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

 

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.