The United Nations Human Rights Committee has asked the U.S. government to clarify how the possibilities for nonconsensual medication in psychiatric institutions comply with their obligations under Article 7 of the International Covenant on Civil and Political Rights – i.e. the obligation to ensure that no one is subjected to torture and ill-treatment. This is the question they asked:
15. Please clarify how, in the State party’s view, the possibilities for non-consensual use of medication in psychiatric institutions and for research and experimentation, as outlined in paragraph 31 of the Committee’s previous concluding observations, are in conformity with the obligations upon a State party under 7 of the Covenant.
This is the fruit of successful advocacy by Maxima Kalitventsev and myself; we went to Geneva last month to meet with members of the Human Rights Committee and urge them to ask questions related to forced psychiatry and psychiatric profiling as violations of our human rights. Maxima is writing about this extensively in her own blog and I will refer you there for an up-close view of our meetings. Our trip to Geneva followed the submission of a written report and suggested questions by the Center for the Human Rights of Users and Survivors of Psychiatry (CHRUSP), Law Project for Psychiatric Rights (PsychRights), Voices of the Heart, MindFreedom International (MFI), Campaign to Repeal Mental Health Laws (RMHL), World Network of Users and Survivors of Psychiatry (WNUSP) and International Disability Alliance (IDA).
The question asked by the Human Rights Committee is significant in a few ways. First, the Committee appears to be opening up for debate the standards that should be applied to nonconsensual psychiatric medication. The Committee is considering the related question of psychiatric commitment and compulsory treatment as a violation of Article 9 of the Covenant, on the right to liberty and security of the person, as it works on drafting a General Comment on Article 9. It should be helpful for them to hear from our lived experiences of harm, and from research findings documenting the harm and the questionable efficacy and safety of psychiatric drugs, as well as our arguments regarding international human rights law.
We should expect that the U.S. government will not argue the questions of international law but will simply present the actions of the federal government as being sufficient to fulfill its obligations. We should urge the U.S. to provide information about federal and state law and to present its justifications for inflicting treatments on people that disrupt their consciousness, flatten their emotions, cause serious neurological impairments, and otherwise cause serious anguish and bodily harm, without the person’s free and informed consent and often over their active objection and refusal. It is likely that we will have an opportunity to engage with the U.S. government before they submit their answers to the questions, in writing and possibly through a teleconference as well.
We should keep in mind that the Special Rapporteur on Torture has strengthened our position in human rights law, with his recent call for an absolute ban on forced psychiatric interventions including nonconsensual drugging and electroshock, as well as restraint and solitary confinement, and for repeal of legal provisions allowing confinement and compulsory treatment in mental health facilities. The U.S. government should remember the advice of the National Council on Disability which recommended in 2000 that mental health policy should move in the direction of a totally voluntary mental health system, and take the call to action by the Special Rapporteur as a stimulus to revive those recommendations and improve the human rights record of this country.
Secondly, it is interesting that the Committee chose to focus on nonconsensual medication, and they linked it to issues of nonconsensual medication in the context of research and experimentation, which they had addressed in the 2006 U.S. report. In 2006, in their Concluding Observations, they said:
31. The Committee notes that (a) waivers of consent in research regulated by the U.S Department of Health and Human Services and the Food and Drug Administration may be given in case of individual and national emergencies; (b) some research may be conducted on persons vulnerable to coercion or undue influence such as children, prisoners, pregnant women, mentally disabled persons, or economically disadvantaged persons; (c) non-therapeutic research may be conducted on mentally ill persons or persons with impaired decision-making capacity, including minors; and (d) although no waivers have been given so far, domestic law authorizes the President to waive the prior informed-consent requirement for the administration of an investigational new drug to a member of the U.S. Armed Forces, if the President determines that obtaining consent is not feasible, is contrary to the best interests of the military members, or is not in the interests of U.S. national security. (article 7)
The State party should ensure that it meets its obligation under article 7 of the Covenant not to subject anyone without his/her free consent to medical or scientific experimentation. The Committee recalls in this regard the non-derogable character of this obligation under article 4 of the Covenant. When there is doubt as to the ability of a person or a category of persons to give such consent, e.g. prisoners, the only experimental treatment compatible with article 7 would be treatment chosen as the most appropriate to meet the medical needs of the individual.
Considering this paragraph, I have a few reflections. First, we need to be vigilant in ensuring that forced drugging in psychiatric institutions is addressed on its own, and not only as a follow up to the earlier Concluding Observations in the context of research. We should make it known to the U.S. government that we expect them to answer this question, and also to add the related issues that we would like them to include, particularly inpatient and outpatient commitment. We also need to suggest good follow-up questions to the Committee.
Second, we will need to address the incapacity standard that was taken for granted by the Committee in the 2006 document. Rather than deeming anyone to have impaired decision-making capacity, the standard in the Convention on the Rights of Persons with Disabilities requires provision of support and accommodations so that the individual can express her or his will to the fullest extent possible for that person, which must be respected by others. We need to propose standards to protect people against the abuse of power inequalities in the context of psychiatric research and experimentation, and even heightened scrutiny not of the person’s decision-making capacity of the research protocols and the potential for irreversible and unacceptable harm. In any case, we will need to alert the Committee that we don’t agree with an incapacity standard for the exercise of free and informed consent, and to point out how this standard is used to accomplish forced drugging and electroshock.
Third, the issue of research reminds us of an interesting aspect of the article on torture and ill-treatment in the ICCPR, in that it includes a specific prohibition of medical and scientific experimentation. Many aspects of psychiatry constitute uncontrolled experimentation, where there is no research base demonstrating safety and efficacy for a particular treatment, including electroshock and polypharmacy. I would like to hear from those of you who are knowledgeable about the research and lack thereof, to help compile good information and arguments for this part of our report.
I would like to thank Maxima, as well as Victoria Lee from the International Disability Alliance secretariat who provided valuable support in helping to identify Committee members who would be open to our perspective and arranging meetings with them, and in many other ways. I would also like to thank the other members of the NGO delegation from the United States, led by the U.S. Human Rights Network, and to say that it was very satisfying to feel that we were making connections with each other’s issues of concern, which I hope will allow U.S. human rights advocates to come together even more closely as we continue to work together.