UN Prohibition of Psychiatric Commitment: Review and Analysis

On September 21, I posted here that the UN Committee on the Rights of Persons with Disabilities took a definitive stand against psychiatric commitment in its Concluding Observations on El Salvador and Austria.  The Committee held that the “danger to self or others” standard cannot legitimize psychiatric detention, and that all legislation authorizing such detention must be repealed.  This is of huge significance, which I did not expand on in my earlier post.  Another set of Concluding Observations has now been released, this time on Australia, which gives me another opportunity to discuss what has happened.  I hope that both lawyers and non-lawyers will follow the discussion, since it has both legal and political implications.

The Committee on the Rights of Persons with Disabilities (CRPD Committee) is authorized to interpret the Convention on the Rights of Persons with Disabilities (CRPD) and to review the reports made by countries have ratified the treaty.  After reviewing a country’s report, they make Concluding Observations, which comment on positive achievements and on need for improvement.  These Concluding Observations (COs), along with the Committee’s views on individual complaints and any General Comments the Committee might issue, constitute the most authoritative interpretation of the treaty.

Article 14 of the CRPD, on liberty and security of the person, includes the following command:

States Parties shall ensure . . . that the existence of a disability shall in no case justify a deprivation of liberty.

During the drafting and negotiations, it was clear that the kind of deprivation of liberty to be prohibited, which is based on disability, was psychiatric commitment.  There were proposals to add the term “solely” or “exclusively” in order to create a loophole for psychiatric commitment to be permitted in some circumstances.  In particular, it is well known that mental health acts throughout the world use language like “danger to self or others” or “need for care and treatment” to bring commitment standards into a rule of law framework which gives the semblance of fairness by providing for determination related to individual circumstances.  If Article 14 had been amended to create the loophole desired by some countries, we would have been hard pressed to argue that it prohibited psychiatric commitment, and most likely at that point I would have decided, in my role as lead representative of the World Network of Users and Survivors of Psychiatry, to condemn that provision of the treaty as discriminatory and contrary to our human rights.

As it happened, Article 14 was the first to be finalized.  In summing up the discussion, the Chair said (as reported in an unofficial Daily Summary):

The Chair noted proposals to amend 14(1)(b), however he asserted that the changes were either not substantive or represented issues that had already been thoroughly debated. He believed that the text as written is reasonably balanced and should be retained. This is essentially a non-discrimination provision. The debate has focused on the treatment of PWD on the same basis as others. PWD who represent a legitimate threat to someone else should be treated as any other person would be. The Chair believed that the text achieves this balance and encouraged informal discussion if delegates still had concerns.

We were happy with this.  Although we had preferred an earlier version of Article 14, we were satisfied that the text as adopted created no loopholes to allow psychiatric commitment, and that the summation (which met with no further comment) indicated the Chair’s agreement with our position on the desired result: that commitment based on a psychiatric diagnosis plus criteria such as “danger to oneself or others” is prohibited.

Of course, since it represented a 180-degree reversal of prior standards in international human rights law (which had allowed psychiatric commitment and brought it under a rule of law framework), there were many law professors, human rights organizations and, needless to say, governments, as well as the World Health Organization (which is highly influential in developing countries), that misinterpreted Article 14 to re-inscribe the old standard.  The UN Office of the High Commissioner for Human Rights (see “Study of the High Commissioner for Human Rights on key legal measures for the ratification and implementation of the Convention on the Rights of Persons with Disabilities (A/HRC/10/48)”), as well as the Special Rapporteur on Torture (see “Report of the Special Rapporteur on torture, Manfred Nowak (A/63/175)“), both read Article 14 as we did, and said that the CRPD, in contrast to the MI Principles, prohibited involuntary confinement and involuntary treatment.

When the Committee on the Rights of Persons with Disabilities started to review country reports in 2011, they kept their interpretation simple, presumably so as to give basic guidance to countries on the wide range of issues addressed in the treaty that would be clear without going into ambitious detail.  In the earliest Concluding Observations, they urged countries to repeal legal provisions authorization deprivation of liberty of people with psychosocial disabilities, and to ensure that mental health services were based on the free and informed consent of the person concerned.  While this was fine as a start, it still left the law professors, human rights organizations and governments by and large unwilling to shift their stance away from “rule of law” psychiatric commitment.  On one occasion, I was highly critical of the Committee’s Observations, since they praised a country’s (Argentina) mental health legislation as “human rights based” without noticing that a good part of the legislation was devoted to the terms under which commitment and forced treatment would be authorized.

This September I traveled to Geneva to address the Committee on Article 14.  I was able to schedule a private briefing with Committee members on this topic, and in addition I took the floor during the public opening session when comments from non-governmental organizations were welcomed.  My intention was to encourage the Committee to makes its guidance entirely clear on the prohibition of psychiatric detention, and in particular on the prohibition of detention using a “danger to self or others” standard, so that governments would be put on notice that they are committing human rights violations by continuing to apply their commitment laws.  My concern was heightened because of other UN bodies that are addressing the question of psychiatric detention, and that need to be confronted with an authoritative statement that psychiatric detention is always a violation of the individual’s human rights.  (The most notable of these is the Human Rights Committee, a treaty body that monitors the International Covenant on Civil and Political Rights.  The Human Rights Committee is working on a General Comment on liberty and security of the person, which includes a draft paragraph adopting a permissive “rule of law” approach to psychiatric commitment.  WNUSP and CHRUSP have addressed this with the Human Rights Committee (see Response on Paragraph 19 with alternative language, under Liberty heading) and will continue to do so.)

My trip to Geneva was very productive.  Not only did I brief the Committee on Article 14 (attended by more than half the members), I was also able to provide information on the countries under review, supplied to me by WNUSP members, which helped the Committee to tailor its Concluding Observations to specific circumstances.  (For instance, Australia reportedly has the world’s highest rate of community treatment orders – outpatient commitment – and the Committee specifically condemned CTOs along with psychiatric commitment and forced treatment in institutions.)  The Committee decided that it would address the matter of the Human Rights Committee’s draft General Comment, and also intervene in other processes of interest on the rights of prisoners and the rights of older persons (WNUSP and CHRUSP have been involved in these areas, and you can read advocacy papers on the CHRUSP website under “Prison Reform/Abolition and CRPD” and “CRPD and Rights of Older Persons” respectively.

Most importantly, the Concluding Observations adopted on the three countries under review – El Salvador, Austria and Australia – all take the resoundingly clear position that psychiatric detention is prohibited under Article 14.  (You can read them in full on the UN website.)

In particular:

• Legislation that allows detention in a psychiatric facility “when [a person has] a psychosocial disability and it is forecast that they might endanger themselves or other persons” is in conflict with Article 14.  (Austria CO, para 29)
• Such legislation falls within Article 14’s prohibition of deprivation of liberty based on an actual or perceived disability.  (Austria CO, para 29)
• The country should “take all necessary legislative, administrative and judicial measures to ensure that no one is deprived against their will in any kind of mental health facility.”  (Austria CO, para 30)
• The country should repeal “legal provisions that authorize commitment of individuals to detention in mental health services, or the impositin of compulsory treatment either in institutions or in the community via Community Treatment Orders (CTOs).”  (Australia CO, para 34)
• The country should “abolish norms that authorize deprivation of liberty based on disability, which attribute to disability the possibility of causing harm for the person or others, or that ascribe to it the need for care and treatment, and should establish suitable procedures so that health services, including mental health, proceed only after the free and informed consent of the person concerned.”  (El Salvador CO, para 32)

There is still more good news.  Article 14 of the CRPD has a second paragraph that guarantees equal treatment to persons with disabilities who are deprived of their liberty by any process to which they remain subject as members of the public (such as criminal arrest and detention).  There has been controversy as to whether this provision prohibits people from being committed to psychiatric institutions as a result of criminal proceedings (e.g., when the person is found not guilty by reason of insanity or is considered unfit to stand trial).  The Office of the High Commissioner for Human Rights, in its Study on legal measures linked above, gave early support to our view that the insanity defense itself is inconsistent with the CRPD guarantee of equal legal capacity in another provision of the treaty, Article 12.  The issues raised under Article 14 in the criminal context, in particular the prohibition of criminal or forensic psychiatric commitment, are now beginning to be addressed by the Committee and also by the Special Rapporteur on Torture.  I will try to address this in more detail in a later blog, but for now will point to additional highlights from September’s Concluding Observations, and from the latest report of the Special Rapporteur on Torture:

• The country was urged “to ensure that persons with psychosocial disabilities are ensured equal substantive and procedural guarantees as others in the context of criminal proceedings and in particular to ensure that no diversion programs are implemented that transfer individuals to mental health commitment regimes or that require the individual to participate in mental health services rather than providing such services on the basis of the individual’s free and informed consent.”  (Australia CO, para 29)
• It was further urged “to ensure that all persons with disabilities who are accused of crimes and are currently detained in jails and institutions without a trial are promptly allowed to defend themselves against criminal charges and are provided with required support and accommodation to facilitate their effective participation.”  (Australia CO, para 30)
• “Rules 82 and 83 [which provide for forensic psychiatric commitment and other segregation of “insane and mentally abnormal prisoners”] should be replaced with a provision that applies to all persons with disabilities. Such a provision should state explicitly that inmates with disabilities are entitled to be eligible for all programmes and services available to others, including voluntary engagement in activities and community release programmes, and to be housed in the general prison population on an equal basis with others without discrimination. It should also provide a clear articulation of certain rights enshrined in the Convention on the Rights of Persons with Disabilities: the duty to provide reasonable accommodation (arts. 5 and 14); the duty to work towards creating an accessible environment (art. 9); the duty to ensure that persons with disabilities have access to all amenities without having to rely on assistance from fellow inmates (e.g., arts. 5, 20 and 28); the duty to respect the choices of persons with disabilities and to establish effective mechanisms to support decision-making in order to enable people with psychosocial or intellectual disabilities to exercise their legal capacity on an equal basis with others (see arts. 12 and 13).” (Special Rapporteur on Torture SMR report, para 72)

And lastly, with regard to the Committee’s stance against forced psychiatric drugging and other coercive practices, they are continuing to be quite firm, addressing forced psychiatry as a form of torture and ill-treatment as well as a violation of the right to free and informed consent in health care, the right to integrity of the person, and the right to legal capacity.  (See El Salvador CO paras 28, 33, 37 and 52; Austria CO para 28; Australia CO paras 25, 35, 36.)  This reaffirms the bottom line as expressed by the Special Rapporteur on Torture earlier this year (see also clarifying statement), when he called on all countries to:

“Impose an absolute ban on all forced and non-consensual medical interventions against persons with disabilities, including the non-consensual administration of psychosurgery, electroshock and mind-altering drugs such as neuroleptics, the use of restraint and solitary confinement, for both long- and short- term application.”

A good year for us at the United Nations.  Please make sure to use these standards in your advocacy and encourage all governments – including state and local governments as well as federal – to adhere to them.