After the Statement by the Special Rapporteur on Torture, Taking Stock of Where We Are

Tina Minkowitz, Esq.
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On March 4, 2013, the Special Rapporteur on Torture made a statement to the Human Rights Council calling for an absolute ban on forced psychiatric interventions, and saying that detention on mental health grounds was not justified, in particular that it was not justified by a motivation to protect the person or others.  He acknowledged that these practices are always at least inhuman and degrading treatment and may amount to torture.  And he called for the repeal of laws that allow confinement and compulsory treatment in mental health settings.  This statement was posted on the Mad in America website and was widely circulated, as it is a truly outstanding achievement for our movement to celebrate and use in our advocacy.

The statement, and the report that it accompanied, are already having an impact in our movement and in the UN human rights system, as is evident in my meetings with members of the UN Human Rights Committee, and with UN secretariat staff at the Office of the High Commissioner for Human Rights.  The call for an absolute ban on forced interventions is having its intended effect to pull all concerned on alert that action needs to be taken.

The current Special Rapporteur on Torture, Juan Mendez, has built on the 2008 report by his predecessor Manfred Nowak, which was the first to adopt a standard based on our advocacy, saying that medical treatments of an intrusive and irreversible nature, when aimed at correcting or alleviating a disability, can amount to torture or ill-treatment when enforced or administered without the free and informed consent of the person concerned, and that this included the administration of electroshock and mind-altering drugs such as neuroleptics.  Even earlier, in 1986 the first Special Rapporteur on Torture, P. Kooijmans, named as a form of physical torture, the administration of drugs in detention settings and psychiatric institutions, including neuroleptics, “that cause trembling, shivering and contractions, but mainly make the subject apathetic and dull his intelligence.”

Mr. Mendez responded to a call from the user/survivor movement and allies to take up the issue of forced psychiatric interventions in his consideration of torture in healthcare settings.  The World Network of Users and Survivors of Psychiatry, European Network of (ex-) Users and Survivors of Psychiatry, International Disability Alliance and Mental Disability Advocacy Centre wrote a joint submission to the Rapporteur, and three of us participated in an expert meeting in December 2012, including Jolijn Santegoeds and myself who are members of WNUSP as well as Dorottya Karsay from MDAC (my statement entitled “What Next?” can also be found here).  We had to consider what Mr. Mendez could add to the standards already established by Mr. Nowak in 2008.  Mr. Nowak set out a conceptual framework for recognizing forced psychiatric interventions, including institutionalization, as torture and ill-treatment, and recognized that the Convention on the Rights of Persons with Disabilities prohibited involuntary confinement and involuntary treatment.  He also established that the judgment of medical professionals could not legitimize acts of discrimination, and that deprivation of the right to make one’s own decisions created a condition of powerlessness that was conducive to torture.  However, there were a number of implications that had to be drawn from Mr. Nowak’s report in terms of the action required, and we hoped that Mr. Mendez would bring out these actions that were needed to put an end to the abusive practices outlined.

By 2012, we also had the benefit of three years of Concluding Observations from the Committee on the Rights of Persons with Disabilities, which started receiving reports from countries that had ratified the CRPD in 2009.  The Committee called for repeal of legal provisions authorizing institutionalization without the free and informed consent of the person concerned, and also has consistently emphasized that the right to have the legal capacity to make one’s own decisions is a universal right and cannot be denied to anyone; substituted decision-making has to be replaced by supported decision-making, which respects the person’s autonomy, will and preferences.  The Committee has also acknowledged that legal capacity includes the exercise of free and informed consent in health care.  Other treaty monitoring committees in the UN system had also taken up these standards in some of their Concluding Observations.  These references can be found in Annex II to our Joint Submission.  And we knew that it is helpful to include first-person stories to show how our lives are affected by forced psychiatry, these are in Annex I.

Here are the relevant Conclusions and Recommendations of the Report.

81. The preceding examples of torture and ill-treatment in health-care settings likely represent a small fraction of this global problem. Such interventions always amount at least to inhuman and degrading treatment, often they arguably meet the criteria for torture, and they are always prohibited by international law.

82. The prohibition of torture is one of the few absolute and non-derogable human rights, a matter of jus cogens, a peremptory norm of customary international law. Examining abuses in health-care settings from a torture protection framework provides the opportunity to solidify an understanding of these violations and to highlight the positive obligations that States have to prevent, prosecute and redress such violations.

83. The right to an adequate standard of health care (“right to health”) determines the States’ obligations towards persons suffering from illness. In turn, the absolute and non-derogable nature of the right to protection from torture and ill-treatment establishes objective restrictions on certain therapies. In the context of health-related abuses, the focus on the prohibition of torture strengthens the call for accountability and strikes a proper balance between individual freedom and dignity and public health concerns. In that fashion, attention to the torture framework ensures that system inadequacies, lack of resources or services will not justify ill-treatment. Although resource constraints may justify only partial fulfilment of some aspects of the right to health, a State cannot justify its non-compliance with core obligations, such as the absolute prohibition of torture, under any circumstances.

84. By reframing violence and abuses in health-care settings as prohibited ill- treatment, victims and advocates are afforded stronger legal protection and redress for violations of human rights. In this respect, the recent general comment No. 3 (2012) of the Committee against Torture on the right to a remedy and reparation offers valuable guidance regarding proactive measures required to prevent forced interventions. Notably, the Committee considers that the duty to provide remedy and reparation extends to all acts of ill-treatment, so that it is immaterial for this purpose whether abuses in health-care settings meet the criteria for torture per se. This framework opens new possibilities for holistic social processes that foster appreciation of the lived experiences of persons, including measures of satisfaction and guarantees of non-repetition, and the repeal of inconsistent legal provisions.

85. The Special Rapporteur calls upon all States to:

(a) Enforce the prohibition of torture in all health-care institutions, both public and private, by, inter alia, declaring that abuses committed in the context of health-care can amount to torture or cruel, inhuman or degrading treatment or punishment; regulating health-care practices with a view to preventing mistreatment under any pretext; and integrating the provisions of prevention of torture and ill- treatment into health-care policies;

(b) Promote accountability for torture and ill-treatment in health-care settings by identifying laws, policies and practices that lead to abuse; and enable national preventive mechanisms to systematically monitor, receive complaints and initiate prosecutions;

(c) Conduct prompt, impartial and thorough investigations into all allegations of torture and ill-treatment in health-care settings; where the evidence warrants it, prosecute and take action against perpetrators; and provide victims with effective remedy and redress, including measures of reparation, satisfaction and guarantees of non-repetition as well as restitution, compensation and rehabilitation;

(d) Provide appropriate human rights education and information to health- care personnel on the prohibition of torture and ill-treatment and the existence, extent, severity and consequences of various situations amounting to torture and cruel, inhuman or degrading treatment or punishment; and promote a culture of respect for human integrity and dignity, respect for diversity and the elimination of attitudes of pathologizaton and homophobia. Train doctors, judges, prosecutors and police on the standards regarding free and informed consent;

(e) Safeguard free and informed consent on an equal basis for all individuals without any exception, through legal framework and judicial and administrative mechanisms, including through policies and practices to protect against abuses. Any legal provisions to the contrary, such as provisions allowing confinement or compulsory treatment in mental health settings, including through guardianship and other substituted decision-making, must be revised. Adopt policies and protocols that uphold autonomy, self-determination and human dignity. Ensure that information on health is fully available, acceptable, accessible and of good quality; and that it is imparted and comprehended by means of supportive and protective measures such as a wide range of community-based services and supports (A/64/272, para. 93). Instances of treatment without informed consent should be investigated; redress to victims of such treatment should be provided;

(f) Ensure special protection of minority and marginalized groups and individuals as a critical component of the obligation to prevent torture and ill- treatment by, inter alia, investing in and offering marginalized individuals a wide range of voluntary supports that enable them to exercise their legal capacity and that fully respect their individual autonomy, will and preferences.

89. The Special Rapporteur calls upon all States to:

(a) Review the anti-torture framework in relation to persons with disabilities in line with the Convention on the Rights of Persons with Disabilities as authoritative guidance regarding their rights in the context of health-care;

(b) 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. The obligation to end forced psychiatric interventions based solely on grounds of disability is of immediate application and scarce financial resources cannot justify postponement of its implementation;

(c) Replace forced treatment and commitment by services in the community. Such services must meet needs expressed by persons with disabilities and respect the autonomy, choices, dignity and privacy of the person concerned, with an emphasis on alternatives to the medical model of mental health, including peer support, awareness-raising and training of mental health-care and law enforcement personnel and others;

(d) Revise the legal provisions that allow detention on mental health grounds or in mental health facilities, and any coercive interventions or treatments in the mental health setting without the free and informed consent by the person concerned. Legislation authorizing the institutionalization of persons with disabilities on the grounds of their disability without their free and informed consent must be abolished.

Here are the highlights of the Rapporteur’s Statement to the Human Rights Council:

Important interpretative and guiding principles such as legal capacity, informed consent, and the doctrine of “medical necessity” as well as the concept of stigmatized identities provide useful guidance in understanding the breadth of the problem and the underlying causes that are paramount to most of these abusive practices. It is important that States clarify that domestic laws on legal capacity are in compliance with the Convention on the Rights of Persons with Disabilities (CRPD) standards. Free and informed consent should be safeguarded on an equal basis for all individuals without any exception, through the legal framework and judicial and administrative mechanisms, including through policies and practices to protect against abuses. Any legal provisions to the contrary, such as provisions allowing confinement or compulsory treatment in mental health settings, including through guardianship and other substituted decision-making, must be repealed.

Despite the significant strides made in the development of norms for the abolition of forced psychiatric interventions on the basis of disability alone as a form of torture and ill-treatment and the authoritative guidance provided by the CRPD, severe abuses continue to be committed in health-care settings where choices by people with disabilities are often overridden based on their supposed “best interests”, and where serious violations and discrimination against persons with disabilities may be masked as “good intentions” of health-care professionals.

The mandate has previously declared that there can be no therapeutic justification for the use of solitary confinement and prolonged restraint of persons with disabilities in psychiatric institutions; both prolonged seclusion and restraint constitute torture and ill- treatment. In my 2012 report (A/66/88) I addressed the issue of solitary confinement and stated that its imposition, of any duration, on persons with mental disabilities is cruel, inhuman or degrading treatment.

Fully respecting each person’s legal capacity is a first step in the prevention of torture and ill-treatment. As already established by the mandate, medical treatments of an intrusive and irreversible nature, when lacking a therapeutic purpose or when aimed at correcting or alleviating a disability, may constitute torture or ill-treatment when enforced or administered without the free and informed consent of the person concerned.

Deprivation of liberty on grounds of mental illness is unjustified. Under the European Convention on Human Rights, mental disorder must be of a certain severity in order to justify detention. I believe that the severity of the mental illness cannot justify detention nor can it be justified by a motivation to protect the safety of the person or of others. Furthermore, deprivation of liberty that is based on the grounds of a disability and that inflicts severe pain or suffering falls under the scope of the Convention against Torture. In making such an assessment, factors such as fear and anxiety produced by indefinite detention, the infliction of forced medication or electroshock, the use of restraints and seclusion, the segregation from family and community, should be taken into account.

The CRPD offers the most comprehensive set of standards on the rights of persons with disabilities and it is important that States review the anti-torture framework in relation to persons with disabilities in line with the CRPD. States should 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, for both long- and short- term application. The obligation to end forced psychiatric interventions based on grounds of disability is of immediate application and scarce financial resources cannot justify postponement of its implementation.

Forced treatment and commitment should be replaced by services in the community that meet needs expressed by persons with disabilities and respect the autonomy, choices, dignity and privacy of the person concerned. States must revise the legal provisions that allow detention on mental health grounds or in mental health facilities and any coercive interventions or treatments in the mental health setting without the free and informed consent by the person concerned.

Minority and marginalized groups and individuals should be afforded special protection as a critical component of the obligation to prevent torture and ill- treatment by, inter alia, investing in and offering marginalized individuals a wide range of voluntary support that enable them to exercise their legal capacity and that fully respect their individual autonomy, will and preferences. There is an abundance of testimonies and cases of ill-treatment in health-care settings such as the denial of opiate substitution treatment to persons who use drugs; documented negative and obstructive attitudes on the part of medical workers, including denial of necessary health-care services to sex workers and lesbian, gay, bisexual and transgender and intersex persons; homophobic ill- treatment including State-sponsored forcible anal examinations for the prosecution of suspected homosexual activities, hormone therapy and genital- normalizing surgeries under the guise of so called “reparative therapies”, and irreversible sex assignment; involuntary sterilization; forced medical interventions; and non-consensual medical practices in relation to persons with disabilities.

States should repeal any law allowing intrusive and irreversible treatments when enforced or administered without the free and informed consent of the person concerned.

It is also worth noting that the report in several places rejects the doctrine of “medical necessity,” adopted by the European Court of Human Rights and others, as a justification for coercive or discriminatory interventions.

35. The doctrine of medical necessity continues to be an obstacle to protection from arbitrary abuses in health-care settings. It is therefore important to clarify that treatment provided in violation of the terms of the Convention on the Rights of Persons with Disabilities – either through coercion or discrimination – cannot be legitimate or justified under the medical necessity doctrine.

With regard to legal capacity, the language of the Report differs from the CRPD in paragraph 66 quoted below, but the substance of what is expressed is consistent, i.e. that urgent life-saving measures can be undertaken towards a person who is not expressing either consent or refusal.  In no way can this be understood as creating a loophole for measures that are only speculatively aimed at preserving life or preventing future endangerment.

65. Millions of people with disabilities are stripped of their legal capacity worldwide, due to stigma and discrimination, through judicial declaration of incompetency or merely by a doctor‟s decision that the person “lacks capacity” to make a decision. Deprived of legal capacity, people are assigned a guardian or other substitute decision maker, whose consent will be deemed sufficient to justify forced treatment (E/CN.4/2005/51, para. 79).

66. As earlier stated by the mandate, criteria that determine the grounds upon which treatment can be administered in the absence of free and informed consent should be clarified in the law, and no distinction between persons with or without disabilities should be made. Only in a life-threatening emergency in which there is no disagreement regarding absence of legal capacity may a health-care provider proceed without informed consent to perform a life-saving procedure. From this perspective, several of the 1991 Principles may require reconsideration as running counter to the provisions of the Convention on the Rights of Persons with Disabilities (A/63/175, para. 44).

One other discrepancy needs to be mentioned; in paragraph 69 of the report the Rapporteur appears to endorse a standard that would permit detention on mental health grounds based on a “necessity to protect the person or others” and possibly also based on “unsound mind”.  Although this was clarified and reversed in his statement to the Human Rights Council (where he says that detention on mental health grounds is unjustified, and that in particular it is not justified based on the severity of a mental illness or based on a motivation to protect the person or others), we have called on the Special Rapporteur to issue a more formal clarification that will be as widely distributed as the Report, particularly to governments and UN agencies.

As always I am ending with a call to the movement to defend our human rights and keep fighting in all the ways that you already are; please use this new tool in your advocacy and also join with me in international work if you are so inspired.

The logic of equating forced psychiatry with torture is undeniable, it is a severe injury to the body, soul, mind and spirit, and it is only because of discrimination that such violence has enjoyed social and legal approval in western societies and unfortunately spreading throughout the world.  The logic that comes from a non-discrimination analysis is rooted in our self-respect and pride, our unwillingness to let go of the last spark of identity and resistance that makes us who we are.  Non-discrimination is advancing in the world, it represents the best of humanity and we are part of this truth.

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5 COMMENTS

  1. “…we have called on the Special Rapporteur to issue a more formal clarification that will be as widely distributed as the Report, particularly to governments and UN agencies.”

    Great post, Tina!

    RE: calling on the Special Rapporeur to issue a formal clarification…

    I’m glad to know the document is being revised to make its meanings more clear.

    But, will those revisions go far enough, I wonder???

    I hope that, at some point, we’ll find the UN questioning the very existence of “mental illness”.

    E.g., there is that line, “Deprivation of liberty on grounds of mental illness is unjustified.”

    It’s a good line (and, it’s key, really); but, it would be far better, I believe, if it read, “Deprivation of liberty on grounds of presumed mental illness is unjustified.”

    The concept of ‘mental illness’ is an abstraction; there are only *presumptions* that ‘it’ exists – no certain proofs (such as exist, in the case of clearly verifiable, physical illnesses).

    Respectfully,

    ~Jonah