CRPD and the obligation to prohibit and prevent torture and ill-treatment
Side event at 13th session of Committee on Rights of Persons with Disabilities
“CRPD Article 15: Its Potential to End Impunity for Torture in Psychiatry” 30
March 2015
Tina Minkowitz
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 chrusp.org
Resources page.
1. 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 “antipsychotic” 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.
2. After the CRPD was adopted by the General Assembly, OHCHR 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.
“aimed at correcting or alleviating a disability” - this politicizes forced treatment
from a disability perspective as being an assertion of what Theresia 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.
3. I’d like to address the criteria for torture under CAT 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:
1) Intentional
2) Infliction of severe mental or physical pain or suffering
3) By or with the acquiescence of a public official
4) Not inherent in lawful sanctions
5) 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.
4. What can the Committee do to utilize Article 15 most effectively to end
impunity for torture in psychiatry?
1) 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.
2) Utilize the framework of remedy and reparation as outlined by Hege in her
presentation. 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.
3) 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.