For those of you who follow me, there have been some changes in my life and circumstances that are relevant to some things going on in the movement and the world, and also some new documents coming out of the UN that I haven’t reported yet to the survivor community and our allies.
I will try to wrap up everything in a kind of end-of-year update, and hope to also make myself available for a phone/internet dialogue at some point.
1. Personal Circumstances
First, I am back in school for a master’s degree in Public International Law; yes this is what I have been doing for the past thirteen years and it still makes sense to put myself in a learning situation where I can be with other people thinking about some of the issues beyond forced psychiatry and the CRPD. Everything relates back, as I wrote in a blog post earlier this year reflecting on some of my readings that led me to posit fundamental values of meta-autonomy and meta-equality.
I have also left my thirteen-year relationship with the World Network of Users and Survivors of Psychiatry. It was both a necessary step for me to free myself of attachments and become ready for a new phase in my work, and a situation where systemic values of relationship began to clash. Above all, I feel that the trajectory of my work is such that a natural cycle has been completed, while at the same time I wish that the process had been otherwise.
2. Feminism and Legal Theory
Second, somewhat related to all this, I have become much more involved in feminism. If you want a real conversation with me, you are welcome to email me through this site or to connect with me on Facebook. Folks who trash feminism in the comments here will be free to do that because I do not control the comments section, and I don’t recognize MIA as any arbiter of what is good and right, or of what counts as feminism.
The roots of my work on forced psychiatry as torture have always been feminist; bodily autonomy and embodied personhood, rape as the primal and gendered crime, were concepts and principles that I drew on and elaborated further in my theory and practice, which has now in the bottom line been accepted by the Committee on the Rights of Persons with Disabilities. As a woman, my bodily autonomy and embodied personhood is indivisible: I am entitled to my space and self-defense and self-determination both against male interference and against psychiatry, and I find that being female is more a collective identity than a personal issue of non-discrimination in the sense of being treated the same as men. Rather, as I have found in writing commentary on the question of abortion as dealt with in a draft General Comment by the UN Human Rights Committee (monitoring body for the International Covenant on Civil and Political Rights), the law needs to start from a premise of males and females having equal power and equal freedom to determine boundaries, spaces, definitions relevant to any aspect of culture. Women’s personhood being equal to that of men means that the condition of pregnancy is part of the human condition and women’s bodily autonomy and embodied personhood encompasses the situation of being pregnant. Restrictions on her bodily autonomy in relation to the condition of pregnancy, especially when couched in terms of recognizing “rights” or “capacities” of a fetus, which implies attributes of personhood, accord an inferior legal personhood to women compared with that of men, in violation of the principle and right to equality and non-discrimination. I will be sending these comments to the Human Rights Committee and will also post them on my page at academia.edu when finalized.
I anticipate that I may write my thesis on some aspect of legal theory and philosophy that combines feminism and critical disability/survivor knowledge, and addresses the problematic nature of the state in relationship to questions of individual and collective self-determination. I am also hoping to put together a collection of my published and unpublished (or informally published) writings related to the CRPD, to have these materials in a book form.
3. Human Rights Developments in the UN
Third, I want to discuss the state of affairs in the UN with respect to the right to be free from psychiatric oppression, and related to this, the importance of survivor knowledge.
A. CRPD Committee General Comment No. 1, and Guidelines on Article 14
The Committee on the Rights of Persons with Disabilities has put in place all the key elements of jurisprudence needed for the abolition of forced psychiatry. In 2014, they established in General Comment No. 1 that no one’s legal right to make their own decisions can be taken away on the basis of someone else’s assessment of their decision-making skills. States (governments) and medical professionals must recognize and respect our legal capacity to make decisions at all times including in crisis situations. Forced psychiatric interventions are a violation of human rights perpetuated by mental health laws everywhere in the world, and must be abolished. This was an interpretation of Article 12 on equal recognition before the law, and also brought in Article 14 on the right to liberty and security of the person and Article 15 on the right to be free from torture and other ill-treatment.
In 2015, the Committee went into more detail in its Guidelines on Article 14 on the right to liberty and the absolute prohibition of detention based on an actual or perceived psychosocial disability (impairment), including when combined with other criteria such as alleged danger to self or others, or alleged need for care and treatment (paragraphs 6-10, 13-15). (Note that an earlier version of the Guidelines appears in a google search; the correct document linked on the Committee’s webpage is titled GuidelinesArticle14 and the incorrect one is titled GuidelinesOnArticle14.)
The Guidelines also reiterate the standard in General Comment No. 1 with respect to legal capacity in crisis or emergency situations (paragraphs 11 and 22-23), and announce that forced treatment, as well as the use of any kind of restraint in mental settings, is a violation of Article 15, which prohibits acts of torture and other ill-treatment (paragraph 12). In addition the Guidelines state that declarations of incompetence to stand trial or criminal non-responsibility, and detention based on such declarations, contravenes Article 14 (paragraphs 16 and 20). In their September 2015 session the Committee applied the prohibition of declarations of non-responsibility based on disability for the first time to a common-law country, Kenya, where the declaration was in the form of an insanity defense. Previously this had been applied in civil-law jurisdictions such as Mexico, Ecuador, and Belgium, where the regime of unimputability combines a declaration of non-responsibility with the preclusion of any right to stand trial and be considered innocent until proven guilty. The Committee has thus established a standard calling for equal substantive rights as well as equal procedural rights in the context of criminal responsibility.
This issue could have been addressed under Article 12 as well as under Article 14; under Article 14 there is an assumption of a process that leads to detention, whereas it would be helpful to leave open the question of forms of punishment and accountability to be developed in new ways in response to both the experiences of persons with disabilities and the movement led by survivors of prison incarceration to abolish the penal system as well. In any case, the Committee’s interpretation of Article 14 now very well reflects the intention that the disability community brought to this article in the negotiations and afterwards. It is a two-pronged non-discrimination provision; there can be no deprivation of liberty that is based in whole or in part on disability – such detention is a direct and deliberate act of discrimination, and furthermore all regimes of detention that are otherwise permitted under international law, including existing systems of criminal justice, must not discriminate in any way based on disability (see paragraphs 3-5 and 7). The Committee has recognized the value of restorative justice and other diversion mechanisms that do not amount to psychiatric commitment or compliance with mental health treatment (in its concluding observations and in the Guidelines, paragraph 21), and this is a helpful move in the direction of more progressive jurisprudence in the area of criminal justice overall, beyond equality rights of persons with disabilities.
The recognition that forced treatment is a violation of Article 15 is likewise a significant development, which began in 2008 when the Special Rapporteur on Torture first acknowledged that non-consensual psychiatric interventions could amount to acts of torture and ill-treatment, adopting the terminology I had proposed during the CRPD drafting process that drew attention to both the element of non-consent and the targeting of disabled persons for forcible correction of what is perceived to be our disordered bodies and minds. A subsequent Special Rapporteur on Torture declared in 2013 that states should impose an absolute ban on non-consensual psychiatric interventions (paragraph 89(b)), but later in response to the World Psychiatric Association and American Psychiatric Association backtracked and said he only intended the absolute ban when the intervention was based “solely” on disability (see also the entire compilation of responses to the report on torture in health-care settings, which includes an article by me). The Rapporteur’s position is odd in that is clearly intended to negate the idea of an absolute ban but is a meaningless standard. A psychiatric intervention that was not based “solely” on disability would be based on other impermissible grounds, such as behavior control, which is not a legitimate reason for an invasive medical treatment. The Rapporteur was likely thinking of the standard that was rejected in the CRPD negotiations with respect to detention based on disability; however even pre-CRPD it was recognized that medical treatment was a greater invasion of bodily autonomy than deprivation of liberty, and standards were not identical. In any case, the CRPD Committee has decisively rejected any arguments that attempt to insert “solely” into Article 14 with their analysis of the negotiating history in the Guidelines, pointing out that there were states as well as civil society that rejected the insertion of such a term on the basis that it would open the door to deprivation of liberty based on disability plus other factors (paragraph 7 of the Guidelines). It’s important to remember that we have had allies at every step, including within governments. Now that the Committee has taken the step of recognizing that forced treatment is unequivocally a violation of Article 15, we are on stronger ground in referring to forced and coerced drugging, forced and coerced electroshock, chemical, physical and mechanical restraints, as psychiatric torture plain and simple.
B. Contrary Developments Elsewhere
The CRPD Committee issued the Guidelines not only to clarify some of the most contentious issues surrounding the treaty and its interpretation, but also in response to developments elsewhere in the international and regional human rights systems that have gone contrary to Article 14. I reported on the revision of the Standard Minimum Rules on the Treatment of Prisoners, which authorizes psychiatric detention of those found not criminally responsible and also for purposes of observation and treatment. In addition, in 2014 the UN Human Rights Committee (monitoring body for the International Covenant on Civil and Political Rights) adopted General Comment No. 35 on ICCPR Article 9, liberty and security of the person, in which they adhered to their old standard of accepting psychiatric detention with procedural safeguards (see paragraph 19). The Council of Europe meanwhile proposed a protocol to the Oviedo Convention on Human Rights and Biomedicine that would elaborate on criteria and procedures for non-consensual psychiatric interventions. Consultations were being held through November 15 of this year, and no further news appears on the COE website. The CRPD Committee referred to these developments in the introductory paragraphs to the Guidelines on Article 14 (paragraph 1), providing context for their decision to take this step of issuing a document summing up and expanding on their jurisprudence addressed to particular countries in their concluding observations, so that the Committee’s official position is made known throughout the worldwide human rights regime and can also be more readily used for purposes of national monitoring and implementation, including in states that have not yet appeared before the Committee.
C. Basic Principles and Guidelines of the Working Group on Arbitrary Detention
The CRPD Guidelines on Article 14 incorporated a portion of another document issued in 2015 that offers hope to the survivor community: the UN Basic Principles and Guidelines on remedies and procedures on the right of anyone deprived of their liberty to bring proceedings before a court, adopted by the Working Group on Arbitrary Detention and presented to the Human Rights Council. The WGAD Principles and Guidelines are significant for several reasons. Like the earlier work of the Special Rapporteur on Torture, they represent an incorporation of the CRPD text and jurisprudence into general standards of international law beyond the treaty itself. The WGAD standards are applicable in all countries and not only states parties to the CRPD (or any other treaty); although they are non-binding they have weight as an interpretation of international law by an official body of the United Nations, and the WGAD furthermore has the power to consider individual cases and issue published opinions.
Principle 20 and Guideline 20 address the rights of persons with disabilities, and instruct judges to apply the absolute prohibition of “involuntary committal or internment on the grounds of the existence of an impairment or perceived impairment, particularly on the basis of psychosocial or intellectual disability or perceived psychosocial and intellectual disability.” Guideline 20 reiterates key aspects of CRPD jurisprudence including the requirement that mental health services be based on free and informed consent of the person concerned and that a person’s perceived or actual decision-making skills cannot be used to to justify denying the ability to hold rights and duties or exercise such rights and duties. Guideline 20 also incorporates in paragraph 106(c) a standard I have long advocated that applies independent living and full participation within the context of deprivation of liberty (for example, that in a prison setting people with disabilities should have the right to participate equally in mainstream activities and not be relegated instead to mental health programming). Paragraph 107, which is the portion incorporated into the CRPD Guidelines on Article 14, includes the right to stand trial with any needed support and accommodations and not be declared incompetent, and detailed description of the measures that judges might order in response to the efforts of a person detained in a psychiatric hospital or subjected to forced treatment to secure their release:
(1) Individuals who are currently detained in a psychiatric hospital or similar institution and/or subjected to forced treatment, or who may be so detained or forcibly treated in the future, must be informed about ways in which they may effectively and promptly secure their release, including injunctive relief;
(2) Injunctive relief should consist in an order requiring the facility to release the person immediately and/or to cease immediately any forced treatment and anysystemic measures, such as those requiring mental health facilities to unlock their doors and to inform persons of their right to leave, and establishing a public authority to provide for access to housing, means of subsistence and other forms of economic and social support in order to facilitate de-institutionalization and the right to live independently and be included in the community. Such assistance programmes should not be centred on the provision of mental health services or treatment, but free or affordable community-based services, including alternatives that are free from medical diagnosis and interventions. Access to medications and assistance in withdrawing from medications should be made available for those who so decide.
Note that these measures include collective and systemic remedies as well as release and cessation of forced treatment of the individual concerned. In addition, persons with disabilities are to be provided with compensation and other forms of reparation for arbitrary or unlawful deprivation of liberty (paragraph 107(f), also Principle 15 and Guideline 16). Deprivation of liberty based on an actual or perceived impairment, including mental health detention, is both unlawful and arbitrary under the Guidelines (see paragraph 24), since it is contrary to international law (see paragraph 12 of the accompanying report) and discriminates based on disability (see paragraph 10(e) of the accompanying report). The WGAD furthermore accepted in Guideline 20 (paragraph 106(b)) that:
The denial of legal capacity of persons with disabilities and detention in institutions against their will, without their consent or with the consent of a substituted decision-maker constitutes arbitrary deprivation of liberty in violation of international law.
This is the same language used by the CRPD Committee in General Comment No. 1 (para 41), and it is significant that the WGAD accepts that the prohibition of institutional detention without the person’s own consent is applicable as a matter of general or customary international law and not only as an obligation imposed on states parties to the CRPD. It is an important step in the consolidation of international law standards around the CRPD as the most authoritative text and interpretation relating to the rights of people with actual or perceived disabilities, notwithstanding the contrary standards still being applied by some actors in the international and regional systems.
4. Survivor Knowledge
Something interesting came up in the context of an interview that I participated in to inform a report being conducted by a journalist/researcher on the state of affairs in our movement. I found myself in the unlikely position of being called upon to justify the value and principle of survivor leadership and the definition of the movement I am part of, as being a survivor movement. The fact that this came up in a context where we are all assumed to be working at least for similar goals, for the abolition of psychiatric oppression (? perhaps – since others would characterize our goal as “psychiatric rights” or improvements in the mental health system, with which I would strenuously disagree) reminded me of the necessity to emphasize and draw distinctions between a liberation movement and a general cause. I am part of a liberation movement, which is a movement by and for the people who are being oppressed.
The fact that many or most of us do not identify with the labels imposed by the oppressor is a strength and not a weakness – we are survivors and do not need to be answerable to supposed allies who are not satisfied with our self-definition. (If we want further legal arguments, both the ADA and the CRPD jurisprudence accept the category of people who are perceived to have an impairment or disability as having rights to not be discriminated against based on disability. The CRPD as a human rights and non-discrimination treaty will be flexible enough to consider our various self-definitions as part of the human right to freedom of expression, and in the spirit of opposing the medical model of disability with a social model that is grounded in the lived experience of those concerned.)
Survivor knowledge is the center of gravity of our liberation movement, and should be the center of gravity for our allies who oppose psychiatric oppression or even who want to improve the mental health system (which, unless it also abolishes forced psychiatry and other psychiatric oppression, will be on the wrong side, and an anti-liberation movement; they would then not be allies). The fact that this is called into question highlights the elevation of non-survivor researchers, activists, academics and lawyers over those of us who are survivors and who may also have these roles or others from which to develop our theory and practice. The US movement in particular has had this tension from the beginning, with many leading figures who are non-survivors. It is high time for the elevation of non-survivors and the refusal to acknowledge our character as a liberation movement to stop, and for survivors to insist that it stop.
I am of course mindful of the criticisms that have been made of this website, and I do not really want to get into a dialogue with the site, as I believe that survivors need to gather our energies and focus on our connections with each other whether through this site or in other forums. This is another way that my work is informed by feminism and links up with feminist inspiration and values, as I similarly consider that women need to focus on our own gatherings and insist on the right to collectively as well as individually define and defend our boundaries. For more of my thoughts on survivor knowledge, please see this article, which I wrote for publication in an anthology but had to withdraw due to censorship.
This post is certainly a mixed bag, and I hope there is enough useful information and thought-provoking material to be worthwhile for readers. Due to my school work I do not have as much time to deal with all topics in depth. I believe that I am leaving WNUSP at a good time in that the international interpretation and application of the CRPD is secure enough so that the trajectory of my work begun in 2002 is completed.
There is still much work to be done to flesh out the way some of the standards need to work in practice, including criminal responsibility; the UN Office of the High Commissioner for Human Rights held an expert meeting on this topic in September 2015 in which I delivered a presentation based on my article Rethinking Criminal Responsibility. From my perspective we arrived collectively at a better solution that I reached in my article, agreeing that the solution was to consider the person’s social circumstances including issues of oppression and discrimination as part of a determination of responsibility, but not to place the person’s decision-making under scrutiny in any way. This is the way to mirror the role played by support for the exercise of legal capacity, since it is not a question of self-determination by the individual but instead a system of imposing consequences; in both contexts, the positive act of self-determination or self-defense as well as the complementary imposition of consequences for failure to adhere to obligations to the community we reject the judicialization of actual or perceived decision-making skills and instead provide support and accommodations for the individual act and consideration of social context as relevant to the social imposition of consequences. The potential for remedies and reparation, including an end to impunity, are wide open, and in that regard people living in countries that have ratified the CRPD Optional Protocol should consider bringing cases of psychiatric detention and forced interventions for the Committee to decide, and requesting systemic as well as individual relief including relevant reparations (see my post on Reparations and the material from Hege Orefellen on reparations including in a more recent post).
I also plan to work on possibilities for strategic litigation and law reform in the US; my exploration of legal theory is helping me to see how the paradigm shift from procedural safeguards to absolute prohibition, which the CRPD has now made in international law, can be accomplished and transferred to domestic law and US legal culture. As always, interested survivors and allies are welcome to connect me and exchange information and ideas.