In my last post here I gave a detailed analysis of the Human Rights Committee’s recommendation to the United States to “generally” prohibit nonconsensual psychiatric interventions. I might not have been sufficiently clear about how I see the international human rights standards and the value of standards that we don’t agree with but that are higher than existing U.S. law and practice.
For reference, here again is the recommendation:
Non-consensual psychiatric treatment
18. The Committee is concerned about the widespread use of non-consensual psychiatric medication, electroshock and other restrictive and coercive practices in mental health services (arts. 7 and 17).
The State party should ensure that non-consensual use of psychiatric medication, electroshock and other restrictive and coercive practices in mental health services is generally prohibited. Non-consensual psychiatric treatment may only be applied, if at all, in exceptional cases as a measure of last resort where absolutely necessary for the benefit of the person concerned provided that he or she is unable to give consent, for the shortest possible time, without any long-term impact, and under independent review. The State party should promote psychiatric care aimed at preserving the dignity of patients, both adults and minors.
I do not accept the standard that has been put forward by the Human Rights Committee, which is lower than the standard under the Convention on the Rights of Persons with Disabilities. While I think that it would be possible to interpret their exception for people “unable to consent,” etc., as referring to people who are not expressing consent or refusal, I don’t think we can rely on such an interpretation. Furthermore, saying that anyone is “unable to consent” is an exercise of power that invalidates that person and puts an end to the conversation. Because psychiatry has such huge potential to cause harm, and is dealing with intimate aspects of the personality, it is unacceptable to allow its imposition on any person without actual, meaningful, free and informed consent.
The aspect of the Human Rights Committee’s recommendation that I think is most progressive, and where I think they heard us, is their caveat that there should be no long-term impact to the non-consensual treatment. They took in the evidence of severe harm and suffering that we presented to them. Yet, isn’t severe short-term harm and suffering also cognizable under Article 7 of the ICCPR, which prohibits torture and ill-treatment? And isn’t it discriminatory to say that some people do not have the right to control access to their own minds and bodies, based on the perception that they are “unable” to do certain things, i.e. based on a perceived disability?
As I said in my earlier blog, I do think that this aspect of the recommendation – that the treatment should have no long-term impact – can be used positively in our advocacy, together with the principle of “general” prohibition, the questioning whether it should be used at all, and the limitation to the “shortest possible time.” All this goes against the way mental health is practiced in the U.S., which emphasizes the unscientific mantra that mental illness is caused by a chemical imbalance in the brain and it can be treated by lifelong adherence to prescribed psychiatric drugs, supplemented by other intrusive treatments like electroshock. The drugging of children has long-term implications for their physical and mental development. Outpatient commitment, which the federal government may now promote with an infusion of new funds, is premised on the belief that people must take whatever psychiatric drugs are prescribed to them, for the rest of their lives, and have no right to control this aspect of their health care.
The use of any nonconsensual electroshock or nonconsensual administration of neuroleptic drugs also has long-term impact on a person. Electroshock is well documented to cause brain damage and permanent memory loss, which can occur even from one application; neuroleptic drugs too change the structure and functioning of the brain, and while the damage is proportional to the dosage and the duration, the physical and mental trauma from even one instance of forced drugging can be lifelong. (It should be recalled that the Special Rapporteur on Torture considered both neuroleptic drugs and electroshock to be intrusive and irreversible treatments aimed at correcting or alleviating a disability, which may constitute torture or ill-treatment when enforced or administered without the free and informed consent of the person concerned. A/63/173 paragraphs 38 and 47.)
We might see the recommendation as inviting a discussion about the obligation to do no harm, similar to the Special Rapporteur’s 2008 report. There may be a “pound of flesh” argument here; you may take your pound of flesh in the form of nonconsensual treatment but not a drop of blood (the long-term impact).
I do *not* want us to get involved in dickering over how to “reduce” forced psychiatry. Reduction makes sense where there is already a government policy and law prohibiting a practice – then when it happens anyway, there needs to be a campaign of effective prevention and enforcement. The other application of reduction, when there is exercise of power that is permissible and legal but not desirable (such as police use of deadly force, in the U.S.) is simply not applicable here.
Not if we want to stay within the new paradigm.
So, for that reason, I want to step back from my first thoughts and be more deliberate in considering how to use the Human Rights Committee’s recommendations in our advocacy. People will obviously use them however they choose; but I would like to see some of us strategize about what can be done within the new paradigm, and how to move the federal and state governments into that new paradigm. It is not terminology or lip service, but a framework of agreement that forced psychiatry and removal of a person’s decision-making power is unacceptable, full stop. Then we work on how to make it happen, what are the obstacles, what else needs to be changed in the context of society, in services and programs, to make the world welcoming and accessible to those who are no longer be systematically excluded and suppressed.
It is true that the recommendation to the U.S. is a step forward for the Human Rights Committee, and they need to be encouraged to keep going all the way to full abolition of forced psychiatry and the recognition of universal legal capacity. In moving their language closer to prohibition, including the caveat “if at all,” implying that it’s possible non-consensual treatment should never be used, the Committee is itself coming closer to the new paradigm.
As we have recently seen also with the Special Rapporteur on Torture, we have to learn how to handle the situation where people are struggling to come to terms with the new paradigm. Standards may come out that appear contradictory; the Special Rapporteur on Torture appears to contradict himself even at times in a single document, with regard to the absolute ban on forced psychiatric interventions as well as the question of detention. (See the Special Rapporteur’s introduction and his letter to the World Psychiatric Association/American Psychiatric Association, in the compilation of responses to his report on torture in health care settings; I also wrote an article for the compilation along with other human rights lawyers and advocates. See also his report on a visit to Ghana.)
It may help to understand this for what it is, and not to demand that the contradictions be immediately resolved. We have to be accountable ourselves to uphold the new paradigm and guide the UN mechanisms in applying it in their work, and guide governments in how to put it into practice.
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After I shared this post and the earlier one, http://www.madinamerica.com/2014/03/un-us-generally-prohibit-non-consensual-psychiatric-treatment/ on email lists, Lauro Purcil from the Philippines asked some questions that allowed me to clarify further. With his permission I am posting his questions here with my answer.
I would still need to read carefully several more times to absorb the views you expressed in this posting.
Some questions came to my mind:
1. Is it right to have the impression that due to the fact that there are certain psychiatric conditions that are not yet understood and fathomed, such as those who are termed “not even interested to bother and be asked for consent,” we may tolerate the acts of forced medication and non consensual detention?
2. The Human Rights Council’s recommendations may still be reviewed by the International Committee on the UNCRPD? We would need to be informed at this stage, what now has the International Committee reccomended if any on the issues tackled by the HRC?
Consider these questions from someone who has yet to understand some psychosocial conditions.
Thanks for the good questions.
1. No, it is not acceptable that there should be any person who should be deemed “not even interested to bother and ask for consent” so as to tolerate forced medication and nonconsensual detention.
And you are right to point out that this is a problem. Full legal capacity means that we have to ask about the person’s will and preferences and not treat them as if they are an object and anything can be done to them.
Often it is clear that a person doesn’t want it. But the context of power inequality and a narrowing of the person’s options leads to the situation where many people do not object, and go on to accept the medication or electroshock or even the detention or restraint, because they do not feel that they have any say, and they might not effectively have the power to say no. So we need to address all these situations and ensure that everything being done in mental health services is being done in accordance with the person’s own meaningful choice.
We often say that the crucial thing is whether something is going against the person’s will. But that doesn’t mean that if a person doesn’t actively resist, that anything can be done to them. In this way all issues related to legal capacity and consent are similar to the issue of consent in sexual relations. Under patriarchal laws a woman had to show that she actively resisted, in order for the act to be considered rape. But if you are met with a gun or knife, or overpowering physical strength or even the male power that has been directed against you in society since you were born, you might choose to submit to aggression rather than fight back. It does not mean that the act was consensual. Submitting to aggression is not the same as choosing something of your free and informed will. The same applies in the context of psychiatry and mental health services, and in relation to all acts related to legal capacity, especially where it concerns the integrity of the person but really in any aspect of life.
2. These are recommendations of the Human Rights Committee, not the Council. The Human Rights Committee monitors compliance with the ICCPR, just as the Committee on the Rights of Persons with Disabilities monitors compliance with the CRPD.
The U.S. has ratified the ICCPR, but has not ratified the CRPD. Therefore the CRPD Committee cannot make concluding observations on the U.S.
We are working to encourage the Human Rights Committee to harmonize its standards with those of the CRPD, and particularly with the interpretation of the CRPD by the CRPD Committee, which is the authoritative body within the UN to say what the CRPD means and how it applies. Members of the Human Rights Committee in the past expressed their own views about the meaning of CRPD Article 14 and did not see it similarly to the CRPD Committee. Now three things may help to change this situation.
First, the CRPD Committee last September came out with clear and unequivocal Concluding Observations that show Article 14 prohibits all involuntary commitment and detention in mental health facilities.
Second, WNUSP members have been actively working to bring information to the Human Rights Committee in country-specific situations and we believe that the Committee is becoming more open to understanding that forced psychiatry is like rape or other violence and is not in any way acceptable as treatment. Personal testimonies and related evidence of the harm and suffering inflicted are important to continuing this process of awareness-raising.
Third, the CRPD Committee has been doing its own outreach to the Human Rights Committee on the issue of psychiatric detention and nonconsensual interventions, which are prohibited under CRPD Article 14. We had the impression that this outreach was helping to create more of an opening for the HR Committee to hear us and consider changing their positions.
The Human Rights Committee is independent from the Committee on the Rights of Persons with Disabilities. It is not obligated to follow the same standards as the CRPD Committee, but given that the CRPD has a higher standard of human rights protection in this regard it is highly questionable for the HR Committee to continue to adhere to a lower standard. I think that eventually it would be seen to the detriment of the Human Rights Committee if they continue to maintain the inferior standard (allowing psychiatric detention and forced interventions as a “last resort” etc.).
3. To answer a question you did not ask: I think it is valuable to acknowledge progressive movement and struggling to understand and internalize what we are bringing to them, which is a change in how they have previously understood international law, even at the same time as we do not accept the standard the Human Rights Committee is using. We want them to continue moving, all the way to a standard that is the same as the one under the CRPD.
Also I think we have to figure out ways to use a recommendation that still endorses human rights violations, but that shows that the standard is in flux and is moving towards a complete prohibition, that acknowledges the harm being done, and that calls into question the central premises on which the existing mental health system is based – and to use the recommendation in a way that in no way endorses the human rights violations ourselves. Maybe it cannot be done. It is a challenge and we will have to see if it is possible.
The reason for wanting to try, is to activate the discussion in the U.S. that should have happened after the National Council on Disability recommended that federal policy move towards a totally voluntary mental health system, in January 2000, to create some space and get some movement happening in federal policy and state policy. There are supposed to be follow up mechanisms provided by the U.S. government and we can explore whether a meaningful conversation can be initiated about how we will abolish forced psychiatry, or whether it is not possible. And if it is not possible, we bring this back to the HRCmte and follow up with them; if it is possible, we can acknowledge any progress that is made and then ask the HRCmte next time to tell them how to move further.
It is complex advocacy because we are advocating for the treaty body to change its own standards at the same time that we are advocating for the changes in domestic law and policy.
4. To answer another question –
It may be an unfortunate choice of how to express myself, that I am referring to the “UN” generally in my blog titles; I have done that because many people reading the blogs are not aware of what the Human Rights Committee is, or the Committee on the Rights of Persons with Disabilities, and I wanted to be concise. But I see that it might create misunderstanding about what is the “UN” standard.
I would say that the CRPD Committee is overall a higher authority in the UN on the question of the rights of persons with disabilities, than is the Human Rights Committee. This is because they are dealing with the treaty specifically on these questions and they should be the people with the greatest thematic expertise on these issues. But also, in the UN system the highest standard of human rights protection should be the one applied.
The Human Rights Committee is still relevant especially to countries that haven’t ratified the CRPD, and because it is not desirable to have any treaty body apply inferior standards.
What’s the status of all this, today – May 4, 2016?…..