Hostname: page-component-cd9895bd7-mkpzs Total loading time: 0 Render date: 2024-12-29T11:19:52.420Z Has data issue: false hasContentIssue false
  • English
  • Français

Human Rights and Mental Disability: Perspectives on Israel

Published online by Cambridge University Press:  16 February 2016

Stanley S. Herr
Get access

Extract

The human rights of persons with mental disabilities represents a frontier area for legal protection. The content and means of enforcing their rights have become topics of both scholarly and popular concern. For two decades, the international community has grappled — somewhat fitfully — with the human rights norms that should guide nations in their care and treatment of these vulnerable groups. International concern has focused not only on problems of arbitrary detention and cruel, inhumane or degrading treatment, but on issues of institutionalization, sterilization, and a broad array of education, treatment and welfare services.

In many countries, obsolete legislation and service delivery models have hindered the realization of both negative and affirmative (“positive resource claims”) human rights.

Type
Articles
Information
Israel Law Review , Volume 26 , Issue 2 , Spring 1992 , pp. 142 - 194
Copyright
Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 1992

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

1 See Henkin, L., The Age of Rights (1990) 2Google Scholar; Morris, P., Put Away: A Sociological Study of Institutions for the Mentally Retarded (1969)Google Scholar.

2 Soifer, A., “On Being Overly Discrete and Insular: Involuntary Groups and the Anglo-American Judicial Tradition”, (1990) 20 Is. Yrbk. Human Rights 243, at 248, 256Google Scholar (noting the appalling precedents and lack of judicial solicitude that mentally retarded citizens and other minority groups have experienced).

3 See Minow, M., Making All the Difference: Inclusion, Exclusion, and American Law (1990)116, 127–35Google Scholar; Minow, M., “When Difference Has Its Home: Group Homes for the Mentally Retarded, Equal Protection and Legal Treatment of Difference”, (1987) 22 Harv. C.R.-C.L. L. R. 111Google Scholar.

4 Scotch, R., “Politics and Policy in the History of the Disability Rights Movement”, (1989) 67 Milbank Q. 380 (Suppl. 2, pt. 1)CrossRefGoogle ScholarPubMed.

5 See, e.g., Jerusalem Parents Lobby on Community Living for the Developmentally Disabled, Community Living for People with Developmental Disabilities in Jerusalem in the 1990s: Position Paper Presented to the Deputy Minister for Labour and Social Affairs, the Mayor of Jerusalem and the Public (December 1990, in Hebrew); Aharoni, C., Not Exactly As Everybody: Forty Years Struggle for Our Impaired Children (1989, in Hebrew) 109–12Google Scholar (criticisms that Israel lags far behind the U.S., Canada and the Scandinavian countries in community services and legal protection for persons with mental retardation).

6 E.g., U.N. Secretary-General on the Implementation of the World Programme of Action, A/41/605 of 23 September 1986, para. 36-40; Minutes of Shnit Committee on Revision of Mental Retardation Law, appointed by the Ministry of Labour and Social Affairs [hereinafter: Shnit Committee].

7 UN Economic and Social Council, Commission on Human Rights, Human Rights and Disability (progress report prepared by Mr. Leandro Despouy, special rapporteur, E/ CN.4/sub.2/1988/11, 13 June 1988).

8 See Shachar, Y., “Culture, Insanity and the Right to Be Wrong”, (1985) 15 Is. Yrbk. Human Rights 204Google Scholar. New immigrants to Israel from the Soviet Union and Ethiopia include a significant number affected by mental retardation, physical disability, or old age who will require intensive social services. Jerusalem Post, p. 2, 1 July 1991. In contrast, North American immigration law is highly exclusionary in its treatment of the mentally retarded, the mentally ill, and other stigmatized groups. 8 U.S.C. § 1182(a) (1988) (listing aliens who are mentally retarded, insane, or “afflicted with … a mental defect” among the twenty-eight categories of persons excluded from admission into the U.S.). See also Green, R., “Give Me Your Tired, Your Poor, Your Huddled Masses, Except Homosexuals: An Analysis of American and Canadian Immigration Policy”, (1987) 16 Anglo-American L. R. 139CrossRefGoogle Scholar. Recent amendments to U.S. immigration law narrow the classes of excludable disabled aliens to persons whose disability poses a threat to “the property, safety, or welfare of the alien or others”. 8 U.S.C. § 1181(a)(1)(A)(ii) (Supp. II 1990).

9 On the lesser degree of advocacy and citizen participation in the disability field in Israel, as compared to the U.S., see Kramer, R., Voluntary Agencies in the Welfare State (1981)Google Scholar.

10 See, e.g., Gavison, R., “The Controversy over Israel's Bill of Rights”, (1985) 15 Is. Yrbk. Human Rights 113Google Scholar.

11 See generally Shetreet, S., “International Protection of Human Rights in Israeli Law”, in Israeli Reports to the XIIth International Congress of Comparative Law, Goldstein, S., ed., (Jerusalem, 1986) 307Google Scholar; Cnaan, R., “The Evolution of Israel's Welfare State”, in Modern Welfare States: A Comparative View of Trends and Prospects, Friedmann, R., Gilbert, N. & Sherer, M., eds. (1987) 174, at 183Google Scholar (“Human rights, citizen participation and consumer rights, including those of welfare clients, have become issues of great importance in Israel in the last decade”.).

12 See Wilensky, H., The Welfare State and Equality: Structural and Ideological Roots of Public Expenditures (1975) 1Google Scholar. For example, Justice Haim H. Cohn has described Israel as a modern welfare state that has undertaken the “legal responsibility of providing all citizens with all the services, facilities and amenities … to ensure a proper standard of living for all …”. Cohn, H., “Comparative Law and International Protection of Human Rights”, in Israeli Reports to the XIth International Congress of Comparative Law, Goldstein, S., ed., (Jerusalem, 1982) 263, at 267Google Scholar. See Lehman, J., “To Conceptualize, To Criticize, To Defend, To Improve: Understanding America's Welfare State”, (1991) 101 Yale L.J. 685CrossRefGoogle Scholar.

13 L. Henkin, supra n. 1, at 143.

14 Ibid., at 193.

15 For the argument that the rights of persons with mental disabilities should depend on their capacity to use them and their reciprocal responsibilities to society, see Feldman, D., “Rights, Capacity and Social Responsibility”, (1987) 16 Anglo-American L. R. 97, at 114Google Scholar. (“The old fashioned view that a handicapped person was so different from other people as to be incapable of having any rights at all was pernicious and is now, happily, on the retreat, but a more recent idea, that all handicapped people have all the same rights as everyone else, is without support from any sustainable theory of the conditions under which entities can be said to ‘have’ rights”.).

16 L. Henkin, supra n. 1, at 179. See, e.g., World Federation for Mental Health, Declaration of Human Rights and Mental Health (26 August 1989) (Art. 4 proclaims, inter alia, the rights to “coercion-free, dignified, humane and qualified treatment”, to “protection from physical or psychological abuse”, and to “protection from professional or nonprofessional neglect and abandonment”.).

17 See Gordon, E., “The Elderly and the International Legal Process”, in Law and Aging: International Variations, Levine, M. & Bergman, S., eds., (1988) 17Google Scholar; Eide, A., “Realization of Social and Economic Rights and the Minimum Threshold Approach”, (1989) 10 Human Rights L. J. 35Google Scholar.

18 On the declaration as the “dawn of the law” and its influence on positive domestic law, see Lador-Lederer, , “Promotion of Health — The Making of an International Norm”, (1988) 18 Is. Yrbk. Human Rights 121, at 152Google Scholar.

19 Adopted at the Fourth International Congress of ILSMH, 24 October 1968, Jerusalem, reprinted in ILSMH, From Charity to Rights (1969) 160–61Google Scholar. For a comparable NGO declaration in the field of mental health, see World Federation for Mental Health, Declaration of Human Rights and Mental Health (26 August 1989). This Declaration is notable for its emphasis on the promotion of “the greatest degree of self-determination” on the part of mentally ill persons and the provision of treatment in “settings valued and accepted by the community, in the least intrusive manner, and under the least restrictive circumstances possible”. Ibid., Art. 5.

20 G.A. Res. 2856, 26 U.N. GAOR, Supp. No. 29 at 99, U.N. Doc. A/8429 (1971).

21 G.A. Res. 3447, 30 U.N. GAOR, Supp. No. 34 at 92, U.N. Doc A/10034 (1975).

22 Disabled person is defined as “any person unable to ensure by himself or herself wholly or partly the necessities of a normal individual and/or social life, as a result of a deficiency, either congenital or not, in his or her physical or mental capabilities”. Ibid., Art. 1.

23 Ibid., Art. 3.

24 Ibid., Arts. 2, 3, & 4. On recognition of human dignity under the Universal Declaration of Human Rights, and its concrete applications to the individual's liberty, equality and physical integrity, see Shraga, D., “Human Rights in Emergency Situations under the European Convention on Human Rights”, (1986) 16 Is. Yrbk. Human Rights 217, at 231–32Google Scholar.

25 G.A. Res., 3447, 30 U.N. GAOR, Supp. No. 34, at 92, U.N. Doc. A/10034 (1975), Arts. 6, 7, & 9.

26 Ibid., Arts. 10 & 11.

27 Ibid., Arts. 5 & 7.

28 Ibid., Arts. 11 & 13.

29 Ibid., Art. 12.

30 The international community can also promulgate narrower, but more detailed human rights standards. For example, the UN Commission on Human Rights is considering the adoption of minimum UN standards for the protection of mental patients. In March 1989 the Commission established a working group to draft “Principles for the Protection of Persons with Mental Illness and for the Improvement of Mental Health Care”. That text has now been submitted with the hope that the UN General Assembly will eventually adopt it as a guide for “the protection of fundamental freedoms and human and legal rights of persons with mental illness”. UN Economic and Social Council, Commission on Human Rights, Human Rights and Scientific and Technological Developments: Report of the Working Group on the Principles for the Protection of Persons with Mental Illness and for the Improvement of Mental Health Care, Annex II at 20, E/CN.4/1991/39, 5 February 1991.

These 21 principles are notable for their commitment to community living (“every person with a mental illness shall have the right to live and work, as far as possible, in the community”, id. at 9), treatment in the least restrictive environment, the right to judicial appeal and other procedural safeguards in the admissions and retention process, and the development of remedial mechanisms to foster rights compliance and to secure “appropriate disciplinary or judicial proceedings for professional misconduct or violation of the rights of patients”. Id. at 18. To implement these principles, states would be urged to take various legislative, judicial, administrative, educational and other measures.

31 Opened for signature, 26 January 1990, & entered into force, 2 September 1990, (1989) 28 I.L.M. 1448, at 1456. Child is defined as “every human being below the age of eighteen years”. Convention on the Rights of the Child, Art. 1.

32 Ibid., Art. 23(1).

33 Ibid., Art. 23(2). For discussion of some of those caveats and limitations, see text and notes at nn. 47-49, infra.

34 Ibid., Art. 23(3). A final paragraph calls upon States Parties to exchange information on methods of treating, rehabilitating, and otherwise assisting disabled children.

35 Ibid., Art. 25.

36 Ibid., Art. 28.

37 Ibid., Art. 24.

38 Ibid., Art. 2.

39 Ibid., Art. 3(3).

40 Ibid., Art. 3(2).

41 Ibid., Art. 19.

42 See Ibid., Preamble, Art. 18(1), & Art. 20(3). Melton, G., “Promoting the Dignity of the Child Through Mental Health Services”, in Children's Rights in America: U.N. Convention on the Rights of the Child Compared with United States Law, Cohen, C. & Davidson, H. eds. (1990) 239, at 247Google Scholar.

43 Convention on the Rights of the Child, Art. 9(1).

44 Ibid., Art. 16(1). On the uniqueness of this provision and its support for the child's right to individual dignity, see C. Cohen, “A Guide to Linguistic Interpretation of the Convention on the Rights of the Child”, in Children's Rights in America, supra n. 42, at 36.

45 While the U.S. has neither signed nor ratified the Convention, Israel signed it and deposited the instrument of ratification with the U.N. Secretary General on 3 October 1991. Letter from Avraham Lavine, Director of the Department of International Relations, Ministry of Labour and Social Affairs, to Stanley S. Herr (10 November 1991).

46 Convention on the Rights of the Child, Art. 44(1).

47 Ibid., Arts. 4, 23(4), 24(4), & 28(4).

48 Ibid., Art. 14(1). E.g., “Freedom to manifest one's religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others”. Ibid., Art. 14(3).

49 E.g., “States Parties recognize the right of the disabled child to special care and shall encourage and ensure the extension, subject to available resources, to the eligible child and those responsible for his or her care, of assistance for which application is made and which is appropriate to the child's condition and to the circumstances of the parents or others caring for the child”. Ibid., Art. 23(2) (emphasis added).

50 See, e.g., Bracha, B., “The Protection of Human Rights in Israel”, (1982) 12 Is. Yrbk. Human Rights 110Google Scholar; Shapira, A., “The Status of Fundamental Human Rights in the Absence of a Written Constitution”, (1974) 9 Is. L. R. 497Google Scholar.

51 B. Bracha, supra n. 50, at 126.

52 Lahav, P., “Foundations of Rights Jurisprudence in Israel: Chief Justice Agranat's Legacy”, (1990) 24 Is. L. R. 211, at 221–22Google Scholar, citing Cohn, H., Human Rights in Jewish Law (1984) 17–20Google Scholar. Jewish law governs many matters of personal status in Israel, and such law tends to view persons with mental disabilities as outside the framework of obligations.

53 Aviram, U. & Shnit, D., “Involuntary Psychiatric Hospitalization and Civil Liberties — The Case of Israel”, in Psychiatry, Law and Ethics, Carmi, A., Schneider, S. & Hefez, A., eds. (1986) 106CrossRefGoogle Scholar; Aviram, U. & Shnit, D., “Psychiatric Treatment and Civil Liberties in Israel: The Need for Reform”, (1984) 21 Is. J. Psychiatry & Related Sciences 3Google ScholarPubMed.

54 Shnit, D., “Protection in Israel of the Property Interests of the Elderly with Impaired Capacity to Function”, (1987) 17 Is. Yrbk. Human Rights 222Google Scholar.

55 For an exception, see Shnit, D., The Law, the Individual and the Social Services: The Legal Basis for Social Work in Israel (1988, in Hebrew) 278–324 (on mental retardation), 325–374Google Scholar (on mental illness).

56 Compulsory Education Law, 1949, 3 L.S.I. 125; State Education Law, 1953, 7 L.S.I. 113.

57 Compulsory Education Law, secs. 4A-4E, & 9, repealed by Special Education Law, infra n. 58, sec. 21.

58 [1988] S.H. 1256, p. 114.

59 Ibid., secs. 3 and 4(a). Although the terminology, “maladjusted child”, is somewhat pejorative and may imply wilful misbehaviour, the class of children covered broadly corresponds to a child with a disability as defined under U.S. law. Cf. Individuals with Disabilities Education Act, Pub. L. No. 101-476, Oct. 30, 1990, 104 Stat. 1141, 20 U.S.C.A. § 1401(a)(l) (West Supp. 1991). This law was previously named the Education for All Handicapped Children Act of 1975. See infra n. 83.

60 S.E.L., sec. 1. “‘Maladjusted child’ means a person of any age from three to twentyone years whose capacity for adjusted behaviour is limited owing to defective development of his physical, intellectual, or behavioural faculties and who is in need of special education; … ” A 1989 amendment to this law made the obligation to educate children aged 3-4 and over 18 effective from September 1991 with phased-in implementation to be completed by 1998. Amended, sec. 24(a).

61 S.E.L., sec. 1.

62 Ibid., sec. 2.

63 Ibid., sec. 9(b). The authorized English translation of this law appears to have erroneously rendered this mandatory duty in the following terms: “(b) The committee may summon the parents of the maladjusted child and enable them or someone on their behalf to be heard”, (emphasis added). The committee may also hear the child.

64 Ibid., sec. 13(b).

65 This development not only reflects financial problems, but philosophical differences on the merits of amending the general education laws instead of adding a separate legal framework for special education. Interview with Dr. Arik Rimmerman, Senior Lecturer, Bar-Ilan University (27 July 1991).

66 S.E.L., sec. 24(a)(1)-(2).

68 Interview with Yitzhak Kadman, Director, National Council for the Child, Jerusalem (10 January 1991). See S.E.L. Amendment of 1990.

69 The appropriation was four million shekels (NIS) (less than two million U.S. dollars). The S.E.L. 1990 amendment authorizes the Minister of Education to set the budget for special education and to limit the number of persons served each year in such programs. Ibid., sec. 7(a).

70 Interview with Noga Yaffe, Chairperson, “YATED” (Association for Children with Downs' Syndrome), Jerusalem (30 May 1991). The Association for Civil Rights in Israel (ACRI) has engaged in advocacy for children denied appropriate special education. One proposed case of a retarded boy, allegedly excluded from education, was resolved after he was finally placed in a residential home with a school program. In 1992, ACRI filed two court petitions under the S.E.L. to secure the rights of children with disabilities. In Mazaltrim v. Minister of Education (H.C. 1100/92) the S.E.L. placement committee decided that a pupil with severe cerebral palsy should be placed in a regular class with supplemental services of physical therapy, occupational therapy and tutoring. When this decision was not implemented and the child was instead placed in a school for children with mental retardation, ACRI argued, inter alia, that the Minister of Education had failed in his duty to issue a plan for the S.E.L.'s seven-year implementation. Gur-Ziv v. Minister of Education (H.C. 3023/ 92) raises a similar issue of the failure to provide integrated education for children who can benefit from “mainstream” instruction. In this pending case, ACRI obtained a show cause order for a deaf child who was not receiving the 15 hours-a-week instruction in a regular class and the services of a sign-language interpreter that the placement committee deemed necessary.

71 3 L.S.I. 125, secs. 2, 4(a), 6(a)-(b), 7 & 9.

72 Zeiterburshth v. Ramat Gan Municipality, Ministry of Education, & others, H.C. 169/ 89 (temporary injunction granted 23 February 1989).

73 Interview with Zorach Rosenblum, Tel Aviv attorney for AKIM and the petitioner child (8 August 1991). Following the temporary order, the parties settled, with the petitioners waiving their claims for expenses and attorney's fees in exchange for making the temporary relief final.

74 Interview with Yitzhak Genegar, past-president AKIM Israel & chairman, AKIM Haifa, in Haifa (12 June 1991).

75 For instance, in a recent case brought by a municipality to compel a child's attendance in school, the parents objected to the learning disabled child's restrictive placement in a segregated special class, argued that their child's best interests would be served by placement in a regular classroom, and convinced the court to recommend that priority be given to regular education as specified by the S.E.L. of 1988 and to direct the parties to negotiate a new classroom placement. Tel Aviv Municipality v. Hadot (Tel Aviv Juvenile Court, 9 May 1991). Interview with Noga Yaffe, Chairperson, AKIM Jerusalem (9 August 1991). For an international call for integrated education for “all children with challenging needs, however profound those needs may be” and examples from six countries of such educational practice, see International League of Societies for Persons with Mental Handicap, Education for All: Helping People with Learning Difficulties to be Full Members of their Communities (1990) 17–39.

76 S.E.L., sec. 22.

77 Four such committees operate in Jerusalem, and others are working effectively in urban and rural areas of the country. Although the Jerusalem committees have been in existence for more than ten years, one new feature is the participation of a delegate of the parents' committees as a member of the placement committee. Interview with Noga Yaffa, supra n. 75.

78 See UN 1971 Declaration, supra n. 20, Art. 2; UN 1975 Declaration, supra n. 21, Art. 6.

79 Interview with Dr. Rimmerman, supra n. 65.

80 UN Convention on the Rights of the Child, supra n. 31, Art. 28(1).

81 C. Cohen, supra n. 44, at 44-45.

82 Ibid., stipulating that the child's right to education shall be achieved “progressively and on the basis of equal opportunity …”.

83 20 U.S.C.A. §§ 1400-1485 (West Supp. 1991). The law is now named the “Individuals with Disabilities Education Act”. Ibid., § 1400 (a).

84 The U.S. law provided that “a free appropriate public education” must be available for all children with disabilities between the ages of three and eighteen not later than September 1, 1978, and for all children with disabilities between the ages of three and twenty-one not later than September 1, 1980. 20 U.S.C.A. § 1412(2)(B) (West Supp. 1991).

85 Rabinowitz v. New Jersey State Board of Education, 550 F. Supp. 481, 485 (D.N.J. 1982). On the difficulties in altering the conduct of school officials in the early implementation of special education legal reforms, see Handler, J., Protecting the Social Service Client: Legal and Structural Controls on Official Discretion (1979) 61–67Google Scholar.

86 U.S. Dept. of Education, Tenth Annual Report to Congress on the Implementation of the Education of the Handicapped Act (1988). The federal governments annual subsidy for special education exceeds $2,123 billion, with the bulk of special education expenditures defrayed by state and local governments.

87 See generally, Rothstein, L., Special Education Law (1990)Google Scholar; Turnbull, H., Free Appropriate Public Education: The Law and Children with Disabilities (3rd ed., 1990)Google Scholar.

88 Handicapped Children's Protection Act of 1986, P.L. 99-372, codified at 20 U.S.C. § 1415 (e)(4) (1988).

89 See generally Wegner, J., “Educational Rights of Handicapped Children: Three Federal Statutes and an Evolving Jurisprudence”, (1988) 17 J. L. & Educ. 387, 625, (parts 1 & 2)Google Scholar.

90 Board of Education of the Hendrick Hudson Central School District v. Rowley, 458 U.S. 176 (1982); Tatro v. Texas, 468 U.S. 883 (1984); School Committee of the Town of Burlington v. Dept. of Education of Massachusetts, 471 U.S. 359 (1985); Honig v. Doe, 484 U.S. 305 (1988).

91 See Neal, D. & Kirp, D., “The Allure of Legalization Reconsidered: The Case of Special Education”, (1985) 48 L. & Contemp. Probs. 63CrossRefGoogle Scholar; Jung, D. & Kirp, D., “Law as an Instrument of Educational Policy-Making”, (1984) 32 Am. J. Comp. L. 625, at 651–58CrossRefGoogle Scholar.

92 23 L.S.I. 144.

93 Ibid., secs. 1, 7(b), 10(3).

94 Ibid., secs. 4, 5, 6,9, 11-12,15,16. The welfare officer is defined as a qualified welfare worker appointed by the Minister of Labour and Social Affairs.

95 Ibid., sec. 3(a).

96 Ibid., sec. 15(a). The law does not expressly provide the affected person or a concerned organization with the means to obtain such review.

97 Ibid., sec. 16. This provision empowers the welfare officer to take sweeping action, without the consent of the retarded person or the person's custodian and without review by an evaluation board, and to “adopt every measure which, in his opinion, is necessary in order to avert that danger or provide that treatment”.

98 Ibid., sec. 16(b). A case invoking this power is discussed infra text accompanying nn. 165-169.

99 Ibid., sec. 8. The duty to provide periodic evaluation at least once in three years for persons under care is also expressed in mandatory language.

100 Interview with Avraham Levine, Director, Department of International Relations, Ministry of Labour & Social Affairs, Jerusalem (11 June 1991).

101 Administrators may respond that the law's generality encourages flexible and creative solutions. There are, however, some regulations on the management of “homes” that deal with physical conditions in institutions. Such regulations are subject to veto by the Ministry of Finance if their impact is too costly. Announcements and notices issued by the Ministry of Labour, although lacking the force of law, provide the mental retardation department with some guidance on standards and norms. Advocates could in turn argue that these standards are social rights to be secured through negotiation and other actions.

102 Interview with Tami Shwartz, Ruchama institution social worker, in Ra'anana (11 July 1991). For chronicles of abuses in institutions, see Aharoni, C., By Right and Not By Charity (1988, in Hebrew) 281–329Google Scholar; Aharoni, C., You Are Right, But … (1990, in Hebrew) 264–87Google Scholar.

103 Interview with Prof. Dan Shnit, Tel Aviv University School of Social Work (2 July 1991).

104 D. Shnit, supra n. 55, at 292-293.

105 96/91 H.C., (filed 15 January 1991).

106 In interviews and other meetings, social workers in institutions acknowledge that they know of one or more persons in each facility who are not mentally retarded. They also confirm that many mildly retarded and other residents have not been reevaluated for 20 or even 30 years. In explaining why those residents' rights are ignored, they cite parents who lack the strength to fight the system, parents who are resistant or fearful of any change in their adult child's place of residence, clients over age 50 who are now adapted to institutional routines, and the social workers' limited ability to advocate for their clients' rights.

107 Ministry of Labour and Social Affairs, Instruction 14.1: Policy of Ministry about Treating the Retarded, para. 1.3 (31 January 1989) (in Hebrew).

108 See, e.g., ibid., para. 2.4 states “Treatment programs [in a normative] framework should be comprehensive and unique, relating to the special needs of the retarded person and his family. They will be continuous and flexible because the needs are changing from one developmental stage to another. The treatment programs will be in various areas: increasing independence in daily life, vocational rehabilitation, sexual-social education, etc. The programs are adapted for all retardation levels”.

109 Anonymous v. Ministry of Labour and Social Affairs, filed in October 1991 in the High Court of Justice. The state has responded that with a limited budget it is doing the best it can to meet the needs of the various populations to be served, and ACRI has countered with factual discovery requests. Letter from Neta Ziv Goldman, Director, Litigation Center of ACRI, to Stanley S. Herr (3 May 1992).

110 See n. 106, supra and class presentation to MSW graduate students by Dr. Arik Rimmerman, Senior Lecturer, Bar-Ilan University (5 June 1991) (erroneous institutionalization from childhood of a man with an IQ of 115 and exceptional mathematical abilities in part because he was an immigrant without parents and lacked knowledge of Hebrew). Interview with Jane Doe, social worker (3 June 1991) reporting that at least six persons who are not retarded or of borderline intelligence are on her institutional caseload.

111 Comptroller, State, “Report on Residential Facilities for the Mentally Retarded”, in 37th Annual Report (1988) 473–481Google Scholar.

112 As of August 1991, some 5600 persons were in institutions with over 16 beds, and only 440 persons in group homes, hostels, foster families, and sheltered apartments in the community. Interview with Stefan Rothschild, Deputy Director, AKIM Jerusalem (14 June 1991).

113 Ministry of Labour and Social Affairs, Report of Deputy Minister Rabbi Porush to the Knesset on Activities and Plans of the Ministry of Labour and Social Affairs (1991, in Hebrew). Of the Ministry's overall budget, 28.6% goes to mental retardation services.

114 UN, supra n. 20, Art. 4.

115 UN, supra n. 21, Art. 9. This provision also categorically states that “[n]o disabled person shall be subjected, as far as his or her residence is concerned, to differential treatment other than that required by his or her condition or by the improvement which he or she may derive therefrom”.

116 Compare these realities to Ministry of Labour and Social Affairs, Instruction 14.1: Policy of Ministry about Treating the Retarded, para 2.3 (31 January 1989, in HebrewGoogle Scholar) which states: “The normalization principle requires giving services in a normative framework in the least restrictive form. The aim is that the retarded person will stay at home until the age of leaving home and stay in his natural community. If there is a need for living outside the family, it will be close to home. The services will resemble the regular services in the area”.

117 By August 1991, 770 persons were on the waiting list for a place in an institution, 660 persons for day care, 250 persons for a sheltered workshop, and 200 persons for a community-based hostel or group home. Interview with Amir Schwartz, Mental Retardation Service, Ministry of Labour & Social Affairs (12 August 1991).

118 State Comptroller, supra n. 111.

119 See, e.g., unpublished cases in which community-based group homes for persons with mental retardation have been named as defendants in complaints by neighbours of nuisance [Beit Isadore Shapiro case, case dismissed by District Court, 1984] or by municipal officials in allegations of zoning and licensing violations [Planning Council v. Rehabilitative Education Institute, District Court case on Rosh Ha'Ayin hostel resolved by agreement that despite zoning violation, hostel would remain open and operate under the supervision of the municipality and the Welfare Ministry] and cases on individual rights discussed in Section III. D., infra.

120 See Brakel, S., Parry, J. & Weiner, B., The Mentally Disabled and the Law (3rd ed., 1985Google Scholar); Perlin, M., Mental Disability Law: Civil and Criminal (1989)Google Scholar (three volumes). For the landmark right to treatment case, see Wyatt v. Stickney, 325 F. Supp. 781 (M.D. Ala. 1971) (right to treatment in state mental hospitals), Wyatt v. Stickney, 344 F. Supp. 387 (M.D. Ala. 1972) (right to habilitation in mental retardation institutions), aff'd in part sub nom., Wyatt v. Aderholt, 503F.2d 1305(1974). Wyatt has been cited as precedent in over 174 cases and achieved a profound impact on the rights of mentally disabled persons in Alabama and elsewhere in the United States. Wyatt v. Stickney: Retrospect and Prospect, L. Jones & R. Parlour, eds., (1981) 111.

121 357F. Supp. 752 (E.D.N.Y. 1973), consent decree approved 393 F. Supp. 715 (E.D.N.Y. 1975). For discussion of the legal theory of the case, see Herr, S., Rights and Advocacy for Retarded People (1983) 123-36, 181–89Google Scholar.

122 Rothman, D. & Rothman, S., The Willowbrook Wars: A Decade of Struggle for Social Justice (1984) 353Google Scholar. Due to ongoing advocacy, elaborate safeguards and careful monitoring, there was no “dumping” of the Willowbrook residents on unprepared neighbourhoods and the problems that had attended the earlier wave of deinstitutionalization of the mentally ill were largely avoided in the field of developmental disabilities. See ibid., at 353-354. By 1988, Willowbrook was closed and replaced by a network of community-based support services.

123 Heller, T. & Braddock, D., The Closure of the Dixon Developmental Center: Final Report (University of Illinois at ChicagoGoogle Scholar, Institute for the Study of Developmental Disabilities, Public Policy Monograph Series, No. 23, Feb. 1986) 3.

124 ibid., at 90, 92.

125 D. Rothman & S. Rothman, supra n. 122, at 354.

126 On the availability of class action remedies in Israel, see Goldstein, S., “Class Actions in Israel”, in Israeli Reports to the XIII International Congress of Comparative Law, Fassberg, C., ed. (Jerusalem, 1990) 45Google Scholar.

127 Wozner, Y., People Care in Institutions: A Conceptual Schema and its Application (1990) 1Google Scholar.

128 M. Hovav, “Service for the Retarded: Basic Problems and Programs”, in Association for the Planning and Development of Community Services for Retarded in Israel, A Reader on Mental Retardation (JDC/Israel 1979). Dr. Meir Hovav was then Director of the Social Welfare Ministry's Service for the Retarded.

129 Hovav, M., “Deinstitutionalization of the Retarded and Integration Into the Community (Israel)”, in Proceedings of United States-Israel Bilateral Conference on Self-Sufficiency, Appropriate Care, and Deinstitutionalization of Developmentally Disabled Persons, Children at Risk and Aging Persons (Temple University, Developmental Disabilities Center, June 12-15, 1983) 127, 128Google Scholar.

130 ibid., at 128.

131 ibid., at 131. According to its chief, the “government's Service for the Retarded recognized the need to implement the ideology of taking residents out of institutions”.

132 Zamir, I., “Human Rights and National Security”, (1989) 23 Is. L. R. 375Google Scholar; Zamir, I., “Rule of Law and Civil Liberties in Israel” (1988) 7 Civil Justice Q. 64Google Scholar. See, e.g., Editorial: “Legalized Burglary”, Jerusalem Post, 31 July 1991, p. 6Google Scholar (criticizing Israel Broadcasting Authority for using its legal entitlement to break into homes to seize property for payment of television license fees).

133 20 L.S.I. 48, sec. 6 (emphasis added). See ibid., sees. 1, 4-5.

134 9 L.S.I. 132.

135 ibid., sec. 26(a)-(b).

136 Aviram, U. & Shnit, D., Psychiatric Treatment and Civil Liberties: The Involuntary Hospitalization of the Mentally III in Israel (1981, in Hebrew)Google Scholar; and the authors' English-language articles cited at n. 53, supra.

137 S.H. 1339, p. 58. Ministry of Health, Office of Legal Adviser and Mental Health Services, “The Law of Care of the Mentally Ill, 1991” (14 June 1991).

138 Treatment of Mentally Sick Persons Law, 1991, secs. 6, 10(c), 35. Interview with Joshua Schoffman, Legal Director, ACRI, in Jerusalem (3 January 1991). These changes were viewed by many psychiatrists as necessary and even “revolutionary”, substituting lax modes of admission with stricter oversight. Interview with Dr. Peter Silfen, Director of Mental Health Services at Ramle Prison, in Ramle (12 July 1991).

139 ibid., sec. 9.

140 ibid., sec. 6. Although ACRI accepted these additional grounds for committal as part of an overall legislative compromise, their decision followed an internal debate.

141 Treatment of Mentally Sick Persons Law, 1991; Schoffman Interview, supra n. 138.

142 Cf. Israel Ministry of Health, “The Law of Care of the Mentally Ill”, supra n. 137, at 2 with Schwartz, S. & Costanzo, C., “Compelling Treatment in the Community: Distorted Doctrines and Violated Values” (1987) 20 Loyola L.A.L. R. 1329Google ScholarPubMed.

143 Yarmilowitz v. Hovav, (1981) 35(iii) P.D. 767.

144 Roth v. State of Israel, (1977) 31(ii) P.D. 757.

145 The Supreme Court noted that in a misdemeanor case where the accused refuses to submit to a mental examination and is willing to accept his criminal responsibility, a judge should make a particularized finding that a compulsory examination is justified by public interests that outweigh the liberty interests of the defendant.

146 “As far as the district psychiatrist is concerned, it does not matter at all that the court has made an examination (or hospitalization) order; any such order is always deemed to be subject to the particular psychiatrist's medical opinion …. Not in vain did the legislature remove execution of the Orders for Examination (and commitment orders) from the judicial authorities and hand them over to the medical authorities. The purpose of the law – as the name implies – is to treat mentally sick persons, and all the powers and remedies laid down in it are intended to advance and make efficient that treatment”.

147 Shnit, , “Limitations on the Right of the Mentally Ill to be Heard: Exception or Error?”, (1982) 12 Is. Yrbk. Human Rights 195, at 213Google Scholar. For a critique of the medicalization of mental health services and the dominance of mental hospital approaches to patient care, see Aviram, U., “Mental Health Policy and Programs in Israel: Trends and Problems of a Developing System”, (1991) 18 J. Sociology & Soc. Welfare 89, at 117–22Google Scholar.

148 Raguan v. Director of Be'er Yaacov Hospital, (1964) 18(iii) P.D. 259 (director can retain voluntary patient who seeks release even though the patient is not dangerous). In Carmelli Mazal v. State of Israel, (1987) 41(iii) P.D. 757, decided in 1986, the defendants were not liable to a voluntary patient incorrectly detained in that status who had objected to hospitalization since the court found no injury because of indications that she could have been involuntarily hospitalized. The Carmelli decision can be criticized since whether or not she would have been held involuntarily is speculative and detaining a voluntary patient against her will is a deprivation of the right to have one's case reviewed by the District Psychiatrist. In an unpublished prior case, the plaintiff in a comparable malpractice case obtained an out-of-court settlement of 20,000 shekels. A similar result would be unlikely after Carmelli. Interview with Professor Dan Shnit, Tel Aviv University (10 July 1991).

149 Tel Aviv District Court, 512/88 (19 June 1988), (1989) 1 District Court Reporter 126.

150 Ibid. Factors that may have contributed to this vindication of the patient's rights were his legal representation by two able ACRI attorneys, the family support and visits he received while in hospital, and his other social contacts. For a Supreme Court case remanding a mental patient's commitment order for District Court review despite the patient's confused allegations, see Rothbard v. State of Israel, H.C. 813/ 87 (25 September 1989).

151 These conditions prevailed at least through August 1991 when the author conducted a series of non-random interviews with district and other senior psychiatrists. See Levi, J., “Legislation: Israel”, (Oct. 1991) 3 Int'B. L. & Mental Health 31Google Scholar (“Alas, the Minister of Health has not promulgated regulations which he ought to enact according to the law”.).

152 Peay, J., Tribunals on Trial: A Study of Decision-Making under the Mental Health Act 1983 (1989) 202Google Scholar.

153 See ibid., at 202-14,231-32 (describing England's more legalized regulation of mental care). In closed wards for the more severely mentally ill patients, staff may experience “burnout” and feel estranged from patients and civil-rights groups advocating for patients' rights. Siegel-Itzkovich, J., “Lending an Ear to Mental-Health Staff”, Jerusalem Post, 2 June 1991, p. 5Google Scholar (citing article by R. Durst, N. Oren, A. Vass & Y. Ginat in the Israel J. of Psychiatry & Related Sciences).

154 Ministry of Health, Information Systems on Mental Health, “Total Patient Movement in Hospitals and Hospital Units for Mental Health Care” (13 June 1991) (in Hebrew).

155 Interview with Dr. George Szekely, Director, Mental Health Services, Ministry of Health, in Jerusalem (8 July 1991). The State Comptroller also noted the lack of community services in annual reports published in 1976, 1980 and 1991.

156 2098/91 H.C. (23 May 1991).

157 14 L.S.I. 44, secs. 2(2) & 2(6).

158 In an Israel radio interview, the youth stated that he only agreed to undergo chemotherapy “in order to free myself from the psychiatric ward where I have been for a month, I am not mentally ill”. He also declared his wishes to “get any other cancer treatment but chemotherapy” and to be otherwise left alone. Siegel, J., “Young cancer patient out of mental ward after reluctantly agreeing to chemotherapy”, Jerusalem Post, 24 May 1991, p. 2Google Scholar.

159 Siegel, J., “Putting cancer victim in psychiatric ward is unethical — IMA head”, Jerusalem Post, 27 May 1991, p. 10Google Scholar.

160 Hutman, B., “Freed from closed mental ward, youth again refuses chemotherapy”, Jerusalem Post, 5 June 1991, p. 10Google Scholar. (youth enlisted support of Education Minister Z. Hammer who was prepared to sponsor legislation to prevent forced hospitalization of persons of sound mind, and to intercede with Health and Justice Ministers to find acceptable alternative treatment program).

161 This extensive waiting list has existed for many years. Interview with Yair Gilboa, Director-General of AKIM, in Tel Aviv (7 November 1990).

162 Izenberg, D., “Labor Ministry director quits in row with Porush”, Jerusalem Post, 1 July 1991, p. 12Google Scholar.

163 See generally Cantor, N., “Religion and State in Israel and the United States” (1988) 8 Tel Aviv U. Studies in Law 185Google Scholar.

164 Hegesh, R., “Sterilization in Israel”, unpublished paper presented at Fifteenth Congress of the International Academy of Law and Mental Health, in Jerusalem (July 1989)Google Scholar. See also Eser, A., “Contraception and Abortion in Mentally Handicapped Female Adolescents Under German Law”, in Psychiatry, Law and Ethics, Carmi, A., Schneider, S. & Hefez, A., eds. (1986) 268, at 270Google Scholar (German Law permits sterilization only on voluntary basis for persons capable of informed consent).

165 23 L.S.I. 144. Sa'ar, R., “The Officer Will Advise and Consent: Law Entitles Welfare Officer to Give Instructions to Perform Sterilization and to Notify the Court Afterwards”, Ha'aretz, 3 May 1991, p. 4Google Scholar. “Shula” is a fictitious name used in this article to refer to the sterilized woman.

166 UN, supra n. 20, Art. 7.

167 E.g. Wentzel v. Montgomery County General Hospital, 293 Md. 685, 447 A.2d 1244 (1982); Re Eve [1986] 2 S.C.R. 388; Re B. (A Minor) (Wardship: Sterilisation) [1987] 2 All E.R. 206.

168 The welfare officer did, however, obtain a signed statement from the husband after the hearing, dictated by a social work colleague, that expressed satisfaction with the result. Interview with anonymous social worker, Service for the Retarded, Ministry of Labour and Social Affairs, in Jerusalem (3 June 1991). In my opinion, the system's failure to provide legal representation of Shula and her husband before the sterilization, compares unfavourably to practices elsewhere. Herr, S. & van Melle, M., “Reproductive Choices: Sterilization, Abortion, and the Rights of Persons with Mental Handicap”, in Workshop Bio-Ethics * Mental Handicap: Report on the European Workshop, 6-8 November 1989, (The Hartekamp, Heemstede, The Netherlands, Bishop Bekkers Institute, 1992) 62Google Scholar.

169 Capacity and Guardianship (Amendment) Law, 1983, (37 L.S.I. 87) sec. 7, amending Capacity and Guardianship Law, 1962, 16 L.S.I. 106, sec. 68.

170 Attorney-General v. X & others (1988) 42(ii) P.D. 661, digested in (1990) 24 Is. L. R. 144–48Google Scholar.

171 Supra n. 169, sec. 68(b).

172 Beersheva District Court, 397/88 (4 July 1990).

173 Interviews with Dr. Arik Rimmerman, Senior Lecturer, Bar-Ilan University (5 June 1991) and Nati Kovu, Sub-Chief, Department of State Comptroller, Tel Aviv (31 July 1991).

174 E.g., Americans With Disabilities Act of 1990, 42 U.S.C.A. §§ 12101-12231 (West Supp. 1992); New South Wales Anti-Discrimination Act 1977, Statutes of New South Wales (amended 1982); Can. Const. (Constitution Act, 1982) pt. 1 (Canadian Charter of Rights and Freedoms), § 15(1). See Tucker, B., “The Americans With Disabilities Act: An Overview” (1989) U. Illinois L. R. 923Google Scholar.

175 For reviews of the U.S. public interest law movement, see Aron, N., Liberty and Justice For All: Public Intertest Law in the 1980s and Beyond (1989)Google Scholar (diversity of activities in realizing the rights and ensuring the civil liberties of minorities); McCann, M., Taking Reform Seriously: Perspectives on Public Interest Liberalism (1986)Google Scholar (activists rely too heavily on legal strategies to the detriment of other approaches to effecting fundamental social change).

176 Interview with Israel Globus, Registrar of Companies & Chairman, The Roof Association of Organizations of Persons with Disabilities, in Jerusalem (30 May 1991). On the contrasting U.S. experience, see Davis, H., The Civil Rights Era: Origins and Development of National Policy (1990) 4, 470Google Scholar (“Interest group lobbying for social regulation probably reached its apotheosis of effectiveness in the mobilizing of the physically handicapped during the 1970s”); The Supreme Court and Human Rights, Marshall, B. ed., (1982)Google Scholar (willingness of U.S. Supreme Court to decide fundamental human rights claims involving minorities, personal freedom and the right to counsel).

177 Interview with Prof. Avrum Doron, Hebrew University School of Social Work, (18 July 1991). Prof. Doron, a specialist in social security, ranks the level of benefits from war-disabled veterans (highest), hostile-activity disabled persons, road accident victims, work-injured disabled persons, to persons otherwise disabled (lowest). See also Procaccia, U., Miller, A. & Kretzmer, D., The Rights of Disabled Persons in Israel (Jerusalem, 1977, in Hebrew)Google Scholar.

178 Israel Ministry of Defence, Department of Rehabilitation, Rehabilitation Programs and Benefits for Disabled Veterans and Families of Fallen Soldiers (October 1986) 4.

179 On the difficulties that Israelis with physical disabilities have in claiming their support benefits, see Israel State Comptroller, 41st Annual Report (1991) 636Google Scholar (out of 998 physically disabled persons needing and eligible for care, only 130 received special support under National Insurance Institute regulations for work-related impairments).

180 E.g., Beit Isadore Shapiro in Ra'anana (comprehensive day programs for children); AKIM Haifa (supported apartment living programs); AKIM Hadera (group home complex). See Levavi, L., “Akim to seek NIS 3m. for its activities”, Jerusalem Post, 21 April 1991, p. 2Google Scholar.

181 For example, the Conference on Closed Institutions and the Alternatives, Van Leer Institute, in Jerusalem (3 June 1991) presented a number of such views.

182 Anonymous, social worker in large mental retardation institution (11 July 1991).

183 The social stigma still associated with mental illness or mental retardation can inhibit robust advocacy. Some families may also be unassertive, unaware of their legal rights, preoccupied with daily problems, dependent on the good will of public officials, and/or lack the money, time or knowledge to consult a lawyer. Interview with Zorach Rosenblum, supra n. 73.

184 Although there have been some organizations of ex-mental patients, self-advocacy groups organized by people with mental retardation with the help of advisors do not exist in Israel. On the value of self-advocacy to build positive images of such persons, see Shearer, A., Think Positive! Advice on Presenting People with Mental Handicap (International League of Societies for Persons with Mental Handicap, 1984) 23–24Google Scholar.

185 R. Kramer, supra n. 9, at xxi (comparing Israel, Netherlands, England and U.S. voluntary agencies serving disabled persons, and concluding that Israel can learn from others about strategies for citizen participation and advocacy and other countries from Israeli efforts at equitable distribution of resources). On the Psychiatric Patient Advocate Office created pursuant to the Ontario Mental Health Act, 1980, § 5, see Atkinson, S., Madill, M., Solberg, D., & Turner, T., “Mental Health Advocacy: Paradigm or Panacea?” (September 1985) Canada's Mental Health 3Google Scholar.

186 The Chamber of Advocates Law, 1961 (15 L.S.I. 196), sec. 81 states, in pertinent part, that: “Where the tariff lays down a minimum fee for a particular service, an advocate shall not stipulate or accept a lower fee save with the permission of the District Board given in respect of a particular matter or class of matters; Provided that an advocate may render a service free of charge if he notifies the fact to the District Board by reasoned notification”. Such notification is a relatively routine matter and the rule is designed to protect against unfair competition rather than to discourage pro bono service. Interview with Professor Dan Shnit, Tel Aviv (4 June 1991).

187 For exceptions, note Prof. Shnit's class on the rights of children, the mentally ill, and the mentally retarded, and Dr. Kenneth Mann's criminal law clinic (which has included cases of mentally disabled defendants), both at Tel Aviv University Faculty of Law. However, clinics still encounter a degree of resistance from some sectors of the bar association to law schools providing client representation. Furthermore, unlike their U.S. counterparts, Israeli law students do not have the right to appear in court under a rule permitting student practice in approved programs of clinical legal education. However, clinics in Israel are developing, with a civil law clinic operating for several years at the Hebrew University Faculty of Law, and the new Center for Legal Aid in Criminal Cases expected to open branches in the Tel Aviv and Jerusalem universities.

188 The ombudsman offers the dependent client the advantage of a free service that assumes the burden of factual investigation and case presentation, but the client has no control over the case's handling and remedy. J. Handler, supra n. 85, at 89-95, 145. On the activist role of the Swedish ombudsman in this field, see Herr, S., “Rights into Action: Protecting Human Rights of the Mentally Handicapped” (1977) 26 Catholic U. L. R. 203, at 237–241Google Scholar. On the limitations and achievements of the Israeli equivalent of the ombudsman, see Aharoni, C., “Activities of the State Comptroller Regarding the Care for the Retarded (1966–72)”, in Aharoni, C., Not Exactly As Everybody (1989) 107Google Scholar (no review of private institutions or proactive activity in field).

189 See supra n. 111 and accompanying text. For earlier critical reports on mental retardation services, see Israel State Comptroller, 31st Annual Report (1981) 454–466Google Scholar (“a considerable number of individuals with mild or medium retardation who can function in the community” are retained in institutions because of shortage of hostels and special apartments, ibid., at 459; 423 persons on waiting lists for institutions; government continues to send individuals to unlicensed private institutions; in 52 of 66 cases the welfare officer notified of individual's mental retardation only after at least a year's delay; further delays in decisions by diagnostic evaluation committees, even for a pre-trial detainee held for ten months awaiting such a decision) & 36th Annual Report (1986) 656–666Google Scholar (lack of standards for payment of worker-residents, and no social worker or psychiatrist on residential staff). On grievance mechanisms for individuals, see Ramon, M., “Handling of Complaints in Health Systems in the U.S.A., Canada, England and Israel”, in Hospital Law, Carmi, A. & Schneider, S., eds., (1988) 123CrossRefGoogle Scholar.

190 Israel State Comptroller, 41st Annual Report (1991) 409–423Google Scholar.

191 Given their low expectations of what they would find and lack of training in identifying violations of professional standards in such institutions, the M.K.'s reports focused on the physical conditions of the buildings they observed and produced only anecdotal information. Conference on Closed Institutions and the Alternatives, Van Leer Institute, Jerusalem (3 June 1991).

192 Interview with Yair Tsaban, Member of Knesset, in Tel Aviv (7 August 1991). He proposes that since government institutions are almost twice as expensive to run as private ones that the government transfer them to non-profit organizations and use the savings to operate new community-based living arrangements. For a cautionary note on privatization of welfare services, see Katan, J., “Voluntary Organizations — A Substitute for or a Partner to State Activity in the Social Arena” (1990) 2 Social Security: J. Welfare and Social Security Studies (Special English Edition) 134Google Scholar.

193 Tsaban interview, supra n. 192. One proposed case in which M.Ks may sue involves a kibbutznik who is alleged to be confined in a mental hospital despite his mental retardation and lack of mental illness.

194 As one senior social worker expressed it, his Ministry is “afraid of Begatz” [Israel's Supreme Court] and would do all in its power to avoid legal judgment by settling individual cases, thus “the minute you go to Begatz, you find a place” for the person with mental retardation. To avoid problems of mootness in the face of such a response, lawyers would have to devise strategies of filing successive claims or seeking group remedies.

195 One of the less visible human rights issues pertains to the administration of guardianship laws. Although an estimated 80% of the 4200 adults in mental retardation institutions are under guardianship, such individuals never appear in court, are not consulted on the choice of a guardian even when capable of expressing a view, have no advocate to present their position in the appointment process, and rarely obtain reevaluation or review of their status. Another low-visibility issue is the failure to either supply professionally recommended therapies or to do so too infrequently. Interview with anonymous social workers, in Ra'anana (11 July 1991). Yet after a parent of a resident requiring physiotherapy two hours daily, but receiving it only two hours weekly, threatened to go to the Supreme Court to avoid the resident's further deterioration and informed the Ministry of this intention (through AKIM), the daily services were provided. Interview with anonymous social worker (8 August 1991).

196 See Interview with Dr. M. Zohar, District Psychiatrist, Abarbanel Hospital, Bat Yam (19 June 1991) (committee review expected only in new cases rather than in every involuntary case as mandated by law; dangerousness standard applied as exclusive grounds for commital since low awareness of new standards; tendency to scrutinize new cases and rely on files in old ones).

197 Interviews with Kadman and Doron, supra nn. 68 & 177.

198 Interviews with A. G., and D. H., social workers (5 June 1991) noting that institutional staff fear to speak out and parents fear to “make waves” since parents who complain about substandard conditions may receive letters threatening to release or discharge their children from institutions; and that nonretarded or borderline retarded persons who could move out immediately are retained.

199 To limit initially such an advocacy office's mission to the mentally disabled (mentally ill and mentally retarded) or to a subset such as the developmentally disabled, is not to denigrate the equally pressing advocacy needs of other worthy groups such as persons with physical disabilities. Such a decision instead reflects pragmatic limitations on the scope of service that a small specialist office can offer at first, and the possibilities that other potential clients can use generic advocacy resources.

200 International League of Societies for Persons with Mental Handicap, Advocacy and Mental Handicap (ILSMH position paper officially adopted October 1984); ILSMH, Step By Step: Implementation of the Rights of Mentally Retarded Persons (1978) 22, at 29Google Scholar; Herr, S., Rights and Advocacy for Retarded People (1983) 211–236Google Scholar; Kurtz, R., Social Aspects of Mental Retardation (1977) 145–49Google Scholar; Simpson, J., The Role of a Specialist Rights Service in Protecting the Rights of People with Intellectual Disabilities”, in Australian Society for the Study of Intellectual Disability Newsletter (August 1986) 32Google Scholar; Developmental Disabilities Assistance and Bill of Rights Act of 1990, 42 U.S.C.A. §§ 6000(b)(4), 6041-6043 (West Supp. 1991). On the value of rights-oriented approaches, see Dworkin, R., Taking Rights Seriously (1977)Google Scholar.

201 Israel State Comptroller, 41st Annual Report (1991) 637–38Google Scholar (special services to disabled persons living alone underused since procedures for claiming such benefits not published and intended beneficiaries lack information or anyone to act for them).

202 ibid., at 635-36 (criticizing National Insurance Institute for lack of outreach or other assistance to enable severely retarded persons to exercise their right to special services even though Institute had data to locate them or their representatives).

203 ibid., (surveying 187 cases of severely retarded persons with IQ 39 or lower and finding that only 36% of their families timely applied for special services; others applied from two to ten years after regulations went into effect).

204 ibid., at 632. The State Comptroller also criticized the disabled children's benefits program on the grounds that 4000 eligible children receive no benefits, others face delays in payment, others are improperly assessed, consistent national standards are lacking, and the intended beneficiaries do not receive help to exercise their rights in a timely way. ibid., at 655-57.

205 Advocates are also needed to assist in the exercise of non-monetary rights. For example, ACRI investigated and resolved a complaint in 1991 that the marriage plans of a slightly retarded woman were blocked by an evaluation committee of the State Mental Retardation Service claiming to act under their Section 7 power of the Welfare (Treatment of Retarded Persons) Law to prescribe “modes of treatment”. Interview with Neta Ziv Goldman, Director, Litigation Center of ACRI (7 August 1991). ACRI questioned whether the committee was acting outside its authority and whether the status of getting married can be deemed a form of treatment subject to this law. After the woman's family threatened to go to court, the woman was evaluated by a world-famous specialist in mental retardation, who recommended that the woman receive some training and assistance before marriage. Unfortunately the prospective husband became greatly discouraged by these interventions and the marriage plans were cancelled. Almost a year later, the woman's local social worker requested that the evaluation committee lift its order preventing the woman from registering to marry. When the committee refused to cancel its order, ACRI filed an administrative appeal on behalf of the social worker and the woman, scheduled to be heard in late September 1992. Letter from Neta Ziv Goldman to Stanley S. Herr (23 July 1992).

206 International League of Societies for Persons with Mental Handicap, supra n. 200, at 3.

207 See nn. 200-205, supra.

208 J. Handler, supra n. 85, at 69: “In general, it is very difficult for a client to exercise his legal rights when he is faced with institutional adversaries who exercise discretionary authority over the things he needs and wants. For the institutionalized client who is fighting the institution, such a challenge is almost impossible”.

209 For a proposal for such an office that identifies potential funding sources, see Herr, S., “Concept Paper on Advocacy for Persons with Developmental Disabilities in Israel” (May 1991, unpublished paper on file with ACRI, AKIM, & the National Council for the Child)Google Scholar.

210 One option is to form a specialized unit within an already established advocacy service provider in the civil liberties, disabilities or related fields. The second is to create a “free-standing” new office in the manner of the National Council for the Child in Jerusalem. The third is the consortium approach in which several organizations jointly sponsor the new advocacy office. In the Israeli environment, options one and two may have the greatest appeal and likelihood of smooth functioning. Option one has the additional advantage of the shortest “start-up” time, while not precluding the entity from becoming fully independent in the near future. For example, the Mental Health Law Project in Washington was initially a part of the Center for Law and Social Policy (a wide-ranging public interest law office) until the Project gained the prestige and financial stability to stand on its own.

211 For example, the office would have to define its mission in terms of population served (persons with mental retardation, or progressively wider subsets of persons with developmental disabilities, or persons with mental disabilities) and methods of advocacy emphasized. In the likely event of scarce resources, it might give priority to reform of national law and public policy in order to maximize the number of disabled persons benefitted. On the U.S. legal requirement of setting objectives and priorities in governmentally funded advocacy programs for persons with developmental disabilities, see 42 U.S.C.A. § 6042(a)(2)(C) (West Supp. 1991).

In 1992, ACRI expects to open a subsidiary, independent organization (with its own separate board, budget and advisory committee) that would initially defend the rights of persons with developmental disabilities. The organization will be named “Bezchut”, which can be translated into English as “With the Right”. Letter from Neta Ziv Goldman, supra n. 205. This new organization is expected to concentrate on intervention with the authorities to implement or modify rights and policies, as well as on litigation, legislation and public education.

212 23 L.S.I. 144. For definitions of that broader disability category and examples of such laws, see Developmental Disabilities Assistance and Bill of Rights Act, 42 U.S.C.A. §§ 6001(5), 6000-6083 (West Supp. 1991) (such individuals have a severe, chronic impairment, occurring prior to age 22, which results in substantial limitations on areas of major life activity such as learning and capacity for independent living); Developmental Disabilities Law, Md. Code Health-General Ann. §§ 7-101 et seq. (1990 & Supp. 1991). On the Shnit Committee, see supra n. 6.

213 The National Insurance (Amendment No. 61) Law, 1986, S.H. 1178, p. 154.

214 For discussion of this law's scope and potential, see Shnit, D., “The Long-Term Care Insurance Law — The Legal Aspect”, (June 1988) Social Security: Journal of Welfare and Social Security Studies 84Google Scholar. See also Special English Issue: “Towards the Implementation of the Long-Term Care Insurance Law in Israel”, ibid., 1-203 and for an unofficial translation of the law, ibid., 196-203.

215 See Section III. B., supra.

216 E.g., On laws to mandate community living arrangements, see S. Brakel, J. Parry & B. Weiner, supra n. 120, at 340 (25 U.S. states have statutory requirements for habilitation and normalization that support the trend to small-group living arrangements that are closer to normal environments). On rights to non-discrimination in employment and incentives to encourage employment opportunities, see Rehabilitation Act of 1973, 29 U.S.C. § 794 (1988); International League of Societies for Persons with Mental Handicap, Work Opportunities for People with Mental Handicap (1990). For example, the American With Disabilities Act will affect an estimated five million businesses, including doctors and lawyer offices. 42 U.S.C.A. § 12181(7)(F) (West Supp. 1991). These commercial establishments will be subject to regulations described by Attorney General Thornburgh as striking “a balance between the rights of persons with disabilities to enter the mainstream of society and the workplace, and the financial and physical limits of the business community”. Holmes, S., “U.S. Rules Would Force Businesses to Make Alterations for the Disabled”, N.Y. Times, 22 February 1991, p. 10Google Scholar.

217 See Aviram, U., “Care or Convenience? On the Medical-Bureaucratic Model of Commitment of the Mentally Ill” (1990) 13 Inter. J. L. & Psychiatry 163CrossRefGoogle ScholarPubMed.

218 Interviews with Joel Levi, lecturer in Tel Aviv University School of Social Work and attorney (22 May 1991), criticizing statutory mental retardation committees as engaging in casual and biased decision making), and with senior psychiatrists (19 June 1991).

219 Interview with Pinhas Noivert, Committee on Accessibility, Jerusalem (18 June 1991). On the effective coalitions between lay and legal advocates in the United States, see R. Kurtz, supra n. 200, at 148.

220 Weber, M., On Charisma and Institution Building, Eisenstadt, S. N. ed., with an introduction (1968)Google Scholar. On bureaucracy and its depersonalizing effects, see Weber, M., The Theory of Social and Economic Organizations (1947 ed.)Google Scholar. Some Israeli observers believe that the highly centralized bureaucracies regulating mental disability care are reluctant to change.

221 D. Rothman & S. Rothman, supra n. 122, at 355.

222 On the use of the courts to advance equality rights in the context of gender bias, see Nevo v. National Labour Court (1990) 44(iv) P.D. 749 (holding that different retirement ages for men and women constitutes impermissible discrimination: “When the court confronts a situation of distinction between groups, it must scrutinize meticulously whether that distinction is founded on generalized stereotypes based solely on prejudice”: per Bach, J.) See also, Izenberg, D., “One Step Nearer Equality”, Jerusalem Post, 26 Oct. 1990, p. 8Google Scholar, col. 4 (interview with Prof. Frances Raday, predicting that favourable precedent and Equal Retirement Age for Men and Women Law, 1987 (S.H. 1208, p. 48) will encourage women to seek judicial remedies for economic discrimination).

223 See R. Kurtz, supra n. 200, at 149.

224 Some psychiatrists, for instance, report that their university training offered them little instruction on patients' rights and left them with the impression that mental health treatment and human rights were in irreconcilable conflict.

225 See Herr, S., Issues in Human Rights: A Guide for Parents, Professionals, Policymakers and All Those Who Are Concerned About the Rights of Mentally Retarded and Developmentally Disabled People (1984)Google Scholar; National Insurance Institute, The Rights of Handicapped Persons: A Manual (1991, Hebrew)Google Scholar.

226 See West, R., “The Supreme Court, 1989 Term — Foreword: Taking Freedom Seriously” (1990) 104 Harv. L. R. 43CrossRefGoogle Scholar.

227 The Shnit Committee is expected to report its conclusions in 1993. See n. 6, supra.

228 On children's rights, see Israel Ministry of Labour and Social Affairs, Selected Israeli Laws Concerning Children and Youth (Dept. of International Relations, February 1991)Google Scholar; In the Matter of AB. v. C.D., C.A. 2620/90, Jerusalem Post, 10 June 1991, p. 5 (in custody dispute, child should not be moved to a new environment without the court first receiving assessments and full reports on whether the move was in the child's best interests, and without the child being properly prepared for the move by child care experts). On legal protection for the elderly, see An Aging World: Dilemmas and Challenges for Law and Social Policy, Eekelaar, J. & Pearl, D., eds. (1989) 317–477Google Scholar and nn. 17 & 214 supra.

229 Declaration of the Establishment of the State of Israel, 1 L.S.I. 4.