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 [3] The Human Rights Committee even recommends States parties “to revise outdated laws and practices” and says that “States parties should make available adequate community-based or alternative social-care services for persons with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

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.

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

La-libertad-es-terapéutica-780x439

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

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


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

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

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

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

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

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

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

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

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

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

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

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

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

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

Francisca Figueroa San Martín, Abogada. 

Bibliografía

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

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

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

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

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

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

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

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

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

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

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

The Mad Hatter – presents a conversation with Dr. Giorgio Antonucci

Il Cappellaio Matto – The Mad Hatter – presents a conversation with Dr. Giorgio Antonucci

Italian group of users and survivors Il Cappellaio Matto is happy to share an extended interview with Giorgio Antonucci, physician, psychoanalyst, and director of two mental hospital wards for many years.
He fought to prevent and abolish forced psychiatric treatment, to the liberation of people from Italian mental hospitals from the early 60s onwards and above all to demonstrate that a psychiatric diagnosis is in reality a psychiatric judgment, supported by a social prejudice.
The first of eight instalments of the interview can be seen here:
It is available with English language subtitles thanks to the efforts of Il Capellaio Matto.
That’s the first publication in a foreign language , except a book in Danish: Svend Bach, a literature professor at the Aarhus University, dedicated him: Antipsykiatri eller ikke-psykiatri.
Giorgio Antonucci began his job as a physician in Florence (Italy), trying to solve the problems of people who risked to end up in psychiatry. He began to engage himself in psychiatric problems, trying to avoid hospitalizations, internments and any kind of coercive methods. In 1968 he worked in Cividale del Friuli (with Edelweiss Cotti), a public hospital ward, the first Italian alternative  to  mental hospitals. In 1969 he worked at the psychiatric hospital of Gorizia, directed by Franco Basaglia; he criticised the fact that in this hospital electroshock was taken away only for men, and continued to exist for women. (It is to taken in account, that Basaglia was away most of the time, for conferences and so on, then he died at 56 in 1980). Antonucci said that of course Basaglia was the first who took under question the mental hospital and that he rightly said that it was (is) a matter of class. But Basaglia did not go all the way down to say that the mental hospital is a prejudge in itself, not only a building, and he spent his time with conferences all over the world and writing books, articles etc. Antonucci indeed was working every day with the patients, to give them back their freedom.
From 1970 to 1972 Antonucci directed the “Mental Hygiene Centre” of Castelnuovo nei Monti in the province of Reggio Emilia. From 1973 to 1996 he worked as head physician in two mental hospitals of Bologna, Osservanza and Luigi Lolli, dismantling some psychiatric wards and setting up new residential opportunities for former inmates, giving them complete freedom of every personal choice. A successful example unique in Italy and probably in the world. From a political and religious point of view he is an anarchist, libertarian and atheist.
“Forced treatments are violations of their rights and harmful to them, to their thoughts and their lives, therefore I started dealing with psychiatry”, he says.
In this short conversation with the actor and activist Saverio Tommassi, Antonucci discusses the difference between genuine systems of healing and psychiatry as a way of social control, “a moralistic judgement and the claim to control the behaviour of those who don’t respect social conventions”. He explains the genesis of his own opposition to all forms of psychiatric incarceration, restraint and forced drugging: as a young doctor, he witnessed the lock-up in asylums of women considered “difficult”, who had once been prostitutes, and been labelled as mad by Catholic authorities. He soon grasped that 90% of the occupants of institutions were the “socially undesirable” – homeless, disaffected housewives, unemployed, etc: “Inside the mental hospitals, it wasn’t mad people who were locked up – as it’s usually believed – but unlucky people who happened to find themselves in hard situations”.
“I think that often, in addition to the hazard of psychiatric opinion, the most dangerous thing is when a person resigns to his own conviction of being sick” .
Dr. Antonucci has never made a forced treatment or forced hospitalization, and has never prescribed psychiatric drugs, because, he said “as a doctor I did the Hippocratic swear to never harm a person”.
Later, Antonucci describes the “calate”, mass expeditions of Italian citizens to state psychiatric wards to see exactly how inmates were treated: “It was a cause of great disgrace to the doctors because people, including children, were found tied up to chairs or to beds and locked up inside little rooms. And so for the first time, an entire population made up of peasants, local authorities, workers, county mayors, even a parliamentary deputy all brought into question the asylums as an institution”.
Giorgio Antonucci’s language is always very simply, without difficult words because he says that his words have to reach all people.
Dr. Giorgio Antonucci believes in the value of human life and he thinks that communication, not enforced incarceration and inhumane physical treatments, can help a person in difficulty – if the person wants to be helped. In the institution of Osservanza (Observance) in Imola, Italy, Dr. Antonucci treated dozens of so-called schizophrenic women, most of whom had been continuously strapped to their beds or kept in straitjackets and lobotomized with psychiatric drugs. All usual psychiatric treatments were abandoned, also psychiatric drugs, unless a person wanted to continue to take them. Dr. Antonucci released the women from their confinement, spending many, many hours each day talking with them, in order to establish a communication. He listened to stories of years of desperation and institutional suffering.
He ensured that patients were treated with respect and without the use of psychiatric drugs. In fact, under his guidance, the ward was transformed from the supposed most violent in a self-managed ward. After a few months, his “dangerous” patients were free, walking quietly in the garden and in the city streets. Most of them were discharged from the hospital and could go back to their families, but if someone wanted, could stay there, and was given two keys: one for the front door and the other for his own room. Afterwards, many of them had been taught how to work and care for themselves for the first time in their lives.
Dr. Antonucci’s major results also came at a much lower cost. Such programs constituted a permanent testimony of the existence of both genuine answers and hope for the seriously troubled.
Dacia Maraini, one of the most famous Italian writers, in an interview with Giorgio Antonucci wonders why, given the good results obtained, the same isn’t done in other wards: “First of all because it is very tiring – answers Antonucci with his quiet voice, – it took me five years of very hard work to restore confidence to these women; five years of conversations, even at night, of relationship face to face. This is not a technique, but a different way of conceiving human relationships.
“What is this new method which concerns the so-called mentally ill”? asks the writer. “For me it means that the mentally ill does not exist and psychiatry must be completely eliminated. Doctors should only treat body diseases. Historically in Europe psychiatry was born in a period in which society was organized in a stricter way, and it needed large displacements of manpower. During these deportations, under hard and hostile conditions, many people remained disturbed, confused, no longer produced goods and so there was the need to set them aside. Rosa Luxemburg said: “With the accumulation of capital and the movement of people, the ghettos of the proletariat widened”.
In the 17th century when the absolute monarchy (the State) takes form in France, the asylums were called “hospice places for poor people who annoy the community”.
Psychiatry came next, as an ideological cover. In Bleuler’s psychiatric treaty, the inventor of the term schizophrenia, it’s written that schizophrenics are those who suffer from depression, who stand still or obsessively run around the courtyard. But what else could they do so as inmates? Finally Bleuler concludes unintentionally comically: “They are so strange that sometimes they look like us”.

Aporte de Asociación Azul

http://www.asociacionazul.org.ar/novedad/campana-de-apoyo-a-la-prohibicion-absoluta-de-la-cdpd-de-los-tratamientos-forzosos-y-los-internamientos-involuntarios-9/

Campaña de Apoyo a la Prohibición Absoluta de la CDPD de los Tratamientos Forzosos y los Internamientos Involuntarios.
Por  Asociación Azul, por la vida independiente de las personas con discapacidad, Argentina
La comprensión completa y visceral de que todo aquello rotulado como “discapacidad” (o términos relacionados) es parte de las incontables diferencias entre los miembros de una población, que de ningún modo altera y menos pone en duda la pertenencia a la misma, solo será posible cuando el sistema de creencias y esquema de valores de la sociedad den una vuelta de campana sobre sí mismos.
Esa vuelta de campana es necesaria, y será revitalizadora. Contribuirá a mejorar la situación de muchísimas personas, no solo de las que tienen discapacidad, y de la sociedad en su conjunto. Contribuirá a mejorar el mundo, oikos, la casa del hombre.
Por ese cambio arrasador luchan hoy las personas con discapacidad en todo el mundo. En esta Campaña en particular, creo que se lucha por cambiar las percepciones del resto de una sociedad que, atrincherada detrás de la voz de “los que saben”,  condena a algunos de sus miembros a la tortura, el aislamiento, el terror, el sufrimiento, por “buenas razones”.
La Convención es como la rama de un árbol, fuerte y flexible, que nos permite rasgar las bases y telones de este sistema: hablan los protagonistas y dicen tortura, sufrimiento, encierro, dolor, muerte adelantada.
Es necesario asegurar que siga la lucha, apoyada por las señales de quienes deben resguardar la Convención, para que los Estados garanticen urgente y decisivamente un sistema respetuoso de la libertad de todas las personas con los apoyos para sostener esa libertad en sus comunidades. Las personas de las que trata esta Campaña son personas que quieren ser libres y disfrutar de los mismos derechos que los demás en su comunidad. Y la comunidad necesita dejar de tener miedo, para servir mejor a todos sus habitantes y disfrutar de las contribuciones de todas las personas.

Sarah Knutson: Einstein, Social Justice and the New Relativity

Sarah Knutson’s second post for the Campaign.  Original is on Mad in America.

To create his theory of relativity, Einstein had to see things differently.  He had to view the universe not as an object of mammalian proportions, but from the perspective of a subatomic particle.  Essentially, he used imagination and empathy to come to know a new ‘reality’ of existence.

This essay is the second in a series.  We previously outlined a rationale for a 100% voluntary mental health system (read about it here). Now, we take a deeper look at the nature of human experiences that lead to public concern.  We delve deeply into the perspective of that experience and discover ourselves in a whole new realm.

Three ways of seeing experience

To understand where we are going, let’s first take a look at where we’ve been.  Here are some competing models for approaching socially troubling human experiences.

1. The DSM Model of ‘mental disorders’

The DSM Model is based on the Diagnostic and Statistical Manual of Mental Disorders published by American Psychiatric Association.  In no small part, the DSM has been the product of insider turf wars, political compromise, industry needs and billing concerns.(1) It is said to be atheoretical, but unquestionably the DSM views certain aspects of human experience as abnormal/ disorders.  Possibly, this is just a nod to the practicalities of healthcare reimbursement.  However, the process of distinguishing the truly abnormal (insurance pays) from the common effects of a stressful life (you pay) has left something to be desired.

Rote symptom checklists determine whether your anxiety, mood, grief, trauma, substance use, sexuality is ‘normal’ or ‘disordered.’  At a minimum, this is a lousy way to get to know another human being on the worst day of their life. Painful experiences, like getting fired, ending up homeless or being raped in shelter housing are routinely ignored or overlooked. It’s like the teacher pronouncing you ‘learning disordered’ without asking if you studied.

Reliability and validity have proved problematic as well. Individual diagnoses tend to vary, as do predictions of violence and suicide.  Given that single bad call can change the course of a lifetime, concerns like these led whistleblower Paula Caplan, Ph.D., to report to the Washington Post in 2012: “Psychiatry’s bible, the DSM, is doing more harm than good.”  A year later, the National Institute of Mental Health (think science, research, evidence-based) went on record as looking for a more valid approach (full statement here).

2. The Medical Model of ‘mental illness’

In contrast to the DSM, the Medical Model has a crystal clear vision.  ‘Mental illness’ is a real disease.  It is caused by pre-existing genetic, biochemical or physiologic abnormalities. Those affected are susceptible to disregarding personal welfare or that of others. Aggressive treatment (drugs, CBT) is required to correct or mitigate deficiencies.

For all its theoretical congruence, the medical model hasn’t fared much better than the DSM. Treating ‘mental illness’ takes a whopping 15-25 years (on average!) off of the average life span.  The promised ‘chemical imbalances’ and bio-markers still haven’t materialized in the research.  Disability rates have sky-rocketed. Long-term outcomes and relapse rates have worsened overall. (2)  Many suspect that prescribed drugs increase violence and suicide.

3. The Social Justice Model of fundamental human needs

This model comes in no small part from the learnings of World War II, the Holocaust, Hiroshima, and Nagasaki.  In the aftermath of atrocities, the nations of the world were interested in figuring a few things out.  They needed a way for those on all sides to move forward.  They wanted to set the stage for ‘never again.’  Their solution was the Universal Declaration of Human Rights of 1948 (UDHR).

The UDHR is premised on a simple idea.  For all our differences, human beings have much in common.  We all need certain things to live and be well:

  • nutritious food, habitable shelter
  • safety of person and property
  • dignity, respect and fair treatment
  • meaningful participation and voice
  • support for families to stay together and make a living
  • opportunities to develop ourselves across major life domains
  • freedom to make sense of experience in our way

Under the UDHR, advancing human rights is a universal, non-delegable obligation. Everyone everywhere is responsible for doing their part.  The peoples of the world understood that the basic requirements for human dignity must be accessible to all.   Without such access, neither individuals nor the human family as a whole will be well.

The theory of human conflict follows from this.  Under the UDHR, conflict arises when human needs are in competition.  It intensifies with time if only some of us have access to what all of us need.

Preventively locking someone up or drugging them against their will is a considerable human conflict. To meaningfully address such issues, the Social Justice Model counsels us to take a step back.  Those we are fearing (sick, disordered, untrustworthy) may be messengers, not madness.  Instead of privileging our perspective, what if we try to see the world through the other’s eyes:

  • Is it possible their experience might not be as senseless it seems?
  • Is it possible they may be expressing a history of social harms, rather than arbitrarily bent on inflicting new ones?

Before you immediately brush this off, consider the following:

If the nations of the world could adopt these attitudes in the aftermath of Hilter, concentration camps, kamikaze pilots and detonated atom bombs, then why not for modern public safety concerns?  

Support for the Social Justice Model

Nearly 70 years ago, the United Nations predicted the following (UDHR Preamble):

  1. ‘[R]ecognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world.’
  2. People everywhere long for a world in which ‘freedom of speech and belief and freedom from fear and want’ are the order of the day.
  3. ‘t is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law.’
  4. ‘[D]isregard and contempt for human rights’ leads to ‘barbarous acts’ that ‘outrage[] the conscience of mankind.’

Now consider this:

1. Research on public and behavioral health impacts

An estimated ninety (90!) percent of those in the public mental health system are ‘trauma survivors.’  We have grown up without reliable access to same basic needs that the United Nations recognized as essential over six decades ago.

The same applies to the other so-called ‘problem’ groups in our society.  Yep, ninety (90!) percent or more of us in substance use, criminal justice, and homeless settings are ‘trauma survivors’ as well.

This is not just about individual needs, but also family needs and the needs of entire communities. These issues affect all of us across demographics.

Don’t believe it?  Check out the following:

  • National Association of State Mental Health Program Directors (NASMHPD), The Damaging Consequences of Violence and Trauma: Facts, Discussion Points, and Recommendations for the Behavioral Health System (2004). Full report here.
  • National Council for Behavioral Health (Breaking the Silence: Trauma-informed Behavioral Healthcare (2011). Full publication here.
  • Nadine Harris, MD, How Childhood Trauma Affects Health Across a Lifetime (TED Talk here.)
  • Substance Abuse and Mental Health Administration, SAMHSA’s Concept of Trauma and Guidance for a Trauma-Informed Approach SAMHSA (2014). Full proposal here.
  • The School of Life, Sanity of Madness (1/18/2016). Full video here.

Yet, for all the fanfare about the need for more ‘trauma-informed care’, there has been little systemic response directed toward basic human needs.  Equally disturbing, behavioral health system involvement has become an independent, exacerbating source of harm for many.

The results speak for themselves.

2. Tremendous explanatory power

In addition to the public health data, the Social Justice Model has tremendous explanatory power.  It offers a straightforward way to make sense of experience (this essay), as well as principled ways to respond (future essay) that could easily be confirmed – or refuted – by research (future essay).

The basic paradigm is this:

  1. Resources are seemingly scarce
  2. People have basic needs
  3. They see a threat or opportunity
  4. This sets off a ‘high-stakes’ (aka ‘survival’) response
  5. Predictable physical, mental and social effects occur.

The above theory draws on work that has already been done.  In the trauma field, the human survival response (fight, flight, freeze) and its effects are widely known. See, e.g., ‘The Body Keeps Score‘ by Bessel van der Kolk.  As it turns out, you can tweak the same theory to make sense of a broad variety of human experiences that lead to public concern.

3. The ‘normal’ response when the stakes are high

For our purposes, there are two basic nervous systems:

(1) ‘All-is-well’ (parasympathetic) for everyday routines. This covers stuff like eating, sleeping, relaxing, hanging out, having sex, small talk, hobbies, tinkering around…

and

(2) ‘High-stakes’ (sympathetic/ ‘survival response’/ fight-flight-freeze) for responding when the stakes are high.  This is the ‘get your butt in gear’ reaction that takes over when something feels like a big deal.

High-stakes can get involved in all kinds of stuff.  This includes both threats and opportunities.  The critical factor is that (from the person’s point of view) the stakes are high.  For example, here are some things that can set off the high-stakes response for me:

  • Discovering new possibilities, new gossip, twenty dollars or my cat in the road
  • Taking tests, exams, the best donut or advantage of someone else
  • Scoring a point, contract, bargain, victory or high
  • Getting paid, laid, yelled at, ripped off, excluded, assaulted or stopped by police
  • Going on first dates, adventures, job interviews or a personal rampage
  • Performing on the job, in sports, in college, during public hearings or psychiatric exams
  • Resisting temptation, peer pressure, arrest, detention or a doctor’s opinion

Suffice it to say, the definition of ‘high stakes’ is a personal matter.  It depends on what you have lived or come to know.  Thus, one person’s ‘high stakes’ might not even register on another’s radar.

4. Explaining intense or extreme responses

To discover relativity, Einstein had to take the perspective of atoms.  To see the value of high-stakes responses, we have to experience what is happening from the high-stakes viewpoint.

When the stakes seem high, human beings are wired to respond in one of three ways:  fight, flight or freeze.

  • Fight’ goes after threats and opportunities.  It takes them on or brings them down.
  • ‘Flight’ avoids threats and opportunities.  It gets away (runs, hides) as fast as possible.
  • ‘Freeze’ hides in plain sight.  It shows no apparent reaction (de facto disappears), giving others nothing to notice or chase.

Despite their clear-sounding names, fight, flight and freeze are not fixed forms of expression.  They are directional tendencies that can occur across many life dimensions. This allows personal strengths, past experiences and familiar (‘tried and true’) behaviors to be optimized for survival value.  Here are some ways that I have expressed fight-flight-freeze when the stakes felt high to me:

 


Dimensions of Fight-Flight-Freeze

  • Physical
    • fight: striking out, yelling, swearing, telling someone to ‘get out! breaking stuff
    • flight: leaving the room, not showing up, running away, cutting, trying to kill myself
    • freeze: doing nothing, hiding in bed
  • Emotional
    • fight: raging, hating, envying, craving
    • flight: avoiding, cowering, dreading, numbing with food, drugs, sex, spending, computer, games
    • freeze: poker face, going numb
  • Social
    • fight: verbally attacking, ridiculing, blaming others, complaining, rescuing
    • flight: obeying, begging, flattering, apologizing, backtracking, blaming self, compensatory romantic interest
    • freeze: saying nothing, playing along, going with the flow, withdrawing
  • Intellectual
    • fight:  arguing, planning, plotting, obsessing, out-smarting
    • flight: distracting, fantasy
    • freeze: forgetting, going blank
  • Spiritual/ existential
    • mostly fight:  praying, seeking visions, looking for signs, exploring energy, becoming a deity
    • mostly flight: bargaining with God, trying to be a good person, wishing I were dead
    • freeze: losing time/ awareness/ consciousness

(Please note: Depending on context and underlying intent, the same response may fit in multiple categories.)


 

The wide variability of high stakes responses is a tremendous asset to our species.  It ensures that people will respond in numerous rich and creative ways.  When an entire community is facing a threat, this promotes resilience and survival overall. If we all responded the same way to danger or opportunity, a single threat (predator, disease, disaster) could wipe us out. We need the extremes that people tend to under stress to safeguard group survival.

On the other hand, when the stakes are seemingly individual, the virtue of diversity can get obscured. Since only one person is reacting, this can look rather odd to everyone else. Imagine Beatlemania, but only you can see the Beatles. Visuals here if you need them (with a little help from my friend, JH).

It’s also worth noting that there is a dose-response effect.  In other words, the higher the stakes and the longer I’ve been in that frame of mind,  the more intense or extreme my responses tend to get.  Over time, this has become a good way for me or others to gauge how important the needs involved are to me.  For example, if things seem relatively manageable, then my responses tend to be manageable – both by me and others.  On the other hand, if I can’t imagine living or being happy if the needs aren’t met, my responses tend to flair accordingly.

 

6. ‘Sarah, are you calling inappropriate the new normal?’

If you are nodding along with me at this point, thank you for getting it!  On the other hand, if you are feeling confused or disgusted, you are not alone.  Clearly, my experiences violate conventional norms. They routinely get seen as unacceptable, disordered or ill.

On the other hand, like the vast majority of the world, you may be seeing my life from an ‘all-is-well’ perspective.  And, for ‘all-is-well’ living, my responses sure aren’t the norm.

But that is precisely the point I am trying to make.   In behavioral health populations, all-is-well is not the norm.  The norm in behavioral health populations is violence, deprivation, poverty, injustice, and marginalization. In other words, the stakes are high all the time. Problems build on each other, then compound exponentially.  We rarely, if ever, get a break.  We feel like we constantly have to defend our right to be.  In dose-response terms, the dose is enormous.  So, predict a pretty big response.

From my experience, despite a lifetime of trying to learn how to do it differently, that is what keeps happening.  But don’t just take my word for it.  Here is 18-year-old Sabrina Benaim“Explaining My Depression to My Mother.”

And before you say, stop making excuses for yourself and take a little responsibility, consider the following (apart from the 20 years of therapy, thousands of dollars out of pocket, 20+ drugs tried, studying this stuff at the doctoral level, devoting my life to trying to understand it):

There is a really good reason that high-stakes responses are hard to turn off:  Any conscious, reality-based human being should be bothered by high-stakes conditions.  As a practical matter, the high-stakes response is a message. It is like your hand burning on a hot stove. The intense feeling (pain) tells you to move your hand. This prevents further damage. If you just rationalize or drug that sensation away, there is no telling how bad you’ll end up.  (We have the scars to prove it.)

Equally important, it is not an accident that high-stakes responses come across as ‘inappropriate’ and alarming. This is by nature’s design, and it serves a dual purpose:

  1. Predators/ competitors are unable to anticipate or plan for what we’ll do.
  2. Well-intended others will know that something is wrong.

Hence, while high-stakes responses no doubt alarm and baffle others, that is why it has actual survival value.

This highlights the futility of trying to classify so-called ‘mental disorders’ in a high-stakes population. The very purpose of our responses is to defy explanation. Outsiders are not supposed to know what is going on.  It’s a plus, not a minus when potential predators can’t agree.

The same survival function also explains why observers find these responses so distressing.  High-stakes responses are supposed to cause alarm. This scares outsiders off and alerts those close to us that all is not okay.  If society worked the way nature intended, the outcome would be great.  Opportunists are deterred.  Allies rush to your aid.  Real friends stick around and try to find a way to help.

That’s also a message for would-be helpers.  The assessment tool is built right into the high-stakes system.  The rules are fairly clear if you know what to look for:

 


High Stakes Rule #1: When something makes it worse, the stakes go up, and responses get increasingly extreme.

High Stakes Rule #2: When something makes it better, the stakes go down and all-is-well eases in over time.


 

In other words, the so-called ‘ravings of lunatics’ are actually  ‘rational’ from a high-stakes perspective. They scare off opportunists, attract available allies and weed out would-be helpers who don’t help. If no help is found, they keep us alive and free to keep looking.

From this vantage point, perhaps now you can appreciate the violence – the actual soul torture – of forcing survivors to present as if ‘all-is-well.’  Not only does that obliterate what we have experienced, it takes away what is often the only means we have to communicate our pain to the culture at large.

Suffice it to say, given the state of the world today, you should find us painful to be around.  You should find it difficult if asked to bear witness. That is what puts your hand on the stove burning with ours. That is what motivates you – everyone – to look for the source of the burning.  That is what makes it possible for human beings, in the spirit of Einstein — to get curious about the little guy, wonder what it is like to feel that small and discover a whole new reality outside of ordinary vision.

With the benefit of hindsight, what do you say we also look for a better energy source to power human relationships?  Instead of splitting dissenters off or leveling resistance, how about this time we stick with imagination and empathy and learn to create a  workable, honest fusion?

References:

(1) Caplan, PJ (1995) They Say You’re Crazy: How The World’s Most Powerful Psychiatrists Decide Who’s Normal  (Perseus Books: http://www.aw.com/gb).

(2) Whitaker, RH (2010). Anatomy of an Epidemic. New York: Random House.

This blog is a contribution to the Campaign to Support the CRPD Absolute Prohibition of Commitment and Forced Treatment. To see all of the Mad in America blogs for this campaign click here.