This is a slightly edited version of my presentation, “CRPD Article 15: Its Potential to End Impunity for Torture in Psychiatry,” at a side event at the 13th session of the Committee on Rights of Persons with Disabilities, 30 March 2015. Video of the side event is also available and other presenters’ materials are uploaded on the CHRUSP Resources page. In this blog posting, material inserted in brackets was not contained in the original presentation.

CRPD and the Obligation to Prohibit and Prevent Torture and Ill-treatment

I’m going to speak about the standards that justify a legal conclusion that forced psychiatry amounts to torture and other ill-treatment. I will also make concrete recommendations for the Committee with regard to Article 15.

Like my colleagues on this panel, I am a survivor of forced psychiatry, and I bring this perspective with me as a human rights lawyer. I have advocated and written about forced psychiatry as torture, beginning during the Ad Hoc Committee which elaborated the CRPD. The Special Rapporteur on Torture adopted many elements that I brought forward, both in the 2008 report of Manfred Nowak and in the 2013 report of Juan Méndez. There are many nuances that would merit discussion, and I will provide the Committee and others with a list of references for further reading, the list and my presentation will be posted on the chrusp.org Resources page.

[Note that Special Rapporteur on Torture Juan Méndez, subsequent to his 2013 report which called for “an absolute ban on all forced and non-consensual medical interventions against persons with disabilities, including the non-consensual administration of psychosurgery, electroshock and mind-altering drugs such as neuroleptics, the use of restraint and solitary confinement, for both long- and short-term application” stated in a letter to the World Psychiatric Association that he meant only an absolute ban on interventions “based exclusively on discrimination against persons with disabilities.” It is difficult to know what to make of the inconsistency between this interpretation which the Rapporteur has publicized on his external website and the report itself which is part of the jurisprudence of the Special Rapporteur on Torture as a mandate of the United Nations, and which has not been retracted. Méndez’s 2013 report continues to represent a stage in the conceptual evolution of the analysis as adopted by UN bodies and officials; see my analysis of the report in the published compilation (written before I learned of his correspondence with the WPA). The CRPD Committee itself has called for the abolition of forced treatment under Article 15, as well as under Article 12 on the right to legal capacity, and Article 14 on the right to liberty and security of the person (see my affidavit on international law standards prohibiting forced psychiatry), and in my presentation I am calling on the Committee to take its own jurisprudence further in this regard and recognize that forced psychiatry meets the criteria for torture and always amounts to torture and ill-treatment, thus invoking the obligations to prohibit and effectively prevent these practices.]The first Special Rapporteur on Torture, P. Kooijmans in 1986, included in a list of physical forms of torture the administration of drugs including “neuroleptics, that cause trembling, shivering or contractions, but mainly make the subject apathetic and dull his intelligence.”]

Neuroleptics are the drugs known as anti-psychotics. They are used extensively in psychiatric institutions and are the kind of drug most commonly used against a person’s will. Researcher David Cohen documents that there is no specific “anti-psychotic” effect to neuroleptics; in fact they have the same effects on any human being or animal, a profound dampening of the central nervous system, as well as many associated uncomfortable physical and mental sensations. There is a good summary of the harm caused by neuroleptic drugs in a shadow report that was submitted to the Human Rights Committee on the United States, and I include that in my list for further reading.

After the CRPD was adopted by the General Assembly, OHCHR [the United Nations Office of the High Commissioner for Human Rights] convened an expert meeting on torture and people with disabilities, and invited the Special Rapporteur on Torture and other torture experts of the UN to attend. I gave a presentation in that meeting along with several others from civil society, and the result was the 2008 report of Manfred Nowak. In addition to being one of the first UN actors to acknowledge that the CRPD prohibited involuntary treatment and involuntary confinement, Nowak adopted a standard similar to one I proposed during the elaboration of the CRPD.

In his version,

“Medical treatments of an intrusive and irreversible nature, without a therapeutic purpose or aimed at correcting or alleviating a disability, may constitute torture or ill-treatment if enforced or administered without the free and informed consent of the person concerned.”

Note a few things:

“Medical treatments of an intrusive and irreversible nature” – elsewhere in the report he refers particularly to electroshock, psychosurgery and administration of mind-altering drugs as reaching this threshold.

“Without a therapeutic purpose” *or* “aimed at correcting or alleviating a disability” – disjunctive “or” – some writers have made the mistake of collapsing the two.

This is significant because Nowak and Mendez both reject the idea that medical necessity is a justification for acts of discrimination against people with disabilities including forced treatment.

Note: “aimed at correcting or alleviating a disability” – this politicizes forced treatment from a disability perspective as being an assertion of what [CRPD Committee member] Theresia Degener called “the terror of normalization.” People with disabilities have a right to be as we are and not to have our bodies and minds made over to suit other people. We alone have the right to decide whether a medical treatment will support who we are or detract from who we are, and that is why free and informed consent is the essential requirement.

I’d like to address the criteria for torture under CAT [Convention against Torture] Article 1 as applied to forced psychiatric interventions. There are specificities for each of the component acts of forced psychiatry, and variations from one circumstance to another but general features can be outlined. First, what are the acts we are talking about?

Detention – involuntary hospitalization or institutionalization for any period of time in a mental health facility or social care institution

Forced treatment with invasive measures like psychosurgery, electroshock, and mind-altering drugs including neuroleptics; also any forced psychotherapy or correctional therapy

Restraint – physical or chemical (i.e. the use of drugs as restraint) for any period of time in the context of mental health services or in response to psychosocial disability

Solitary confinement, also for any period of time

Other associated acts of torture and ill-treatment that occur in institutions, such as strip-searches and body cavity searches, degrading and inhuman living conditions like excessive heat or cold, unpalatable food, clothing that doesn’t cover the body or forced nakedness, rape and assault by staff or other residents or detainees, etc.

The criteria for torture are:

Intentional Infliction of severe mental or physical pain or suffering By or with the acquiescence of a public official Not inherent in lawful sanctions For purposes such as obtaining a confession, coercion or intimidation of the person or another person, punishment of the person or another person, or for reasons based on discrimination of any kind.

Intent, under CAT article 1, is considered to be the general intent to do the act, and not specific intent that the victim experience suffering. This is significant since medical professionals as well as others who commit acts amounting to torture may deny that their purpose was to cause the victim to suffer. The Special Rapporteur on Torture considers that acts of discrimination based on disability, including forced treatment, satisfy both the elements of intent and purpose.

Infliction of severe mental or physical pain or suffering – my colleagues have documented the kinds of suffering and the scope of harmful consequences of forced psychiatry in a person’s life. The severity of our subjective experiences of pain and suffering needs to be acknowledged. As Hege said too often we are disbelieved and our suffering is made to seem insignificant. In my presentation to the OHCHR expert meeting in 2007 I listed some of the immediate, long-term and compound harms caused by forced drugging and electroshock, and by psychiatric detention itself. A few of these are: fear and terror, dissociation of mind from body, brain damage including memory loss and loss of cognitive skills, deprivation of privacy and subjection to the will of others, withdrawal syndrome from psychiatric drugs, diabetes and damage to organs such as liver, kidney and thyroid, trauma reactions such as triggers and flashbacks, lack of social space to recover and heal from the trauma of forced psychiatry because it is endorsed by law and the medical profession, moral and spiritual crisis due to encounter with cruelty and evil, social and economic challenges to leaving the mental health system and securing independent housing and livelihood – related to discrimination in housing and employment, inadequate standard of living on disability pensions, damage to relationships with family friends and community… for those of us in countries where forced psychiatry is widespread, it is the focal point for discrimination against people with psychosocial disabilities and a gaping wound that has to be cleaned out and healed so society as a whole can move forward together with us.

By or with the acquiescence of a public official – state responsibility for acts of torture extends both to acts carried out by public officials such as employees of public institutions, and to its complicity in authorizing and not taking effective measures to prevent acts of forced treatment and psychiatric detention by private actors.

Not inherent in lawful sanctions – refers to criminal sanctions, and psychiatric detention and forced treatment are not inherent in punishment for a crime, therefore in the criminal context as well as civil context these practices are unjustified.

For purposes such as obtaining a confession, coercion, intimidation, punishment or reasons based on discrimination –

The purpose of discrimination is satisfied as we have seen, by the nature of forced psychiatry as having an aim of correcting or alleviating a disability against the person’s will or without his or her free and informed consent.

Other purposes are also often present although unacknowledged by the psychiatric profession. Coercion and intimidation occur not only incidentally as a means of carrying out the interventions but as a purpose to change the person’s behavior and even further to change the person’s consciousness and destroy the motivation for the behavior. This clearly goes against legal capacity and it causes severe anguish to be aware that alteration is happening in one’s brain that inevitably affects consciousness, motivation and behavior.

Punishment happens more often than medical professionals would like to admit, and it is easy to see from any observation of the mental health system that psychiatrists heavily medicate individuals whom they do not like and consider troublesome. In the US we have found that use of all restrictive and coercive measures in psychiatry is done disproportionately against African Americans, which buys into negative attitudes and stereotypes towards people of color.

It can also be said that the persistent effort of mental health professionals to get people to admit that they have a mental illness, manifests a purpose of obtaining a confession.

If as it appears all the elements of torture are satisfied by the practice and system of forced psychiatry, then it should be acknowledged as such. To be acknowledged generally as “torture and/or other ill-treatment” there is a much lower threshold still. The Special Rapporteur on Torture acknowledged in 2013 that these practices and others dealt with in his report amount to ill-treatment and arguably meet the criteria for torture. We hope the Committee will build on this and on its jurisprudence to date under Article 15.

What can the Committee do to utilize Article 15 most effectively to end impunity for torture in psychiatry?

Take advantage of the synergy between the CRPD and the obligations relating to torture and ill-treatment in international law that are incorporated into Article 15. In particular, obligations to effectively prevent (in Article 15 text as well as CAT), to prohibit and to punish (in CAT). These obligations fully apply to forced psychiatry and need to be asserted. They are complementary to the obligation to take positive measures to develop non-medical model supports and to ensure that all mental health services are based on the free and informed consent of the person concerned. Utilize the framework of remedy and reparation as outlined by Hege in her presentation. [See also my post on this blog Reparations: It is Conceivable.] This can be particularly effective in the context of complaints and inquiries under the Optional Protocol, but can also be very useful if incorporated into Concluding Observations. Monitoring mechanisms for the prevention of torture cannot effectively prevent torture in psychiatry unless they are applying the CRPD standards. Violations that are not obviously medical in nature – such as excessive heat and cold, rapes and assaults – are intimately bound up with the medical labeling and interventions in a system that is the modern and scientific manifestation of a pervasive prejudice and exclusion of people with psychosocial disabilities. When monitoring mechanisms ignore or approve of the medical violations, they are contributing to impunity and to the ongoing harm faced by people with psychosocial disabilities as a result. The Committee should address this both in its Concluding Observations and through its interaction with relevant bodies to promote understanding not only of the CRPD but of the reasons for the profound paradigm shift in the CRPD.

Thank you for your attention and I look forward to the discussion.