What Would CRPD-Compliant Mental Health Legislation Look Like?

Tina Minkowitz, Esq.
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Let’s be clear – I prefer to have no mental health legislation at all. The history and legacy of mental health legislation is anti-human rights, discriminatory, segregative, othering of people whose experiences of distress and states of consciousness are disapproved of by those who are able to fit more easily into social norms. Often too, “mental health legislation” is synonymous with “mental health acts” that are concerned with regulating involuntary commitment and compulsory treatment. It is with this in mind that I promoted the goal of “repealing mental health laws” and started the Campaign to Repeal Mental Health Laws.

Involuntary commitment and compulsory treatment, in any form and under any circumstances, are prohibited by the Convention on the Rights of Persons with Disabilities. Mental health acts that authorize these practices must be repealed, along with the standards and oversight mechanisms designed to regulate them. Instead states must ensure that the law clearly requires free and informed consent by the person concerned for both inpatient and outpatient mental health services, and prohibits the exercise of detention, force, or coercive or restrictive practices in mental health services and facilities. In other words, the locks must be removed and people must not be prevented from leaving a hospital or institution whenever they have had enough; there can be no physical or chemical restraint or solitary confinement; and people’s choices about treatment must be respected including a choice to refuse any and all services. Administration of psychiatric drugs, electroshock or psychosurgery against the person’s will or without the person’s affirmative, fully free and informed consent must be prohibited and punished by law, since these practices invade bodily autonomy, alter the brain and consciousness, and cause severe harm and suffering.

There is room for legislation to address other kinds of issues properly falling under mental health policy, while prohibiting detention and forced or coerced treatment. Such legislation could be titled, “An Act to Prohibit Coercive Measures and Establish Policies and Guidelines for the Provision of Mental Health Services.” For historical reasons and to avoid confusion with the mental health acts that have become synonymous with commitment and forced treatment (e.g. the use of terms like “sectioning” in the UK for being locked up in a mental health facility), I would wish to create some new terminology that cannot be misunderstood. “Mental health legislation” and even “CRPD-compliant mental health legislation” without further elaboration leave too much to the imagination and unfortunately leave room for bad faith and for initiatives that may be well meaning but fall short of the standards established by the CRPD and its authoritative jurisprudence. I don’t know what to suggest for the general designation now, but would like to leave this open; meanwhile, those who are genuinely interested in CRPD-compliant mental health legislation can read on and collaborate in figuring out terminology and content.

I would suggest two criteria for CRPD compliance:

1) Includes an absolute prohibition of detention, treatment without the person’s own consent, and any coercive or restrictive measures.

2) Sets out the framework and practices needed to make the shift

a) from a medical model orientation to a social model orientation, and

b) from institutionalization – both large residential institutions and nominally community-based housing programs and services that entail a loss of autonomy or segregation from the community – to the provision of services to people wherever they may live.

The policy-oriented aspects of such legislation would address questions such as:

What kinds of services should be provided and where? What does it mean to shift from a medical to a social model of mental health and psychosocial disability? What is the proper role of psychiatric drugs in such a system, and should electroshock be abolished? Who should be in charge of such a system; how do we make the transition from a system overseen by medical professionals to one where different professions complement each other and the role of medicine is much less significant? How and where does people’s own lived experience of madness, trauma or psychosocial disability fit into the knowledge base and practices of such a system? Should there be a specialization of peer support work, and if so how should it be framed so as to retain its independence and have equal status and pay with other mental health professions? (Or should peer support work stay outside the mental health system and function instead as a disability-related service similar to the independent living model, containing itself a politics of mad pride and strength as well as the particular kinds of support being offered? Is there room for both to happen – for peer support to exist in the mental health system and also as a separate system?) How should the mental health system relate to or interface with other services that people with psychosocial disabilities may want and benefit from, such as independent peer support, independent living and personal assistance, spiritual and cultural practices, and others that might become apparent, without subsuming these other services and supports or defining them as adjunctive to the mental health system? Is there a role for hospitals (as a temporary form of residential support for people who prefer medical model services), for non-medical temporary residential support (like crisis respite and Soteria), and for housing programs that offer services that people can accept or refuse? Should there be a role for first responders who encounter a situation where people may need support? If so, should these first responders be part of the mental health system or independent?

There would also be procedural obligations related to the design, implementation and evaluation of services in close consultation with service users and survivors and people with psychosocial disabilities, and giving preference to the participation of experts with psychosocial disabilities in any commissions or bodies tasked with carrying out these obligations. And there would need to be a component that sets out the duty of service providers to respect the person’s legal capacity to make decisions at all times including in crisis situations, the individual’s right to accept or refuse support, the role of accommodation and independent support in making decisions about services, and how to address situations where the person’s will and preferences cannot be practicably determined and duty-bearers have to rely on a good-faith “best interpretation of will and preferences,” all according to the standards set out in General Comment No. 1 by the Committee on the Rights of Persons with Disabilities.

The design and adoption of mental health policy-oriented legislation that includes prohibition of forced treatment and detention could be part of a comprehensive framework to provide remedy and reparation to those who have been victimized by psychiatric torture and other ill-treatment, in particular survivors of psychiatric detention and forced treatment (see my blog posts Forced Psychiatry is Torture and Reparations: It is Conceivable). In this way, the psychiatric profession and other mental health professions would be simultaneously held accountable for past violations, and recognized as having valuable skills and knowledge to contribute to the well-being of the population. Acknowledgement of both perpetration and valued expertise has precedent in the South African process of transition from apartheid to democracy, and we can learn from the South African Truth and Reconciliation Commission and other large-scale initiatives for reparation. The key element that is needed as a starting point for reparation is an acknowledgement that the practices concerned – in this case, detention and forced treatment in mental health services – violate human rights and will no longer be tolerated by the state. This in itself restores respect for the dignity of survivors and provides clear guidance to erstwhile perpetrators and other duty-bearers. Furthermore, a reparations process needs to make space for survivors’ anger and grief to be expressed, heard and received with honor and with full recognition for its validity; the knowledge gained from survivors’ experiences needs to be paramount in changing course for mental health policy and for social policy generally as our experiences often bring to light injustices and traumatic interactions that violate a wide range of human rights. (I am thinking here of issues like criminal justice, child protection and the rights of older people, all areas where a survivor perspective would emphasize equality and respect for autonomy plus accommodations and support, and would offer the beginnings of practical guidance for how it can be done. See also Sarah Knutson’s work on “Human Rights Recovery” and her blog post Reflections of a Lone Wolf Maddass in Search of a Better World.)

In closing, if we want to contemplate CRPD-compliant mental health legislation, we had better be prepared to take it seriously. The notion of “CRPD-compliance” cannot be used as a talisman to secure funding or public acceptance for measures that retain the violative practices cloaked in new terminology. Such initiatives are under way for example in India (a mental health law reform) and Bulgaria (a legal capacity law reform) where legislative reform projects have framed involuntary commitment and forced treatment, or substitute decision-making, in terms of “support”. Those initiatives are not CRPD compliant and should not claim to be. The CRPD Committee in particular should avoid calling for “CRPD-compliant” or “human rights compliant” mental health legislation unless it is prepared to spell out the elements of what this means, with the elements suggested here being, in my view, the minimum parameters. And given the history and the legacy of “mental health legislation” that was designed to oversee the human rights-violative practices of commitment and forced treatment, states should also be encouraged to explore alternatives that do not entail “mental health legislation” at all. It is really the entire reparative framework and process that needs to be undertaken, and this cannot be encapsulated by calling for a CRPD-compliant mental health law.

While we may have no good shorthand designation, we can say that perhaps CRPD-acceptable legislation in the mental health field is legislation that 1) prohibits forced treatment and detention, and requires duty-bearers to respect legal capacity at all times including in crisis situations, 2) articulates and provides guidance for a policy shift from medical model to social model and from institutionalization to services provides wherever people live in the community, and 3) does not subsume all services and supports to be provided to people with psychosocial but instead interfaces with peer support, independent living, social protection measures for an adequate standard of living, and comprehensive guarantees of non-discrimination and reasonable accommodation in all aspects of life. Let this be the final take-away then, so that models can be developed to replace violative mental health legislation with legislation that serves a worthwhile purpose. As we know from the legal capacity paradigm shift from substitution to support, replacement models are useful both to demarcate what is prohibited and what is permitted, and to provide a scaffolding for the new orientation in policy and practices. While this is not the only way to legislate the needed changes, it is a viable option.

11 COMMENTS

  1. My Congressman Dr. Tim Murphy whose biggest donors are drug companies is the author of H. R. 3717
    http://murphy.house.gov/uploads/HR3717%20Bill%20Text.pdf

    This bill would make it easier to forcibly commit people to mental institutions and to undergo drug and electroshock “therapy” against their will. This bad legislation is a knee-jerk reaction to the Sandy Hook shooting as well as payback to his big money Pharma supports. I also have to wonder if it is payback to the Pharma industry for all the years of kick-backs for drug recommendations when he was in private practice.

    I have seen first hand how the so-called “hearing” go that are suppose to “protect” the rights of the person being committed. They are nothing but kangaroo courts where the judge rubber stamps the doctors recommendation and the public “defender” appointed to represent the patient sits mute.

    I wish i could vote against Dr. Murphy, but he always runs unopposed in a gerrymander Republican district.

  2. GREAT blog! I agree that if we could come with CRPD compliant legislation wow life would be different for so many people. I think also as you write a move from a medical orientation to a social one is in my opinion alfa omega. All research shows that stigma and discrimination increase when people are give a biological explanation versus a social one. Open Dialogue in Finland shows what can happen when psychiatry chooses to go the route of a social non-medical explanation. So it is possible to have humane help. Yet…

    This is just not happening. Denmark at the moment is doing a lot of trumpeting that they are going to reduce the number of people placed in restraints and shorten the amount of time they are restrained when it happens. We are many who have of course said but this will lead to increased forced medication, and why? Because the thinking needs to change. Guess what? Even though this new prestige project to reduce the number placed in restraints has been around for only a short time it has already lead to increased forced medication.  
    But it would be fabulous if we could have active laws to protect us.