I am posting here my analysis of the final outcome of the revision of the Standard Minimum Rules on the Treatment of Prisoners, a process in which I was involved on behalf of the World Network of Users and Survivors of Psychiatry. Others in WNUSP, in particular Annie Robb who attended the final session in Cape Town, South Africa, also contributed to the advocacy work. While the outcome is disappointing, it reflects the stage we are currently in with regard to the incorporation of the CRPD standards elsewhere in the UN system. Some premises derived from the CRPD are brought forward, but the bottom line remains the same, to the detriment of people labeled with psychiatric diagnoses.
It is ironic that these Rules have now been given the name “Mandela Rules” in commemoration of the great South African leader and freedom fighter. WNUSP held a strategic planning meeting in Cape Town in 2013 and visited Robben Island where Mandela and other freedom fighters were held by the apartheid regime. I hope, in the spirit of Mandela whose vision encompassed freedom from all kinds of oppression, that this version of the Rules is not the end of the story.
I will outline both the positive and negative provisions, and in a conclusion I suggest how the revised Rules should be read together with the CRPD by prisoners and advocates who may need to interact with people applying these standards. This may be more relevant internationally than in the United States. In the conclusion I also suggest further systemic advocacy.
The analysis is somewhat technical. Readers may wish to refer back to the text of the CRPD, and to General Comment No. 1 and the Statement on Article 14. It may also be useful to refer to the Committee’s summary of its jurisprudence in a recent biennial report. Note that provisions of the Standard Minimum Rules are “Rules” and provisions of the CRPD are “Articles.”
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Revision of the Standard Minimum Rules on the Treatment of Prisoners has been completed and the revised Rules were adopted by UN ECOSOC on 21 May 2015 (E/CN.15/2015/L.6/Rev.1). While the rights of persons with disabilities have been strengthened to a limited extent, the contested provision authorizing the transfer of prisoners with psychosocial disabilities to mental health facilities has been retained in altered form, creating a conflict with CRPD Article 14.
- Reasonable accommodation for prisoners with disabilities is required with the aim of “full and effective access to prison life on an equitable basis” (Rule 5). This is indeed positive, but disability is not listed as a ground of discrimination, and there is also a caveat that “measures to promote and protect the rights of prisoners with special needs shall not be considered discrimination” (Rule 2).
- The imposition of restraint can no longer be justified explicitly on a medical basis, and health care professionals cannot play any role in imposing restrictions (Rule 46, and removal of former Rule 33(b)). Again this is positive, but restraint may still be imposed to prevent a prisoner from injuring self or others or from damaging property, and health care professionals will be alerted in that instance (Rule 47).
- Rule 32 requires “adherence to prisoners’ autonomy with regard to their own health and informed consent in the doctor-patient relationship”. No exceptions are indicated. This is great news, but Rule 109 authorizes transfer to mental health facilities in terms that would appear to leave the prisoner no choice, see discussion in “Major Concerns” immediately below.
- Section II.B of the Rules is titled “Prisoners with mental disabilities and/or health conditions.” Other categories of prisoners in Section II are sentenced prisoners, untried prisoners, civil prisoners, and persons detained without charge. While the provisions in Section I (including all the positive highlights mentioned above) apply to all prisoners, the separation of prisoners with disabilities as a special category marks them off as different because of their (actual or perceived) disability and makes discrimination appear to be legitimate. Such separation violates CRPD Article 19 and the principle of full inclusion and participation in Article 3.
- Rule 109.1 requires the transfer to mental health facilities of persons found not to be criminally responsible and also those who are “diagnosed with severe mental disabilities and/or health conditions, for whom staying in prison would mean an exacerbation of their condition.” This conflicts with the requirement of adherence to prisoners’ autonomy with regard to their own health in Rule 32, and contravenes CRPD Articles 12 and 14 and General Comment No. 1. Furthermore, according to the Committee on the Rights of Persons with Disabilities’ jurisprudence, it is contrary to Article 14 to maintain a regime of detention in mental health facilities, irrespective of whether such detainees have been subjected to criminal proceedings.
- Rule 109.2 provides for observation and treatment in specialized facilities of “other prisoners with mental health conditions and/or disabilities.” This similarly conflicts with Rule 32, and contravenes CRPD Articles 12, 14 and 15 and General Comment No. 1.
- Rules 109.3 and 110 provide for psychiatric treatment both in prison and upon release, including social-psychiatric after-care. The specification of psychiatric treatment in this context raises concerns that prisoners with psychosocial disabilities may be viewed entirely as recipients of medical model services and may be denied access to alternative supports and accommodations, depriving them of “full and effective access to prison life on an equitable basis” as required under Rule 5 (and thereby contravening CRPD Article 19 and the Article 3 principle of full inclusion and participation).
- In other places throughout the Rules, there is indication of a medical model approach to disability that is inconsistent with the CRPD.
- Health care professionals are required to determine the fitness of individuals for work, rehabilitation, exercise and other activities, and to report on the prisoner’s “physical and mental condition.” (Rules 30, 92 and 96) These requirements contravene CRPD Article 14 as well as Articles 24, 27 and 30 and potentially others.
- Medical information must be kept confidential except if it “would result in real and imminent threat to the patient or to others” (Rule 32). The limitation of confidentiality is likely to have a disparate impact on prisoners with psychosocial disabilities, in violation of CRPD Article 22.
- Other rules dealing with mental health services are slightly more open to non-psychiatric options, but psychiatry is given a place of preference throughout (see Rules 25, 30, 76, 78). Read in the context of Rules 109 and 110, provisions for “early detection of mental health issues” and “identifying signs of psychological stress, including risk of suicide or self-harm, and undertaking appropriate individualized measures of treatment” (Rule 30) may lead to intrusive and unwanted interventions.
- Given the failure to specify non-discrimination based on disability (Rule 2), the provision stating that measures to promote and protect the rights of prisoners with special needs will not be considered discrimination (Rule 2), the perpetuation of mental health detention for individuals subjected to criminal proceedings (Rule 109) and a narrow focus on the medical model of psychiatric treatment (109 and others), there is a serious concern that prisoners with psychosocial disabilities (those who will be deemed to have a severe mental health condition or to be in need of psychiatric treatment) will lack effective protection against forced treatment both in prisons and in the mental health facilities to which they may be transferred, in violation of CRPD Articles 12, 14 and 15, notwithstanding the obligation to adhere to prisoners’ autonomy with regard to their own health.
The revised Standard Minimum Rules for the Treatment of Prisoners is seriously flawed by its conflict with the CRPD. For persons with disabilities, particularly persons with psychosocial disabilities who are treated as a separate category from all other prisoners, these Rules leave us vulnerable to discrimination if we are arrested, sentenced or otherwise imprisoned. Prisoners with psychosocial disabilities and their advocates should not hesitate to invoke the provisions on autonomy and informed consent (Rule 32) and reasonable accommodation for full and effective access to prison life on an equitable basis (Rule 5) against any instance of unwanted treatment or discrimination, including unwanted transfers to mental health facilities, and to gain access to services and programs in the prison from which they have been excluded. The reasonable accommodation provision, along with the general category of non-discrimination based on “any other status” should be read to prohibit discrimination based on disability whether it is simple discrimination or a denial of reasonable accommodation is at issue. Reasonable accommodation could also be invoked to request non-medical support and service options (e.g. Hearing Voices Network support groups, which Rachel Waddingham has offered in prisons in the UK), which may be necessary for a person to maintain well-being while participating to the desired extent in prison life, to which they have a right on an equal basis with any other person. (Medical model services that do not support the person’s sense of well-being or that are detrimental cannot be a meaningful substitute.) In addition, the CRPD and its jurisprudence – General Comment No. 1, Statement on Article 14, Concluding Observations – can be invoked as a supplement to the Rules where they fall short and to support a reading of the Rules that is most consistent with the CRPD. Countries that have ratified the CRPD need to be reminded that it is legally binding on them, and that the Rules are not a legally binding instrument, so that their obligations under the CRPD are of a higher order and must be followed.
Human rights defenders need also to be aware of the systemic role played by the Rules in human rights implementation and monitoring, and to call upon human rights mechanisms to uphold the CRPD and set aside those provisions of the Rules that are in conflict. The Committee on the Rights of Persons with Disabilities has begun to address issues in the criminal justice system, and does not countenance the use of special security measures, particularly those involving mental health detention and treatment, as a diversion from criminal proceedings. This is a systemic harm both to the individuals concerned, who are often given the worst treatment of both the prison and psychiatric systems, and for all people with psychosocial disabilities, who are made aware of their pariah status in society by the existence of these special carceral institutions designed for us in particular. Governments should not use the revised Rules to justify the maintenance of regimes of civil commitment or forensic commitment in psychiatry, both of which are contrary to the CRPD.
We await further clarification and guidance from the Committee on the Rights of Persons with Disabilities, and human rights defenders who are users or survivors of psychiatry or people with psychosocial disabilities need to remain vigilant and continue to develop our criteria for law and policy reform in criminal justice and the penal system. If we want total abolition we want – of prison as well as psychiatry (forced or as a system of hierarchical power and classification) – we need to work out the details of how we want to deal with issues of public safety and order, and accountability to the state for acts defined as violations of such public safety and order, that are now addressed by criminalization and punishment. We need to investigate the feasibility of community-based systems of accountability in a pluralistic society, and how such systems would relate to the state which is said to have a monopoly on the legitimate use of violence to enforce the rule of law. These are complicated questions, and we need at the same time to proceed with the dismantling of forced psychiatry – mental health detention both civil and criminal, forced treatment and forced diagnosis – on an urgent basis without waiting for other answers.