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

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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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Mad in America hosts blogs by a diverse group of writers. These posts are designed to serve as a public forum for a discussion—broadly speaking—of psychiatry and its treatments. The opinions expressed are the writers’ own.

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1 COMMENT

  1. After I shared this post and the second one, http://www.madinamerica.com/2014/03/staying-new-paradigm-thoughts-human-rights-committee-recommendation/ 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.

    Hi Tina,
    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.
    Lauro

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    My response:

    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.

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