JUSTICE FOR ALL The 2020 UN International Principles and Guidelines on Access to Justice for Persons with Disabilities recommend to: “establish or support alternative justice mechanisms, such as restorative justice, alternative dispute resolution mechanisms, and cultural and social forms and forums of justice, that are available to persons with disabilities on an equal basis with others, without regard for any construct of capacity to participate”. In September 2022, the OHCHR and WHO issued a Call for inputs on a “Draft guidance on Mental Health, Human Rights, and Legislation”.126 The draft guidance covers the topic of diversion too, recognising that “many countries have adopted legislation that diverts offenders with mental health conditions and psychosocial disabilities from the traditional criminal system pathway to the mental health system. …The rationale behind this is to reduce incarceration rates, as well as the likelihood of criminal recidivism.” The draft guidance reports “increasing concern among human rights and disability advocates that such diversion programs fail to address the underlying structural inequalities leading to criminalization (i.e., stigma, ableism, racism, poverty, lack of community support, etc.) and often resort to medicalised approaches and coercive practices that are contrary to their human rights. People may stay out of prison but are still subjected to control and coercion, such as community treatment orders. Indeed, in many diversion schemes, if individuals do not comply with the treatment orders imposed, they may return to the criminal justice system.”127 The draft guidance suggests that diversion programmes are considered an integral part of broader efforts to adopt anti-carceral strategies and legislation should ensure that diversion programmes: • “are used only when there is sufficient evidence that the individual committed the alleged offence (i.e., there are reasonable grounds, based on the available evidence, to believe the individual committed the alleged offence); • are provided on a free and voluntary basis, based on adequate information about the nature, content and duration of the programme; • are oriented towards the provision of person-centred and rights-based community support and restorative justice; and • do not entail coercive mental healthcare or social control.”128 Moreover, the draft guidelines also touch upon the issue of deinstitutionalization, giving concrete guidance on how to effectively implement it:129 • The creation of new asylums, psychiatric hospitals, neuropsychiatric hospitals or monovalent institutions, social care institutions, public or private, is prohibited. • The health authority, in coordination with other relevant sectors and service users, shall implement a policy for the deinstitutionalization of persons placed in all kinds of institutions, including the adoption of a plan of action with clear timelines and responsibilities, concrete benchmarks and an adequate budget, a moratorium on new admissions and the development of adequate community support. • Existing institutions must shift their operations to restore the autonomy and choice of residents and ensure the objectives and principles of person-centred and rightsbased, community-based mental health until their definitive replacement. • Every health or related social facility with long-term inpatient residents shall create a deinstitutionalization committee, with representation of service users. • Mental health systems shall collect information from mental health and related social care services that have either an inpatient psychiatric unit or emergency department receiving service users with mental health conditions and psychosocial disabilities. 37