UN: US Should “Generally Prohibit” Non-consensual Psychiatric Treatment

Tina Minkowitz, Esq.
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The Human Rights Committee, a UN committee of experts that monitors the International Covenant on Civil and Political Rights, has issued a recommendation that the United States “generally” prohibit non-consensual psychiatric treatment, while going on to set out criteria for when “it may be applied, if at all.”  It did not meet our expectations but marks progress in the developing views of the Human Rights Committee.

The criteria adopted appear to require the prohibition of forced electroshock, outpatient commitment, and the drugging of children on an ongoing basis, all of which have clear long-term impact on people.  Under one possible interpretation, the Committee’s standard could prohibit all psychiatric treatments that are forced against the person’s will, while treatments applied to a person who is neither consenting nor refusing would have to meet stringent criteria and be subject to independent review.

If we use a strategy similar to Jim Gottstein’s arguments under the U.S. Constitution, we could say that the Committee’s requirement that nonconsensual treatment must be “absolutely necessary for the benefit of the person concerned” can never be satisfied, so that it should result in a complete prohibition.

It should be recalled that the Convention on the Rights of Persons with Disabilities requires the abolition of all psychiatric commitment and forced interventions, according to the Committee on the Rights of Persons with Disabilities, which monitors the CRPD.  The United States has signed, but not yet ratified, the CRPD, and the proposed ratification contains a number of destructive reservations, understandings and declarations.

The Human Rights Committee made a separate recommendation on measures to prevent gun violence, which endorses the use of background checks to prevent arms transfers to people who are “prohibited individuals under federal law.”  This was disheartening, since we raised our concerns about the discriminatory prohibition of gun ownership based on mental health labeling, both with Committee members and with NGOs working on gun violence issues.  We will seek further discussion with NGOs that have advocated background check enforcement, in the hope that they will in the future propose non-discriminatory measures that have a more meaningful relationship to ending gun violence.  The full set of Concluding Observations can be found on the Human Rights Committee’s website once they are posted there.

Here is the relevant portion of the Concluding Observations of the Human Rights Committee on non-consensual psychiatric treatment, followed by a discussion of its implications for our work.

Non-consensual psychiatric treatmen

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.

This recommendation comes from the UN Human Rights Committee, the oldest treaty body in the UN system, which monitors the International Covenant on Civil and Political Rights.  This Committee is not as advanced in its standards as the Committee on the Rights of Persons with Disabilities, but is moving closer to the CRPD standard, which clearly prohibits all forced psychiatric interventions and requires the abolition of inpatient and outpatient commitment.

The Human Rights Committee in this recommendation adopts the principle that nonconsensual interventions should be “generally prohibited,” and they use the phrase “if at all” suggesting that it is possible nonconsensual interventions should never be applied.  Since they refer to people who are “unable to consent” they might intend that psychiatric treatments should never be used against the person’s will, only if a person is neither consenting nor refusing.  In any case the language is moving towards prohibition, which is an advance in the Human Rights Committee’s jurisprudence.

If “unable to give consent” was meant to allow forced treatment of people who are deemed incapable of consenting, that is certainly not a standard we can accept.  I cannot say to one person, you should continue to be tortured, while for another person it should stop.  I have no way of making sense out of such criteria.  How can torture be beneficial let alone necessary?  How can independent review possibly validate its use?

On the other hand, the criteria “for the shortest possible time” and “without any long term impact” suggest some useful applications.  They would appear to prohibit the continual drugging of people under outpatient commitment or the threat of it, or those who are still being held in long-term institutions, especially if the person shows signs of tardive dyskinesia.  It would also appear to prohibit nonconsensual electroshock, the continual drugging of people in some nursing homes and hospices, the long-term drugging of children who have no legal right to consent or refuse, and the requirement imposed in some mental health housing programs that a person must be under psychiatric treatment and taking prescribed medications.  Forced psychiatric drugging has clear long-term impact in terms of trauma, tardive dyskinesia, shortening of life span, and in the case of children, the impact of drugs on the child’s physical and mental development as well as the severe trauma documented in our shadow report.  Forced electroshock is also traumatic and causes brain damage, including for many people permanent memory loss.

How should we relate to the Human Rights Committee’s recommendation?

Keep our eyes on the prize.  Commend the Human Rights Committee for its questions, and for giving serious consideration to the issue under Articles 7 (freedom from torture and ill-treatment and from nonconsensual experimentation) and 17 (right to privacy).  Acknowledge that they are grappling with the evidence of harm that has been presented to them, along with the information about alternative approaches and the higher standard of human rights protection that has been enacted in the Convention on the Rights of Persons with Disabilities.  Express the hope that they intend the prohibition to refer to all treatment that is forced against the person’s will, and to prohibit restrictive measures like restraint and solitary confinement, which cannot be thought of as “treatment.”  Use the recommendation to urge the federal government to adopt an explicit policy that federal law and regulations should prohibit forced psychiatric interventions, which is in keeping with the recommendation of the National Council on Disability to “move towards a totally voluntary mental health system.”  Use it in advocacy against forced electroshock and against long term drugging of any kind, including all outpatient commitment, and against its use on children, which is also generally long term.  Use the recommendation to argue against any backsliding initiatives such as the Murphy Bill and the federal funding for outpatient commitment that has just passed the House in a bill on Medicare.

At the same time, do not leave behind those who may not fit into the categories of what the Human Rights Committee has condemned, depending on the interpretation of “people unable to consent” and “psychiatric treatment.”  Even very short-term commitment, forced drugging, restraint or solitary confinement can have traumatic impacts on a person for the rest of their life. These are acts of severe violence motivated by an actual or perceived disability, and as such constitute discrimination.  Paternalism – the view that subjecting a person against their will to mind-altering drugs can be justified as being necessary to benefit the person – has no place in a society that accepts the legal and social equality of people with disabilities. This is the next hurdle to address, to urge the Human Rights Committee to clarify that no forced psychiatric interventions against the person’s will are ever permitted, and that people should be offered support and accommodation to express their will and preferences, rather than considering any person “unable to consent”.  This applies to children as well as adults, who must be provided with support appropriate to their age and disability to exercise their evolving capacity to make decisions, under Articles 7 and 12 of the CRPD.  We will have to deepen our understanding of CRPD Article 12 on legal capacity, and find ways to express it persuasively.

Thanks are due to our team that came to Geneva – Aubrey Shomo and Patricia Bauerle from the U.S., along with Hege Orefellen from Norway and Jolijn Santegoeds from the Netherlands – and to all those who contributed to the shadow report and followed our progress.  Our efforts were not in vain; we advanced the global movement and achieved a thoughtful recommendation that can be followed up with potentially meaningful results.  Japanese users and survivors of psychiatry are the next group to come to the Human Rights Committee, in July 2014, and we offer them our full support and solidarity.

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