Last week was the culmination of more than a year’s worth of advocacy towards the U.N. Human Rights Committee on the issue of forced psychiatric drugging in the United States. The Human Rights Committee is a committee of independent experts elected to review compliance with the International Covenant on Civil and Political Rights, a treaty to which the U.S. is a state party.
Aubrey Shomo, Patricia Bauerle and I spent the week talking to Committee members and holding side events to give information and personal testimonies beyond what we presented in the written shadow report, including global perspectives. We were joined in side events by our colleagues from the World Network of Users and Survivors of Psychiatry, Hege Orefellen from Norway and Jolijn Santegoeds from the Netherlands, as well as Richard Pearshouse from Human Rights Watch and moderators Facundo Chavez Penilla, Disability Adviser to the Office of High Commissioner for Human Rights, and Jorge Araya, Secretary of the Committee on the Rights of Persons with Disabilities. Our international team did amazing work, and was supported by the Geneva-based secretariat of the International Disability Alliance, of which WNUSP is a member. I will write more about what I am learning about shadow reporting, and we will also be sharing video and audio from our presentations, but now I want to report on what happened on Friday in the Interactive Dialogue of the Committee with the United States.
On Friday March 14, 2014, Human Rights Committee member Ms Zonke Majodina from South Africa questioned representatives of the United States government on forced psychiatric drugging. While we await the video archive and transcript, here are my notes of what she said:
Regarding the nonconsensual use of psych medication in psych institutions:
We are told that U.S. constitution constrains the government’s use of nonconsensual treatment & clinical investigations. That they are permitted only in carefully controlled situations & also constitutional safeguards such as federal PAIMI program, and regulations on use of restraint on patients in mental institutions.
On the other hand, information from nongovernmental organizations shows that there is ample evidence that state & local governments routinely apply and allow neuroleptic medications and electorhosck to be applied without informed consent & against their will. It is not limited to psychiatric institutions but allowed in nursing homes for older persons especially those with dementia and people in situations of particular vulnerability such as children in foster homes and prison inmates. New York law permits compulsory treatment of persons confined against their will, in particular where consent lacks capacity to make a reasoned decision. The law also allows for forced drugging in prison and even after release from prisons.
Scientific literature reveals neuroleptic drugs have serious side effects. They are mind altering, and cause shivering, trembling, contractions and all kinds of other physical side effects.
The Special Rapporteur on Torture recently called for 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.
Furthermore the U.S. National Council on Disability recommended, “Laws that allow the use of involuntary treatments such as forced drugging and inpatient and outpatient commitment should be viewed as inherently suspect, because they are incompatible with the principle of self-determination. Public policy needs to move in the direction of a totally voluntary community-based mental health system that safeguards human dignity and respects individual autonomy.”
Against this background, I pose the following questions:
Is the U.S. government concerned about this widespread use of nonconsensual psych medication, electroshock and other coercive practices?
Has the U.S. or another state given consideration to imposing ban recommended by the Special Rapporteur on Torture?
What have states done to reform criminal law and procedure, policies and practices against people labeled with psych disabilities including drugging as a condition for release?
Has the President or Congress taken any action regarding the recommendation of the National Council on Disability?
The U.S. representative from the Department of Health and Human Services, Dr Wanda Jones, answered as follows (also my notes):
Ms Majodina asked about nonconsensual medical treatment.
Although US federal law prohibits nonconsensual treatment, it can be provided without consent for life threatening interventions.
This is governed by state law, which cannot violate constitutional provisions on due process, privacy and equal protection of individuals. Professional organizations may also have guidelines on practice.
We are concerned. We established the Protection and Advocacy for Individuals with Mental Illness program, which operates in all 50 states, DC, all territories and in consolidated Indian territories. PAIMI supports state-designated projects that are specifically designed to investigate allegations of violations in mental health settings, including seclusion & restraint.
The program reported over eighteen thousand complaints and closed thirteen thousand. About ten thousand were substantiated, of which about a fifth were abuse and a fifth neglect. There were over 6200 rights violations. 2500 cases were not substantiated. Where intervention was substantiated, they achieved positive changes in environmental community or living arrangements. We are constantly working on getting better.
Medicare conditions of participation for hospitals including psychiatric hospitals detail restrictions on the use of restraints including drugs and medications when used to manage behavior or restrict freedom of movement. This implements standard that is set in regulation, monitored by Center for Medicare and Medicaid Services.
The Department also supports the training and development of consumer/peer mental health workers, designated to assist those who are receiving services to access needed services.
We expanded comprehensive community mental health services to children and families, and expanded program of cooperation with the justice system, transitioning into civil society.
The Affordable Care Act will mean one of the largest expansions in substance abuse and mental health treatment services in a generation.
SAMHSA has had a significant impact on culture of treatment environments. Many facilities funded through state grants have reduced traumatizing practices, facilitated recovery and consumer directed care.
Regarding medication and treatment of federal prisoners including those with mental disabilities, a strict set of federal regulations governs the extent to which medication can be administered involuntarily, including an administrative hearing, except in emergency circumstances.
Ms Majodina followed up by saying (from notes taken by a staff person from the secretariat of the International Disability Alliance):
On non consensual medical treatment, I understand there are special rules and appreciate efforts on monitoring at the state level.
But I am still surprised that states have been left to devise their own rules. I’m wondering whether any states have considered the ban which has been recommended by the Special Rapporteur on Torture made February last year, available on the UN website of documents. So given that it is really at state level that there is no compliance with the requirement to prohibit coercive treatments especially in mental health settings, I think the matter cannot just be left, there should be some form of good faith undertakings by federal government that these recommendations by UN bodies is taken seriously also at state level.
The final step will be the Committee’s adoption of Concluding Observations and recommendations for the United States.
Thank you Tina for your continued tenacious work protecting human rights. The testimony of Dr. Jones of DHHS seems very revealing about the extent of abuses happening and how the states operate without uniform federal oversight.
Best wishes, Michael
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Dr. Jones did not address involuntary psychiatric “treatment” that has long been a part of U.S. military and veterans’ facilities. I would like to hear her comment about the rights of active duty military personnel and veterans.
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I agree with you. Next time it would be great to include this information. There is so much to address and we missed this one.
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Tina,
I agree with Dr. Cornwall. Your dedication to this frustrating but crucial cause is amazing and I greatly appreciate your efforts on behalf of all those whose human rights, dignity and health have been threatened by the predatory biopsychiatry/Big Pharma cartel for profit and social control agenda.
Do you think that Dr. Jones is sincere? Do you think those in the federal government are any better than states regarding these human rights violations?
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I do not know what Dr Jones referred to in her statement about federal law, as I am not aware of any such standard particularly with regard to a prohibition of nonconsensual psychiatric medication. Also, the constitutional standards and regulations to which she refers fall short of a prohibition, although Jim Gottstein has argued that if interpreted properly there would be no instances of forced drugging that could meet the constitutional standard.
I think Ms Majodina’s follow up comments suggest that she also did not take Dr Jones’ response at face value.
We await the Concluding Observations to see how to move forward from here.
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“Although US federal law prohibits nonconsensual treatment, it can be provided without consent for life threatening interventions”.
Therein lies the problem.
As positive sounding at her closing remarks were…I remain skeptical that they will ever implement the full recommendations made by the UN Special Rapporteur – because I think the general public (and most lawmakers) simply don’t know what else to do…locking people up, and drugging them up to the eyeballs, is always so much easier than having to come up with something genuinely helpful.
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I am not sure what Dr Jones was referring to when she made this comment. Federal law does not actually prohibit forced psychiatric interventions, to my knowledge.
The issue of life-saving interventions needs to be distinguished from forced psychiatry, which does not have a direct effect on the body’s capacity to sustain life. Rather psychiatric interventions affect consciousness and behavior. I write some about this in my response to the Special Rapporteur on Torture’s report on torture in healthcare settings, http://antitorture.org/wp-content/uploads/2014/03/PDF_Torture_in_Healthcare_Publication.pdf. Interested to know your thoughts on it, but I made an attempt there to distinguish, and maybe not as clear and what I wrote in this paragraph.
Thanks for your thoughtful comment about the obstacles to implementation. If we get good Concluding Observations, we will be advocating for a process with the federal government to follow up and discuss how they can be implemented. Let’s discuss more at that time.
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And non-consensual treatment is apparently the historical and current way doctors cover up easily recognized medical mistakes. Plus, forced psychiatric treatment also serves to cover up child abuse for the greedy and perverted religious leaders.
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Oh, actually, upon reading the full report of the UN special rapporteur (not just the text of his statement):
“Deprivation of liberty on grounds of mental illness is unjustified if its basis is discrimination or prejudice against persons with disabilities. Under the European Convention on Human Rights, mental disorder must be of a certain severity in order to justify detention.87 The Special Rapporteur believes that the severity of the mental illness is not by itself sufficient to justify detention; the State must also show that detention is necessary to protect the safety of the person or of others. Except in emergency cases, the individual concerned should not be deprived of his liberty unless he has been reliably shown to be of “unsound mind”.88 As detention in a psychiatric context may lead to non- consensual psychiatric treatment,89 the mandate has stated that deprivation of liberty that is based on the grounds of a disability and that inflicts severe pain or suffering could fall under the scope of the Convention against Torture (A/63/175, para. 65). ”
The language above seems to contradict what was written in his statement, where he said that involuntary treatment cannot be justified even on the basis of preventing harm to “self or others”…
What is the UN’s actual view? Did I completely misread it?
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It’s true that on the issue of detention the report was self-contradictory. But on the call for an absolute ban on forced drugging etc. it was unequivocal. Since that report and the statement, the Special Rapporteur has issued additional official reports and public commentary that contain further contradictions, but the report still exists as a UN document and should be upheld to the extent that it is favorable. The aspects of the report that are self-contradictory and not in line with the CRPD – such as the part of the paragraph you cited that opines that detention could be based on danger to self or others – should be disregarded as they do not reflect accurately the most authoritative international standards. The Committee on the Rights of Persons with Disabilities, which is the authoritative body that interprets the Convention of the same name, holds that danger to self or others standards cannot justify psychiatric detention and that no one should be detained in any kind of a mental health facility. (See my blog posts http://www.madinamerica.com/2013/10/un-leaves-no-doubt-end-mental-health-detention/ and http://www.madinamerica.com/2013/09/un-ensure-one-detained-kind-mental-health-facility/.)
In the Special Rapporteur’s statement last year to the Human Rights Council he did reverse himself, as we had requested. This year he seems to be moving back to the danger criterion, in his report on a visit to Ghana and on a case of forced psychiatry in the Netherlands. It is a flaw in the Special Rapporteur’s jurisprudence that we should be aware of in considering whether to submit cases to him.
The call for an absolute ban in last year’s report, in my opinion, continues to have validity irrespective of whether the mandate holder still agrees with that position. We do not know what made him change his views, but we do know that the World Psychiatric Association and American Psychiatric Association sent him a letter, which is included along with his response in a compilation that has just been published. I have an article too in that compilation, which you can read at http://antitorture.org/wp-content/uploads/2014/03/PDF_Torture_in_Healthcare_Publication.pdf. See also his Introduction to that compilation.
We hope that the Human Rights Committee will continue to move even closer to the standards of the CRPD Committee, and we are aware that the CRPD Committee has sent a letter about this to the Human Rights Committee, though the contents of the letter are not public.
And we are hoping that the Concluding Observations that are to be issued by the Human Rights Committee will be something we can work with to open up space for abolition of all involuntary commitment and forced interventions in the psychiatric system.
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I want to be excited about this. I want to find it comforting. The problem is several things: 1st one of the few memories I do still have from the nearly five years I spent hospitalized as a child is that, within the first week, we all learned to sit very carefully. We weren’t allowed to speak, but it didn’t take long for you to learn to tuck your feet under you at all times and sit in the center of the bed. If one foot got too close to the edge, an alarm would sound, staff would come from all over the complex, we would be placed in a five point hold, and shot full of halparadol. I mention this because the UN (with us included) found that the halaparadol administered in order to gain compliance equated to torture in 197’0’s. Of course, that was Russia using it on prisoners and not a group of mentally ill girls. Then, I get to the bigger question: How does such a modern society willfully ignore this sort of abuse for so long without questioning it’s own humanity? It isn’t a secret, but we have to wait for a UN delegate to point out what should be painfully obvious. That’s why I can’t be happy to hear the UN’s demands. You see, in my mind, that means that the general public is more comfortable with the idea of the mentally ill being tortured than they are with the possibility that we think, feel, and respond just like they do.
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Thanks for this comment. In my experience of UN advocacy, it seems that it can contribute to opening up space for more people to see that forced drugging is wrong, that it amounts to torture when used against us just as when it is used against political prisoners (and some of us justifiably consider ourselves to be political prisoners also). Manfred Nowak when he was Special Rapporteur on Torture (in the report of 2008, UN Doc. A/63/175) addressed this directly (paragraph 62-63 of the report).
I think ultimately we are appealing to others who are not ourselves, who have not directly experienced psychiatric torture, to understand that we are human and have human rights. This is true whether we are appealing directly to the society around us, or to the UN. At the UN there is a stated commitment to principles of human rights including discrimination, and mechanisms of participation by civil society along with governments that can make for a more open process of seeking systemic justice, than we often find in the political process or in domestic courts. Sometimes there are such openings in domestic law and politics also, and we need to both create these and honor them when they occur.
I hope that the positions taken by UN bodies, as well as the forum the UN gives us to make personal testimonies and the ripple effects as other US non-governmental organizations hear us and express solidarity, will start to make the general public question their comfortable beliefs. And on that note I’d like to share Aubrey Shomo’s powerful testimony given to the Human Rights Committee just before they started the dialogue with the U.S. government on Thursday. http://youtu.be/biFui1PtUn8.
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Thank you, Tina Minkowitz, Hege Orefellen, UN and other NGO allies for fighting the good fight! I’m reminded of Eli Wiesel’s words on why the world was engulfed by WWII, why evil is let loose, because good people, as bystanders, let it happen… You are keeping us awake.
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Thank you Tina, especially for making everything easy to understand. We all must keep on keeping on with what we’re doing, in our communities, counties, state, federal and international level.
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Thank you, Tina, Aubrey & Patricia for your work on this!
I find Dr. Jones’ answers do not directly address the questions posed, or even the tenor of the dialogue, as indicated by her language change from ‘nonconsensual psych medication, electroshock and other coercive practices’ to ‘nonconsensual medical treatment’. There are no states within the USA that have given a single jot of consideration to imposing bans recommended by the UN Special Rapporteur on Torture; I would fall over in a dead faint if any state BH policy makers in this entire country are even aware that such bans have been defined. To suggest that the nation’s sequester-slammed PAIMI programs oversee consensual treatment issues demonstrates a lack of understanding of PAIMI funding guidelines, outcome targets or typical case studies. Colorado has an especially stellar protection & advocacy program, successfully resolving cases that range from prisoner lawsuits within the notorious ADX facility in Florence, Colorado, to helping a woman keep her companion animal in her apartment as guaranteed by ADA law. I am vice-chair of the Colorado PAIMI, in addition to holding several roles reviewing managed care grievances & complaints spanning the last decade statewide, and have never seen one single case of a person grieving a medication compliance judgment.
Of course, my personal experience is in Colorado, where the CSX movement is so co-opted that few individuals question any form of treatment; we were so thoroughly trained to ignore national & international communities and that ‘advocacy’ means to beg for more beds. So, compliance is not exactly on the table here, which brings up a very large over arching issue of informed consent. People do not question their treatment modalities if they do not know the risks and are not told that even obvious iatrogenic problems were drug-related. I also have a difficult time reconciling Dr. Tom Insel’s announcement that the same week these talks are taking place in Geneva, the National Institute of Mental Health launched its experimental medicine approach in which interventions serve not only as potential treatments, but as probes to generate information about the mechanisms underlying a disorder. NIMH continues to chase the elusive biomarker, a complete guess that fails in the face of common sense, now at the expense of just about everything else unless it features a knife, a laser or a conductor. I can’t consider this a moral approach, and wonder how can this be legal, even here?
Finally, as far as I can see, Mental Health Courts and Addiction Courts continue to flourish with strong community support. I wonder myself at the very blurry line between law and health in these rooms and question if participants really receive legitimate due process when confronted with the choice of prison or treatment. With adequate informed consent…. yeah, maybe, but I am not seeing any professionals telling folks they are about to enroll in a sweeping reform-driven national experiment.
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Amy,
Thanks for these detailed comments. You raise a number of issues about the culture of compliance, the NIMH new approach and how it may affect routine mental health practices – I’d like to understand it better but it sounds like it amounts to mass nonconsensual experimentation – and mental health courts. Those are all important to bring to the table if and when we have opportunities for a meaningful dialogue with the federal and state governments, and also for the next shadow reports. (There are opportunities to report under the Convention against Torture and the Convention on the Elimination of Racial Discrimination later this year, and in the Universal Periodic Review process next year. I have not decided to what extent I can work on these, and would welcome others to join me. The next reporting opportunity under the International Covenant on Civil and Political Rights will be four or five years from now.)
And thanks for the information about PAIMI. It ends up being something of a non-issue but it’s good to know.
Tina
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Thank you, Tina, and yes, I am very interested in reporting opportunities. I felt it was duplicitous to suggest P&As hold any responsibility for overseeing all sketchy aspects of the behavioral health systems in states; if that WERE the expectation, they would be funded for such. I should have emphasized that in my state, PAIMI and the Colorado Cross-Disability Coalition are the only legitimate MH advocacy operations in town; all the rest are internal and are managed & paid by the entities they report on, which is certainly no recipe for transparency or fairness. There IS nothing else. We used to have an independent ombuds organization that was effective and downright beloved by peers statewide, but it was shut down by the same cartel that squashed all unruly peer leaders like insects, myself included.
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The government where I live has simply flipped the UN the bird.
Doctor’s without psychiatric qualifications will given the powers of a psychiatrist, and expanding the numbers of people who can be forcefully treated.
We have a Mental Health Act that has holes one could drive a truck through, and the complaints process is a zero accountability model.
At least we’re quick to react to human rights violations in other countries.
Thankyou for your valuable work Tina.
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Don’t give up hope where you are. If your government has ratified any human rights treaty you can participate in a similar process to what we have done here. You can contact me and I’d be happy to advise at least on some of the basics of where to find information and what standards should be applied.
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As I have said before, it is possible to have detention for people who are demonstrating dangerous behavior without allowing any forced treatment at all. I really think these two issues need to be separated, and I hope that issue can be raised with this commission.
Thanks, Tina, for your exceptional courage and hard work in championing this issue on an international level. You are heroic!
— Steve
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While I agree that detention that is based on dangerous behavior without any reference to a psychiatric diagnosis would not violate the CRPD, such detention, called “preventive detention” because it is imposed when no wrongful act has actually been done, in order to prevent one from occurring, is universally frowned on in the human rights world. It is notoriously difficult to predict future behavior and it is easy for such detention to become arbitrary if it does not start out that way.
I’m interested in what makes sense to stop acts of violence, and from what I see I tend to oppose any kind of preventive interventions done on individuals, rather I would focus on training first responders and security personnel as well as anyone who might have to play such a role on how to do the dangerous work of de-escalation and confronting someone intent on violence.
Thanks for your thoughts on this.
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That absolutely makes sense, and I agree with the principles you put forth. And I have been one of those people who believes in and does the work of deescalating violent or self-destructive people, and I know it can be done respectfully, effectively and intentionally without the use of force. It does require some courage and a willingness to sit with some very uncomfortable feelings, and unfortunately, a lot of people don’t have the skills or emotional wherewithal to pull it off. I think the involuntary detention statues let us off the hook for learning those important skills and make it way too easy to victimize anyone we find making us uncomfortable.
I guess my reason for raising this is that I observe that it is harder for some people to get their head around not “protecting” someone who is suicidal or hallucinating from harming him/herself. What I am advocating for is separating these discussions, aka: “We believe it is a violation of a person’s most fundamental rights to freedom of action to forcibly detain them for preventative reasons. Additionally, even in places where such detentions remain legal,we also believe it is an egregious violation of their human rights to enforce any kind of treatment on the victims of such detention, even if there is agreement they may pose a safety threat.”
To me, they are two separate rights issues: the right to be free from arbitrary detention in the absence of due process of law, and the right to be free from enforced treatment regardless of any law violations that a person may have engaged in. In most cases, it is assumed that “protective detention” automatically confers the right to enforced treatment. I want to see that assumption overtly questioned, so that even folks who support involuntary detention will be able to see the possibility of a person retaining sufficient dignity and rights to decide whether or not they want the “help” that is being forcibly “offered” to them under coercive conditions.
I hope that makes my position a little clearer. I appreciate your thoughtful response.
— Steve
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I hear you Steve and respectfully I disagree. The protective detention is generally framed within a mental health context so that it is still both discriminatory and intrinsically related to forced treatment. I have seen in the context of court hearings and also in the experience of friends in the system, the power of detention is used to coerce people to waive their rights to refuse treatment, even when the system is recognizing such a right. I think we mentioned this too in our shadow report to the Human Rights Committee, as one form of nonconsensual drugging. You can read our report on the CHRUSP website linked on the home page, http://www.chrusp.org.
Many people do have questions about how to meaningfully support someone who is suicidal or self-harming, while respecting the person’s autonomy. Work is being done by activists who come from lived experience of these issues and also work on supporting others, who understand detention and other coercive measures such as restraint and solitary confinement – not only forced drugging/ECT – to be harmful as they cause terror and powerlessness, adding to an extreme state rather than helping the person to come through it. (I would say that this was certainly true in my own experience.)
Many of us have also thought a great deal about the norm of universal legal capacity as articulated in CRPD Article 12, and what it means to eliminate substituted decision-making and offer support that respects the person’s right to make decisions, even in crisis situations. (See the CRPD Committee’s draft General Comment on Article 12, the section on 12.3 dealing with access to support, which you can read at http://www.ohchr.org/EN/HRBodies/CRPD/Pages/DGCArticles12And9.aspx). I have written my own explorations of this question in a paper titled CRPD Article 12 and the Alternative to Functional Capacity, available on SSRN http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=1348856.)
Our job is challenging because we are confronting a system with multiple complex violations. I think that our advocacy to the HR Committee showed that it makes sense to bring out the complexity. We focused on forced drugging in psychiatry because that is what had engaged the Committee’s interest, but brought out the context in which forced drugging takes place because in our experiences and in society it is interconnected.
Thanks again for your response and the discussion.
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Your point is well taken. If you take away the “mental health” justification, there is really nothing to justify intervention other than wanting to stop a person from doing what they are doing. And it is absolutely true that much of “voluntary treatment” is taken on under coercion, as the person wants to avoid the inevitable detention if they refuse.
You’ve obviously given this issue some very deep thought. I am very interested in hearing what processes you and those you are working with come up with. It is often hard to tell people I don’t believe in involuntary detention without having an alternative process in mind, so the work you are doing I see as vitally important.
Thanks for the interesting conversation! I hope I get to meet you in person one day.
—- Steve
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I would be more open to your arguments if I heard you talking from the trenches. I would be more open if my prison advocate amigos were singing your praise, if the pages about the sins in Colorado and California in particular were full of you actions. Until then, I have to consider you a talk talk group, not a fighting group. Do you have suits for prisoners you can cite? have you sued any Dept of Corrections, a warden, etcetcetc? If so, I will consider a change of opinion.
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The work I do is intended to give us all better tools with which to actually eliminate human rights violations such as forced psychiatric drugging, in prisons as well as psychiatric institutions. Without false modesty, I can say that my work has already given us many such tools at the international level. Next week I head to a meeting at the UN in Vienna that is specifically to address revision of an outdated document on the rights of prisoners. I hope to succeed in eliminating parts of that document that endorse forced psychiatry in prison and to replace them with standards for equality and non-discrimination, and for support that respects the person’s autonomy and choices, in line with the Convention on the Rights of Persons with Disabilities.
I invite discussion with currently and formerly incarcerated people and with prison advocates; you can contact me through MIA or through the CHRUSP website.
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The video of these questions and answers is now available:
http://youtu.be/JTr8NoUx6SI
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