July 25, 2010

II. Defining Mental Disability

Mental disabilities, as discussed in this report, include both mental health problems and intellectual disabilities. Persons with mental health problems also refer to themselves as having psychosocial disabilities, a term that reflects the interaction between psychological differences and social/cultural limits for behavior as well as the stigma that the society attaches to persons with mental impairments.[21] Both psychosocial and intellectual disabilities are categories that encompass a broad spectrum of symptoms and severity.

This report focuses on individuals whose disabilities significantly impair their functioning and ability to prepare their case and participate in court, while recognizing the level of impairment will vary from person to person and, in the case of mental health, may even fluctuate daily.

Serious mental health problems include diagnosable mental, behavioral, or emotional conditions that substantially interfere with or limit one or more major life activity. The Diagnostic and Statistical Manual of Mental Disorders of the American Psychiatric Association (commonly referred to as the DSM-IV) provides standard criteria for identifying mental health conditions and their known causes, and is used by medical professionals to diagnose, understand and treat mental health problems. The DSM-IV defines a mental disorder as a “clinically significant behavioral or psychological syndrome or pattern that occurs in an individual” which is a “manifestation of a behavioral, psychological, or biological dysfunction in the individual.”[22] The current revised edition of the DSM-IV, known as the DSM-IV-TR, organizes psychiatric diagnoses into five levels (axes) that include serious clinical disorders like schizophrenia or bipolar disorder (Axis 1), serious personality disorders such as paranoia (Axis 2) and traumatic brain injuries (Axis 3).

By contrast, intellectual or cognitive disabilities are permanent developmental limitations. The American Association on Intellectual and Development Disabilities defines intellectual disabilities as “characterized by significant limitations both in intellectual functioning and in adaptive behavior, which covers many everyday social and practical skills. This disability originates before the age of 18.”[23] Intellectual functioning refers to the ability to learn, reason, and problem-solve.[24] Intellectual disabilities are permanent developmental conditions that cannot be treated by medication. People with mild intellectual disabilities might benefit from additional education but are able to live independently with some support, while people with more severe disabilities may need life-long educational and social support.[25]

Although the two conditions are often confused, mental impairments and cognitive disabilities are different conditions. Mental impairments almost always include disturbances of some sort in emotional life; intellectual functioning may be intact, except where thinking breaks with reality (as in hallucinations). A person who has mental health problems, e.g. who is bipolar or suffers from schizophrenia, can have a very high intelligence quotient (I.Q.), while a person with cognitive disabilities always has a low I.Q. A person who has a mental impairment may improve or function fully with therapy or medication, but cognitive disabilities are a permanent state. Finally, mental impairments may develop during any stage of life, while cognitive disabilities (unless due to physical trauma) manifest by the age of eighteen. Many people with intellectual disabilities also have mental impairments; estimates of the number of individuals with both mental health problems and intellectual disabilities vary from 10 percent to 40 percent.[26]

Many non-citizens with mental disabilities may have been unable to access medical treatment in the community, or they may have never been diagnosed. Others may have chosen to forgo medication in light of the severe and disruptive side-effects of many psychotropic medications.[27]

Not all mental disabilities raise competency concerns. For example, a person who has depression, anxiety disorder, or schizophrenia may be able to effectively advocate for their rights in immigration proceedings if his or her condition does not infringe on capacity to comprehend or participate. But in other cases mental disabilities can prevent non-citizens from performing necessary tasks in presenting their case. Moreover, a non-citizen’s ability to participate in proceedings is important for all parties because, in many cases, the primary evidence of deportability comes from the subject of proceedings—for example, their admission that they are not a US citizen or are unlawfully in the US. Nevertheless, there is no requirement that judges examine a non-citizen’s ability to proceed in immigration court without support and legal assistance, and no procedure to follow in rare cases when such questions are raised.

Human Rights Watch documented cases of non-citizens whose mental disabilities varied considerably in nature and degree. These included the following four examples of individuals whose mental disabilities were identified by medical records:

  • Mike C., a Legal Permanent Resident (LPR) from Haiti, has a cognitive disability and bipolar disorder. He is unable to read or write, and other detainees had to write his requests for medical attention.
  • Arlex C., an asylum-seeker from Guatemala, was severely beaten by soldiers and has a traumatic brain injury that impairs his memory.
  • Yuri S., an LPR and refugee from the Soviet Union, has post-traumatic stress syndrome. He was a prisoner of war in Afghanistan in the Soviet-Afghan war, during which he was forced to perform hard labor and was sexually assaulted in captivity. He worked with his attorney for almost a year before telling her about the abuse he experienced and the nightmares he still has.
  • Denzel S., an LPR from Haiti, has schizophrenia. He was hospitalized before his arrest by ICE and has been sent to an in-patient psychiatric facility at least four times since his transfer to a Texas detention facility. He still hears voices and has attempted suicide twice while in detention.

Most non-citizens with mental disabilities interviewed for this report were long-time legal permanent residents or persons seeking asylum from persecution in their home countries. Many had come to the US as young children and had family who were US citizens; in several cases, family members in the US were helping to find legal representation and community treatment for their relatives.

While their disabilities affected their capacity to grasp legal proceedings or concepts, many had held (mostly menial labor) jobs in their adult lives. Some individuals told Human Rights Watch they had committed petty crimes, such as shoplifting, drug use, and trespassing, after failing to take their medications, and spoke with regret about past mistakes and eagerness to start mental health treatment again. Others had lived on the margins of society, had committed more serious crimes, been homeless or unable to hold a job.

Some individuals interviewed for this report were alienated from family members who found their disabilities and their symptoms offensive or threatening. Several had been previously found incompetent to stand trial by a criminal court and were now in immigration court, without legal representation, facing deportation. Some interviewees could be difficult to interact with when delusional, aggressive, or unresponsive to questions.

[21]World Network of Users and Survivors of Psychiatry, Manual on Implementation of the Convention on the Rights of Persons with Disabilities, p. 9 http://www.chrusp.org/home/resources (accessed July 7, 2010).

[22]American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders IV-R (4th Edition), 2000, p.xxxi.

[23]American Association on Intellectual and Development Disabilities, “FAQ on Intellectual Disability,” http://www.aaidd.org/content_100.cfm?navID=21 (accessed May 8, 2010).

[24]Ibid.

[25]Inclusion Europe and Mental Health Europe, Mental Illness and Intellectual Disability, 2007, http://digitalcommons.ilr.cornell.edu/gladnetcollect/276 (accessed May 8, 2010).

[26]Fred J. Biasini, et al., “Mental Retardation: A Symptom And A Syndrome,” in S. Netherton, D. Holmes, & C. E. Walker, eds., Comprehensive Textbook of Child and Adolescent Disorders (New York: Oxford University Press, 2000), www.uab.edu/cogdev/mentreta.htm.; U.S. Public Health Service. Closing the Gap: A National Blueprint for Improving the Health of Individuals with Mental Retardation; Report of the Surgeon General’s Conference on Health Disparities and Mental Retardation, February 2001; Pomona Project, Health Indicators for People with Intellectual Disability: Using an Indicator Set (2008).

[27]This report does not address issues such as voluntary or involuntary treatment for persons with mental disabilities subject to immigration detention or rights violations related to involuntary admission to psychiatric care facilities.