Critical Review'. Journal of Family Nursing,16(1): 68-100. • Ramsay, G. (2010). 'Mainland ChineseFamily Caregiver Narratives in Mental Illness: Disruption and Continuity'. Asian Studies Review,34(1): 83-103. • Tasman, A., N. Sartorius and B. Saraceno (2009). 'Addressing Mental Health Resource Deficiencies in Pacific Rim Countries'. Asia-Pacific Psychiatry,1(1): 3-8.