Jolijn Santegoeds – Why forced psychiatric treatment must be prohibited

https://tekeertegendeisoleer.wordpress.com/2016/03/29/why-forced-psychiatric-treatment-must-be-prohibited/

Translation of Dutch article “Waarom gedwongen GGZ behandeling verboden moet worden”

Why forced psychiatric treatment must be prohibited
29 March 2016, by Jolijn Santegoeds, founder of Stichting Mind Rights[1], Co-chair of World Network of Users and Survivors of Psychiatry (WNUSP)[2], board member of European Network of (Ex-) Users and Survivors of Psychiatry (ENUSP)[3]

Click here to download the article:
Why forced psychiatric treatment must be prohibited_29 March 2016

 

For centuries there has been resistance against forced admission in institutions, confinement in isolation cells, tying persons up with fixation-straps, the forced administration of medication, forced electroshocks, and other forced psychiatric treatments.

Coercion is not care
Coercion is one of the most horrific things that people can do to each other, while good care is actually one of the best things that people can offer to each other. There is a fundamental difference between coercion and care.

Coercion works countereffective to wellbeing, and leads amongst others to despair, fear, anger and grief for the person concerned. During coercion the voice of the person is ignored, and their boundaries are not respected. Coercion does not lead to more safety, or recovery of mental health. On the contrary: By suffering, powerlessness, and a lack of support, the risks for increasing psychosocial problems and escalation increase. Coercion is the opposite of care.

Coercion means a lack of care
Forced psychiatric interventions are not a solution, but are a problem for mental health care. For a long time, the existence of forced treatments, which enables caregivers to turn their back to the crisissituation and leave the person behind without actual support, is undermining the real development of good care practices.

Good care is possible
Good care can prevent coercion. By a respectful attitude and good support, problems and escalation can be prevented successfully, which makes coercion obsolete[4]. Real care is possible.

Efforts are needed
Despite the fact that all stakeholders in Dutch mental health care want to ban coercion[5], the total number of the use of coercion (the number of  legal measures RM and IBS) is rising annually. There are however specific initiatives to reduce coercion at various locations, such as the development of HIC (High/Intensive Care psychiatry)[6], where they aim to prevent solitary confinement by enabling intensive support. On the other hand there is an enormous rise in outpatient coercion (conditional measures), as well as in incidents with “confused people”. It has been concluded a number of times, that the practices are “persistent”, and that the culture is “hard to change”.

Learning from history
Europe has a long history of xenophobia against persons with psychosocial problems. Ever since the 15th century there have been special prison-like “madhouses”, where persons were chained and locked up like beasts, and exorcisms were common. After the discoveries of Charles Darwin and the Renaissance (17th and 18th century), the medical sector started to arise, followed by the arrival of the first Dutch Lunacy-law in the 19thcentury, which arranged “admission and nursing of lunatics in mental hospitals”, with the goal to provide “more humane” care as compared to the madhouses. The young medical science comprised a diversity of perceptions, and in the 20th century a lot of experiments followed, such as hot and cold baths, lobotomy, electroshock and so on. The “special anthropology”[7] or racial-science and eugenics, focussed on the search for the perfect human being, and “racial hygiene” to “avoid deterioration of the race”, openly doubting the capacities of certain populations, which resulted in genocide which didn’t spare psychiatric patients (WOII).

After these dark pages in history, universal declarations of human rights were established, emphasizing the value of each human being, and gradually the community became more tolerant. However, psychiatry hardly changed and held on to the questionable and experimental foundation, with confinement, regulation regimes, and experimental treatment methods as the unchanged core of the treatment range. Currently, efforts are still made to force persons into behavioural changes with the argument that they are “incapable of will” themselves, and not able to express preferences. This is absolutely incorrect: Every person sends signals. The challenge is to deal with that in a good way. Real care notices the person behind the behaviour. Professional care is something totally different than primitive repression of symptoms.

It is time to draw a line. It is urgently needed to recognize that mental health care got on a wrong track by history. Harsh ‘correction’ of persons until they are found ‘good enough’ is not a righteous goal of mental health care. It should be about wellbeing. Coercion is a revealed mistake of mental health care. Innovation is needed.

Worldwide need for coercion-free care
All over the world forced treatment exists. Extremely atrocious images are known from poorer parts of the world, with chained people for example in Asia[8] and Africa[9], but also in our own country with Brandon[10] and Alex[11]. As long as the western world keeps claiming that coercion is the same as good care, these scenes will be harder to ban, especially since several countries have high expectation of the western approach. It is important to come up with good solutions in the world wide search for coercion-free care.

Call by the United Nations
Since 2006, the UN Convention on the Rights of Persons with Disabilities (CRPD)[12]exists, which illustrates that a worldwide change is needed towards persons with disabilities. Several UN mechanisms clarify that coercion in care is a violation of human rights[13][14][15][16], also when it comes to the Netherlands[17][18]. A change is needed.

What’s next?
This is an important question.
What do we want now? Are we finally going to make it really right?
Are we going to show ourselves from our best sides?

A real change of culture is needed. Mental health care needs to reinvent itself, and put an end to the confinement and the use of coercion. Good care is possible.

“Yes but it is not possible…”
Commonly heard reactions are “These are good ideals, but not realistic” or “There is no other way, because the system isn’t supportive” or “The community is totally not ready for this”. The implicit assumption that a culture change would be ”unrealistic”, indicates limited perspective, hope and ambition. The system is in our hands. We are the current generation. Change is possible. The world is changing constantly. Also mental health care can change[19][20], as can the public opinion. We are not powerless or insensitive. Efforts are needed to make the world better and nicer together. We can do that.

Change can feel scary. Without positive history or good practices elsewhere it may be a bit harder to imagine that everything can be different, but this cannot be a reason to just give up immediately. We do not question ourselves whether stopping all hunger in the world is realistic before we start with that. Every person counts. Real care is possible and needs to be realized, also in acute and complex crisis situations. Practices of abuse need to stop instantly. This is the task that has been given to our generation. It is worth to unite all our efforts to make the historical shift from exclusion to inclusion.

Also the remark “Yes but coercion is needed, as long as there are no alternatives”  needs to be refuted here. Coercion is not care, but it is abuse, and there is no valid excuse for abuse. Coercion is never needed. Good care is needed.

Making human rights a reality
The UN Convention on the Rights of Persons with Disabilities (CRPD) gives a momentum for change. If everyone cooperates now, throughout all layers of the system, then the intended change gets an unprecedented impulse. The articles of the UN-Convention offer a guidance, which enables worldwide coherent action. The UN Convention offers vast opportunities to change the world.

Together we can ban forced psychiatric treatments. When there’s will, there’s a way. In history, confinement was put central, and by now we know better. So we have to do better too. A largely unexplored world is ahead of us.

Key points
It is not easy to change the mental health care system, and the confidence in mental health care doesn’t restore without efforts. Several things are necessary to change the situation sustainably:

-Realise good care
The old fashioned psychiatry is not founded on human rights, diversity and inclusion, but on xenophobia and exclusion. Science has focussed so far on homogenising the community, and attempts to change the people (a bodice and check box mentality). Modern mental health care should focus on enabling a heterogeneous and  diverse community, by creating the right conditions in the community and to enable self-determination, liberty and inclusion, so that everyone can be happy and live a fulfilling life in our community. A fundamental reform is needed in mental health care.

Wellbeing – or mental health – is a very personal intrinsic value, which cannot be produced by coercion. Recovery from psychosocial problems is not an isolated process of the person concerned, but is closely intertwined with the social context of the person, such as chances in life, social acceptance and inclusion. The range of care needs to be reviewed fully, and adapted to the requirements of today.

Deprivation of liberty needs to be stopped immediately. The organization of care of good quality is necessary and urgent, and cannot be postponed any longer. The previous guidelines under the law BOPZ of 1994 to use coercion “as little as possible” and “as short as possible” have failed obviously, and the numbers on the use of coercion (legal measures RM and IBS) continuously keep on rising annually, and have more than doubled in the past 10 years. This trend is unacceptable, and therefore something really needs to change now. A need for support cannot be a reason for deprivation of liberty. Good care is possible.

Without good care, the mess will only transfer. It is absolutely necessary to make all possible efforts right now to provide care of good quality, including good care in crisis situations.

– Legislation: prohibit coercion, arrange care
The legislation on forced psychiatric treatments needs to be changed. The goal of mental health care is not: Treating vulnerable persons in a rough way, but the goal is to provide good care, also in crisis situations. A transition is needed.

The lunacy law dates from 1841, from a time when the medical profession was absolutely in it’s infancy. The law BOPZ of 1994, and also the law proposal on Mandatory Mental Health Care (recent) have a similar structure of legal measures RM and IBS, and resp. confinement and forced treatment form the core. This system is not founded upon awareness of human rights, and it is not about care of good quality, and it has to change.

Forced treatment is abuse. Legislation needs to protect all citizens from abuse. When the government participates in the abuse against certain groups, this is torture[21][22], which is absolutely prohibited. The laws on coercion, such as BOPZ and the law proposal on Mandatory Mental Health Care are therefore unacceptable.

Legislation is meant to offer a fair framework for the community. A prohibition of forced treatments is necessary because of human rights[23]. Additionally, certain legislation can speed up the provision of good care and organize innovation[24]. It is possible to create laws that are really useful to the community. Wouldn’t that be great?

– Compensation: Recognize the seriousness
For years and years, the government and countless caregivers have taken over the lives of psychiatric patients, and forcefully subjected them to “care”, such as horrible forced treatment, isolation cells, forced medication, restraint-belts, electroshocks, all motivated by so-called “good intentions”. The sincerity of those responsible can now prove itself by genuine recognition of the suffering that many had to endure. A compensation would be appropriate: When you break something you have to pay for it. We consider that very normal.

* Apologies are needed to recover the relation between (ex-) users and caregivers.
* Recognition of the trauma’s by coercion, and support in overcoming these if desired.
* Compensation to show that the change of attitude is genuine.

Now it’s time to show that the Netherlands is indeed a civilized country.

Take action
I would like to call on everyone to contribute to the change in culture. Let’s ensure together that human rights will be realized for every human being, and that old-fashioned psychiatry disappears, and that mental health care only comprises good care.

Please spread this message to raise awareness.

 

**

To reinforce the above plea, I have attached a description of my personal experiences with forced psychiatry, which can be found via this link:

“16 years old, depressed and tortured in psychiatry – A testimony on forced psychiatric interventions constituting torture and ill-treatment”

 

**

This publication is part of the ‘Absolute Prohibition Campaign’, see https://absoluteprohibition.wordpress.com

 

[1] Actiegroep Tekeer tegen de isoleer! / Stichting Mind Rights www.mindrights.nl

[2] WNUSP: World Network of Users and Survivors of Psychiatry www.wnusp.net

[3] ENUSP: European Network of (Ex-) Users and Survivors of Psychiatry www.enusp.org

[4] Report: Best practices rondom dwangreductie in de GGZ 2011

[5] Declaration on reduction of coercion:  Intentieverklaring GGZ: preventie van dwang in de GGZ 2011

[6] High Intensive Care HIC (HIC)

[7] Description of Racial-science e.a.: Winkler Prins Algemeene Encyclopaedie, vijfde druk, Elsevier, 1936

[8] Human Rights Watch “Living in hell – abuses against people with psychosocial disabilities in Indonesia”, 2016

[9] Robin Hammond, fotoserie “Condemned – Mental health in African countries in crisis”

[10] Brandon van Ingen, Jongen al 3 jaar vastgebonden in een zorginstelling

[11] Alex Oudman, Schokkende beelden uit isoleercel – Toen en nu

[12] UN Convention on the Rights of Persons with Disabilities (CRPD)

[13] CRPD General Comment no. 1 on CRPD article 12 Equal Recognition before the law

[14] CRPD Guidelines on CRPD article 14 Liberty and Security of Person

[15] Statement of 2 UN Special Rapporteurs “Dignity must prevail – an appeal to do away with non-consensual psychiatric treatments” World Mental Health Day, 10 October 2015

[16] A/HRC/22/53 Special Rapporteur on Torture, Juan E Mendez, Torture in health care settings (2013)

[17] Communication sent to the Kingdom of the Netherlands by the UN Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and the UN Special Rapporteur on the Right of Everyone to the Enjoyment of the Highest Attainable Standard of Physical and Mental Health. AL Health (2002-7) G/SO 214 (53-24) NLD 2/2013, October 2013, https://spdb.ohchr.org/hrdb/24th/public_-_AL_Netherlands_08.10.13_(2.2013).pdf

[18] CAT/C/NLD/CO/5-6, CAT Concluding Observations on the Netherlands

[19] High Intensive Care HIC (HIC)

[20] Intensive Home Treatment (IHT)

[21] Torture, for full definitiion see article 1 CAT, Convention Against Torture.

[22] A/HRC/22/53 Special Rapporteur on Torture, Juan E Mendez, Torture in health care settings (2013)

[23] amongst others the right to liberty, freedom from torture / Civil and political rights and CRPD

[24] amongst others the right to health care and adequate standard of living / Social, economic and cultural rights and CRPD

 

ENUSP -Forced psychiatric interventions constitute a violation of rights and disable care

Human rights context

Since 2006, the United Nations Convention on the Rights of Persons with Disabilities (UN CRPD) calls for a paradigm shift to break away from paternalistic laws and paternalistic attitudes towards persons with disabilities, and shift to respectful support of decision-making based on the person’s own will and preferences. The implicit call of the UN CRPD to put an end to forced psychiatric treatments has been made explicit by several publications of the CRPD Committee, and especially by the Guidelines to Article 14. The Guidelines make clear that the detention of persons with psychosocial disabilities under domestic legislation on the grounds of their actual or perceived impairment and supposed dangerousness to themselves and/or to others “is discriminatory in nature and amounts to arbitrary deprivation of liberty.”[1]

 

Nevertheless, two UN treaty bodies currently are in conflict with the standards set by the UN CRPD: the Human Rights Committee[2] and the Subcommittee on Prevention of Torture (SPT) in their document “Rights of persons institutionalized and medically treated without informed consent”. Yet the Human Rights Committee admits that forced measures are harmful: “The Committee emphasizes the harm inherent in any deprivation of liberty and also the particular harms that may result in situations of involuntary hospitalization.” [3] The Human Rights Committee even recommends States parties “to revise outdated laws and practices” and says that “States parties should make available adequate community-based or alternative social-care services for persons with psychosocial disabilities, in order to provide less restrictive alternatives to confinement.” However, despite this, the Human Rights Committee acknowledges the possibility of forced measures, provided they are applied “as a measure of last resort and for the shortest appropriate period of time, and must be accompanied by adequate procedural and substantive safeguards established by law.”[4]

Also the SPT allows forced commitment and forced treatment, but they go even further by saying that abolition would violate the “right to health” and the “right to be free from torture and other ill-treatment”. For instance, the SPT states “…placement in a psychiatric facility may be necessary to protect the detainee from discrimination, abuse and health risks stemming from illness”[5], “The measure [treatment without consent] must be a last resort to avoid irreparable damage to the life, integrity or health of the person concerned…”[6]. In addition, the SPT acknowledges restraints as a legitimate measure: “Restraints, physical or pharmacological … should be considered only as measures of last resort for safety reasons”[7], and further allows for “medical isolation”[8].

It is interesting to note that before the publication of these two documents mentioned above, the thematic report “Torture in Health Care Settings” by the UN Special Rapporteur on Torture and other cruel, inhuman or degrading treatment or punishment (A/HRC/22/53), urged an absolute ban on forced psychiatric interventions, in order to ensure that persons with psychosocial, intellectual and other disabilities be free from torture and ill-treatment. However his voice apparently was not heard, as well as other voices documenting numerous violations of human rights in psychiatric institutions. One of them is the report of FRA issued in 2012, which reveals the trauma and fear that people experience, and states that “the extremely substandard conditions, absence of health care and persistent abuse have resulted in deaths of residents in institutional care.”[9]

 

Therefore, it can be seen that the arguments in favour of the administration of forced measures are based on false grounds, because as has been proven by numerous sources, including CPT reports and the sources mentioned above, psychiatric institutions in no case can be considered a safe haven from discrimination, abuse, torture and ill treatment. With regard to medical considerations and care we put forward the following:

 

Forced psychiatric interventions are not care.

Care is supposed to result in improved well-being and recovery. Well-being – or mental health – is a very personal, intrinsic value, which cannot be produced by force. Caring for one another is one of the best things that people can offer to each other. On the contrary, forced psychiatric interventions are very traumatizing, and result in suffering and more psychosocial problems. It makes the situation worse, and is amongst the worst things that people can do to each other. There is a huge difference between forced interventions and care. They are the total opposite of each other.

 

Forced psychiatric interventions disable care.

Forced psychiatric interventions are counter-productive to mental health and care, and represent a “breach of contact”. This can be seen on the one hand, for example, with nurses who stop trying to communicate or provide support, and resort to forced interventions. It can also be seen on the other hand, in the feelings of misunderstanding and trauma of the person subjected to forced interventions, which disable meaningful contact. It is obvious that good contact and communication are necessary for good mental health care. The end of communication, as is induced by forced psychiatric interventions, is a very harmful practice, which makes meaningful contact, and therefore mental health care in itself, impossible.

 

Forced psychiatric interventions do not result in safety.

Due to suffering, increased psychosocial problems, and a lack of any support for recovery caused by forced psychiatric interventions, the risks of escalation increase, and can even result in an endless circle of struggle and escalation, as our experiences show. The common argument given “to protect from harm or injury to self or others”, is not based on factual evidence supporting this statement. Forced psychiatric interventions do not result in more safety, but lead to more crises, and subsequently to greater risk of escalation.

 

Forced psychiatric interventions indicate a deficiency in mental health care.

Forced psychiatric interventions are more of a mechanism for (attempted) social control embedded within an underdeveloped and structurally neglected (and politically abused) system of mental health care that is built on the horrible remnants of the past, rather than on skills to support mental health and well-being. Underdevelopment and insufficient funding of the mental health care system is in place because of the extremely low political priority given to mental health care, consequently explaining the extremely low level of funding. It is impossible to deliver quality care without proper funding and attention to quality standards. However, due to historical stigma, mental health care remains unpopular with society, i.e. voters, and therefore politicians. In case of dire shortage of funding, the best possible solution for the system is to keep things calm, by delivering lots of harmful and in many cases unwanted medication to isolated people and calling it medical care. However, real mental health care is possible when efforts are made and sufficient funding is provided.

 

A world of options between “last resort” and “no care”

Many persons, including many States, cannot see beyond a very narrow “black and white” approach regarding psychosocial crisis situations, with only two options: either forced treatments (torture), or doing nothing (neglect). This simply isn’t the full picture. Between these two extremities, there is a largely undiscovered world of options for real support and real mental health care in psychosocial crisis-situations, with aspects such as: non-violent de-escalation, prevention of crisis in the earliest stage possible, focussing on contact and openness instead of repression, building trust and providing real support in acute crisis-situations. (Ex-) users and survivors who have experienced this are the best positioned to be involved in this shift of paradigm.

 

Real development of mental health care is urgently needed.

Unfortunately for decades, the real development of good care practices has been undermined by the existence of forced treatments, which has enabled caregivers to turn their back to the crisis situation, and leave the person behind without actual care, repressed and stripped of their dignity. This should stop. Forced psychiatric interventions constitute a very serious human rights violation. They can never be called care and cannot be considered a safety and anti-discrimination measure, because they lead to exactly the opposite.

 

We believe in the creative potential of humanity and the possibility to solve complicated problems when appropriate efforts are made. But in order to allocate the appropriate resources and generate enough creative efforts, appropriate motivation is needed. The UN CRPD standards give us and should give policymakers such motivation to realize and state publicly that the status quo in psychiatry is totally unacceptable and must be changed to a humane system of real care.

 

The discrepancies in the recommendations referred to above, even among different entities of the same organization (United Nations) must be eliminated and the provisions of the CRPD must prevail.

 

This is a challenge, but by thinking and acting together, it is possible to make this a reality.

 

We must keep in mind just one thing as a basis for this objective:

 

 

Forced psychiatric interventions constitute torture and ill-treatment and

must be banned!

 

 

 

 

 

 

 

[1] CRPD Committee’s Guidelines on article 14 Liberty and security of person, III, para.6 (September 2015)

[2] General Comment No.35, para.19 (30 October 2014)

[3] Ibid.

[4] Ibid.

[5] SPT, Rights of persons institutionalized and medically treated without informed consent, para.8

[6] Id. para.15

[7] Id. para. 9

[8] Id. para.10

[9] European Fundamental Rights Agency: Involuntary placement and involuntary treatment of persons with mental health problems, 2012. Available at: http://fra.europa.eu/sites/default/files/involuntary-placement-and-involuntary-treatment-of-persons-with-mental-health-problems_en.pdf

Fiona Walsh – Convention on the Rights of Persons with Disabilities (CRPD): Civil Liberties, Equality and Upholding Human Rights

The 100th Anniversary of the 1916 Rising (Easter Rebellion) is currently being marked in Dublin City and Ireland. The Rising was launched by a small number of Irish Republicans at Easter time 1916 aiming to terminate British rule in Ireland and establish an independent Irish Republic. One of the principles of the Proclamation guaranteed:

‘religious and civil liberty, equal rights and equal opportunities to all its citizens’

In the context of those presenting in emotional distress today in Ireland in 2016 however there is still no guarantee that civil liberties will be respected and the reality of equal rights/opportunities for those perceived to be suffering from ‘mental disorders’ is not on the horizon just yet.   Diagnoses are based on subjective interpretation of ‘symptoms’ by Irish psychiatrists and other professionals who typically see individuals in terms of perceived deficits, brain disorders and inherited genetic defects. There are some more enlightened professionals who think in terms of ‘support’ and supporting decision making for those in distress as opposed to those who however compassionate and well meaning think in terms of ‘control’ ‘risk’ and substitute decision making. Many survivors of psychiatric abuse dread the paternalistic ‘best interests’ approach which typically has been used to deprive them of their basic human rights and to define what has contributed to their distress and what might support them to come through it.

 

Typically individuals in Ireland present in a voluntary capacity via their General Practitioner (GP), out of hours service or to the Accident & Emergency Unit of their local public hospital or to one of the private facilities. I am not aware of any psychiatric unit that does not use coercive practices of some sort.   Most who present in a voluntary capacity on the first occasion are not made aware on entering the facility they can be detained and forcibly treated, albeit on the 2nd opinion of another psychiatrist, which usually validates the first opinion. If you do not agree to Diagnosis and Treatment, then you may well be subjected to detention and forced drugging, seclusion, restraint, ECT etc. Under international human rights law this is could be regarded as Torture. The first thing that typically goes is the individuals clothes, access to fresh air etc, access to phonecalls/visitors , even your children until it is established that you will essentially play ball. Mothers can as I did receive threats such as ‘you know we have the option to contact child protection services’. True informed consent for any ‘Treatment’ including around serious side effects of medication must be sought yet typically is not and usually information not provided automatically either way so that the individual can make or be supported to make an informed decision. For those that know how the system operates and disagree with the medical model fear permeates and is increasingly stopping individuals in distress from reaching out to get the support they desperately crave in a given crisis. Reports of individuals taking their own life rather than submitting to coercion are sadly not uncommon and increasing in frequency in Ireland. Members of our Traveller Community have an increased incidence of suicide seven times higher than the rest of the population and fear often prevents travellers seeking professional support.

 

Ministers Frances Fitzgerald and Aodhan O Riordain published a ‘Road Map for Ratification of UN Convention on the Rights of Persons with Disabilities’ on 21st October 2015.   Introducing Capacity Legislation features on this road map. Accordingly on 30/12/2015 our President Michael D Higgins signed the Assisted Decision Making (Capacity) Bill 2013. Rather than respecting the principles of CRPD though our Departments of Justice and Health and Government bizarrely based the legislation around ‘Mental Capacity’ providing for a ‘Functional Capacity Test’. Prof Brendan Kelly, a prominent Irish Psychiatrist has had huge influence and uses the CRPD to even defend administering Electroshock against the expressed wishes of an individual (family/loved ones have no rights either in respect of those with involuntary status).  Minister Kathleen Lynch refused to listen to the voice of Civil Society Capacity Coalition, chaired by Eilionoir Flynn, Deputy Director, Centre for Disability Law & Policy NUI Galway and essentially deprived Irish Citizens of the Right to have Legal Capacity respected in law. In addition the legislation denies the right to make a legally binding Advance Healthcare Directive in the context of emotional health, even in respect of ECT. Although the word ‘unwilling’ was recently removed from our Mental Health Act 2001 , the word ‘unable’ still remains, essentially allowing forced detention and drugging to continue unabated. As a survivor of Psychiatry (my experience is relatively mild in many respects) I sat in the Public Gallery of our Houses of Parliament (Dail and Seanad) saddened by the refusal of our Minister and Government to uphold the principles contained in CRPD and respect Human Rights, despite being challenged by brillant Human Rights advocates including Jillian Van Turnhout and Katherine Zappone in our Seanad and Padraig Mac Lochlainn along with other elected representatives in our Dail Chamber. At a recent NGO Forum on Human Rights in Dublin Castle , ‘United Nations Council, ten years on’ (which UN Rapporteur Ms Catalina Devandas Aguilar was invited to speak and attended) Layla de Cogan Chin, Dept of Justice left attendees in no doubt with the Dept line that the Irish Government will essentially pick and choose what rights will be respected and that CRPD will be ratified with reservations/declarations.

 

Increasingly Irish survivors are looking to United Nations and the International Human Rights arena to expose the inability/indifference of the Irish Government and Psychiatry Profession to respectively legislate and usher in reform so that those who seek support can do so free of fear and terror of coercion. For some layer by layer of their human dignity is stripped away and they have to recover from the Diagnosis and ‘Treatment’ in addition to what brought them in contact with services in the first place.   In my own case presenting in a voluntary capacity agreeing to take all prescribed medication, still resulted in an attempt by treating Psychiatrist in 2011 to attempt sectioning on the basis of a second opinion of her choice not mine. My apparent ‘crime’ was that I did not agree with given diagnosis or that medication would be of therapeutic benefit.  A dear friend of mine, fellow human rights defender and member of Recovery Experts by Experience (REE) , at 77 years of age has to live daily with the fear of having ECT forced upon her despite having a power of attorney and Advance Directive made. Why should any Psychiatrist have the power to totally disregard her expressed wishes and disrespect her right to Legal Capacity should she ever become distressed in the future? Why should any human being live with the daily fear of having forced ECT again? As a member of Recovery Experts by Experience (REE) we made a submission to UN ICCPR in 2014. Tallaght Trialogue advocacy also submitted two reports under UN ICESCR in addition to contributing to joint parallel report from Civil Society, coordinated by Noeline Blackwell on behalf of FLAC. As a member of Tallaght Trialogue Advocacy I presented in person in June 2015 to UN ICESCR Committee in Geneva (speaking notes link below).

 

The UN CRPD reflects that each Human being has a right to be treated equally (Article 5) and have their will and preferences respected, that their legal capacity (Article 12) is inherent and above all that their human dignity must be respected. My hope is that the standards in the Convention that prohibit forced detention (Article 14) and treatment will propel Irish elected representatives to seek, resource and fund alternative approaches to coercion such as Open Dialogue, Hearing Voices Approach (see http://hearingvoicesnetworkireland.ie/ ) , Crisis Houses, Peer Support & Advocacy … Survivors of Psychiatry deserve to have their voices heard not silenced as is the case in Ireland where tick a box engagement is typical and ‘Experts speak to Experts’ time and time again without the voice of lived experience.

 

Thank you Tina Minkowitz and fellow advocates at CHRUSP, Eilionoir Flynn & past and present Colleagues, CDLP NUI Galway , Fiona Morrissey Lawyer & Researcher and to all who contributed to the CRPD and advocate to have the standards enshrined upheld. It is time the incoming Irish Government embraced the principles of Civil Liberties and Equality in the 1916 Proclamation and ratified the CRPD (signed 30th March 2007) and Optional Protocol without declarations/reservations. Why not embrace the opportunity without further delay to respect Legal Capacity (Article 12) and the will and preferences of individuals and treat every citizen equally regardless of physical disability, psycho-social disability or a perceived disability? A Democracy that silences the voice of Civil Society is not what the signatories of the 1916 Proclamation aspired to, nor is it appropriate for the survivors of psychiatric abuse past and present in 2016. It is time for Irish Legislators to be challenged by those charged nationally to uphold human rights to step up to the plate and respect and ratify the CRPD and Optional Protocol. Accordingly I unreservedly support the Campaign to Support CRPD Absolute Prohibition of Commitment and Forced Treatment.

 

Signed: Fiona Walsh, Human Rights Defender & Survivor of Irish Psychiatric Abuse

Dated: 28th March 2016

Member:

  1. Recovery Experts by Experience (REE)
  2. Tallaght Trialogue Advocacy (on facebook & twitter @TallaTrialogue)

 

Speaking notes ICESCR Review Ireland June 2015 , Fiona Walsh, Tallaght Trialogue Advocacy (pages 19/20 FLAC newsletter)

http://www.flac.ie/publications/flac-news-25-2-aprjun-2015/

http://hearingvoicesnetworkireland.ie/

 

Irish Examiner Newspaper Article 20/01/2016

http://www.irishexaminer.com/viewpoints/yourview/electroconvulsive-therapy-is-still-given-to-patients-who-dont-want-it-377065.html

 

Dr. Fiona Morrissey, Lawyer & Mental Health Researcher: Article in Irish Examiner dated 21/11/2015 and link to her research regarding Advance Directives

http://www.irishexaminer.com/viewpoints/analysis/assisted-decision-making-bill-why-changes-are-needed-to-current-laws-366167.html

 

Article in Irish Independent 15/11/2015

http://www.independent.ie/irish-news/health/mentally-ill-still-forced-to-endure-shock-treatment-34201655.html

Eilionoir Flynn CDLP NUI Galway – Blog Posts on www.humanrights.ie

http://humanrights.ie/author/eilionoirflynn/

Prof Brendan Kelly, Psychiatrist, letter to editor 22/11/2015

http://www.independent.ie/opinion/letters/dont-deny-them-this-treatment-34223005.html

Roadmap to ratification of CRPD issued by Irish Dept of Justice

http://www.justice.ie/en/JELR/Roadmap%20to%20Ratification%20of%20CRPD.pdf/Files/Roadmap%20to%20Ratification%20of%20CRPD.pdf

Summary of Campaign March 29, 2016

**For Next Steps in Absolute Prohibition Campaign click here.  As of January 2017 we are collaborating together on strategies and sharing information.  Spanish as well as English discussions are taking place, and French may be starting soon.  Resource pages are also under construction on this website.**

Here is the information I presented to the CRPD Committee this morning:

Intervention by Tina Minkowitz at the opening of the 15th session of the Committee on the Rights of Persons with Disabilities – as delivered

March 29, 2016

Members of the Committee, Secretariat, respected colleagues. I speak to you today on behalf of the Center for the Human Rights of Users and Survivors of Psychiatry.

I present the results of a Campaign to demonstrate civil society support for the CRPD absolute prohibition of commitment and forced treatment. We asked participants to contribute their own knowledge and experience in the effort to persuade states to end the widespread suffering of those who are being medically tortured with no effective redress.

I will summarize the 41 submissions that are published on the Campaign website, which will be shared in electronic form with hyperlinks for easy reference. The materials are published in their original languages whether French, German, Spanish, Italian or English. A few other submissions are still coming in from people who misunderstood or were unable to finish before now, including from ENUSP (now added, see below).

The home page of the website is https://absoluteprohibition.wordpress.com. Some of the publications can also be found on collaborating blogs Mad in America, Sodis (Peru), PAIIS (Colombia), Dé-psychiatriser (France) and il cappellaio matto (Italy), and on participants’ individual blogs which are linked in their posts.

I begin with the memorials of those who died in psychiatry: M’hamed El Yagoubi writes about his wife and companion Nathalie Dale (in France). Dorrit Cato Christensen writes about her daughter Luise (in Denmark), and Olga Runciman dramatizes her anger and outrage over another death in Danish psychiatry. María Teresa Fernández speaks in honor of her brother (in Mexico), and also reflects from a moral perspective and as a person with a disability who works on the CRPD.

Survivors have a unique vantage point on degradations such as solitary confinement, restraints, injections, forced nakedness, brutality, authoritarianism, the stultifying effects of psychiatric drugs, the sheer destruction of electroshock, and sadistic psychological manipulations. How can we heal from abuse that society condones and that the law allows with impunity? For women forced psychiatry is sexualized and gendered, and should be recognized as both disability-based and gender-based violence. These writings stand as evidence of severe harm and as critique of laws and practices from the bottom up.

Jhilmil Breckenridge and Irit Shimrat evoke scenes of brutality, humiliation, and enforced subjection counterposed to the subjectivity of the survivor who is left to cope with her losses. Shimrat also looks back on a comic book hero she created as a young woman locked up on a psych ward for the first time.

Andrea Cortés describes how society seeks answers from experts, who punish people that don’t fit in, instead of learning to coexist; Katherine Tapley-Middleton relates how forced drugging caused her eyes to roll up in her head, and the nurses withheld a side-effects remedy; Roberta Gelsomino evokes frustration and anger towards those who did not help and refused to see her as a person.

Initially NO (see full original) combines political art and testimony to show how her rights under the CRPD were systematically negated by psychiatric violence; Anne Grethe Teien counters Norway’s claim that it is not violating human rights by comparing its laws and practices with the CRPD and with her own experience. Pink Belette and Agnès, both in France, attest to brutality, authoritarianism, and meaningless review procedures; Pink Belette also uses humor to rebuke psychiatric arrogance.

Connie Neil shares her journey with anger and grief over the destruction wrought by forced electroshock, and finally a possibility of forgiveness; Eveline Zenith describes and analyzes the abusive character of psychotherapy that entails re-traumatization; Corrine A. Taylor relates how she stopped psychiatric drugs in the face of a doubting psychiatrist and calls for everyone to have the same chance; Christian Discher documents the taunting of a young man for his homosexuality as part of his confinement.

Lucila López, a user and survivor of psychiatry, a mother, and a social psychologist, discusses a range of issues related to commitment and forced treatment, including iatrogenic harm, Argentina’s national mental health law, the pathologization of poverty, and the situation of young people affected by consumption of legal or illegal drugs.

AddedJolijn Santegoeds calls for care not coercion in the Netherlands, and for compensation to survivors, appending her personal experience “16 years old, depressed and tortured in psychiatry.”

Researchers, scholars, lawyers, and clinicians, among them survivors and allies, express their adherence to the Campaign and build our knowledge base.

Robert Whitaker, journalist and founder of Mad in America, and Peter C. Gøtzsche, MD, researcher with the Cochrane Institute, each make a case against forced treatment from a medical standpoint. Clinician Jose Raul Sabbagh Mancilla in Mexico unconditionally supports the absolute prohibition of commitment and forced treatment. Psychologist Paula J. Caplan, PhD discusses inherently illegitimate psychiatric diagnosis as the entry point into human rights violations.

Karlijn Roex, PhD candidate in sociology, counters the use of “danger to self or others” to justify coercive psychiatric interventions, through scientific arguments, ‘user’ narratives, and moral principles. Anne-Laure Donskoy, survivor researcher, highlights the adoption of coercive mental health methods to enforce work requirements on benefits recipients in the UK.

Linda Steele, lecturer in law, characterizes commitment and forced treatment as disability-specific forms of violence condoned by domestic law and thus not amenable to legal recourse. Lawyer Francisca Figueroa notes the tension between the CRPD absolute prohibition and Chilean laws and practices condoning forced treatment. Documenta shared videos from its campaign against the system of inimputabilidad and security measures in Mexico, including a complaint under the CRPD Optional Protocol.

Bonnie Burstow, scholar and activist who advocates abolition of psychiatry itself, welcomes the Guidelines on Article 14 which clarify the absolute prohibition on forced treatment. Sarah Knutson makes the case for 100% voluntary treatment as an ex-lawyer, ex-therapist survivor activist, and presents an alternative approach to conflict and crisis.

Organizations and activists shared their advocacy and calls for action related to the absolute prohibition.

Added: European Network of (ex-) Users and Survivors of Psychiatry (ENUSP) counters the positions of the Human Rights Committee and the Subcommittee on Prevention of Torture in conflict with the CRPD and argues for real development of mental health care starting from the premise that forced psychiatric interventions must be banned.

Added: Fiona Walsh, survivor and human rights defender, reports on Ireland’s enactment of CRPD-noncompliant capacity and mental health legislation.

Erveda Sansi explains how Italian law still permits commitment and forced treatment in civil and forensic institutions. il cappellaio matto shares an interview with Dr Giorgio Antonucci on his work to abolish forced treatment in the 1960s that remained incomplete.

Coalition Against Psychiatric Assault created a video and petition calling on the Canadian government to withdraw its reservation that perpetuates compulsory treatment. Die-BPE of Berlin details the law and practice in Germany that allows substitute decision-making on the basis of a “lack of insight” standard, which violates the CRPD.

Asociación Azul calls for sweeping changes to allow people to be free and enjoy the same rights as others in their communities; survivor activist Don Weitz calls for class action suits and criminalization of forced psychiatric treatments and involuntary commitals; Jules Malleus shares a view of psychiatry as a destructive machine, utilizing images from dystopian films to make the point; Ana María Sánchez calls for creative public policies beyond the elimination of commitment and forced treatment.

******

This concludes the summary of materials that constitute the Campaign. I hope it will strengthen our common motivation and determination to put an end to medicalized torture and insist on consistency among all human rights mechanisms global regional and national to ensure no person remains in a situation of commitment and forced treatment in violation of the Convention. We need to not allow this issue to be left behind in the SDG monitoring, in work on the rights of women and girls with disabilities, in the COSP, or in any other CRPD implementation. It is a huge task for all of us, and survivors and victims remind us of why it cannot be forgotten.

The Campaign will have a second phase, both to reach out again to regions that remained unrepresented, and to pursue common interests that emerge in the materials. For those who are interested I will plan to schedule public discussions via Skype or web conferencing within the next few months, and I can be contacted through the Campaign website absoluteprohibition.wordpress.com and also on Facebook and Twitter as Tina Minkowitz and also on the official CHRUSP page.

Thank you.

 

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.

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.