Law professor’s brief seeks justice for detainees in Guatemalan psychiatric institution

Melish.

Women detained in the Federico Mora psychiatric institution where they are at high risk of sexual abuse and trafficking. Photo: Disability Rights International

From 2,000 miles away, a SUNY Buffalo Law School faculty member is a key player in a case filed with the Inter-American Commission on Human Rights – a move that seeks relief for detainees unjustifiably segregated from society and held indefinitely against their will in inhumane and deplorable conditions in Guatemala’s national psychiatric institution.

Associate Professor Tara J. Melish, who directs the Buffalo Human Rights Center, was a principal author of a brief before the Inter-American Commission on Human Rights, an arm of the Organization of American States. The case was filed October 29, 2014 by Disability Rights International (DRI) –for which Melish serves as legal advisor— and the Human Rights Office of the Archdiocese of Guatemala (ODHAG) on behalf of people with disabilities detained in Guatemala’s national Federico Mora psychiatric institution.

“Federico Mora is the most violent and dangerous facility we’ve discovered anywhere in the Americas,” said DRI Executive Director Eric Rosenthal. “We are fighting to protect the 340 children and adults detained at Federico Mora and institutions like this throughout the Americas.”

The institution is located next to Guatemala’s largest prison in a crime-ridden and gang-controlled area of Guatemala City. Armed police and soldiers with machine guns assigned to guard persons transferred to the psychiatric facility from the adjacent prison prey on children and adults with disabilities held in the institution. Regularized rape, trafficking for sex, and other violence and abuse against detainees are widely reported.

Melish.

Associate Professor Tara J. Melish

“Those detained in the facility are extremely vulnerable to abuse,” Melish said. Their vulnerability is exacerbated by the fact that, “under Guatemalan law, detainees are stripped completely of their legal capacity upon admission into the facility, with the director of the psychiatric institution becoming their sole legal guardian. Persons admitted into the Federico Mora are thus deprived by law of their ability to challenge either the terms or conditions of their confinement.” “Legally incapacitated and indefinitely segregated from society in a closed and dangerous institution,” Melish stressed, “they become easy prey for systematic abuse of the most horrific kind.”

As Melish explains, by addressing not only the most visible consequences of such abuse, but its structural causes, “the case aims to be paradigm-shifting.” “It challenges not only the dehumanizing conditions and treatments to which persons with disabilities are unlawfully subjected in the Federico Mora, but, much more fundamentally, the very model of segregated and indefinite institutionalization upon which Guatemala’s mental health system is built.”

“Persons with disabilities have a right to life in the community on an equal basis with others,” Melish affirmed, “a right Guatemala has expressly endorsed by ratifying the UN Convention on the Rights of Persons with Disabilities.” “That means that mental health services and supports must be available in the community, in the least restrictive environments possible, and on a non-discriminatory basis.”  “Under no circumstances,” she stressed, can the provision of such services “be conditioned on the forfeiture of one’s rights to personal liberty, integrity, judicial protection, inclusion in society, and legal recognition as a person before the law.” 

The case, then, fundamentally challenges both the segregation of people with psychiatric conditions and their deprivation of legal capacity. “We are asking the Human Rights Commission to protect the right of people with disabilities to live and receive treatment in the community,” Melish said. “Our case argues that Guatemala's law improperly strips people of their legal identity and denies their right to decide where and with whom they will live or what treatment they receive.” The new filing thus lays the groundwork for finding Guatemala internationally responsible for violating the rights of detainees under the American Convention on Human Rights to life, personal integrity, and health; to liberty and judicial protection; to equal protection before the law; as well as to legal recognition as a person before the law, the right to live in the community on an equal basis with others, and the right to a health system that provides services to persons with disabilities on a non-discriminatory basis.

Melish visited Federico Mora in October 2012 as part of an international fact-finding team, which, soon after, won urgent measures of relief (known as “precautionary measures”) from the Inter-American Commission on Human Rights on behalf of the detainees. After a year of follow-up and negotiations, the legal team signed a comprehensive agreement with the Guatemalan government at the Commission’s Washington, DC headquarters in October 2013. The agreement specified the concrete measures the government committed to take to protect the detainees and begin the process of transitioning from a model of segregated institutionalization of persons with disabilities toward a community-based model of mental health service provision. The government nevertheless reneged on the commitments in the following months and refused to endorse the accord as a legal obligation, necessitating further legal action in the international arena.

On a practical level, Melish says, the new filing is intended to change the political calculus of high-level actors within Guatemala on the consequences of continuing to ignore the massive problems in the Federico Mora. “This will be something the government is forced to respond to,” she said. “The goal is to make it as difficult as possible for the state to not do anything. We’re working on a whole range of strategies to change the political incentive structure faced by decision makers on this issue.”

Melish acknowledged, though, that progress will be difficult. For one thing, after decades of civil war, the country is ravaged by gang violence and organized crime. “Gangs, along with the army and police, control both the psychiatric institution and the prison next door. And the government is afraid to challenge them.” At the same time, cases in the international human rights system take a long time to resolve. It will probably be eight months before the Inter-American Commission on Human Rights takes up the matter.

Melish nonetheless remains confident in the case and its impact. The legal precedents established in this case, she stressed, “will be path-breaking—not only for providing tools for change in Guatemala’s public health system, but also for the way mental health services and supports are provided to persons with disabilities throughout the region.” Both regionally and globally, it will serve as a “powerful new precedent in challenging the segregation of persons with disabilities and affirming their fundamental right to live and receive services in the community on an equal basis with others.”