Why Do So Few People Know that CRPD Prohibits Forced Psychiatry?

Tina Minkowitz, Esq.

October 14, 2012

When we were drafting language to go into the Convention on the Rights of Persons with Disabilities, and throughout the negotiations, we avoided any specific mention of psychiatry, psychiatric institutions or mental health. Instead we framed all the issues of our community in terms of non-discrimination in the enjoyment of human rights, with an eye to how specific applications of these principles would logically entail the abolition of forced psychiatry.

The reasons for this choice were: to call attention to the underlying principles of fairness and justice rather than have a free-for-all debate on whether forced psychiatry is a good or a bad thing; to situate ourselves within the mainstream of disability and deliberately transform the mainstream to include and not exclude our issues; and to argue for the mutual application of “our” issues to all people with disabilities, and of all disability issues to ourselves.  In this way we built solidarity within the disability community, strengthened disability rights concepts and principles, and contributed to the treaty’s overall effect of mainstreaming people with disabilities into the human rights framework.

When the treaty was taking its final shape in the last negotiating sessions, I had to make the assessment of whether it gave us what we wanted or not.  We fought hard to get the best possible language that we could, and in many respects the text fell short of what would have been ideal.  At every stage, we could have chosen to keep participating in the process, or to withdraw and denounce it.  We did threaten to withdraw our support for the treaty at a tense point in the negotiations when it wasn’t certain that our version of legal capacity would be passed.  We were able to make this a credible threat because we spoke as leaders of the International Disability Caucus, and our departure would have been a blow to the countries who wanted buy-in from the disability community.  But it was a power that we could not invoke lightly, and we also did not really want to scrap the treaty, we wanted it to be passed with the language that would give us what we needed.

So my test was, 1) Is this a compromise of language, or a compromise of substance?  If it was writing “human wrongs” into the treaty (like allowing involuntary treatment) it clearly had to be denounced as this would have made the treaty not only worthless but harmful for us.  And 2), Is there a legally sound interpretation that gives us what we want?  If I could make a credible legally reasoned argument that the text means what we intended it to mean, and that it could not mean the opposite, that interpretation is favored by the canons of treaty interpretation as being in line with the object and purpose of the treaty to promote and protect the human rights of persons with disabilities.  If that sounds nerve-wracking, it was.  But I believe the decisions we made were correct ones.

Evaluating the text as it was adopted, with its various ambiguities, in the last negotiating session, I felt that we had succeeded, but that it would need work to ensure a good interpretation.  It was not a static fact, did we win or lose, it was more as if there was a high probability that we had won, and this would only be determined in the future.  Significantly, our own actions would have an impact on whether in the final analysis we had won or lost. Human rights treaty interpretation, like the negotiation of the CRPD itself, is highly amenable to advocacy by civil society organizations and individuals, and in the case of the CRPD the opinions of persons with disabilities and our self-representative organizations are emphasized.  (This was the practice during the negotiations, and is incorporated as an obligation of governments in the implementation of the treaty, in Article 4.3.)

My position, and that of WNUSP, was to claim the CRPD as a victory and argue for the interpretation of particular provisions that mean the abolition of forced psychiatry.  I was disappointed that many academics and non-governmental organizations that are not user/survivor-run took a more cautious stance, because I believe that it is a duty of human rights advocates to advocate the most favorable legally sound interpretation, and I cannot really understand why they would fail to do so.  Many in the user/survivor community were also slow to understand and appreciate the potential of this treaty, but over the past 6 years since the adoption I am happy to say that the CRPD has become a guiding star in the work of our movement in many countries, with leading work going on in every region of the world.

In the past six years there has also been significant support from the UN affirming our interpretation, including most crucially observations made by the Committee on the Rights of Persons with Disabilities, which is the authoritative body designated to monitor and interpret countries’ compliance with the CRPD.  The Committee’s observations on the reports of particular countries show how it is interpreting the treaty, and so these observations can be taken to apply to all countries that have similar problems.  Here is what they said recently to China about abolishing forced psychiatry and transforming mental health policy and practices:

The Committee advises the state party to adopt measures to ensure that all health care and services provided to persons with disabilities, including all mental health care and services, is based on the free and informed consent of the individual concerned, and that laws permitting involuntary treatment and confinement, including upon the authorisation of third party decision-makers such as family members or guardians, are repealed. It recommends the state party to develop a wide range of community-based services and supports that respond to needs expressed by persons with disabilities, and respect the person’s autonomy, choices, dignity and privacy, including peer support and other alternatives to the medical model of mental health.

Here is what they said about legal capacity.  Remember that saying we are “incapable” of making our own decisions because of a “mental illness” is one of the justifications used to impose forced treatment, to take away a person’s right to manage their money and many other abuses.

The Committee urges the state party to adopt measures to repeal the laws, policies and practices which permit guardianship and trusteeship for adults and take legislative action to replace regimes of substituted decision-making by supported decision making, which respects the person’s autonomy, will and preferences, in the exercise of one’s legal capacity in accordance with Article 12 of the CRPD. In addition, the Committee recommends the state party in consultation with DPOs to, prepare a blueprint for a system of supported decision-making, and legislate and implement it which includes:

a.            Recognition of all persons’ legal capacity and right to exercise it;

b.            Accommodations and access to support where necessary to exercise legal capacity;

c.            Regulations to ensure that support respects the person’s autonomy, will and preferences and establishment of feedback mechanisms to ensure that support is meeting the person’s needs;

d.            Arrangements for the promotion and establishment of supported decision-making.

Some people have asked me, what is supported decision-making and how do we do it?  I would say that the first step is to ask people what kind of support they need, and then figure out how to make that happen.  Supported decision-making is a principle of cooperation to respect individuals’ autonomy, and not another service to be set up and then provided to people who already are living so much of their lives in connection with services.

In the light of these recommendations coming out of the authoritative committee that monitors the CRPD, it is highly irresponsible for anyone to doubt that the CRPD prohibits forced psychiatry and requires governments to repeal the laws that allow these violations to be committed.  Our movement should be questioning any organization or prominent leader, whether that person is a lawyer, mental health professional, or user/survivor advocate (or any combination of the above), who is still claiming that CRPD cannot be used to abolish forced psychiatry.  And we should ask, “cui bono?”  Who is benefiting from this silencing, and how?

It is also a fallacy if people think that the CRPD is simply too far from any country’s political reality to be used to abolish forced treatment.  First of all, such thinking takes the existing political climate as a limit on human rights, contrary to what the human rights framework is all about.  But more importantly, it may really be a U.S.-centric way of thinking.  It is likely that countries with more respect for human rights treaties and the United Nations, and where psychiatry is a colonial imposition rather than a home-grown mega-industry, will be the first to advance in this way.  In India, a government ministry has put out a proposed bill on the rights of persons with disabilities, based on the CRPD.  Among other things, it would guarantee full legal capacity to all people, with a remedy against any act that questions or denies a person’s legal capacity, and it would phase out civil commitment in the mental health system.  The bill provides for thoughtful, positive approaches to creating support for exercise of legal capacity and creating services responsive to the needs of people with psychosocial disabilities.  Although the CRPD requires an immediate end to civil commitment, this would be a huge step beyond what any other country has done so far.  At the same time however, another ministry put forward a mental health bill that has all the standard provisions allowing involuntary commitment and involuntary treatment, and according to activists in India would actually make existing standards worse.  So our colleagues held a “dharna” outside the ministry to protest the mental health bill, and they are getting decent media coverage.  They have strong mutual support and solidarity with the disability movement; as we have seen this was also one of the key factors in the CRPD negotiations.

I believe that one of the underlying reasons it is difficult to move through the obstacles to fully embrace the CRPD and fight for our rights, is that discrimination continues to affect us on many levels.  We have accommodated in some ways to a system that hurts us – not just the mental health system but the legal system that supports these violent acts and the society that condones them.  It can be painful to change, to shift gears, to move in different ways.  It is unfamiliar and uncertain, we may be acutely aware of our shortcomings and lack confidence.  I struggle with this myself in the process of bringing this treaty more and more fully into the world, and continue to redefine my role in relation to the advocacy, so that more and more I am “leading from behind,” supporting others to develop the strategies and tactics that will get us where we are going, creating spaces where the discussion can happen to spark ideas that someone will be able to take up where the conditions are right.  I especially want to teach as much as possible of what I know about the CRPD and human rights, as one of the five activity areas identified by the Center for the Human Rights of Users and Survivors of Psychiatry – ensuring good interpretation of the CRPD, law reform, human rights monitoring and enforcement, human rights education, and extending the analysis in related areas (which at the moment include the rights of older persons and the rights of prisoners).  In struggle and solidarity, I would like to see more of our organizations in the U.S. survivor/peer/consumer/client movement take up the CRPD as intended, and cooperate to secure our full human rights including the abolition of forced psychiatry.  We are at a crucial time in history when our choices matter.  Even if you do not know how to go about making this change, at least know that it is part of the way here already.

Tina Minkowitz, Esq.

Mad Law and Human Rights: An attorney and psychiatric survivor, Tina Minkowitz writes on the new perspectives in human rights law that emerged in the work by users and survivors of psychiatry on the Convention on the Rights of Persons with Disabilities.

 

Why Do So Few People Know that CRPD Prohibits Forced Psychiatry? Comments RSS

12 thoughts on “Why Do So Few People Know that CRPD Prohibits Forced Psychiatry?

  1. Tina,

    The overwhelming majority of us in psychiatric bondage don’t need it “forced” on us, in order to coerce us to do damage to our bodies, minds, and souls with psychiatric drug “therapy”.

    The overwhelming majority of us were not “disabled” in any capacity socially, economically, or legally until after systemic psychiatric drug therapy took its toll on us and our resourcefulness.

    Thanks to CRPD for recognizing these human rights:

    a. Recognition of all persons’ legal capacity and right to exercise it;

    b. Accommodations and access to support where necessary to exercise legal capacity;

    c. Regulations to ensure that support respects the person’s autonomy, will and preferences and establishment of feedback mechanisms to ensure that support is meeting the person’s needs;

    d. Arrangements for the promotion and establishment of supported decision-making.

    But NONE of it systemically happens today in current American psychiatric care.

    “User” beware! The best way to stymy mental illness “disability” would be to discourage engagement with the ‘help’ found in psychiatry.

    Not to mention, NOT promote “mental health parity” for our healthcare and NOT promote developed nations’ “Best practice standard of care” for developing nations to adapt.

    But that is the direction we are heading…

    We need to be honest about the “mental health epidemic”: both the real causes of giving power to a certain sector of people to pathologize normal behavior and the real growth potential of an industry to label and drug anyone.

  2. Emily,

    Thanks for your thoughts but I disagree that no forced treatment or substituted decision-making happens systematically today in the mental health system. Discussions in workshops at Alternatives showed how people’s rights and dignity and bodies are still being violated in this way.

    I would also suggest that all of the abuses work together. People know that if they do not comply with treatment they can be subjected to involuntary measures. This is so pervasive that it may not even have to be made explicit.

    And if you look at both the recommendations on legal capacity, and the recommendations on abolishing forced treatment and changing mental health policy and practices, you will see there is a holistic approach. The Committee is talking about free and informed consent, and about ensuring access to peer support and alternatives to the medical model.

    The power given to psychiatry to pathologize, label and drug people is not only social and economic, it is also reinforced by the state power given to them to have people locked up, forcibly drugged and shocked, restrained and put in solitary confinement.

    There is also an issue raised in your reply, about what disability is. “Disability” does not mean there is something wrong with a person, it means that society has labeled and discriminated against the person. This is part of the social model of disability, and it is in the Americans with Disabilities Act as well as the CRPD. The ADA includes protection against discrimination for people who are “regarded as” having a disability and not only for those who experience or identify themselves as having a disability. In the UK, social model advocates use the term “disabled people” rather than “people with disabilities” to emphasize that we are disabled by society. And yes, when somebody is labeled, drugged and has their body and rights violated in other ways by psychiatry, the person might experience disability even if they hadn’t before.

    We have to both get rid of the power of psychiatry to label people and also fight their social and economic power in other ways, like the initiative to hold hearings on the DSM. All of this is synergistic and there are different areas of work that speak to one person’s experience or another’s. I hope that we can share support and solidarity for all the avenues of work.

    Best wishes,

    Tina

    • Thank you Tina for your kind wishes and your in depth response.

      I’m very interested in ways to “share support and solidarity” for undermining the crippling power of psychiatry today. Thank you for sharing your work on your battlefront with me.

      Sometimes I get carried away with the notion that other people might not know just how abusive psychiatry is… but this is ridiculous here as you have been in the trenches for years (and years).

      My consciousness about psychiatry is just coming together now for me after 12 years of viewing myself as a hapless victim of “bipolar” (i.e. very drugged). It is quite a paradigm shift and quite a learning curve to be viewing that “illness” sober now.

      Emily

      p.s. I’m going to think on that definition of disability more. I’m accustomed to thinking of “disability” as objective and “handicap” as subjective and social, but maybe it is not like that at all.

  3. I think in many cases people just don’t care. They have been led to believe that psychiatrists are able to predict dangerous and that these people have proven brain based diseases, that can be treated with medication. They believe that any “sane” person would consent to such treatment, much like one would consent to a blood transfusion, antibiotics or the like. They believe in false science, and they believe the lies. They don’t care what certain power groups say, as they believe that these people are a danger, and that all of societies ills are caused by these people.

    Having said that, I also do not believe that getting rid of forced treatment would do much to change the lives of the vast majority of people. One in 5 children is now medicated, all very very voluntarily by parents. Parents go and search out this stuff, long before teachers ask for it. People believe that these pills can cure everything and they are fully functional when they begin to take them. Are there people who take them to appear to be complaint to not have the worst of involuntary care shoved on to them, absolutely, but I think you underestimate just what percentage of psychiatric patients would continue with the status quo even if forced treatment was removed.

    You also have to understand what the lies psychiatry have told have done to those who have been at the hands of them. They become like you and me and really angry about them, or they go the opposite and honeslty do believe that everything that was done for their own good, and say thankyou for forced treatment and stand up and defend it at every opportunity. It is very easy for those promoting forced treatment to have these people stand up, say that we were never mentally ill to begin with and were wrongly diagnosed, etc, etc.

    It is very easy to change the diagnoses too. A very well known and outspoken person for benefits of forced treatment, claims that Joanna Greenberg (author of i never promised you a rose garden) who made a full recovery from schizophrenia, claims that she was never mentally ill, never had schizophrenia and so the idea that she recovered without medication is of no relevance, as she was never ill to begin with. Such a thing would apparently not happen today, as we have better diagnosistic systems today!!!!! From my reading and watching documentaries from her, etc, she was very psychotic.

    • “One in 5 children is now medicated, all very very voluntarily by parents”

      Not true, many parents are forced or coerced to drug their kids. Child Protective Services regularly takes kids away from parents for refusing to drug their kids, arguing that it’s child abuse via medical neglect. It happened to me and my parents growing up in the early to mid 1990′s and I’ve learned that it has gotten even much worse since then.

        • Sure there are cases of schools demanding it, sure there are cases of child protection involvement, but the vast majority are not forced. The simple fact is MOST people voluntarily take these drugs, and I was one of those people. I was forced onto them by parents, who ASKED and BEGGED for them, not who were forced to give them to me. They went doctor shopping until they found doctors to drug me, not needed these days, all doctors are happy to hand them out like candy. Individual cases of force, yes, but the simple fact is the vast majority is not forced.

          The whole reason the community has no problem is because the vast majority of people agree with these drugs and have no problem with them. MOST people voluntarily see psychiatrists and take psychiatric medications. Less than 1% of people are on involuntary orders, and sure another couple of percent want take them to avoid those orders, but the simple fact is MOST people do voluntarily take those drugs, they believe in the fictional brain disese story, and the drugs that can cure the chemical imbalance.

    • Belinda,

      I think your reply raises the issue of the need for awareness-raising in addition to changing laws. Changing laws in itself is only a partial solution, as we have seen repeatedly with any major change – there is a wonderful book by Michelle Alexander called “The New Jim Crow” in which she argues that the racism underlying slavery and Jim Crow laws is now being expressed in a racist system of mass incarceration in which African Americans are overwhelmingly affected. We have to change the ways that we relate to each other at every level, and to offer people information and tools to make the transition to a more equitable social reality.

      Best wishes,

      Tina

      • That I can totally agree with. Laws definately need to change, but that alone is going to do very little to help the situation. It has to be a two pronged effort, one on the laws and the other on the facts about what does and does not help, and the truth about the laws that we are told.

  4. Tina,

    Don’t you think the Committee on the Rights of Persons with Disabilities contradicted in the case of Argentina regarding involuntary treatment? Because although the Law No. 26.657 (National Law of Mental Health) allows involuntary treatment, the Committee has said this act “focuses on the human rights model of disability”. Or the Committee didn’t read the text of the act (and trusted on civil society which didn’t raise that issue) or the Committee thinks that specific provision (involuntary treatment) is neutral-based (very difficult to argue). Or maybe the Committee didn’t want to criticize a law supported by civil society (because it also ban institutionalization). But I think it is something to discuss.

    Alberto

  5. Alberto,

    Thanks for your thoughtful comment. In the context of the Committee’s recommendations to other countries, I think it is most likely that they were responding to advocacy by civil society in Argentina, which strongly supports the mental health law as a vehicle for changing from institutionalization to community-based services, despite the law’s acceptance of forced psychiatry. I really do not know if the Committee read the law or if its support for forced psychiatry was pointed out in any NGO submission, or if they asked questions about this in the dialogue with Argentina. I was highly disappointed that NGOs from Argentina as well as the Committee refused to uphold the CRPD standards fully in this particular case. One powerful NGO (not user/survivor-run) put forward the view that silence on any deficiencies of the law would mean that even its good provisions wouldn’t be implemented. While I am not on the ground in Argentina, I think that this was an unacceptable sacrifice and likely is giving too much power to fear in any case.

    But, while I am disappointed in the Committee in this particular case (and also in their comments regarding penal law, in Argentina) I think the overall tenor of their jurisprudence is clear about abolition of forced psychiatry. And even regarding Argentina’s mental health bill, I don’t think they endorsed the involuntary measures, so there is room for future advocacy to bring out what the Committee and NGOs ignored this time.

    Best wishes,

    Tina

Leave a Reply