Olga Runciman – ‘A true story filled with lies’

I wrote this piece from a place of anger and outrage and it was never intended for anyone’s eyes or ears and is therefore completely raw.

A series of circumstances resulted in Michael Rassum reading it and he said I can put music to this. The result is our spoken word ‘A true Story Filled with Lies’

Why did I write it? Because this person whom I call Peter (not her real name) died of her psychiatric drugs and despite it being a clear cut case her family and I watched how psychiatry closed around itself, protecting itself and they got away with it. For years her family have sought justice just like so many others. They never got it.

Her death was the reason that we were a group who joined together and created the organization ‘Death in Psychiatry’ an organization for those who have lost a loved one to psychiatry and to stop others suffering the same fate. Dorrit Cato Christensen who has also contributed to this campaign lost her daughter and she is also one of the founding members of the organization and is today the chair.

Psychiatry has been unable to prove that it is dealing with a biogenetic illness and, likewise, its drug treatments fall dismally short of what is considered good evidence based medicine. On the contrary the evidence especially long term, point at an increased risk of chronicity, brain damage, early death – up to 25 years shorter and, as in ‘Peter’s’ case, sudden death due to drug induced arrhythmia of the heart.

To force treat people with drugs that carry with it a risk of brain damage, death and little evidence of any long, term benefits what so ever, is an unspeakable act of institutional violence.

This piece is a true story the only thing that is changed is the name and gender. It is in three sections. “Death”, “Big Pharma, the Unholy Alliance” and finally the funeral called the “Winds of Change”.

I am today a psychiatric survivor, but this could have been me.
Or you or one of your loved ones…

Please support CRPD Absolute Prohibition of Commitment and Forced Treatment.

 

Linda Steele: Challenging Law’s ‘Monopoly on Violence’

Challenging Law’s ‘Monopoly on Violence’: Human Rights and Disability-Specific Lawful Violence

Dr Linda Steele, Lecturer, School of Law University of Wollongong, Australia

29 March 2016

The Convention on the Rights of Persons with Disabilities[i] (‘the CRPD’) provides a human rights basis for seeing non-consensual medical treatment, detention and chemical and physical restraint as forms of discriminatory violence against people with disability. United Nations human rights bodies must be consistent and persistent in urging states parties to reform criminal and civil laws to explicitly prohibit these practices and provide legal avenues for redress. Until this occurs, these practices will continue to be lawful forms of violence which are condoned and, indeed, made possible by the state and by law.

In my blog post I will briefly discuss the concept of ‘lawful violence’ and why non-consensual medical treatment, detention and physical and chemical restraint constitute ‘disability-specific lawful violence’. I will then explain how the CRPD provides a human rights basis to contest the lawfulness of this violence, and what needs to be done to urge states parties to follow the CRPD and ultimately prohibit and remedy disability-specific lawful violence.

Questioning Violence’s Legal Status

People with disability experience disproportionately high rates of violence when compared to people without disability[ii] (even taking into account the issues with data collection which result in an under-quantification of the rates of violence against people with disability[iii]). There are numerous approaches to categorizing violence against people with disability for the purposes of analysis and devising recommendations for law reform directed to reducing its incidence and enhancing justice for survivors. One approach which I adopt in this blog post is to categories violence in terms of its legal status under domestic law: whether violence is prohibited and legally actionable, or instead permitted and condoned by law. This approach is particularly fruitful for appreciating the significance of the interface of the CRPD and domestic law to states parties addressing all forms of violence against people with disability.

  • Unlawful violence

Some unwanted contact, detention and restraint against people with disability constitutes ‘unlawful violence’ – violence that is prohibited by domestic criminal laws (e.g. offences of assault or sexual assault) and/or constitutes a tortious wrong pursuant to civil law (e.g. torts of battery or false imprisonment). While people with disability experiencing ‘unlawful violence’ technically have available to them criminal and civil legal protection and remedies, at an individual level there are considerable issues with enforcing these laws vis-à-vis survivors with disability. These issues are due to such factors as discriminatory views about disability (and the intersection of disability with gender, sexuality, race, criminality and age) held by police, prosecutors and judges, and because of discriminatory evidential and procedural laws.

Despite the significant issues with ‘unlawful violence’ vis-à-vis people with disability, there are some forms of unwanted contact, detention and restraint of people with disability which do not even fit within this category of ‘unlawful violence’ such that there is not even the possibility of punishment and remedy. For present purposes, non-consensual medical treatment, detention and restraint of people with disability do not fall within the category of ‘unlawful violence’, as I will now turn to explain.

  • Lawful violence

Some unwanted contact, detention and restraint of people with disability – notably non-consensual medical treatment, detention and physical and chemical restraint – is not prohibited or actionable under domestic law and instead is legally permissible. As such, these practices fall outside of the category of ‘unlawful violence’ and sit in a different category of ‘lawful violence’ or, as I term it by reason of the significance of ‘disability’ to its lawfulness, a category of ‘disability-specific lawful violence’.[iv]

Disability-Specific Lawful Violence

Drawing on the work of Robert Cover[v] on ‘legal violence’ (i.e. violence permitted by law), Austin Sarat and Thomas Kearns[vi] argue that law has a ‘monopoly’ on violence, because law determines what is possible to do to another’s body without any legal accountability. Domestic law, and particularly criminal law and tort law, has singular control over violence because regardless of individual experiences of or social values towards unwanted contact detention and restraint (or, indeed, even international human rights perspectives on unwanted contact, detention and restraint) it is the domestic legal system that determines what will be punished or remedied and conversely what will be permitted and go without any punishment of the perpetrator or remedy for the survivor. Unwanted contact, detention and restraint becomes violence that is ‘lawful’ where it is permitted by law. This is not to suggest that legal permissibility means that lawful violence is completely at large. Generally, lawful violence is deeply embedded in legislative and common law frameworks and in judicial and administrative procedures (many of which purportedly ‘protect’ those subjected to lawful violence through ‘procedural’ oversight). Therefore, the state and law are significantly complicit in the operation of and legitimation of unwanted contact, detention and restraint where this is permitted by law.

  • Lawfulness

Turning then to non-consensual medical treatment, detention and physical and chemical restraint of people with disability, these practices are lawful violence in the sense discussed above because they are not prohibited by or actionable under law. In very general terms, criminal law defines assault and civil law defines battery in terms of non-consensual interpersonal physical contact or the non-consensual threat of such contact. The tort of false imprisonment and related criminal offences consider detention and restraint unlawful where it is the non-consensual deprivation of liberty in a delimited space. In the face of the general criminal and tortious prohibition of these acts, the entry point for the legality of such acts vis-à-vis people with disability is the legal exceptions to unlawful violence created by certain defences to criminal responsibility and tortious liability: consent, necessity and lawful authority. These are discussed here in very general terms (noting there will be differences between jurisdictions):

  1. Consent: Interpersonal physical contact does not constitute assault if consented to by the individual. However, where the individual does not have capacity to consent, the law permits a third party to consent on that person’s behalf. In the context of medical treatment of people with disability (such as sterilization) there are established legal processes for recognizing third party consent, e.g., involving determining lack of legal capacity on the basis of mental incapacity and then determining whether the medical decision is in the individual’s ‘best interests’ or a ‘step of last resort’.[vii]
  2. Necessity: Non-consensual medical treatment, detention and physical and chemical restraint of people with disability might also be considered to fall in the defence of medical necessity if the procedure is considered ‘necessary’ in order to protect the individual’s life, health or wellbeing and the act is reasonable and proportionate to the ‘harm’ to be addressed (regardless of whether this harm is in the context of an immediate and short term emergency or an ongoing state of affairs).[viii]
  3. Lawful authority: Non-consensual medical treatment, detention and physical and chemical restraint of people with disability are lawful when done pursuant to statutory or judicial authority.[ix] Such authority includes civil and forensic mental health legislation authoring detention and treatment, as well as legislation authorizing chemical and physical restraint.

These defences carve out an exception to ‘unlawful violence’ for non-consensual medical treatment, detention and physical and chemical restraint of people with disability, such that they become forms of ‘lawful violence’ regulated by law. This procedural protection on an individual basis of when and how such interventions take place elides questioning at a systemic level why these unwanted practices should ever be permitted and in turn elides categorically naming these practices as violence.

Yet, the ‘regulation’ by law of these practices is typically framed as ‘protective’ because law’s involvement provides administrative and judicial procedural oversight to when and how these non-consensual interventions occur. In fact, the greater ‘procedural justice’ afforded to people with disability in the past couple of decades is frequently characterized as a marker of a more enlightened and progressive approach by law and society to people with disability insofar as it is juxtaposed to earlier purportedly extra-legal, arbitrary and repressive practices towards people with disability. However, far from showing law’s role in the ‘salvation’ or ‘empowerment’ of people with disability, the legal processes through which non-consensual medical treatment, detention and physical and chemical restraint of people with disability are permitted in fact signal law’s complicity in this violence: the state’s regulation of a legal economy of violence against people with disability. The state and law contributes to the production of broader social and ethical norms about what is permissible to be done to people with disability and ultimately lowers the value of the bodies and lives of people with disability.

The status of some violence against people with disability as lawful has implications for the punishment of perpetrators and remedies for survivors – in short, there are none. For example, if an individual is detained in a mental health facility and given treatment pursuant to a court order made under civil mental health legislation, that individual cannot report this to police and have the doctor charged with assault (although if the doctor acts outside of the specifics of the order, this would then be unlawful). Similarly, if a girl with intellectual disability is sterilized pursuant to her parent’s consent, she cannot claim civil damages for battery where the doctor acted pursuant to her parents’ decision which was authorized by the court as being in her best interests. A further example is the detention in forensic mental health system of a non-convicted individual on basis of unfitness: this is lawful if is unfitness determined pursuant to the legal process specified by forensic mental health legislation and an individual cannot claim damages for years of imprisonment.

  • Disability-specificity

Above I have explained how non-consensual medical treatment, detention and physical and chemical restraint of people with disability become ‘lawful violence’. I refer to this as ‘disability-specific’ lawful violence because disability is central to the lawfulness of this violence specifically to (and sometimes exclusively to) people with disability:

  1. This violence occurs in institutional circumstances specific to the marginalization, segregation and regulation of people with disability, e.g., mental health facilities, forensic mental health system, sterilization.
  2. Circulating across all of the defences discussed above and the associated legal frameworks of substituted decision-making (in the context of the defence of consent) and authorizing legislation (in the context of the defence of lawful authority), are stereotypes about disability as exemplified by judicial interpretation of such value-laden legal concepts as ‘harm’, ‘necessity’, ‘reasonable’, ‘best interests’ in relation to people with disability.[x]
  3. These defences and the associated legal frameworks of substituted decision-making and authorizing legislation appear as socially and ethically acceptable because of ideas associated with people with disability as needing (and benefiting from) medical treatment, detention and restraint. Significant here are discourses of disability linked to medicine and defect (rationales of therapy), helplessness (rationales of care and protection) and danger (rationales of risk management).
  4. Running across all of the defences and the associated legal frameworks of substituted decision-making and authorizing legislation is the significance of ‘mental incapacity’: either as the basis for the removal of legal capacity (e.g. in defences of consent and necessity) and/or as a basis for indicating lack of self-control, danger or vulnerability (e.g. in defences of necessity and lawful authority). ‘Mental incapacity’, while typically thought of as a scientifically objective characteristic of individuals, is a problematic concept embodying norms of rationality, self-sufficiency and bodily impermeability that are premised on an able subject.[xi]

Therefore, categorizing violence against people with disability in terms of its legal status illuminates how some violence against people with disability is legally permitted and state sanctioned. Where law has a monopoly over ‘violence’ against people with disability, it is arguable that turning to law to address individual instances of this violence is futile. A criminal or civil action can never be successful even with the best lawyers and judges: we cannot turn to domestic law for punishment or remedy (nor can we turn to the state to condone this violence) because law says they are not ‘violence’ in the legal sense and as such are not wrongs or harms and do not constitute injustices.

CRPD and Disability-Specific Lawful Violence

The CRPD provides the possibility of seeing non-consensual medical treatment, detention and physical and chemical restraint of people with disability as violence, and provides a human rights basis for states parties to prohibit these practices as unlawful violence. The CRPD explicitly imposes obligations on states parties to protect people with disability from violence, including by taking legal measures (presumably to prohibit violence and provide appropriate remedies). Article 16 of the CRPD states in part that: ‘States Parties shall take all appropriate legislative, administrative, social, educational and other measures to protect persons with disabilities, both within and outside the home, from all forms of exploitation, violence and abuse, including their gender-based aspects.’

Yet, the obligation in Article 16 is not merely to protect individuals from currently unlawful violence, e.g., enhancing enforcement in relation to individual cases. Rather, when Article 16 is read in conjunction with other Articles of the CRPD, it becomes apparent that states parties’ obligations under the CRPD in relation to violence include protecting people with disability from forms of violence which are presently lawful and hence from ‘disability-specific lawful violence’:

  1. The right to equality and non-discrimination in Article 5 and the right to personal integrity in Article 17 of the CRPD mean that individuals must have recognized their self-determination and ability to make their own decisions to consent to or withhold consent to interventions in their bodies and in their lives to the same degree as people without disability. People with disability cannot be subjected to non-consensual physical contact, detention or restraint on the basis of their disability.
  2. The right to equality and non-discrimination in Article 5 in conjunction with the right to legal capacity in Article 12 of the CRPD means that individuals should have their legal capacity to make decisions recognized to the same extent as individuals without disability and should not be denied legal capacity on the basis of ‘mental incapacity’. The right to exercise autonomy in consenting or withholding consent should be available to all regardless of perceived ‘mental incapacity’. In turn, non-consensual physical contact, detention or restraint on the basis of a denial of legal capacity is discriminatory because it applies only to individuals with a disability-linked ‘mental incapacity’ (itself a discriminatory concept, as mentioned above).[xii] On a similar basis, non-consensual detention on the basis of disability constitutes arbitrary detention pursuant to Article 14.[xiii]
  3. The right to freedom from torture in Article 15 means that the purportedly protective judicial and administrative procedural frameworks surrounding non-consensual contact, detention or restraint could, perversely, render these interventions not merely violence but state-sanctioned discriminatory violence and hence torture.[xiv]
  4. The shift evident in the preamble to the CRPD in the meaning of disability from a medical model to disability as ‘an evolving concept and that disability results from the interaction between persons with impairments and attitudinal and environmental barriers that hinders their full and effective participation in society on an equal basis with others’ illuminates the significance of the social and political contingency of the meaning of disability to the realization of the human rights of people with disability including through domestic legal frameworks. In turn, this shift suggests that stereotypes about disability might presently circulate in legal frameworks that render lawful non-consensual contact, detention or restraint of people with disability.

The CRPD is quite radical in the new approach to violence against people with disability that it provides. This is because this approach contests foundational concepts of consent, capacity, state/judicial authority which order domestic legal systems (and to a certain extent international human rights law). This approach also contests old (but ever growing) institutions, disciplines and industries of incarceration and therapy through which non-consensual physical contact, detention or restraint are administered.

What needs to be done?

Despite these rather revolutionary ideas about disability and violence provided by the CRPD, disability-specific lawful violence continues. While the CRPD has prompted some states parties to ‘review’ (though perhaps not necessarily ‘reform’) capacity laws and mental health laws, ten years on from the coming into force the CRPD has not witnessed the prohibition of non-consensual physical contact, detention or restraint of people with disability.

Here I conclude by making a number of suggestions related to the significance of the interface of CRPD and domestic law to the prohibition and remedying of (presently lawful) violence against people with disability.

United Nations human rights committees must be consistent and persistent in urging states parties to reform criminal and civil laws to explicitly prohibit non-consensual physical contact, detention or restraint of people with disability including prohibit forced medical treatment, detention and chemical and physical restraint. United Nations human rights bodies should continue to encourage states parties to remove or withdraw interpretive declarations which interpret human rights to enable non-consensual medical treatment, detention and restraint (even when only as a ‘last resort’ or when in ‘best interests’). Unfortunately, these strategies might be impeded by the discrepancies which exist between United Nations human rights bodies in relation to the approach to disability and violence, with some human rights bodies failing to acknowledge disability-specific lawful violence and focusing on the ‘procedural’ protection approach to (regulating) violence. The discrepancies between United Nations human rights bodies might enable states parties to pick and choose how to interpret their obligations related to violence in such a way that ultimately focuses on addressing currently ‘unlawful’ violence and ignoring eliminating disability-specific lawful violence. United Nations human rights bodies might need to turn to consider the ideas of disability underpinning their approaches to violence against people with disability, some of which might precede the CRPD and its shift from a medical approach to disability.

A number of additional strategies which states parties should pursue (and which United Nations human rights bodies should encourage states parties to pursue) include:

  1. States parties should not limit their ‘review’ and ‘reform’ efforts to attaining a best practice in judicial and administrative oversight of disability-specific lawful violence (i.e. through procedural safeguards) to questioning whether some practices should ever be state sanctioned on anyone (including people with disability) regardless of the legal procedure through which this sanctioning occurs. Central to this is making apparent and naming the ideas about disability inherent in the law itself, rather than only addressing stereotypes about law that circulate in the application or enforcement of law at an individual level. This involves denaturalizing centuries-old legal concepts, legal procedures and jurisdictions – some of which are foundational to legal authority generally.
  2. States parties should consider the intersection of ideas about disability with other dimensions of identity, particularly being mindful of the identities of the individuals to whom these practices disproportionately apply: e.g. gender and forced mental health treatment and detention of women, age and chemical and physical restraint of older people with dementia in aged care facilities, Indigeneity and over-representation of Indigenous Australians in forensic mental health detention, gender and sterilization, ideas about criminality re people in forensic mental health detention.
  3. States parties should revisit the ideas of bodies and space envisaged by domestic laws related to violence, notably in relation to false imprisonment. In domestic law, detention and restraint focuses on external factors which restrict the individual’s movement – yet much of the interventions in the disability-specific context work from within the body – to restrain and regulate from within (e.g. chemical restraint[xv]).
  4. States parties should develop a strategy for ‘transitional justice’[xvi] that addresses prohibiting and making legally actionable future instances of non-consensual medical treatment, detention and restraint as well as developing a system to recognize, remedy and remember past instances of these practices when they were still lawful.[xvii] This might involve thinking beyond disability to how law (both international and domestic legal frameworks) have dealt with mass atrocities, historical injustices and state-sanctioned violence in relation to other marginalized groups. This system must not only focus on the individuals and institutions administering these practices, but also address how to make the state and law account for their complicity.
  5. States parties should address the role of ‘para-legal’ regulatory frameworks such as bioethics (e.g. research, clinical, professional) in legitimizing the administration of disability-specific lawful violence.[xviii]
  6. States parties should work with health, medical and disability services to challenge institutional, disciplinary and (importantly in an increasingly privatized and corporatized context) economic imperatives[xix] for the continuation of the administration of disability-specific lawful violence.
  7. States parties should encourage reforms to tertiary legal education which take a critical approach to disability and to disability-specific lawful violence in courses such as criminal law and tort law. Typically, law text books cover the operation of defences in relation to people with disability in a self-evident and non-critical manner which then naturalizes the legal treatment of people with disability and negates their subjection to violence and the law and state’s complicity in this violence.

Ultimately, the lower legal threshold of violence in relation to people with disability reflects a devaluing of bodies and lives of individuals with disability – until this is addressed the human rights of people with disability promised by the CRPD will be profoundly and disappointingly incomplete.

 

[i] Convention on the Rights of Persons with Disabilities, opened for signature 13 December 2006, 2515 UNTS 3 (entered into force 3 May 2008).

[ii] See, e.g., Karen Hughes, Mark A Bellis, Lisa Jones, Sara Wood, Geoff Bates, Lindsay Eckley, Ellie McCoy, Christopher Mikton, Tom Shakespeare and Alana Officer, ‘Prevalence and Risk of Violence against Adults with Disabilities: A Systematic Review and Meta-Analysis of Observational Studies’ (2012) 379(9826) Lancet 1621.

[iii] See, e.g., Jess Cadwallader, Anne Kavanagh and Sally Robinson, ‘We Count What Matters, and Violence Against People with Disability Matters’, The Conversation, 27 November 2015, http://theconversation.com/we-count-what-matters-and-violence-against-people-with-disability-matters-51320, accessed 6 January 2016.

[iv] On ‘disability-specific lawful violence’ generally see, e.g., Linda Steele, ‘Disability, Abnormality and Criminal Law: Sterilisation as Lawful and Good Violence’ (2014) 23(3) Griffith Law Review 467; Submission to the Senate Community Affairs References Committee, Inquiry into violence, abuse and neglect against people with disability in institutional and residential settings, including the gender and age related dimensions, and the particular situation of Aboriginal and Torres Strait Islander people with disability, and culturally and linguistically diverse people with disability (2015).

[v] Robert Cover, ‘Violence and the Word’ (1986) 95 Yale Law Journal 1601.

[vi] Austin Sarat and Thomas R Kearns, ‘Introduction’ in Austin Sarat and Thomas R Kearns (eds), Law’s Violence (University of Michigan Press, 1992) 1, 4.

[vii] In the Australian context see, e.g., Secretary, Department of Health and Community Services v JWB (1992) 175 CLR 218.

[viii] In the UK and Australian context see, e.g., Re F (Mental Patient Sterilisation) [1990] 2 AC 1.

[ix] In the Australian context see, e.g., Coco v R (1994) 179 CLR 427.

[x] On best interests see, e.g., Linda Steele, ‘Making Sense of the Family Court’s Decisions on the Non-Therapeutic Sterilisation of Girls with Intellectual Disability’ (2008) 22(1) Australian Journal of Family Law 1.

[xi] See, e.g., Linda Steele, ‘Disability, Abnormality and Criminal Law: Sterilisation as Lawful and Good Violence’ (2014) 23(3) Griffith Law Review 467.

[xii] Committee on the Rights of Persons with Disabilities, General Comment No 1 (2014): Article 12: Equal recognition before the law, 11th sess, UN Doc CRPD/C/GC/1 (19 May 2014).

[xiii] Committee on the Rights of Persons with Disabilities, General Comment No 1 (2014): Article 12: Equal recognition before the law, 11th sess, UN Doc CRPD/C/GC/1 (19 May 2014); see also Report of the Working Group on Arbitrary Detention: United Nations Basic Principles and Guidelines on Remedies and Procedures on the Right of Anyone Deprived of Their Liberty to Bring Proceedings Before a Court, 30th sess, UN Doc A/HRC/30/37 (6 July 2015), notably Principle 20 and Guideline 20.

[xiv] Committee on the Rights of Persons with Disabilities, General Comment No 1 (2014): Article 12: Equal recognition before the law, 11th sess, UN Doc CRPD/C/GC/1 (19 May 2014) 11[42]. On non-consensual medical treatment, detention and restraint of people with disability as torture, see Dinesh Wadiwel, ‘Black Sites: Disability and Torture’, paper presented at Critical Social Futures: Querying Systems of Disability Support, Symposium of The Australia Sociological Association, 19 June 2015.

[xv] Erick Fabris, Tranquil Prisons: Chemical Incarceration under Community Treatment Orders (University of Toronto Press, 2011).

[xvi] See, e.g., Carolyn Frohmader and Therese Sands, Australian Cross Disability Alliance (ACDA) Submission to the Senate Community Affairs References Committee Inquiry into Violence, Abuse and Neglect Against People with Disability in Institutional and Residential Settings, August 2015.

[xvii] See, eg, Hege Orefellen, ‘Hege Orefellen on Reparations’, Campaign to Support CRPD Absolute Prohibition of Commitment and Forced Treatment, https://absoluteprohibition.wordpress.com/2016/02/06/hege-orefellen-on-reparations/, accessed 27 March 2016.

[xviii] The significance of bioethics is apparent from the controversy around Ashley X: see, e.g., Eva Feder Kittay, ‘Forever Small: The Strange Case of Ashley X’ (2011) 26(3) Hypatia 610.

[xix] On the ‘therapeutic industrial complex’ see, e.g., Michelle Chen, ‘How Prison Reform Could Turn the Prison-Industrial Complex Into the Treatment-Industrial Complex’, The Nation (20 November 2015) http://www.thenation.com/article/how-prison-reform-could-turn-the-prison-industrial-complex-into-the-treatment-industrial-complex/, accessed 29 March 2016.

Robert Whitaker: Medical Science Argues Against Forced Treatment Too

The argument that is usually made against involuntary commitment and forced treatment is that these actions, under the authority of a state, violate a person’s basic civil rights. They deprive a person of liberty and personal autonomy, and do so in the absence of a criminal charge. The United Nations Convention on the Rights of Persons With Disabilities upholds that position by prohibiting discrimination in relation to these rights. That is a morally powerful argument, and it should stand at the center of any protest against forced treatment.

However, there is another argument, one of adjunctive value, that can be made against involuntary commitment and forced treatment. Medical science argues against forced treatment too.

The “state,” in order to justify involuntary commitment and forced treatment, will argue that such coercion is necessary to provide “medical treatment” to individuals who, because of their impaired state of mind, won’t give their consent to such treatment. The implication is that if the “psychotic” individual were of sound mind, he or she would want this treatment, and thus the state is serving as a helpful guardian. But this “medical” argument falls apart upon close examination.

First, there is evidence that psychiatric hospitalization itself—whether voluntary or involuntary– leads to an increased risk of suicide. In a 2014 study, researchers at the University of Copenhagen looked at the psychiatric care received by 2,429 individuals in the year before they committed suicide, and after matching this group of completed suicides to a control group of 50,323 people in the general population, and after making adjustments for risk factors, they concluded that the risk of dying from suicide rose as people received increasing levels of psychiatric care. Taking psychiatric medications was associated with a six-fold increased likelihood that people would kill themselves; contact with a psychiatric outpatient clinic with an eight-fold increase; visiting a psychiatric emergency room with a 28-fold increase; and admission to a psychiatric hospital a 44-fold increase.[1]

In an editorial that accompanied the article, which was published in the Journal of Social Psychiatry and Psychiatric Epidemiology, the writers—all experts in suicide research—observed that these were robust findings. The Danish study, they wrote, “demonstrated a statistically strong and dose-dependent relationship between the extent of psychiatric treatment and the probability of suicide. This relationship is stepwise, with significant increases in suicide risk occurring with increasing levels of psychiatric treatment.” This link was so strong, they concluded, that “it would seem sensible, for example, all things being equal, to regard a non-depressed person undergoing psychiatric review in the emergency department as at far greater risk [of suicide] than a person with depression, who has only ever been treated in the community.”

These researchers concluded that it is “entirely plausible that the stigma and trauma inherent in (particularly involuntary) psychiatric treatment might, in already vulnerable individuals, contribute to some suicides. We believe that it is likely that a proportion of people who suicide during or after an admission to hospital do so because of factors inherent in that hospitalization.”[2]

Second, from a medical point of view, the “therapeutic relationship” between “patient” and “doctor” is understood to be an important factor to a “good outcome,” and forced treatment regularly leads to a breakdown in that relationship. The personal accounts of people who have been forcibly treated regularly compare it to torture, rape, and so forth. Moreover, these accounts cannot be dismissed as the writings of people who are “impaired” in their thinking, either at the time or later; such personal accounts often reveal an extraordinary level of detail and clarity.

Third, forced treatment regularly involves injections of an antipsychotic, and such initial treatment is regularly a precursor to long-term treatment with such drugs (and often in a coercive manner). However, there is now substantial evidence that such drug treatment over the long term does harm. For instance:

  • There is evidence that the drugs shrink brain volumes, with this shrinkage associated with an increase in negative symptoms, functional impairment, and cognitive decline.[3]
  • The drugs induce tardive dyskinesia in a significant percentage of patients, which reflects permanent damage having been done to the basal ganglia.
  • Martin Harrow, in his longitudinal study of psychotic patients, found that medicated patients fared worse over the long-term on every domain of functioning. The medicated patients were eight times less likely to be in recovery at the end of 15 years than those off the medication.[4]

This is simply a quick review of the medical case that can be made against forced treatment. But even this cursory review tells of treatment that increases the risk of suicide, can prove devastating to the “therapeutic relationship,” and may set a person onto a long-term course of medication use that has been found to be associated with a variety of harms and poor outcomes. As such, the argument that involuntary commitment and forced treatment are in the best “medical” interest of the “impaired” person falls apart when viewed through this scientific lens, and once it does, involuntary commitment and forced treatment can be clearly seen for what they are.

They are not a means for providing necessary “medical help” to an individual. They are an assertion of state authority and power over an individual, and that assertion of authority violates the person’s fundamental civil rights. Any societal discussion of involuntary commitment and forced treatment needs to focus on that issue, and not be distracted by the “medically helpful” claim.

 

[1] C. Hjorthøj, Risk of suicide according to level of psychiatric treatment—a nationwide nested case control study. Soc Psychiatry Psychiatr Epidemiol (2014) 49: 1357-65.

[2] M. Large. Disturbing findings about the risk of suicide and psychiatric hospitals. Soc Psychiatry Psychiatry Epidemiol (2014) 49:1353-55.

[3] J. Radua, “Multimodal meta-analysis of structural and functional changes in first 
episode psychosis and the effects of antipsychotic medications,” Neuroscience and Biobehavioral Review 36 (2012): 2325–33.

[4] M. Harrow. “Factors involved in outcome and recovery in schizophrenia patients not on antipsychotics medications.” J Nerv Ment Dis (2007) 195: 407-414.

 

 

José Raúl Sabbagh Mancilla (México)

In this article the author, as a therapist, presents his unconditional support to the absolute prohibition of forced treatments. He states that these types of treatment without consent are counterproductive and unsustainable. He highlights the importance of the standards that the CRPD imposes and the need to prohibit methods that annul the legal capacity of people with psychosocial disabilities.  

 

Mi nombre es José Raúl Sabbagh Mancilla, practico el acompañamiento terapéutico en México desde el año 2010. En estos años de práctica he escuchado la situación de algunos sujetos que han recibido diagnósticos como esquizofrenia, paranoia y daño neurológico.

El objetivo de este escriño no es dar una respuesta acerca la naturaleza de las causas de estas formaciones psíquicas, más bien considero que la posición de un clínico que, desde un saber absoluto y científicamente incuestionable, determina el estado general de estos sujetos, que además decide acerca de su futuro y obtura toda validez de sus decisiones, dificulta más su restablecimiento y una inclusión respetuosa a la vida en la sociedad. Estas acciones son clínicamente insostenibles y tienden a tener como consecuencia un mayor deterioro del estado de la persona.

Es por eso que, de acuerdo con la Convención sobre los Derechos de las Personas con Discapacidad, apoyo incondicionalmente la campaña por la Prohibición Absoluta de los internamientos involuntarios y las intervenciones psiquiátricas forzadas. Es importante que, en el accidentado contexto global de defensa de los Derechos Humanos, dejemos de sostener prácticas que, disfrazadas de un tratamiento ineficaz, implican una mayor cosificación de personas que en su propio padecer se sienten ya sumamente cosificadas.

Documenta (México)

We at Documenta work to ensure the CRPD absolute prohibition of commitment and forced treatment for persons with psychosocial and intelectual disabilities in Mexico, particularly in connection with security measures.

The second video has English subtitles; others are in Spanish.  Please visit Documenta’s website http://www.documenta.org.mx and their YouTube channel https://www.youtube.com/channel/UC2mXb9uN_To_JrwND7HvGuw for more information.

Published on Nov 10, 2015

Este año, Documenta presentó el caso de Arturo ante el Comité de la ONU sobre los Derechos de las Personas con Discapacidad. Su caso representa la terrible realidad de las personas con discapacidad cuando se enfrentan a un proceso penal en México.

Published on Nov 27, 2015

Un corto documental sobre las dificultades de Víctor como persona con discapacidad psicosocial al enfrentarse al sistema de justicia penal de México. #CuestionemosLaInimputabilidad

En la voz de… Eunice Leyva García 1 (Abogada del Área de Litigio Estratégico de Documenta A.C.), Primera intervención/Sobre Peritajes realizados.

In Italy, we don’t have a law against torture, by Erveda Sansi

 

contro psicofarmaci_col_rid

Drawing by Vincenzo Iannuzzi

 In Italy, the situation in the psychiatric field, with almost no exception, has worsened from the period of questioning psychiatric institution, in the beginning of the sixties. Then, Italy has been at the forefront of the closure of mental hospitals. Not only Giorgio Antonucci, Franco Basaglia and many professionals, but also a good part of the common people, realized that psychiatric hospitals were not places of care. Civil society, then, was sensitive to the issue of smash-down asylum culture. Publications appeared, there was an open debate, workers and students organized themselves and entered in asylums to see the conditions in which their fellow citizens were locked up. They protested and denounced the deplorable conditions the internees were forced to live in.

However, since several years, we observe a re-institutionalisation process and, at the same time, in some Italian hospital’s psychiatric wards happened many deplorable facts, due to forced treatment, institutionalization and forced restraint. Some of these facts have become infamous after that committees and relatives have asked for justice, as in the case of the well liked teacher Francesco Mastrogiovanni, 58 years old, that was debated also on national television channels. Franco Mastrogiovanni, after a forced psychiatric treatment the 4th August 2009, (because of a road traffic offense: circulation, at night, on a street closed to traffic), has been heavily sedated, tied to the bed of Vallo della Lucania’s hospital psychiatric ward, and left to die after four days of abandonment. During the 80 hours hospitalization he was nourished only with saline solutions; he was tied hands and feet to the bed, in such a position that his respiratory functions where compromised, and he was sedated with high doses of psychiatric drugs, without supervision from the staff. At wrists and ankles there are 4 cm wide grazes. A hidden camera recorded everything; the video is of public domain. At the trial the responsible physicians were found guilty and sentenced to 3 and 4 years detention, that, with the mitigating clauses, they won’t have to serve. The 12 nurses were acquitted because “they obeyed an order”. The Committee truth and justice for Francesco Mastrogiovanni, asks for truth and justice. Watch also the film 87 ore (87 hours), gli ultimi giorni di Francesco Mastrogiovanni (Francesco Mastrogiovanni’s the last days) by Costanza Quadriglio.

 

In Italy some deaths due to forced hospitalization and/or prolonged or short-time use of mechanical and chemical restraint have been reported by the press, television and network (this mean that there are a lot of other such “incidents”, we don’t know):

27 October 2005: Riccardo Rasman dies during a coercive treatment by the policemen, for a hospitalization against his will, in a psychiatric ward in Trieste.

21 June 2006: Giseppe Casu, guilty of having wanted to pursue his peddler job in the village square, dies in a psychiatric ward in the hospital “Santissima Trinità” of Cagliari, as a consequence of a thromboembolism, after a forced hospitalization and having been heavily sedated. He was tied hands and feet to the bed, for 7 days and was sedated with high doses of psychiatric drugs against his will.

28 August 2006: A.S., the 17th of August 2006 is admitted to the psychiatric ward in Palermo, for medical investigations. A.S. died after 2 days coma, the 28th of August, probably for excessive doses of psychiatric drugs.

26 May 2007: Edmond Idehen a 38 years old Nigerian man, went voluntarily into the psychiatric ward of Bologna’s hospital “Istituto Psichiatrico Ottonello – Ospedale Maggiore Bologna”. As he tried to leave the hospital, because he did not feel cared, the doctors forced him to stay, with the help of policemen. Edmond Idehen died as a consequence of a hearth attack while nurses and policemen held him down. He was also strongly sedated with psychiatric drugs.

12 June 2006: Roberto Melino, 24 years old, dies for a hearth attack; he entered voluntarily the psychiatric ward of Empoli’s “San Giuseppe” hospital. As he tried to leave the hospital, he was forced to stay by the doctors, and obliged to take high doses of psychiatric drugs, in spite of his evident and serious breath difficulties.

15 June 2008: Giuseppe Uva, 43 years old, was brought inside a police station, because he was driving in state of high alcoholic level. There he was subjected to ill-treatments. After 3 hours he was forced to an obligatory hospitalization in the Varese’s “Circolo” hospital and was forced to take psychiatric drugs. He died because of the stress provoked by the mix of alcohol and psychiatric drugs.

30 August 2010: Lauretana La Coca, 32 years old, entered voluntarily in Termini Imerese’s “Salvatore Cimino” hospital. After 10 days of hospitalization her condition got worse, till she got into a comatose state and died.

Giuseppe D.: A man, more than 70 years old, was interned in Reggio Emilia’s psychiatric prison. His problem was that the neighbour’s daughter is a psychiatrist. His lawyer took a legal action to the European Court of human Rights, but until now there has been no answer, so the Pisa’s student group “Collettivo Antipsichiatrico Artaud”, together with “Telefono viola” from Milan, decided to release the documentation relating to this case in Internet, according with Giuseppe D.’s will, his lawyer, and his relatives.

2 April 2010: Eric Beamont, 37 years old, the 2 April 2010 was hospitalized in Lamezia. After 2 days he entered coma, so the doctors transferred him to the Catanzaro’s “Pugliese – Ciaccio” hospital, where he died. There is the suspect that the death of Eric was caused from a high dose of benzodiazepine. Diagnosis was: subarachnoid hemorrhage[1]

28 May 2015 Massimiliano Malzone died during a forced treatment.

11 July 2015 Amedeo Testarmata died during a forced treatment.

29 July 2015 Mauro Guerra died during a forced treatment.

5 August 2015 Andrea Soldi died during a forced treatment…

Unfortunately in this article we have not described isolated occurrences, but an emblematic situation of violation of human rights in the Italian psychiatric institutions.

These are just some of the “incidents” that came to the limelight, but many more of them are not known when they happen, because, for example, people who live in loneliness are involved, or people whose relatives have given their consent, or simply when people want to get rid of a person perceived as annoying. We The Mad Hatter Association, constantly of forced psychiatric treatments, during which treated people suffer heavy damages. Forced treatments are often made on request of relatives, when patients refuse to take any longer the psychiatric drugs, or when their behaviour is perceived as disturbing. A friend of us (I.M.) tried to escape, but he was chased and filled with drugs; shortly after he was found dead at the bottom of a ravine. He was 40 years old. Another friend (A.S.) was walking on a path between fields and was stopped by police, because he was known as a “mentally ill” person. Then they called the psychiatrist on duty and told him: “He was walking near the railway and could possibly have in mind to commit suicide”; so they locked him up. I know this person, who often walks in the fields, where, however, it’s easy to be located near the railway, because of the constitution of the territory. He had never the intention of committing suicide. Another acquaintance of us died, throwing himself under a train, terrified by the fact that his mother, according to the psychiatrist, would refer to forced psychiatric treatment for him. Another one (U.S.) has suffered of heavy harassment, after having reported his superior’s embezzlement, noticed during his duties as a municipal technician. He was subjected to forced psychiatric treatment, kidnapped by police in riot gear. While he was sleeping, his door was smashed down, and he was thrown on the ground face down and handcuffed. He says that at least they could have tried to open the door, which was not locked. Now he is terrified and he even fears the dark; he is forced to take psychiatric drugs.

We can not think of de-institutionalization before we have dismissed the rules that allow forced psychiatric treatment, that allow to hold a person against his will, without having committed any crime, without the right to an equitable process, based on the alleged dangerousness and only because this person was diagnosed with a mental illness.

The so called “Basaglia law” the law nr. 180 from 13.5.1978, then joined and actually regulated by Law 833/1978 articles 33, 34, 35, 64, establishes the “Accertamenti e Trattamenti sanitari volontari e obbligatori” (“Forced health verifications and treatments”). In 1978 the law nr. 180 imposed the asylums’ closure, and the elimination of dangerousness or/and public scandal as criterion for forced treatment. But in the most Italian province, asylums didn’t close. So it was necessary to make another law, (because these asylums were too expensive), the law n. 724 from 23.12.1994, art. 3 paragraph 5, which dispose that these asylums had to be closed within the 31.12.1996; again disregarded, differed until the end of 1999. In 1996 the asylum inmates in Italy were 11.516 in 62 public asylums and 4.752 in private asylums.

According to this art. 180 law, forced treatment and included forced hospitalization, are possible if there are the following conditions: 1) a person “suffering mental illness” requires urgent medical treatment; 2) refuse the treatment; 3) it’s not possible to take adequate measures outside the hospitals. Forced treatments has a maximum duration of seven days, but can be renewed if necessary and then extended if it persists for a reasoned clinical need (it’s not an exception that the duration is extended for months and years). For forced treatments and the consequently limitation of personal freedom, there must be a request signed by two physicians, an administrative validation from the Mayor is required, followed by the validation of a judicial review by the Tutelary Judge.

Legislation of forced psychiatric treatment provides ample scope for arbitrariness and it is in strong contrast to the human rights regulations, that aim at preserving even people with disabilities from inhuman and degrading treatments. For those who commit a crime, it is expected that the judicial authority, within certain specific procedural rules, sanctions or imposes restrictive measures. We constantly deal with innocent people in forced psychiatric treatment, who can no longer find a way out of the psychiatric institution.

“I have to confess”, said a psychiatrist, “to have a person completely in my power, made me feel a kind of sadistic shiver”.

In Italy the CRPD was ratified in 2009, but just at now we have not a law against torture, torture is not a crime, torture is not forbidden in Italy. So, those who torture does not violate the law. In the meantime a lot of intermediate psychiatric institutions (also called little asylums) were built. They are public or private and reimbursed from the State. A very great business is behind. Some other examples: Lazio Region President Polverini’s decree on Lazio hospital system: the number of beds in Psychiatric Institutions raise from 369 up to 629; more 70%. 50 beds for the public structure and 210 for the private structure trigger the chronicization circuit.

260 beds = 90.000 life days subtracted to the people at the cost of 10.000.000 €.

Didn’t the Basaglia Law foresee the closing up of madhouses?

  • Professor Antonucci, what is, to date, the status of implementation of the law 180?

– Apart from some single exceptional case, what proposed Franco Basaglia is not realized, but it continues a job that Basaglia obviously would not approve: authoritarian interventions, taking people by force and bring it in psychiatric clinics, which are the continuation of the asylum. The asylum was established by the authoritarian intervention: I take a person against his will, then I submit her to a series of forced interventions, which are the essence of the mental hospital”. (http://www.psicoterapia.it)

The deplorable situation of the six Forensic Psychiatric Hospitals recently became more visible, after surprise-inspections of a parliamentary committee. The videos of the visits, showed by the national television, and the press releases can be found on the web. A parliamentary report had already been made in June 2010, but the photographs show a situation that until now has not yet changed. People held for decades for minor offenses, whose penalty would have expired long time since, if not repeatedly and automatically renewed.

Here below we report some data extracted from the text of the parliamentary relation on the June 2010 inspection of the 6 Italian psychiatric prisons (forensic institutions) still active (Senator Ignazio Marino, physician ,was Chair of the Investigative Committee on the National Health Care System). After the 1978 “Basaglia law”, madhouses had to be closed, but the 6 psychiatric prisons mentioned above keep doing the same job. Senator Marino was also concerned about the increasing of electroshock (from 9 institutions allowed to give electroshock before 2008, now we have more than 90 psychiatric institutions who dispense ECT).

The regulations and logics that manage these psychiatric prisons (forensic institutions) (in Italian OPG-Ospedale Psichiatrico Giudiziario), are the same inherited by the fascist Rocco Code (1934). 40 % of the 1500 actual convicted should already have been released, for detention terms expired, but they see their penalty end terms deferred in order of their supposed social dangerousness.

Nine people each cell, dirty bathrooms and bed sheets; dirty nurses’ gowns as well. In Barcellona Pozzo di Gotto (Messina), 329 convicted are overcrowded in cells built in 1914. Dirt everywhere. One patient was found naked, tied up to his bed, with a haematoma on his head. Aversa, built in 1898. 320 people locked up six by cell, in inhuman conditions.

NAS (Antisofistication and health nucleus of Carabinieri (Police)) reported and denounced all this to the Public Prosecutor’s Office, but this office is often made by the same persons that sentence patients to life.

In the Secondigliano OPG, the psychiatric prison is interior to the jail. Here stays since 25 years a patient who was sentenced two years. Burns and black eyes are not reported on the clinical diary. Feet and hands go gangrenous.

In Montelupo Fiorentino OPG they are 170 in a very scruffy building. In Reggio Emilia OPG they are 274 where they should be 132. 3 showers serve 158 patients. One is tied up to his bed since 5 days for disciplinary reasons. 3 in 9 meters square. “The OPG (psychiatric prison) are one of the “silence zones”, explains Alberto, of the Pisa Antipsychiatric Collective dedicated to Antonin Artaud, “and they show the political use of psychiatry. The consume of psychiatric drugs is more and more pushed, the electroshock comes back “in fashion”, perhaps to “heal post partum depression”. And a law lies in ambush in order to bring the forced hospitalization terms from 7 to 30 days”. After the scandal came to light, on 17 January 2012 the Senate Judiciary Committee unanimously approved the definitive closure of the OPG by 31 March 2013. The closure was extended until March 31, 2015. After the closure of the facilities in 2015, according to Law Decree n. 211/2011, converted into Law no. 9/2012, have been replaced by residences for Execution of Security Measures (R.E.M.S.). We have to closedown the Forensic Psychiatric Hospitals, instead of changing the name of them. If we don’t shut dawn these places once and for all, we cannot talk about de-institutionalization. Close them not in order to transfer their users to other psychiatric institutions, but to give these people a life dignity.

A research (source: British Medical Journal) conducted in 6 European countries (Italy, Spain, England, Netherlands, Sweden, Germany), that have closed asylums in the 70s, saw that between 1990 and 2003 an increase in the number of beds in forensic psychiatric hospitals, in psychiatric wards, in so-called safe houses. Supported housing is seen as an alternatives to asylums, as a sign of de-institutionalization, but they are rather a form of institutionalization. Also forced treatments are increasing. It is not clear the reason why the number of beds in Forensic Psychiatric Hospital increased, since there is no correlation between crimes like homicides and de-institutionalized persons.

It would be important to spread the awareness that forced treatments, like the restraint is an anti-therapeutic act, that makes cures more difficult, rather than to facilitate them. Physical restraint is not exercised only in the field of psychiatry. The areas of operation where should be discussed the problem of legitimacy, usefulness and appropriateness of physical restraint, do not consist only in hospitals, but also in nursing homes for the elderly, therapeutic communities for drug addicts and nursing homes for people with disabilities related to congenital or early acquired disabilities. An improvement in psychiatric nursing practice, characterized by the renunciation of physical restraint, would be a strong signal in order to spot out the problem also in other operating environments, urging those who work in this field to act with similar treatment practices, rather than restrictive ones.

Referring to the psychiatric drugs there are rules of the Convention on Human Rights, which require user’s fully informed consent, before administering, even if he’s disabled. Most psychiatric drugs are prescribed for a long time, sometimes for life, without informing the user on their effects, and without any help in the resolution of his real and existential problems. Psychiatric drugs can cause neurological diseases, that sometimes become irreversible. Akathisia, dyskinesia, are very unpleasant effects and can throw a person in despair. Often the user is encouraged to continue taking the drugs even when he asks to withdraw them, and it is almost impossible to find professionals who help and give directions for withdrawal. Peter Breggin, a psychiatrist, working with institutions as WHO (World Health Organisation) and FDA (Food and Drug Administration), wrote hundreds of pages on the harmful effects of psychiatric drugs. Peter Lehmann, who tested the effects of drugs on himself during his hospitalization in a psychiatric clinic, has published and continues to publish the results of his research for which he uses pharmaceutical and medical literature. The effect of psychiatric drugs is known, but the billion-dollar business behind it is too big to lose it. Peter Lehmann is the first survivor of psychiatry to be awarded with the honorary degree, conferred him by the clinical psychology faculty of the Aristotele’s University of Thessaloniki, for his work as researcher and activist in the field of mental health.

A person who starts to take drugs, in most cases will be induced to take them for life, because they create addiction problems. The psychiatric user develops a very strong dependence toward the psychiatric service too. For the psychiatrists, lack of compliance is in fact intended in it self an aggravation of the disease. Then the conditioning that takes place, goes in the direction of dependence from psychiatric services, of becoming “childish” and “chronic patient”.

Although in almost all European countries asylums and psychiatric hospitals have been eliminated or substantially reduced, this does not mean that in the new post-asylum structures, asylum-dispositifs have been eliminated. People are, with few exceptions, completely sedated by psychiatric drugs, even though apparently there are implemented programs such as art therapy. The intake of psychiatric drugs is induced also in order to make the user unconscious.

Erwin Redig, a German psychiatric survivor, says: “There are people putting us under pressure to force us to take them (psychiatric drugs). If we do not take them, our changes embarrass them. If this is our case, we must make clear to ourselves that we are swallowing drugs for other people’s welfare, because they find us unpleasant if we do not”.

“The dispositif of discomfort-complex, that operates in a small residence, acts more broadly in the society”. Neuroleptic drugs affect thinking, block the flow of thoughts, and make people flatten. I relate the words of a healthcare professional: “As soon as psychiatric drugs are given to people, they literally get extinguished. To what extend is it fair to cancel the person?” Although in the European countries, the asylum psychiatry and the psychiatric hospitalization of users have given way to communities, the psychiatric institution culture has not changed. The patterns of asylum residentiality are still active. But most of all it is still alive an asylum mentality, therefore it is important for everyone to be aware how much everybody’s mentality is crucial in creating or not creating devices that belong to psychiatric institutions; operating devices that constitute a widespread operating module. “Residential Intermediate Structures”, foreseen in Italy by the 1983 law, should have had the provisional nature as their specificity; therefore they should not constitute either a definite admission or a final place for forced hospitalization; they should have been  transitional housing, that could break prejudice and exclusion logics. In March 1999, by a special decree, to the Italian Regions was imposed the definitive closure of the asylums, under threat of strong economic sanctions, because despite the birth, on paper, of the new “local services”, mental hospitals were still crowded with patients.

Named by the derogatory title of “asylum residuals”, for these people that nobody wanted, residential structures accounted for an illusion of freedom; they founded themselves to be again in a mental institution. “Many patients”, writes one of them in an autobiography, “have never been so well in terms of comfort, but nevertheless they are in a state of fearful desolation”.

An induced need of security, the defence from a potentially dangerous mind sick person that at any time, during an outbreak, could commit heinous actions against others or against himself; shortly, on the basis of this need and of this false scientific fundamentals, we build the myth of the need of post-asylums psychiatric institutions. If we don’t get reed of the psychiatric prejudice, the “mental health” institution remains. There are many alternatives pursued by individuals, associations or institutions, but they are deliberately ignored. The responsibility for solving the problems of institutionalization, is not up only to psychiatrists or to mental health professionals, but to the whole civil society. Everybody contributes to the asylum mentality. Users as well, who have internalized the psychiatric diagnosis and can no longer live without it.

Mary Nettle, chairman of Enusp until 2010, expects an increasing involvement of users and survivors of psychiatry in researches about psychiatry; while they often are excluded or not paid on the pretext that they are not professionals.

Although many examples exist that  prove that you can accompany a person in troubles out of his problems, through dialogue and support in the resolution of the objective and material difficulties, and helping him to get awareness of his own rights, these experiments and their positive results continue to be deliberately ignored.

 

La Prohibición Absoluta a los Internamientos Involuntarios y Tratamientos Forzados en Psiquiatría: Tensiones con los mecanismos de privación de libertad por motivos de salud mental en Chile – Francisca Figueroa

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http://www.saludmentalycomunidad.cl/la-prohibicion-absoluta-a-los-internamientos-involuntarios-y-tratamientos-forzados-en-psiquiatria-tensiones-con-los-mecanismos-de-privacion-de-libertad-por-motivos-de-salud-mental-en-chile/

A continuación, presentamos el texto de la abogada chilena Francisca Figueroa que se suma a la campaña en Apoyo a la Prohibición Absoluta de la CDPD de los Tratamientos Forzosos y los Internamientos Involuntarios


Tensiones con los mecanismos de privación de libertad por motivos de salud mental en Chile

La campaña por la Prohibición Absoluta de los internamientos involuntarios y tratamientos psiquiátricos forzados se enmarca dentro del contexto de los art. 12, 14 y 15 de la Convención sobre los Derechos de las Personas con Discapacidad (en adelante, CDPD), adoptada por la Asamblea General de la Organización de las Naciones Unidas con fecha 13 de diciembre de 2006 en la ciudad de Nueva York; la cual fue ratificada y promulgada por Chile, entrando en vigencia en nuestro país el año 2008.

El contenido específico de las disposiciones que tal instrumento de derechos humanos refiere –el cual extiende su alcance a las personas en situación de discapacidad mental o psicosocial, e intelectual (Fernández, 2010: 10)-, se encuentra aún en proceso de delimitación por parte del Comité sobre los Derechos de las Personas con Discapacidad, el que recientemente se pronunció respecto al alcance del derecho contenido en el art. 14 de la CDPD, éste es, el derecho a la Libertad y Seguridad de la Persona.

Tal pronunciamiento impone un cambio de paradigma al prohibir de forma categórica y absoluta la privación de libertad de la persona por motivos de discapacidad –sea ésta,  real o aparente-, aun al considerarse que la persona se encuentra en situación de crisis o que puede constituir un peligro para sí mismo u otros (pr. 13, 14 y 15). En tal aspecto radica, el carácter absoluto de la prohibición.

Los fundamentos jurídicos de este posicionamiento radical por la no discriminación, dicen relación con el alcance del art. 12 de la CDPD, el cual impone a los Estados Partes el deber de reconocer la capacidad jurídica de las personas en situación de discapacidad en igualdad de condiciones y en todos los aspectos de su vida. Así, si bien el art. 14 impone como limitación al derecho a la libertad de la persona que ésta se ajuste a la legalidad, no es menos cierto que existen en el ordenamiento jurídico chileno, leyes que sistemáticamente niegan la capacidad jurídica de la persona en diversos ámbitos de desarrollo de su vida, lo cual se encuentra en evidente contradicción con la CDPD (Observatorio de Derechos Humanos de las Personas con Discapacidad mental, 2014), conforme se ha pronunciado el Comité sobre los Derechos de las Personas con Discapacidad y el Relator Especial sobre la Tortura y otros Tratos o Penas Crueles, Inhumanos o Degradantes.

Ejemplo de esto son los regímenes de interdicción, las declaraciones de inimputabilidad penal, las normas que regulan los internamientos involuntarios y los tratamientos invasivos e irreversibles -como son, las psicocirugías, las terapias de electroshock y esterilizaciones, entre otros- en los que operan mecanismos de sustitución de la voluntad de persona (Instituto Nacional de Derechos Humanos [INDH], 2014), vulnerando el Principio de Autonomía contenido en el art. 3 letra a) de la CDPD que contempla “El respeto de la dignidad inherente, la autonomía individual, incluida la libertad de tomar las propias decisiones, y la independencia de las personas” y el art. 12; sometiendo a la persona a un estatus de minoridad social propio de los paternalistas sistemas de tutela decimonónicos (Castel, 2009).

Para dar cuenta de este desolador panorama, pese a la entrada en vigencia de la CDPD en Chile el año 2008, es posible constatar la siguiente situación conforme datos oficiales del Ministerio de Salud (2014):

las medidas forzadas en relación con la hospitalización han aumentado entre los años 2004 y 2012. La proporción de ingresos de urgencia se han triplicado, llegando a 30,8% del total de ingresos. Los ingresos administrativos (hospitalizaciones involuntarias autorizadas por las SEREMI de Salud) se han cuadriplicado y durante el año 2012 representaron el 6,6% de los ingresos, mientras que los ingresos por orden judicial se duplicaron, con un 5,4% para el 2012. Además, también hubo un incremento en el uso de la contención y/o aislamiento, desde 17,8% del total personas hospitalizadas en el 2004 a 26,1% en el 2012 (ídem: 53).

Así, atendido al panorama anteriormente descrito y los actuales estándares de derechos humanos a los que se ha comprometido a dar cumplimiento el Estado de Chile, deben progresivamente abolirse los regímenes administrativos de internamientos involuntarios que no hacen sino reproducir el estigma que asocia “enfermedad mental” y peligrosidad, cuestión que se advierte claramente en las disposiciones del D.S. Nº 570 del Ministerio de Salud, que permite privar de libertad a una persona “aparentemente afectada por un trastorno mental” e internarle en un establecimiento psiquiátrico por cuanto su conducta “pone en riesgo su integridad y la de los demás, o bien, altera el orden o la tranquilidad en lugares de uso o acceso público”, operando los encierros psiquiátricos a modo de auténticas medidas de seguridad predelictuales (Dufraix, 2013: 272-274; Horwitz y López, 2004: 565) y por lo demás, sin cumplir con garantías mínimas de resguardo a los derechos humanos, al carecer de control judicial, de órgano autónomo de revisión y de un procedimiento de apelación contra la resolución administrativa-sanitaria que priva de libertad a la persona contra su voluntad (INDH, 2014: 120; Ministerio de Salud, 2014: 37).

Si bien se ha planteado como un avance en la materia la creación de la Comisión Nacional de Protección de las Personas afectadas por Enfermedad Mental y las Comisiones Regionales establecidas en virtud de la Ley 20.584, se hace indispensable advertir que éstas dependen tanto en su constitución como en su funcionamiento de la autoridad administrativa a quien debe controlar y observar, careciendo de facultades resolutivas vinculantes y por tanto, no siendo apta para garantizar un resguardo imparcial de los derechos humanos conforme el compromiso adoptado por Chile al ratificar la CDPD. Sobre este punto, el Comité sobre los Derechos de las Personas con Discapacidad ha sido explícito al referir que los Estados Partes deben establecer mecanismos independientes de vigilancia y garantizar la participación de la sociedad civil en las labores monitoreo (pr. 19).

Por otra parte, los alcances de la Prohibición Absoluta invitan a re-pensar a la luz de la CDPD, el régimen de inimputabilidad penal y la utilización de los internamientos psiquiátricos involuntarios y tratamientos forzados en instituciones de salud mental a modo de medidas de seguridad, conforme se contempla en el art. 457 del Código Procesal Penal. Éstas, fundadas en la declaración de peligrosidad de la persona en ausencia de culpabilidad, no sólo privan del ejercicio de derechos fundamentales careciendo de regulación constitucional (Falcone, 2007: 248), sino también, vulneran los actuales estándares de derechos humanos que comprometen a los Estados Partes a reconocer la capacidad jurídica de las personas en situación de discapacidad en todos los ámbitos de la vida. Al respecto, el Comité ha recomendado la eliminación de las medidas de seguridad, incluyendo las de tratamiento médico obligatorio en instituciones psiquiátricas (pr. 16, 20).

La objeción a este posicionamiento es evidente. ¿Qué sucede si la persona se encuentra “descompensada” y creemos que puede llevar a cabo comportamientos que afecten los derechos de los otros?. Es en ese punto donde el Comité ancla su posicionamiento en la no discriminación, al recordarnos que tanto las personas en situación de discapacidad como las que no, tenemos el deber de no causar daños a los demás (pr. 14), así como contamos con la libertad para disponer de nuestra integridad e incluso nuestra vida, cuestión que hace que las autolesiones y la tentativa de suicidio no sean punibles en el Código Penal. Por tanto, ¿Qué justifica el privar de libertad a una persona en situación de discapacidad en base a un pronóstico de peligrosidad –y en el caso de los internamientos administrativos, no habiendo cometido la persona hecho constitutivo de delito alguno-, siendo que todas las personas contamos con el mismo deber respecto a los derechos de demás e idéntica libertad de disposición respecto a los derechos propios?. La respuesta es que tal privación de libertad no se ancla sino en una evidente manifestación de discriminación por motivos de discapacidad, prohibida explícitamente por el art. 14 de la CDPD.

La campaña por la Prohibición Absoluta es en una invitación a enterarnos de los nuevos estándares de derechos humanos que rigen en materia de privación de libertad y tratamientos forzados por motivos de salud mental, los que han hecho propias las voces de críticos y sobrevivientes de la psiquiatría que han padecido la violencia del modelo psiquiátrico, justificado por la ideología terapéutica que específicamente se analiza por el Relator Especial sobre la Tortura y otros Tratos o Penas Crueles, Inhumanos o Degradantes en sus Informes A/63/175 y A/HRC/22/53, extendiendo a estas prácticas no consentidas las categorías de tortura y malos tratos, dando aplicación al art. 15 de la CDPD que contempla tal prohibición.

De esta manera, hacemos una invitación a cuestionar las racionalidades que justifican la vigencia de un estatuto legal paralelo respecto a las personas etiquetadas con diagnósticos psiquiátricos, el cual permite privarlas de libertad en base a criterios que se imponen a modo de pensamiento único a través de la hegemonía del modelo médico-psiquiátrico en salud mental, negando la autonomía de la persona y controlando sus diferencias en el plano psíquico a través del uso de la violencia.

Francisca Figueroa San Martín, Abogada. 

Bibliografía

Castel, R. (2009). El orden psiquiátrico. Edad de oro del alienismo. Buenos Aires: Nueva Visión.

Committee on the Rights of Persons with Disabilities (2015). Guidelines on article 14 of 

the Convention on the Rights of Persons with Disabilities. The right lo liberty and security of persons with disabilities. [en línea] Ginebra, Suiza. Disponible en: http://www.ohchr.org/EN/HRBodies/CRPD/Pages/CRPDIndex.aspx

Dufraix, R. (2013). Las medidas de seguridad aplicables al inimputable por condición mental en el Derecho Penal Chileno. Tesis Doctoral. Universidad del País Vasco.

Falcone, D. (2004). Una mirada crítica a la regulación de las medidas de seguridad en Chile. Revista de Derecho de la Pontificia Universidad Católica de Valparaíso. XXIX, pp. 235-256.

Fernández, M. (2010). La discapacidad mental o psicosocial y la convención sobre los Derechos      de las Personas con Discapacidad. Revista de derechos humanos – dfensor. (11), pp. 10-17

Horwitz, M. y López, J. (2004). Derecho procesal penal chileno, Tomo II. Santiago: Editorial Jurídica de Chile.

Instituto Nacional de Derechos Humanos [INDH], (2014). Situación de los Derechos Humanos en Chile. Informe Anual 2014. [en línea] Santiago. Disponible en: http://www.indh.cl/informe-anual-situacion-de-los-derechos-humanos-en-chile-2014 [Último acceso 15 Marzo 2016].

Ministerio de Salud, (2014). “Evaluación Sistemas de Salud Mental de Chile”. Segundo Informe, 2014. Informe sobre la base del Instrumento de evaluación del sistema de salud mental de OMS (OMS IESM/ WHO AIMS). [en línea] Santiago de Chile. Disponible en: http://www.who.int/mental_health/who_aims_country_reports/who_aims_report_chile.pdf [Último acceso 12 Febrero 2016].

Observatorio de Derechos Humanos de las personas con Discapacidad mental (2014). Derechos humanos de las personas con Discapacidad mental: Diagnóstico de la situación en Chile.  [en línea] Santiago de Chile.  Disponible en: http://www.observatoriodiscapacidadmental.cl/wp-content/uploads/2014/05/informe-ODDHHPDM-final.pdf[Último acceso 13  Marzo 2016].

Organización de Naciones Unidas [ONU], (2006). Convención sobre los Derechos de las Personas con Discapacidad y Protocolo Facultativo. [en línea] Nueva York. Disponible en: http://www.un.org/disabilities/documents/convention/convoptprot-s.pdf [Último acceso 15  Marzo 2016].