A/HRC/38/36 involuntary confinement, including involuntary commitment of persons with intellectual and psychosocial disabilities to mental health facilities, strictly on the basis of actual or perceived impairment, as such confinement carries with it the denial of the person’s legal capacity to decide about care, treatment, and admission to a hospital or institution. 24 50. In accordance with the above-mentioned Convention, the recognition of legal capacity, including of persons with intellectual and psychosocial disabilities, applies to all aspects of life, including for the purposes of equal standing in courts and tribunals. In this regard, the Committee has recognized that if persons with disabilities, including intellectual and psychosocial disabilities, in conflict with law are deprived of liberty through a lawful and non-arbitrary process, they must be provided with reasonable accommodation that preserves their dignity, including in prison.25 51. The Special Rapporteur acknowledges these provisions. He echoes his previous call for a paradigm shift in the field of mental health, which abandons outdated measures resulting in the forced confinement of persons with intellectual and psychosocial disabilities in psychiatric institutions. He calls on States, international organizations and other stakeholders to undertake concerted efforts to radically reduce the use of institutionalization in mental health-care settings, with a view to eliminating such measures and institutions. He also calls on States to provide reasonable accommodation inside prisons for persons with all forms of disability lawfully and non-arbitrarily deprived of liberty, in a way that preserves their dignity. 52. Foundational to the way forward is the need for serious discussion about the role that perceptions of mental conditions play in propagating structures of confinement, underpinned by a false dichotomy that an individual coming into conflict with the law is either “mad” or “bad”. People in conflict with the law, including those who may have a mental health condition, cannot be reduced to this binary categorization. The Special Rapporteur welcomes the growing debate around the subjective labelling of individuals and the inherent risks of diversion into coercive mental health settings. A fundamental part of this debate must include how the “insanity” defence and other criminal justice tools, such as mental health courts and security measures, may perpetuate systemic human rights failures in prisons and mental health settings. Many initiatives to provide mental health services in the community, without coercion or confinement, have shown promise. Empowerment is a basic precondition for the recovery of many persons who struggle with critical psychosocial challenges. Empowerment and recovery cannot happen in closed settings. Healthy, therapeutic relationships, based on mutual trust, should be fostered between users and providers of mental health-care services. IV. Children deprived of liberty 53. The scale and magnitude of children’s suffering in detention and confinement call for a global commitment to the abolition of child prisons and large care institutions alongside scaled-up investment in community-based services. 54. The Standard Minimum Rules for the Treatment of Prisoners, the first such rules adopted in the United Nations context, deliberately did not prescribe conditions and protection for child detainees, because they contained the principle that young persons should not be sentenced to imprisonment, which was repeated in the Nelson Mandela Rules. For over 30 years, United Nations rules in respect of juvenile justice have required that children be placed in institutions only as a measure of last resort and for the minimum duration possible. 26 States members of the United Nations long ago committed to depenalization and non-custodial measures for both children and adults. 27 Diverting 24 25 26 27 Guidelines on the right to liberty and security of persons with disabilities. Ibid. United Nations Standard Minimum Rules for the Administration of Juvenile Justice (“the Beijing Rules”), rule 19.1; see also the United Nations Rules for the Protection of Juveniles Deprived of their Liberty (“the Havana Rules”), rule 1. United Nations Standard Minimum Rules for Non-custodial Measures (“the Tokyo Rules”). 11