Staying in the New Paradigm: More Thoughts on the Human Rights Committee Recommendation

Tina Minkowitz, Esq.
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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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