Societies need to have one illness which becomes identified with evil, and attaches blame to its victims.
— Susan Sontag, Illness as Metaphor, 1978
(Editor’s note: This blog is an excerpt from Jack Carney’s book
Nation of Killers: Guns, Violence, White Supremacy and the American Dream Become Delusion
Publication in late September, 2015)
I – Corporatization:
“Mental health” — a misnomer? If you don’t subscribe to the notion of “mental illness,” why “mental health”? Why not the straightforward acceptance that individuals will act in a manner peculiar to each? In short, why not an existential or phenomenological understanding of human behavior as rooted in an individual’s idiosyncrasies and life experiences rather than in her/his brain chemistry?
(You’ll note that I persist in using the term “mental health” throughout this chapter. I believe “holistic health” would be a more accurate description of what I would like to see eventually evolve, but we’re a long way from that. Hence my continued use of “mental health” and its application to the publically financed system that now exists.)
The folks busy corporatizing the public mental health system would demonize you for that. They – again, 1%er surrogates — are too intent on imposing the unitary and monolithic notion on all system stakeholders – patients, their families, professional practitioners and the entities that employ them – that “mental illness” is a brain disorder best treated pharmaceutically by highly trained medical professionals. They will tolerate no dissent and demand from system patients and workers unqualified acceptance of their bio-medical model and its treatment of choice, i.e., the prescription of psychoactive medications. Should a worker or a patient decide on a treatment to complement whichever medications have been prescribed, they are obliged to choose from a menu of options, termed “best practices”, that have been vetted by the insurance companies and government funders that pay for the treatment, and are cookie-cutter, one-size-fits-all approaches designed to secure for the system and its managers uniformity, predictability and conformity. In short, a system of social control, left with only the pretense of “treatment”.
Those of us who have worked in the public mental health system, or in the larger social welfare system of which it is a part, have always recognized the social control aspect of our work: helping our clients or patients, providing them with psychotherapy and assisting them in solving day-to-day problems, would keep them from running wild in the streets, hurting themselves or others, keep a roof over their heads, clothes on their backs and food in their bellies. Even when the proverbial “safety net” began to fall apart, we worked even harder to help them keep their lives and families together.
The corporatized social welfare system, including the mental health system, has foregone those objectives. Much like all other service systems throughout the United States, the agency providers that house the social welfare/mental health system and its managers have little or no accountability to their clients or patients, nor to their staff members. Similarly to the large corporations, which are accountable only to their shareholders and hedge fund investors, and on which all service organizations are now modeled, the social welfare/mental health system is accountable primarily to its government and private third party funders. Accordingly, the complaints voiced by the Columbia-Presbyterian health care workers and nurses referenced above, are echoed by mental health workers, teachers, social workers, support staff and custodial workers, by any line worker employed in the system — “Coming to work is a punishment.”
Fewer staff are employed to help more clients or patients or students, with minimal assistance from the system’s managers. Those who complain that they can’t perform their work ethically and effectively, particularly when they have no union protection, are forced out; those who don’t speak up but who can’t tolerate the stresses under which they are placed, like the teachers obliged to teach their students to pass standardized tests and little more, the mental health workers whose attempts at treatment are confined to 30 and 15 minute boxes, leave quietly. Those who remain conform and teach their clients, patients and students to do likewise, freeing the system’s managers and their bosses to tighten the pressure and to regard them not as system stakeholders but as vulnerable “others.” It’s as if those with the power to control events no longer see a need to promote collaborative relationships between staff, clients and themselves but have adopted the white supremacist methodology of oppressing those over whom they have power. With blood in the water, things will only get worse.
* * *
II — Re-Institutionalization:
Perhaps the clearest indicator is the current pre-eminence of E. Fuller-Torrey, the psychiatrist founder of the Treatment Advocacy Center, the vehicle through which he distributes his position papers and his “research.” In the estimate of virtually all psychiatric survivor and practitioner advocates, me among them, he is considered at best a charlatan and at worst, as per MindFreedom International, one of “the most feverishly pro-force[d hospitalization] psychiatrists in the world.” He is a staunch advocate of the bio-medical model and the centrality of psychoactive medications in treatment; has persistently advanced the hypothesis that a person with a diagnosed mental illness who is “resistant” to taking her/his prescribed medications constitutes a danger to her/himself and the larger society and must be hospitalized, i.e., incarcerated, even against her/his will; and believes that deinstitutionalization has been a failure and has been displaced by trans-institutionalization, i.e., the placement of the “seriously mentally ill” in correctional rather than psychiatric facilities. All of which positions seem to have gained more adherents over time among many governmental and mainstream institutions.
His most recent converts appear to be the three ethicists from the University of Pennsylvania who recently authored an article in the January, 2015, issue of the Journal of the American Medical Association calling for an expansion of the number of inpatient psychiatric beds in the country. They had apparently bought into Fuller-Torrey’s proposition that deinstitutionalization had destroyed the psychiatric hospital system, and that individuals who are seriously mentally ill and need professional treatment are now in the nation’s prisons and jails. As per his custom, Fuller-Torrey had doctored his data to substantiate his contentions.
Some evidence. Fuller-Torrey, among others, has taken the term “anosognosia” and transformed its meaning to conform to his own agenda. Anosognosia is a bona fide illness first diagnosed by the neurologist, Joseph Babinski, in 1914 to explain the damage to specific areas of the brain caused by physiological phenomena. Denial of the illness by the person afflicted is not a scientifically verifiable aspect of the illness, but rather is considered by neurologists as a defense mechanism against the illness’s effects. Similarly, the existence of anosognosia in presumed “mental illness” has never been scientifically substantiated and its use to explain patients’ resistance to treatment or denial of their illness is best understood metaphorically. Illness as metaphor, something Freud and Susan Sontag would have appreciated. This has not deterred Fuller-Torrey from putting forward what I term his “catch-22” application of anosognosia to rationalize individuals’ resistance to psychiatric treatment and their subsequent need for involuntary or forced treatment – “If you’re crazy and can’t admit it, you must be crazy.”
On his Treatment Advocacy Center website, you can also find another of his “studies”, “Justifiable Homicides by Law Enforcement Officers: What Is the Role of Mental Illness?”, posted on the website in 2013. As per Fuller-Torrey, the report comprises an assessment of “available data,” and was carried out in collaboration with the National Sheriffs Association. To quote one of its conclusions: “Although no national data is [sic] collected, multiple informal studies and accounts support the conclusion that ‘at least half the people shot and killed by police each year in this country have mental health problems’ ” (italics mine). Interestingly, Fuller-Torrey’s conclusions coincide nicely with the NRA’s contention that the rash of mass murders in this country are in no way connected with the plethora of guns available to anyone who wants one but are the consequence of untreated crazy people. Fuller-Torrey and the NRA sound eerily alike. And if the white supremacist NRA can scapegoat the “other”, why can’t Fuller-Torrey?
Despite his avowed intent, Fuller-Torrey’s interpretation of correctional inmates’ “data” serves as a cover for objectives far more questionable than providing “treatment” in proper settings to needy individuals. Just follow the money. He estimated, in 2014, that approximately 356,000 inmates in state prisons and jails have serious mental illnesses, in contrast to the approximately 35,000 inmates currently in state hospitals and to the 559,000 who were institutionalized in 1959. Those figures are best understood in the larger context of the phenomenal growth of the U.S. correctional system. From 1973 to 2011, the number of Americans incarcerated in state and Federal prisons jumped from approximately 200,000 inmates to 1,598,780, with a corresponding increase in correctional expenditures to $60 billion from $12 billion in 1992. In 2012, as per a report from the National Research Center, the U.S. had by far the largest number of persons incarcerated and the highest rate of incarceration in the world: one out every 100 Americans is incarcerated, or 707 per 100,000 residents; 492 per 100,000 have been incarcerated for at least one year.
To further illustrate, the Bureau of Justice Statistics reported that 6,899,000 Americans were under correctional supervision in 2013 – on parole, probation or in jail. Specifically, 1 in 35 American adults, or 2.8% of the U.S. adult population, were under some form of supervision; 1 in 51 were on probation and 1 in 110 were in jail. Jane Tangney of George Mason University also reports that nearly 750,000 Americans are in jail on a daily basis, with an annual jail population of close to 13 million persons. She attributes the dramatic increase in the jail and prison populations to “… our inability to deal with the mental health crisis in this country. We have an enormous number of people who are suffering from very treatable illnesses who are not getting treatment and who end up getting caught in the criminal justice system as opposed to the mental health system.”
On the other hand, Craig Haney from UC Santa Cruz contends that “ … the movement toward broad, punitive crime control and prison policies wasn’t based on any scientific rationale. Rather, it was largely the product of a series of policy decisions made for largely political reasons. For whatever reason, legislators and other politicians have found it politically advantageous and expedient to continue to pursue a strategy of punitive crime control policies irrespective of the costs of that policy.”
Jonathan Metzl has probably provided the best explanation for what appear to be co-occurring phenomena – the increase in the corrections population and the accompanying increase in the number of presumed mentally ill inmates – in The Protest Psychosis: How Schizophrenia Became a Black Disease (2010). Using patient records at the long defunct Ionia State Hospital outside of Detroit, Metzl traces the evolution of the patient population and the application of the diagnosis of schizophrenia from the early 1960’s to 1986, when the hospital was converted to the Ionia Correctional Facility. 1968 proved to be the benchmark year for changes. Prior to then, psychiatrists at Ionia, utilizing DSM I criteria, affixed the schizophrenia label to quiet, withdrawn white housewives, afflicted apparently with schizophrenia’s presumed negative symptoms. Post-1968, the year when Martin Luther King and Bobby Kennedy were assassinated, protests by angry Black men under the Black Power banner began to increase in frequency and intensity. Many white folks, principally Richard Nixon, began to wonder aloud if Black insurrection was at hand.
The Federal Government’s response, with Nixon in the presidency, was swift and harsh – Nixon started the first War on Drugs, whose aim was to sweep up Black men in the nation’s Black communities, slap them with harsh penalties and lock them away. Michelle Alexander would counter Fuller-Torrey’s and Tangney’s explanations for the startling growth of the country’s correctional institutions by noting that, between 1985-2000, drug arrests accounted for two-thirds of the increase in the federal prison population and one-half in state prisons. She quotes H.R. Haldeman, Nixon’s Chief of Staff, to drive home the point: “[T]he whole problem is really the Blacks. The key is to devise a system that recognizes this while not appearing to.”
Alexander asserts that “… Individuals whose rights it was the government’s responsibility to protect, [began] to be viewed as threats to the government and to the established social order and have been accordingly marginal-ized” (Carney, 2012). She concludes, as per the title of her eye-opening book (2010), that “The New Jim Crow …” is back and colors our entire correctional system.
Back at Ionia, Metzl notes the serendipitous publication of the DSM-II in 1968 and the change in the criteria for schizophrenia contained therein: the Schneiderian first rank or “positive” symptoms were given prominence – hallucinations, delusional thinking, paranoid ideation and aggressive, hostile behavior. Many of the Black men who wound up in Ionia at this time, had been previously arrested and incarcerated for their actions in the protests in which they had participated. Their anger and hostility towards their white jailers apparently didn’t subside during their incarcerations, hence their transfer to Ionia. There “they were diagnosed with schizophrenia by psychiatrists who, confronted by angry black men, were blind to their own anxiety and to their roles as agents of institutionalized racism” (Carney, 2012). Psychiatry had become a political tool.
In succeeding years, many researchers began to note the “over-diagnosis” of schizophrenia in Black men, whether in or out of prison. Both the longitudinal Kaiser-Permanente Schizophrenia study carried out in California from 1981 to 1997 and the NIMH’s National Comorbidity study conducted by Kessler, et al, in 1992-4, agreed that “over-diagnosis” was a fact: Kaiser-Permanente conjectured that poverty and its attendant social and economic barriers could be the cause of the phenomena; the Kessler/NIMH study concluded that “over-diagnosis” could be attributed to the “cultural differences” between Blacks and their treating clinicians, which produced barriers to clear communication. Both failed to examine “clinician bias” in “over-diagnosis” and “accepted without question the construct validity of schizophrenia as an illness” (Carney, 2012).
These studies did not curb the practice. Over-diagnosis of schizophrenia in African-Americans has permeated the entire mental health system and continues into the present. From 1993 to 2000, I directed the first forensic Intensive Case Management (ICM) program housed in a non-profit agency in New York State. From 1996-2000, I also directed a Forensic Dialectical Behavioral Therapy (DBT) program, both at the NYC non-profit FEGS (formerly, the Federation Employment Guidance Service). Our clients in both programs were predominately African-American men and a smaller number of women of color, all on parole from NYS correctional facilities and all with a presumed “serious mental illness.” The most common diagnoses for the men were schizophrenia and psychosis “NOS”, i.e., psychosis “not otherwise specified”; for the women “schizoaffective disorder.” This persisted long after both these programs ended, specifically for the next ten years, when I continued as director of an expanded ICM program that accepted individuals from City and State hospitals as well as prisons.
It’s important to note that our client parolees had never received a formal psychiatric evaluation in prison. (Fuller-Torrey’s data come from inmate self-reports.) Rather, if a Black inmate said he was “hearing voices” – and, if you’ve ever spent any time in Sing Sing, which I visited on several occasions, who wouldn’t? – he was automatically awarded a diagnosis of schizophrenia. Ditto the women, who, since they tended to be louder in their distress, were diagnosed with schizoaffective disorder. As for the men who complained of other “symptoms” which didn’t conform neatly with DSM criteria, they got the psychosis NOS label. The same diagnoses were also applied to our hospital-discharged clients, although few were given the latter diagnosis. The common denominators we found over the course of seventeen years and a few thousand clients, all of whom were interviewed closely by us over time, were trauma, poverty and substance abuse. In short, we were working with folks who had been beaten up all their lives, had been trapped in dangerous environments and had often anesthetized themselves with whatever intoxicant was available. The combination of the vulnerability elicited from them by our case managers, most of whom were women of color, and the latters’ personal warmth and kindness, enabled the great majority of our clients to form trusting relationships for the first time in their lives and to live in their home communities and avoid recurring hospitalizations and returning to prison. For those of our clients who exhibited cognitive impairments, we suspected that they had been victims of traumatic brain injury, but were never able to connect them to a public sector neurologist who would perform the necessary diagnostic tests.
(Personal disclosure: The program that I developed was replaced, after I retired in 2010, by what’s termed a Mental Health Home, which I described in another MIA blog (2012) as case management by computer. The agency where I worked for seventeen years just went bankrupt and has closed its doors after seventy-five years of serving needy New Yorkers.)
Bottom line, if you want to understand “transinstitutionalization”, follow the money. Ionia was converted to a correctional facility in 1986 because the great majority of the patients had been sent home. I pulled out a Steadman, Monahan, et al, collaboration from 1984, titled “The Impact of Deinstitutionalization …”, which cited some interesting statistics. To quote: “At the end of 1968, there were 399,000 patients in state mental hospitals and 168,000 inmates in state prisons. Within a decade, the hospital population fell 64% to 147,000, while the prison population rose 65% to 277,00.” The authors conclude that “… the correlation between the annual resident status of state mental hospitals and state prisons in the United States between 1968 and 1978 was a dramatic -87.” The authors take no note of the impact of Nixon’s, and later Reagan’s, War on Drugs, on the growth of U.S. prison populations which I cited above. So which is it?
Bottom line, look to the drug-related incarcerations, which only began to decline in 2010 and have declined slowly since. Ionia became a correctional facility because the state of Michigan needed someplace to put newly convicted felons. State and Federal prison populations continue to grow. From 2000 to 2010, total state prison populations grew 12.6%, even with a decline in drug-related incarcerations of 8.2%. Interestingly, “public order” or “broken windows” incarcerations – weapons offenses; DWI; prostitution; liquor law violations – increased by 103.9%. Violent crime incarcerations were up 15.9%, particularly those for manslaughter, rape, sexual assault and felony assault. Federal prison populations grew by 3.8%, with drug incarcerations down 4.7%, public order incarcerations up 6.2%, and incarcerations for violent crimes down .7%.
Bottom line, we’re looking at institutionalization as a continuum, with the dramatic increase in prison populations due to an increasingly punitive and intolerant attitude on the part of the general and predominately white supremacist public, whose fear and anxiety have been integral to conservatives’ political strategy since Joe McCarthy. As noted earlier, we’re the prison capital of the world. Those individuals that Americans fear are marginalized permanently, i.e., deprived of their constitutional rights, removed from society and oppressed and exploited economically. Michelle Alexander reports that the number of Black men under criminal justice supervision nationwide is equal to the number enslaved in 1860. Jim Crow rules.
As for the presumed increase in the number of mentally ill inmates now in prison, the latter serve as ready scapegoats. How else can the correctional system explain its own increasing dysfunction — failure to stem recidivism; disavowal of rehabilitation and education as strategies to address that phenomenon; inability to protect the inmates in its prisons from inmate on inmate physical and sexual assaults, as well as from assaults perpetrated by correctional officers?
Again, follow the money. If Fuller-Torrey were to get his wish and all the state psychiatric hospital, i.e., long-term, beds he says the country needs, one could predict that several hundred thousand folks now in prison would get shipped to state hospitals. Remember what happened in Ionia from 1968 to 1976. California might have welcomed that opportunity in 2011, when it was obliged to comply with a Supreme Court ruling that its prisons were overcrowded and released over 15,000 inmates in the space of two months. That same year, 2011, the total U.S. state prison population also declined by nearly 22,000 inmates, with California accounting for 70% of that total. In 2014, the U.S. Bureau of Prisons reported the first drop in the Federal prisons population since it began to rise precipitously in 1980. The reduction was small – down 5,149 inmates from a high of 213,901, but it is expected to continue. Over-crowding remains high, at 39% in medium security and 52% in maximum security facilities, and will be key factor in promoting ongoing inmate reduction. The options to reduce over-crowding in both Federal and state prisons are several: build more prisons, which seems highly unlikely; early release of prisoners and reduced predicate sentences, which have contributed to the decline of inmates incarcerated for drug offenses and are likely to continue; increase the privatization of Federal and state prisons, which might be a short-term possibility.
The privatization — or the corporatization – of the management of correctional facilities began in 1984 with the awarding of the first contract to The Corrections Corporation of America (CCA). According to the US Department of Justice in 2013, 133,000 state and Federal inmates were incarcerated in privately run correctional facilities. This represented 8% of the total prison population – 19% of all Federal inmates; 7% of all state, or a total of 10,000 inmates in 27 states – at a cost of $5 billion in 2011. Additional revenue has also accrued to the private correctional firms as well as mainstream corporations, consequent to laws passed by 37 states authorizing the legal contracting of prison labor by private corporations. The latter are obliged to pay inmates the minimum wage for all contracted labor in state prisons, but are known to have paid as little as $.17 per hour to inmates in privately managed facilities. Yes, a return to convict labor, much as I described in an earlier chapter dealing with Jim Crow and white supremacism in the South 140 years ago, when Reconstruction ended and Federal troops were removed.
CCA continues to be the largest and most financially successful for-profit correctional manager, with responsibility for 80,000 beds in 65 correctional facilities, largely in southern and western states. Its major investors include Wells Fargo, Bank of America, Fidelity Investments, General Electric and the Vanguard Group. CCA and other private prison firms, aware of the prospective long-term decline in the U.S. prison population, are reported to be exploring expansion into markets previously served by non-profit behavioral health agencies – prison medical care; forensic mental hospitals; civil commitment, aka involuntary out-patient commitment; half-way houses and home arrest. Not much of a leap, I’m sure, to managing a state psychiatric center. Remember, follow the money. Fuller-Torrey has always had a cozy relationship with rich 1%ers. In addition to his Treatment Advocacy Center, he founded and has served as the executive director of the Stanley Medical Research Institute, which finances much of his “research”, funded since 1989 by Theodore Stanley and since his death last year, by the Stanley Family Foundation. One might guess that he and an organization like CCA might one day collaborate, given their coinciding interests.
All this begs the real question: what’s to be done with all the folks, particularly those who evidence the sequelae of brutal trauma, who do leave prison because they’re given early release or less harsh sentences? The National Institute of Justice issued a report last year examining the post-prison experiences of 404,638 inmates in 30 states released into their home communities in 2005. Two-thirds of those individuals were re-arrested within two years of release; three-quarters within three years; and more than half of the persons in the above cohorts were re-arrested by the end of their first year home. One might reasonably speculate that the prisons where they were incarcerated did little to prepare them to return home – again, most rehabilitation and educational programs have been jettisoned as the corrections system shifts its mission from rehabilitation to punishment. Once home, most probably found little support – unskilled, unemployable and unwanted, except perhaps by their former criminal associates or by those who had brutalized them in the first place.
The individuals who had been brutalized had been our clients, at a time when the community mental health system first began to receive resources to house and help parolees and those released from jails and hospitals. Our case management program, a model for community re-integration in its time, succeeded in reducing the recidivism rate of our parolee clients from a 60% re-arrest rate within their first year post-release to little more than half that rate at two years. Their re-arrest rate was due, in the main, to parole violations rather than to the commission of new crimes. As I had stated above, our program, built on the collaborative relationships that case managers and clients had established, has since been replaced by hands-off, electronic case management, i.e., via mobile phone and computer. It’s conducted in a fashion quite similar to the daily rounds I witnessed when I was in the hospital awaiting my heart transplant – a coterie of residents shepherded by an attending physician, each wheeling chest-high computer carts around the unit from one patient’s bed to another, reading lab and other test results and never once approaching, conversing with or touching the patient. Impersonal and distant, not an effective approach for anxious individuals with life-threatening illnesses, nor a reassuring one for the hopeless, mistrustful people who seek succor and support from a corporatized social welfare/mental health system.
More long-term psychiatric beds will not only have a chilling effect on psychiatric survivors, but will also constitute a wholesale diversion of funds from the community and public non-profit sector to the incarcerative and, quite probably, the for-profit, sector. In short, it will signal the abandonment of those individuals who are most vulnerable to exploitation and social and economic marginalization, and establish them as likely candidates for the long periods of incarceration that will now await them in institutional and, very likely, privatized psychiatric facilities. Again, institutionalization along a continuum.
* * *
III — Equal Protection:
I’ve spent a good deal of this chapter discussing E. Fuller-Torrey and his push for a return to de-institutionalization-ante (or re-institutionalization) and for more state or long-term psychiatric beds because the JAMA article espousing it sent shock waves through the advocacy community. This idea has been discussed before – in the 1970’s, when the American Psychiatric Association formally endorsed the bio-medical model in its DSM III; in the early 1990’s, in opposition to the push for increased funding for community-based facilities at the expense of the remaining and largely empty state psychiatric institutions. This feels different, not only because the article itself was published in JAMA and appeared to bear the stamp of approval of the American Medical Association, but because most of us are fully cognizant of the authoritarian and anti-democratic direction in which the 1%ers and their conservative politician surrogates, aided and abetted by corrupted psychiatrists and psychologists, are moving the country.
We’ve just seen the NIMH appoint as their director of research an ECT expert steeped in the bio-medical/ brain-chemistry model; and been subjected to the warm reception that Jeffrey Lieberman’s just-published Alice-in-Wonderland fantasy, “Shrinks: The Untold Story of Psychiatry,” (2105), received in The Sunday New York Times Book Review (April, 2015). Lieberman slammed psychoanalysis – a straw horse – and extolled the saving graces of psychoactive meds. The only letters of complaint The Times published were from long-time analysts, with not a word of criticism or skepticism about the bio-med model Lieberman was promoting. And can we forget that it was two American clinical psychologists, who were paid millions of dollars, who helped the CIA develop their interviewing/ torture protocol for use with suspected terrorists; and that it was U.S. Army M.D.s, in violation of their Code of Ethics and the U.N. Convention Against Torture, who supervised the forced feeding of hunger-striking Guantanamo prisoners? Yes, Fuller-Torrey’s violent fantasy might actually happen.
Psychiatric survivors understand this possibility better than anyone, and we must heed them. Tina Minkowitz is the founder and current president of the Center for the Human Rights of Users and Survivors of Psychiatry (CHRUSP), which she and others established in 2006 “to provide … strategic leadership in human rights advocacy … [and to work] for full legal capacity for all, an end to forced drugging, forced electroshock and psychiatric incarceration …” (CHRUSP Mission Statement). CHRUSP, in other words, functions in polar opposition to Fuller-Torrey’s TAC.
(I’ve written about CHRUSP before – MIA, 2103 – but its story and initiatives are germane to the issue at hand and worth repeating: Minkowitz and CHRUSP connect the dots and show great awareness of the implications of their actions.)
In pursuit of their objectives, Minkowitz and CHRUSP made two key strategic decisions. The first was to equate their struggle to overturn psychiatric profiling and all forced psychiatric treatment in this country with the pursuit of universal human rights as embodied in the U.N. Convention on the Rights of Persons with Disabilities (CRPD). For the last three years and more, Ms. Minkowitz and the members of CHRUSP have been lobbying the U.S. Senate to ratify the U.N. Convention of the Rights of Persons with Disabilities (CRPD). The latter was adopted by the U.N. General Assembly in 2007 and took effect in 2008. Since then, 159 nation members have signed the Convention, including the U.S. in 2010, and 153 nations have ratified it, giving it the force of law in their respective countries.
The U.S. has yet to ratify the Convention, which has the status of a treaty with a sovereign state, although attempts at ratification by the Senate have been made in 2012 and 2013 and failed to secure the necessary two-thirds majority vote. As per customary Senate practice in ratifying international treaties, the Convention was burdened with so many of what’s termed “reservations, understandings and declarations” (RUD’s) that, if ratified, it would have had no effect on existing state and Federal statutes. The Senate’s conservatives had succumbed to Rick Santorum’s and right-wing lobbyists’ appeal to U.S. “exceptionalism,” embracing “the spurious claim that CRPD ratification would open the door to international meddling in U.S. family life” (Carney, 2013). In fact, Article 12 of the Convention, sans RUD’s, calls for “states parties,” i.e., countries that have ratified the Convention, to “recognize that persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life” (italics mine). Further, it obliges “states parties [to] take appropriate measures to provide access by persons with disabilities to the support they may require in exercising their legal capacity…”
As per my understanding, if you have “equal status under the law”, which Article 12 appears to call for, your legal equality cannot be “derogated” or diminished by a presumed “diminished capacity” due to an hypothesized mental illness. Accordingly, you can only receive treatment of any kind if you consent to it; to receive treatment without your consent is to receive “forced’ treatment. In short, a ratified Convention without RUDs would fall under the “equal protection” clause of the 14th Amendment and would oblige all government jurisdictions in the U.S. to treat persons labeled with a psychiatric diagnosis as American citizens with full constitutional rights.
Minkowitz’s and CHRUSP’s second decision was to align themselves with the U.S. and international disability community, which is quite extensive and does have some leverage within the U.S. They proceeded to approach the National Council on Disability (NCD), whose members are appointed by the President and approved by the Senate and attempt to convince the NCD to recognize persons with psychiatric disabilities as a unique entity within the constellation of disability groups whose interests it presumes to represent to the President and the Congress. They raised the issue of the inclusion of the scope and number of the RUDs to be contained in the U.S. version of the UN Convention, and, perhaps more importantly requested that the NCD accord “users and survivors of psychiatry” a formal recognition at the national governmental level they currently do not have. The NCD has not acted on these issues as of yet, but CHRUSP has succeeded in placing them on the NCD’s agenda.
Consequent to the ruckus they were beginning to raise, Minkowitz and CHRUSP Board member, Maxima Kalitventsev, were invited to Geneva in March, 2013, to address the U.N. Committee on Human Rights, where they received a much warmer reception. Just prior to their arrival, Juan Mendez, the U.N.’s Special Rapporteur on Torture, had just issued one of his periodic reports (March 4, 2013) focusing “on certain forms of abuse in health care settings that may cross a threshold of mistreatment that is tantamount to torture or cruel, inhuman or degrading treatment or punishment…” He had concluded in his report that “…medical treatments of an intrusive and irreversible nature, when lacking a therapeutic purpose or when aimed at correcting or alleviating a disability, may constitute torture (italics mine) … when administered without the free and informed consent of the person concerned…” Mendez’s report served as the backdrop to what Minkowitz and Kalitventsev told the Committee.
In a blog she posted on MIA on her return to the U.S., Minkowitz reported that hers and Kalitventsev’s testimony appeared to lead the Committee to conclude that the United States government, a signatory of the International Covenant on Civil and Political Rights, albeit with the usual RUD’s, might be in violation of Article 7 of that Covenant, which “prohibits torture and cruel, inhuman or degrading punishment.” As a consequence, the Committee put to the U.S. the following query: “Please clarify how, in the State party’s [the U.S. government’s] view, the possibilities for non-consensual use of medication in psychiatric institutions and for research and experimentation… are in conformity with the obligations upon a State party under 7 of the Covenant.” I do not know the U.S.’s response, but I can guess that the U.S. probably responded as it customarily does –– that its current laws and public policies allow it to carry out its obligations under the Covenant. (from Carney, 2013). At the least, some international heat had been directed at the U.S. government, and the repercussions from CHRUSP’s Geneva visit appear to continue.
In her “Assessment of 2014,” distributed to CHRUSP’s membership and supporters in February of this year, Minkowitz reported on the “General Comment No. 1 on Article 12” of the CRPD issued by the UN’s monitoring agent, the Committee on the Rights of Persons with Disabilities. Citing it as a “watershed” moment, she underlined that the Committee’s “General Comment No. 1 established as international law (italics mine; please note that Minkowitz herself is a lawyer) key elements of the advocacy agenda we have been promoting for the past twelve years …” Specifically:
- “Legal capacity cannot be denied based on a person’s actual or perceived capacity or decision-making skills.
- “Substitute decision-making regimes, including legal provisions allowing forced mental health treatment, must be abolished.
- “Forced mental health treatment infringes the freedom from torture and ill-treatment, in addition to violating the right to legal capacity.
- “People with (actual or perceived) disabilities have the right to refuse support.
- “People with (actual or perceived) disabilities retain the right to legal capacity, including in crisis situations.
- “Detention in institutions without the person’s own consent violates Articles 12 (equal recognition before the law) and 14 (liberty and security of the person), and amounts to arbitrary deprivation of liberty.”
Laws, of course, are only words and require political consensus and power to implement and enforce them. Given the prospective consequences of even modest success, it boggles my mind that more advocates haven’t joined CHRUSP’s effort. For starters, ratification of the CRPD, even with the current RUD’s, would give advocates and survivors the proverbial foot in the door to challenge the RUD’s as well as the long-established practice of forced hospitalization, augmented in the last ten years and more by the widespread enactment of involuntary out-patient treatment laws by all but a handful of states. Under the aegis of the Convention and the 14th Amendment’s equal protection clause, advocates could begin to question the constitutional validity of forced treatment and advance the demand that existing laws be repealed or revised to guarantee survivors’ full range of constitutional rights, particularly against unwarranted search and seizure. Preceded, of course, by pursuit of the CRPD’s Senate ratification, which would provide the focus of a nationwide organizing and lobbying campaign; which would enable survivors to push the boundaries of equal protection and redefine themselves as American citizens rather than as ready scapegoats and devalued “others.”
In other words, it’s time for survivors to begin to distinguish the forest from the trees and to tell their personal stories of exploitation in the context of the consequences for American democracy, and for their supporters and advocates to forego their tales of the next new treatment intervention – e.g., Finland’s Open Dialogue – and focus their attention on the mental health system’s, along with the entire country’s, slide into authoritarian contempt of ordinary Americans. To do otherwise smacks of simple careerism and the unwarranted ambition for new programs which will never even see limited implementation in the current free market, corporatist environment.
Finally, we must constantly be alert to and remind our readers and collaborators of the mounting dangers to our 1st Amendment, free speech rights, to the mounting intrusions of the National Security State into our personal privacy, and to the apparently unchecked violence against our creole nation endorsed by the burgeoning National Police State. The popular or people’s version of the American Dream is becoming lost.
As a reminder, I’d like to close with my own adaptation of Pastor Martin Niemoller’s “The Hangman,” several versions of which he himself wrote between 1937-46 and which has since been adapted by others. Niemoller, a German, was a survivor of Auschwitz, a political prisoner confined there because of his refusal to join other members of Germany’s wartime religious community in supporting Hitler’s Nazi regime. His poem is an indictment of the cowardice of the German intellectual elite in failing to oppose Hitler.
“The American Dream Become Delusion”
(Adapted from Neimoller’s “The Hangman”
by Jack Carney; May, 2015)
First they came for the Black men
And shot and imprisoned them
Without regret or hesitation.
Only a few spoke out on their behalf.
They came for the Latinos and anyone
With a tinge of brown or yellow to their skins
And maligned and deported them
And only a few spoke out on their behalf.
They came for those they had labeled
Mentally ill or mentally retarded
And locked them away. Forever.
Again, only a few spoke out on their behalf.
They came for those with imagination
Whether white, Black or brown
And stilled their voices.
The few who had spoken out did no longer.
And then they came for you
Because you were here.
Who will speak out on your behalf?
Remember, as always, the words of the late Joe Hill – “Don’t mourn, organize!”