This post is a work in progress that develops some themes in the area of decision-making and agency from a survivor perspective.
Oppression and abuse have effects on a person’s sense of self and experience of agency, or lack thereof; on one’s ability to know one’s self in the world as actor, and not only acted-upon. Some (and maybe all) aspects of oppression and abuse specifically entail moral injury and violation of moral integrity. This is particularly interesting to explore because it links psychological trauma as a result of oppression and abuse with an aspect of decision-making difficulty that some of us experience as psychiatrically-labeled people, but that is not easily brought out in discussions of the right to legal capacity – a worrying over the correctness or authenticity of decisions that can result in actions or a life path that seem unintelligible to others, or cause us suffering, and that can be self-reinforcing.
It is dangerous to acknowledge this kind of difficulty because it can be used by psychiatrists and lawmakers to find new ways to take away our legal capacity to make decisions. Quite possibly it is better to leave our decision-making difficulties vague and private; if we don’t want support no one needs to know and if we want support we will work it out with those we trust. But there is something to be gained by reclaiming ownership of the truths of our own lives, and ownership over making decisions about where to take the discussion: in philosophy, psychology, law, politics, art or anywhere else.
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Over the course of my life, I have had trouble with decision-making in ways that at one time were so frightening to me that I felt I was in danger of being locked up in psychiatry, so that I took refuge with my mother who promptly had me locked up in psychiatry.
I have often struggled to articulate what was going on in those moments; the various ways I have framed it, as spiritual crisis, period of life transition, emerging consciousness of abuse that was difficult to name, are all true. I was alone in this struggle; there was no psychiatric label that ever captured my experience – which was to my benefit – nor was there any astrological, Meyers-Briggs or other kind of description that I could identify with, at least with respect to this anomalous experience.
Recently, in reading philosopher Claudia Card’s Lesbian Choices, I came across a discussion of moral corruption in the context of oppression, which triggered my thinking on this topic. I had come across the concept of moral injury, as described by a war veteran in Paula Caplan’s documentary shown at the 2014 NARPA Conference, and the right to respect for physical mental and moral integrity (in the Inter-American Convention on Human Rights, Article 5), and these concepts resonated with me. As I understand it, a violation of moral integrity involves coercion to act in violation of one’s own principles, beliefs or values or coercion that prevents the person from acting in accordance with her own principles, beliefs or values. Such violations inflict moral injuries and can disturb one’s sense of self and experience of oneself as an agent, which also distorts the experience of decision-making.
The primary moral injuries I identify in my own experience were in the context of forced psychiatry. They have to do with my cooperating with the abuse, in ways that made me experience myself as having no agency and no sense of the ground of my being, as lacking the ability to experience desire and will in a meaningful way. It reminds me of poet Barbara Ruth who wrote “Want was a country/ that wouldn’t give me a visa.” It is interesting that in writing this I see myself in an active role, “cooperating with the abuse,” while subjectively having lacked agency.
Of course I was not the agent of the injury or the abuse. The psychiatrists, nurses and other staff, the police, my mother and other family members, the legislators who created New York State’s civil commitment law (Article 9 of the Mental Hygiene Law, called the Mental Health Act), the judges who maintain that law, even society as a whole that tolerates the perpetuation of these abuses… which I am and am not part of… were responsible for the injury; some were directly responsible for having me locked up, keeping me locked up, prescribing the drug, and demonstrating that they would enforce this prescription by physical force if I did not comply. Yet the participatory nature of the compulsion and force, the fact that I took the pill and put it into my own mouth, that I did not test the threat that was made, the fear that they instilled in me and my inability to maintain a sense of self in the face of it, all made me feel ashamed, as if I were to blame for what they did to me – my participation blurred the violent character of what took place and the culpability of those who exercised power to take away my freedom and put poisons in my body.
Not testing the compulsion was both survival strategy and emotional self-protection; I refused to kill the illusion of some remnant of love (on the part of my parents) and acceptance as a human being and member of society (on the part of institutional staff and everyone else), despite all evidence to the contrary. At the same time I felt hatred for them and distance from them, and analytically understood the allocation of agency and responsibility as I do now. This simultaneous holding of dissonant perspectives is a doubling of self which entails the risk of moral corruption, as Card describes in the closeting of lesbians and gay men in the military.
Society treats the moral injury inflicted by forced psychiatry as so natural, so commonplace that it is seen as the simple truth of madness (itself naturalized as an attribute of those so labeled)* rather than as it is really is, a socially-inflicted wound. When we are locked up in psychiatry, even because we are locked up in psychiatry, we are believed to be mad, dangerous to set free; something similar happens with people who are imprisoned for a crime. The moral injury is then deliberate – as also with convicted criminals, it is a matter of social policy to make us feel ashamed of ourselves, diminished as human beings, as moral agents and as agents of any kind of meaningful self-determination. The evidence of deliberate social policy is found in the imprisonment and the supposition that we deserve to be imprisoned, with all its attendant degradations. These degradations persist no matter how much any particular institution makes itself up to look like a real hospital.
Is it any wonder then, that psychiatry is aggressively upheld as a social fix for violence, and for managing distressed people who are seen as a burden to anyone else?** Psychiatry, by virtue of its social and legal role in pronouncing verdicts of madness and acting on them, is part of the system of the hierarchical governance of a population. With the legal theory of disability non-discrimination, we now have the tools to expose this particular measure of hierarchical governance as lacking in democratic legitimacy because it is discriminatory. (See Affidavit and Rethinking Criminal Responsibility for exposition of the standards prohibiting forced psychiatry under the Convention on the Rights of Persons with Disabilities.) While this gives us the ability to challenge the entire system of forced psychiatry as a violation of international and domestic law, its role in the hierarchical governance of populations means that it is hard to eradicate at the level of both law and practice because of vested interests of states as well as those of the industries involved, and that its eradication may only be one step in the systemic social changes needed to end underlying and related oppressions and to end hierarchical governance itself. Implicit in the term hierarchical governance is the governance of people as a population for the primary benefit of elites. While non-elites benefit to a degree from the rule of law, their interests as individuals and as non-elite groups have little effect in shaping legal rules and their implementation, except insofar as elites deem it necessary to accommodate these interests from time to time to advance their continued governance of populations. (Cf. Frances Fox Piven and Richard Cloward, Regulating the Poor.***)
Moral injury is a tool of oppression as it keeps people from knowing and naming the oppressor without simultaneously feeling implicated themselves. In the lives of psychiatric abuse survivors, it may be one of the reasons why we find it hard to talk about psychiatric torture. To really describe the experience of this torture and its impact, we have to confront both the injuries it produced in us and the ways we have changed as a result. It’s difficult both to unravel the complexity and to confront aspects of ourselves that we would rather have not happened. The strange grammar of the last sentence expresses something that I want to leave intact: we are positioned as witnesses of and to our/selves as responses or behavior, whether outwardly expressed or inwardly experienced, and this positioning in relation to the moral injury itself is part of its complexity, reflecting a change in oneself as a moral agent that we might prefer never to have happened.****
That brings me to the issue of moral corruption, which Claudia Card suggested was a potential outcome of closeting. Corruption as described by Card may include what I am calling moral injury, but it also encompasses the potential of going against one’s principles beyond what is strictly required by force and coercion. (Cf. also Adrienne Rich, Women and Honor: Some Notes on Lying.) If we experience ourselves as hopelessly or irremediably bad, due to forces beyond our control, we can lose our way and do other things that are against our principles, or on the other hand go out of our way to avoid doing wrong so that we might try to move through the world without leaving any mark at all (which might also result in doing wrong by omission, by failing to prevent injustice that one had the power to act against. Cf. Audre Lorde, Power.)
I have experienced both these polarities, which then requires self-confrontation, assessment, healing and reparation, as inescapably a moral agent after all. Assessment entails not only measuring oneself against principles but assessing the correctness and applicability of the principles. We can also be too hard on ourselves. Experience of oneself as bad due to forces beyond one’s control does not justify or excuse moral wrongs towards oneself or others (see Responsibility: Legal and Spiritual and Rethinking Criminal Responsibility); it is however a potentially useful explanation in a restorative justice context where we seek in a mutually reflective process to understand the root causes of harm from multiple perspectives so as to create the conditions for better relationships and prevent recurrences.
It also brings me to the question of what is happening prior to the encounter with psychiatry. In my childhood, I had experiences that required my cooperation with acts of humiliation, similarly to forced psychiatry. These experiences had already left me with a diminished sense of agency and a diminished ability to know my deep wishes, values and feelings, different from other people and without anywhere to turn for guidance or solidarity. The crisis of decision-making was overdetermined if not inevitable, and the outcome of forced psychiatry was in hindsight a predictable response to this crisis, given the history of abuse, ongoing conflict within the family, and our isolation from non-family close relationships except for psychotherapy. I could say that there may have legitimately been a no- win situation and nothing I did would have achieved what I wanted. But that too created a moral crisis, a crisis of principle as well as emotion. Resolving the crisis would have required me to face the truth about my attachment to people who abused me, and the fact of the abuse, which meant facing my own past and present failure to live up to principles I had adopted, and facing squarely the abusers’ lack of moral integrity.
I’ve been talking with a few other survivors about their experiences, and it seems that decision-making issues are more common than I imagined. Not in the ways that law and psychiatry configure us as needing help to make decisions about accepting or refusing psychiatric drugs and other interventions, or to sign contracts; those issues belong to psychiatry and law and their anxieties about treating us as equal persons before the law. And not from an externalized point of view about ourselves, such questions as: what will we do if we go mad, will we do something irrevocable or annoying that will need to be repaired? Those concerns may lead us prudently to engage in advance planning, but they are not subjectively experienced problems with decision-making; rather worries about the consequences of decisions as enforced by unsympathetic if not actively hostile authorities.
Our own worries and difficulties relate to decision-making per se – moral crises, crises about agency and self-knowledge, worrying about doing the right thing, fear of making any move, feeling stuck, believing that any move will be wrong. And these worries and difficulties always seem to be related to abuse and oppression, including moral injury.
For some of us the need for support and validation from others seems paramount in order to find our way to reconnecting with ourselves as moral agents, as self-causing beings who affirm the choices we make as being our own, and take responsibility for the unavoidable consequences. For others, the process is more clearly one of self-reflection and contemplation, although there can still be a need for connections, conversations, relations that create more space for a productive solitude. In the kinds of crises we are talking about, ultimately the resolution can only be self-validation, because the crisis is a crisis of the self. That is different from situations in which support is needed with decision-making for other reasons, like cognitive impairment or learning disability, and it is also not to deny the needs that we have for support in relation to crises that involve decision-making itself – including support for solitude, and the possibility that support for legal capacity is always in some sense a support for solitude, as well as practical and emotional support to deal with the distress and to take care of our bodies and souls while going through it: food, comfort, cleanliness, resources to get other things we need, and so on.
As a survivor friend commented, even in the new paradigm of legal capacity, it’s often talked about as if we are inevitably going to make mistakes, as if it’s ok to recognize our legal capacity as psychiatrically-labeled people because we will make mistakes and learn from them. But why is it assumed we are going to make mistakes? The formulation “dignity of risk” actually obscures a complexity that resolves into something much simpler: we often have to choose between things that contradict each other, we can’t get what we want when our wants are in conflict, sometimes there is a middle ground or win/win solution but not always, and this happens all the time, so that the failure to “have it all” is not something that makes us “mental patients”.
Acknowledging that moral injury, denial of moral agency and moral corruption can create situations of personal and interpersonal conflict that our society currently hands over to psychiatry, and that psychiatry re-creates and perpetuates these moral harms, leads us out of the “disabling” context altogether and, by making these situations intelligible, de-mystifies them and eliminates the category on which the discrimination is based. We can recognize a moral imperative to acknowledge one’s choices (Cf. Adrienne Rich: “Only she who says she does not choose, is the loser in the end”) and an imperative to heal moral injuries and redress violations of moral integrity. This is necessary for its own sake and in order to be fair in our moral judgments of self and others. For that we need social cooperation and solidarity, which can be expressed as comprehensive remedies and reparation.
Hege Orefellen outlined the elements of reparations for victims of forced psychiatry, in her speech to a side event of the World Network of Users and Survivors of Psychiatry dealing with torture and ill-treatment, at the 13th session of the Committee on the Rights of Persons with Disabilities.
According to the Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violation of International Human Rights Law adopted by the General Assembly in resolution 60/147 (2005) redress includes five forms of reparation; restitution, compensation, rehabilitation, satisfaction and guarantees of non-repetition. All of which are of great importance for victims of ill- treatment in the mental health system.
Restitution, a form of redress designed to re-establish the victim’s situation before the violation was committed, should include restoration of liberty, freedom from forced treatment, enjoyment of family life and citizenship, return to one’s place of residence, and restoration of employment.
Compensation should be provided for any economically assessable damage, such as physical or mental harm; lost opportunities, including employment and education; material damages and loss of earnings; moral damage; and costs required for legal assistance, medical and social services.
Rehabilitation for victims of forced psychiatry should aim to restore, as far as possible, their independence, physical, mental, social and vocational ability; and their full inclusion and participation in society. Victims of forced psychiatry may be at risk of re-traumatization and have a valid fear of acts which remind them of the ill-treatment they have endured. Consequently, a high priority should be placed on the need to create a context of confidence and trust in which assistance can be provided. Needless to say, when the ill-treatment has been carried out by medical professionals, within the public health system, it will be difficult, if not impossible, for the same system to regain that trust from its victims.
Satisfaction should include effective measures aimed at the cessation of continuing violations; verification of the facts and public disclosure of the truth; an official declaration or judicial decision restoring the rights of the victim; sanctions against persons liable for the violations; investigation and criminal prosecution, public apologies, including acknowledgement of the facts and acceptance of responsibility.
The right to truth is especially important for victims of forced psychiatry, were ill-treatment for so long, and on such a large scale, has been carried out under the guise of medical treatment. We need truth about what happened to us, truth about the consequences, public recognition and apologies, as a first step in a process of social reintegration, justice and healing. Since coercive mental health practices represent patterns of violence against persons with psychosocial and other disabilities, we need reparation on a collective, as well as an individual level, and we hope the CRPD Committee will take this into account in its future work and recommendations. State parties should develop procedures for redress covering all victims of forced psychiatric interventions.
Guarantees of non-repetition should include taking measures to combat impunity, prevent future acts, as well as reviewing and reforming laws contributing to or allowing these violations.
State parties should now recognize the immediate obligation to stop ill-treatment from being carried out through forced psychiatric interventions, undertake necessary action to repeal legislation that authorizes forced psychiatric treatment and detention, and develop laws and policies that replaces coercive regimes with services that fully respect the autonomy, will and equal rights of persons with disabilities.
Decision-making by human beings involves moral choice and dilemmas as well as simple preferences. Dilemmas involving competing claims on one’s moral integrity can be crazy-making, as can conflict between moral integrity and survival or other needs. Some of us are acutely aware of the ways that our decision-making has been affected by abuse, which creates moral injury as well as physical and/or emotional injury. The moral dimension of choice and decision-making is related to the issue of responsibility, and is a significant theme that has been largely avoided in discussions of legal capacity centering on people with intellectual and cognitive disabilities but is central to the right of psychiatrically-labeled people to exercise legal capacity on an equal basis with others. (See Alternative to Functional Capacity and Responsibility: Legal and Spiritual.) If we talk more openly about decision-making difficulties that we actually experience, we may get better at creating the kinds of supports we need and also explaining to others how a legal framework for equal legal capacity plus support and accommodation can be designed to fit our circumstances.
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* The naming of someone as mad functions as a performative act. It is not merely making a description or stating an opinion, it has the effect of a pronouncement that sets certain processes into motion, which can range from social othering and ostracism to confinement and forced interventions on the person’s body and mind. What is considered to be mad seems to be virtually synonymous with that which is unintelligible to the person who affixes the label and judgment – even when a person affixes it to herself, it entails a judgment of the self from an externalized point of view. That is what I mean by saying that people are defined as mad simply because they are defined as mad. The kinds of things that we in any given society are defining as madness can be worthwhile to examine, for example to describe the kinds of deep anguish and distress that seek empathy and solidarity and transformation that can be healing to oneself and others. But madness itself, I think, is a category like gender and race that functions to establish hierarchy and enforce oppression. (I am not objecting to madness as a signifier of pride, and have to consider the name of this blog “Mad Law and Human Rights”; perhaps it has a dual or ironic function.)
** In addition, the infliction of suffering is big business from which the psychiatric profession and associated industries benefit. Ruling elites are indifferent to this suffering as the people on whom it is inflicted are thus politically powerless and are seen as socially and economically expendable.
*** Piven and Cloward also wrote about “disruptive power” and strategies that poor people’s movements can use to effect change, see this article about their work, which refers to the book Poor People’s Movements (note that this book is a free pdf). The distinction between “mobilizing” and “organizing” rings true to me from my work on the CRPD, which made significant changes in a short time with almost no funding and a relatively small number of active participants.
**** Tolstoy discusses free will and determinism in the Epilogue to War and Peace, which I also mentioned in my article on the alternative to functional capacity. It struck me as gendered and class privileged as well as mental/ableist that Tolstoy took for granted not only his legal capacity but his experience of himself as actually exercising free will at all times. A female abuse survivor said to me that she experienced herself rather as being subject to the will of others. It is likely that a majority of females of the world are abuse victims and survivors, and are further subjected to the gender-specific denial, suppression and repression of female agency through the enforcement of sex roles that position women as natural victims of male aggression, and that require women to adopt postures of deference to males, self-sacrifice, self-denial, deriving meaning from male choices and the will of a male god rather than from one’s own independent conscience and satisfaction. Both abuse and the gendered oppression of agency need to be studied further in connection with legal capacity in its intersection with disability – in particular, madness/psychosocial disability; dementia and related issues of older women; intellectual and learning disability; autism and developmental disabilities; and the status of childhood in relation to the (evolving?) legal capacities of girls.