In July, the UN Working Group on Arbitrary Detention released its final report on a visit to the United States that took place in October 2016, and has stated clearly to the United States that “involuntary institutionalization of persons with psychosocial disabilities and forced treatment is prohibited.”
During the visit, the Center for the Human Rights of Users and Survivors of Psychiatry submitted information and arranged for Working Group members to meet with users and survivors of psychiatry in Washington, DC and in San Diego, CA. Their information was limited by the extent to which we were able to provide legislation from particular states (we did not have the capability to inform reliably on each of the 50+ separate legislations) and by their inability to visit any civil-confinement mental health facility (they visited a substance abuse treatment center at a prison, everything else was jail/prison or immigration-related). Nevertheless, our provision of the text of relevant legislation, with our commentary, and especially the in-person meetings with survivor advocates — some of whom spoke about their personal experience of involuntary hospitalization — were well received and moved the Working Group members and staff.
Emily Sheera Cutler coordinated the meeting between a group of survivors and the WGAD in San Diego, and presented powerful testimony. The testimony of another participant in the San Diego meeting, who prefers to remain anonymous, was responsible for drawing the attention of the Working Group to the problem that ‘voluntary’ hospitalization is often coercive and does not include informed consent, which the WGAD included in its report. This advocacy initiative led Emily and others to form the group Southern California Against Forced Treatment.
Some individuals also submitted information about particular cases of detention in the mental health system (involuntary commitment and forced treatment) to the WGAD for their individual complaints procedure. This procedure can result in a written decision and is available in all countries, irrespective of whether they have ratified particular treaties such as CRPD.
WGAD recommendation and its value for US advocacy
In addition to stating that involuntary institutionalization and forced treatment are prohibited, the WGAD report recommends that the United States “enact an enforceable right under legislation for persons with psychosocial disability to live in the community and be provided with health services that are free from coercion and restriction. Additionally, ensure that legislation and practices relating to hospitalization respect due process guarantees.”
The recommendation might have been stronger, but it is still usable. The reference to due process guarantees should be understood in light of the WGAD’s statement in paragraph 76 of the report that voluntary institutionalization needs to be subject to guarantees, and that involuntary institutionalization is prohibited. This inverts the usual approach to procedural safeguards in mental health law by treating voluntariness as the right to be protected, and not the supposed ‘appropriateness’ of involuntary measures. In this way the CRPD paradigm is upheld but doesn’t find full expression, as there is no explicit recommendation to do away with legislative provisions that authorize involuntary commitment in violation of the standard the WGAD has declared.
The recommendation of enforceable rights to live in the community with services free from coercion and restriction supports the enactment of the Disability Integration Act, with provisions specifying that community-based services are defined as those in which an individual has a right to be free from coercion and restraint (S. 910 in 115th Congress, section 3(a)(3)(A)(iii)). CHRUSP has endorsed DIA and I have promoted this bill as a meaningful step toward abolishing forced psychiatric interventions and creating supports that people find useful and not harmful. If enacted, it would be the first such step taken by the federal government since the National Council on Disability (From Privileges to Rights, January 2000) characterized involuntary measures as “inherently suspect” and recommended that federal policy move toward a totally voluntary mental health system.
The WGAD left no doubt that “people with psychosocial disability” refers to those of us who are labeled with mental illness, who might personally identify in any number of ways. They also left no doubt that by “involuntary institutionalization” they mean involuntary commitment as defined in our states’ mental health laws, which contain provisions meant to justify the detention such as a criterion of “danger to self or others.”
The WGAD position that involuntary institutionalization and forced treatment are prohibited can be used directly in advocacy despite not being characterized as a recommendation. It is significant that a UN human rights mechanism has examined the US mental health system and recommended the abolition of coercion. Unlike the recommendations from the Human Rights Committee in 2014, where the fine print negated the general principle of prohibition, this time the UN means it.
The current recommendations are the result not only of the work of US advocates but of a worldwide movement and global advocacy that started with the drafting and negotiation of the Convention on the Rights of Persons with Disabilities. As many of you know, I participated in that process as primary representative of the World Network of Users and Survivors of Psychiatry, and successfully advocated the inclusion of provisions in that human rights treaty that require the abolition of forced psychiatry and of all substitute decision-making based on the supposed ‘best interests’ of an adult. The Committee on the Rights of Persons with Disabilities has had primary responsibility for interpreting the treaty provisions and affirming that they do require abolition of these practices, but other UN human rights officials including the Office of the High Commissioner for Human Rights, the Special Rapporteur on Torture, the Special Rapporteur on the Rights of Persons with Disabilities, the Special Rapporteur on Health, and the Working Group on Arbitrary Detention also play significant roles. Even the World Health Organization, not a human rights mechanism but influential throughout the world, is now affirming that involuntary treatment and involuntary hospitalization have to be abolished. None of this would have happened without global-level advocacy from our movement, or without the support of allies who were able to respond to the need to remedy deep injustices.
With respect to the WGAD in particular, CHRUSP and others had input into their general standard “UN Basic Principles and Guidelines on Remedies and Procedures on the Right of Anyone Deprived of Their Liberty to Bring Proceedings Before a Court” issued in 2015, which similarly states that detention based on psychosocial disability and forced treatment are prohibited (see principle 20 and guideline 20). At that time one version of the Basic Principles and Guidelines contained contradictory footnotes that raised doubt about what standard the WGAD would apply in practice in the case of mental health system detention. However, that question now seems to be resolved, both with the report on the USA visit, and with the Working Group’s participation in an Urgent Appeal to Norway in a case of forced psychiatry issued a few months ago.
The Urgent Appeal in the Norwegian case demonstrates even more forcefully the potential for UN human rights mechanisms, including the WGAD, to respond with great sensitivity to the injustice of forced psychiatry. The information in that case was submitted to the WGAD by a skilled advocate and the UA reflects careful work and attention by all concerned.
Advocates in Japan have taken note of the WGAD’s interest and sensitivity to forced psychiatry, and have established a center to bring cases to the WGAD communication procedure.
Step by step, the global advocacy and national advocacy support each other as part of a worldwide movement, much of our work done without any funding, to abolish forced psychiatry using the UN human rights framework. Will you join?
Text of relevant sections of WGAD report on US visit
Here is the text of the Working Group’s section related to confinement in mental health settings, and their recommendation:
Involuntary hospitalization and treatment of persons with psychosocial disabilities
75. The Working Group received information on mental health laws in several jurisdictions, including Washington, D.C., and California, which authorize involuntary hospitalization based on an actual or perceived psychosocial disability, and mental health treatment without obtaining the free and informed consent of the persons concerned or providing the appropriate support to enable them to exercise their legal capacity. This form of confinement is justified using criteria such as danger to the confined person or others and/or the need for care and treatment, which is inherently discriminatory since it is based on the person’s actual or perceived impairment. The Working Group received testimony from individuals who had been subjected to prolonged periods of detention in psychiatric institutions in violation of their human rights. In some cases, individuals were subjected to “voluntary hospitalization”, but without their informed consent to treatment and without the ability to leave at any time.
76. The voluntary institutionalization of persons with psychosocial disabilities needs to take into account their vulnerable position and their likely diminished capability to challenge their detention. If such persons do not have legal assistance of their own or of their family’s choosing, effective legal assistance through a defence lawyer is to be assigned to act on their behalf and the necessity of continued institutionalization is to be reviewed regularly at reasonable intervals by a court or a competent independent body in adversarial proceedings and without automatically following the expert opinion of the institution where the persons are held. The persons are to be released if the grounds for hospitalization no longer exist. Involuntary institutionalization of persons with psychosocial disabilities and forced treatment is prohibited.
89. The Working Group found that an increasing number of people were subject to a relatively hidden and unknown form of detention through civil confinement proceedings or involuntary hospitalization in relation to suspected substance abuse and mental health issues. Both forms of detention discourage the seeking and provision of appropriate health services to those who have given their informed consent to receive treatment and often lack basic due process guarantees such as legal representation, the ability to present contradictory evidence and periodic review. Such detention is often based on discriminatory grounds such as gender and disability.
94. In relation to detention on health-related grounds, the Government should:
… (c) Enact an enforceable right under legislation for persons with psychosocial disability to live in the community and be provided with health services that are free from coercion and restriction. Additionally, ensure that legislation and practices relating to hospitalization respect due process guarantees.
In addition to mental health settings, the WGAD addressed involuntary confinement of pregnant women suspected of substance abuse, under health-related grounds. They also took up the issue of people with psychosocial disability in the criminal justice system and perhaps their recommendations are not harmful, though they need to be taken in light of the prohibition on involuntary treatment, which was not specifically mentioned in the prison context but is certainly applicable. The WGAD did not directly address information on police and jail personnel killing people with psychosocial disabilities, which we provided to them, and are responding to other advocates who come from a more conventional mental health paradigm.
Detention of persons with psychosocial disabilities in prisons
68. The proportion of prison inmates with a psychosocial disability has grown significantly throughout the United States, despite findings that incarceration can cause or exacerbate mental health problems. Several interviewees described the situation as the “criminalization of psychosocial disability”. State prisons and county jails hold as many as 10 times more people with serious psychosocial disabilities than state psychiatric institutions. Prisons serve as the largest mental health providers in 44 of the 50 states, at significant cost to the state. For instance, one third of detainees at Cook County Jail self- identify as having some form of psychosocial disability. On any given day, approximately 20 per cent of prisoners undergo mental health treatment, making that facility one of the largest de facto mental health facilities in the country. By 2015, almost one in three people in Texas jails had at least one serious psychosocial disability. Apart from the fact that prisons and jails are often ill-equipped to provide appropriate care to inmates with psychosocial disability, submissions to the Working Group indicated that such inmates are more likely to be abused by other inmates.
69. In order to address this situation, the Sheriff of Cook County has led the development of a mental health template for United States jails. In addition, the Cook County Jail has implemented mental health assessments at two stages, i.e. at the pre-bond and post-admission stages. This allows officials to place detainees in an adequate housing and treatment plan and to supply inmates with the tools needed to succeed outside the correctional institution. There is also a voluntary outpatient treatment programme available (the Mental Health Transition Center) for detainees with substance abuse disorders or psychosocial disabilities. Detainees interviewed by the Working Group expressed positive views about the programme.
70. The Working Group observed a strong correlation between reported psychosocial disability and substance abuse among persons interviewed during the visit, and received information that as many as 55-69 per cent of individuals with substance abuse disorders had a co-occurring mental health problem. Furthermore, 60 per cent of those with a mental health condition had a co-occurring substance abuse disorder. The Working Group was informed that Corcoran II State Prison in California was addressing those issues through its substance abuse and mental health treatment facilities.
88. The Working Group identified systemic problems within the criminal justice system which placed defendants at a high risk of arbitrary detention, including: … the housing of inmates with psychosocial disabilities in prisons….
93. In relation to detention in the criminal justice system, the Government should:
(i) Ratify the Convention on the Rights of the Child and the Convention on the Rights of Persons with Disabilities, as well as other international human rights instruments to which it is not a party, and review all reservations with a view to withdrawing them; [my comment: CRPD ratification should have been in general section, not criminal justice]
(j) Expand access to the treatment of psychosocial disabilities outside the criminal justice system and develop pre-arrest and pretrial intervention programmes aimed at preventing the incarceration of persons in need of mental health treatment. Additionally, develop protocols to protect inmates with psychosocial disability from abuse and provide training to law enforcement and corrections officers on de-escalation skills when inmates suffer mental health crises. Ensure appropriate follow-up so that individuals are able to access mental health treatment upon release.
Final remarks and takeaway
The advocacy that we did with the Working Group on Arbitrary Detention specifically for this visit and report only scratched the surface. We know that every jurisdiction in the US — every state and territory — has laws that allow involuntary hospitalization and involuntary treatment in mental health settings. We know that there are thousands (tens of thousands, hundreds of thousands? who has the numbers?) of cases where people’s human rights are being violated right now by these practices.
The WGAD can receive information about specific cases and issue opinions, which can contribute to exert pressure on the country to release the individual and change its practices even though the decisions are not enforceable.
It takes dedicated personnel and effort to submit cases and present them well, to compile all relevant information and make sure that all facets of the case that the person wants to bring forward are well expressed. Similarly, to systematically compile good and comprehensive information on the mental health legislation, including the criminal procedure legislation that relates to forensic mental health detention, and laws or cases relating to forced treatment, and statistics on how many people are formally on involuntary status and under formal involuntary inpatient or outpatient treatment, and then to estimate how much involuntary hospitalization and treatment is hidden under formally voluntary statuses.
We need to work closely and collaboratively, in projects led by psychiatric survivors — really led, not as figureheads or consultants — and involving lawyers who may or may not be survivors, researchers who may or may not be survivors, and anyone else who wants to pitch in. We will need funding for some of this, and it’s not going to come from SAMHSA or state mental health agencies.
The experience with the WGAD’s visit to the US is a watershed for our work against forced psychiatry in this country. We should be inspired and gratified by the success, by the concrete evidence that the UN will apply human rights standards to the United States to urge the abolition of forced psychiatry.
It may seem delusional (yes I use the word advisedly) to think that we have a prayer of abolishing forced psychiatry in a country where the proponents of all-medical-model-all-the-time, all-coercion-all-the-time, have gotten to be in power. But there is always a choice about how we define the terms of our resistance. Will we limit ourselves to trying to bring back a status quo before the most recent attacks — a status quo in which many of us had been locked up and abused, subjected to the human rights violations of arbitrary detention and torture? Or will we put in that effort instead to make the leap to a fight for total abolition?
I think the Disability Integration Act is a meaningful step because it takes abolition, the paradigm of no-force, as a starting point, and then elaborates positive entitlements to support on that basis, while containing no actual exceptions. This is what we did in the CRPD, that led to more explicit articulation of the prohibition of forced psychiatry as its logical implication and interpretation. There are differences: CRPD as a human rights treaty is subject to different interpretive approaches than US legislation, and the language was stronger for the purpose in CRPD. But DIA, like CRPD, can put it on the table at the level of official law and policy — do you really mean we should let mental patients go free, yes we do, and here’s why — and people start to think about it for themselves and understand there’s a new way of thinking that is win/win, nobody is being harmed and we are reducing social conflict and distress.
It’s time for an independent, collaborative framework — independent from any mental health funding — that is able to bring together all those in the United States who want to seriously work for abolition of forced psychiatry, utilizing the UN human rights framework along with other relevant tools. I am talking specifically about forced psychiatry as a legalized system that gives state authorization for the violation of our physical and mental integrity and for discriminatory and unjustifiable deprivation of liberty. In other words, what the UN CRPD Committee has started to call “regulatory” institutionalization and forced treatment, which subjugates us to psychiatry not merely as a patriarchal capitalist institution of social control but as an authorized functionary of state repression directed against our individual minds and bodies. As a victim and survivor, I believe that it is necessary to abolish the specific state permission that allows these practices to exist with impunity, and prevents us from defending ourselves against them. It matters to me that I was tortured, and that friends are being tortured now and I cannot stop it. So with all due respect to those who promote abolition of psychiatry as a whole, that is a related struggle, but the abolition I am talking about is focused differently.
We need pilot projects specifically related to the human rights framework of abolition of forced psychiatry, and supports that respect the person’s autonomy, will and preferences. We need litigation strategies for US courts, to raise international human rights standards as persuasive authority (see e.g. In re Dameris L., an early use of CRPD in a guardianship case that is noteworthy despite the result not being as far-reaching as total abolition) and/or to develop analogous doctrines within US constitutional framework. We need concerted advocacy campaigns at state and federal levels, to investigate the possibilities for putting the human rights no-force paradigm into our domestic law and figuring out how to make it happen. We have powerful enemies, just as the disability movement has powerful enemies in the nursing home industry yet has managed to have a lot of success in getting people out of those institutions despite not yet achieving total abolition (DIA and also single payer health care can help in that area).
Maybe we will get angry enough to be militant and not be scared of the stereotype of the angry mental patient — somehow even writing this I find it necessary to specify that I mean confrontational civil disobedience as ADAPT does, or the Standing Rock water protectors, setting aside the idea of punching actual Nazis or anyone you decide is a Nazi-equivalent. Militance as standing in your own authority and justice against the violence of the state. We will be characterized as angry mental patients whatever we do that is noncompliant with their control, so let’s take the discussion in a different direction. Yes, we are militant and we have good cause.
We need a collaborative framework, and we need enough honesty among ourselves to not play petty politics, if that is possible. But as a start we also just need to start small, as many of us as possible start something along these lines, as the Southern California group has done, as my Norwegian colleague has done with a pro bono law project, as the Japanese activists are doing with their project to submit cases to the WGAD, as my Korean colleague has done bringing constitutional court cases and creating a regional project to draft a model law on inclusion for Korea, Japan and Taiwan. Those of us working in this area can develop our own capabilities and also develop trust in collaboration over time.
It has to be worth it, as we start to transform our own lives and the lives of everyone around us, and collectively become more and more willing to believe that another way is possible.