Mental Health Legal Centre Inc.

Lacking Insight - Foreword by Tina Minkowitz

FOREWORD

We have now ushered in a new era with the entry into force of the Convention on the Rights of Persons with Disabilities – an era in which forced treatment and confinement are recognized as unacceptable under international human rights law.

Involuntary treatment and involuntary confinement are contrary to the Convention, according to UN Special Rapporteur on Torture, Manfred Nowak, a departure from earlier non-binding standards such as the Principles for the Protection of Persons with Mental Illness and for the Improvement of Mental Health Care. The International Disability Alliance has addressed the details in which these Principles and other outdated provisions on the rights of persons with disabilities should be regarded as superseded by the Convention.

The Rapporteur details many provisions of the Convention that require the conclusion that compulsory treatment and detention are prohibited, as well as their complementarity with the international legal framework for the prevention of torture. He rejects the view that detention is permitted based on disability coupled with other grounds. Laws that permit forced psychiatric interventions and involuntary commitment facilitate practices that may constitute torture or ill-treatment, potentially incurring state responsibility for these serious human rights violations.

States must find other ways of responding to people experiencing emotional crisis, in order to comply with the Convention on the Rights of Persons with Disabilities and other obligations under international law. Numerous non-coercive and non-medical model alternatives exist now, and they must be researched, further developed and fully funded, as the current coercive system is de-funded.

Over the course of a six-month project, I monitored hearings in the Mental Hygiene Part of the New York State Supreme Court in Brooklyn, New York (trial-level court designated to hear cases under the Mental Hygiene Law). The court in New York was a judicial body, in contrast to Victoria’s Mental Health Review Board which is composed of a psychiatrist, a lawyer and a community representative, but the failure to vindicate the rights of people labelled with mental illness, or to treat them with equal respect as other participants in the hearing, is comparable, as a result of the discriminatory legal framework in both jurisdictions.

Procedural safeguards such as review bodies do not solve the problem of forced treatment, because the legal framework is inherently flawed and legitimizes discrimination against people with psychosocial disabilities – people experiencing emotional crises or who have been labelled by others as such.

My courtroom observations[1] taught me that procedural safeguards and legal standards for “involuntary treatment” are no panacea. I watched as people had their day in court and turned with a stunned look on their faces to their attorneys who had to explain that they would have to accept the unwanted medication. I saw family members aggressively pursue “mental health warrants” against youth and elders who had little power to defend themselves. Even with a state-of-the-art legal standard recognizing the right of involuntarily committed individuals to refuse treatment so long as they had the “capacity to make a rational decision” about such treatment, 70% of the time the hospital’s order to override the person’s objection to medication was granted, and only 15% of the time denied (the remainder were adjourned or had other dispositions). I observed that people who had professional knowledge of the drugs’ harmful effects, who had experienced harmful effects, or had strong feelings about remaining free of psychotropic drugs, were found to lack the capacity to refuse treatment, when the hospital testified that the person was paranoid (for distrusting psychiatry or thinking the drugs were poison) or that the person was socially withdrawn, or without any specific grounds at all.

This also was my introduction to the discriminatory nature of legal capacity, and illustrates why, as the Special Rapporteur on Torture has recommended, recognition of the legal capacity of persons with disabilities to make decisions is a key component of any strategy to prevent forced psychiatric interventions and other forms of torture or ill-treatment.

The deprivation of rights presided over by Mental Health Review Boards is not trivial or harmless – as demonstrated by a large body of literature by survivors detailing psychiatric atrocities and their consequences, as well as mainstream scientific studies showing the brain-damaging effects of electroshock and neuroleptic drugs. The traumatic effects of being effectively powerless to defend oneself against destructive invasions of the body and mind doubtless influenced the Special Rapporteur on Torture in his decision to call attention to forced psychiatric interventions among other forms of torture and ill treatment of persons with disabilities.

The Convention on the Rights of Persons with Disabilities provides for both self-determination and support in decision-making: no one is abandoned in a time of crisis. Active listening on the part of supporters is necessary to understand communication in difficult circumstances, and forbearance is necessary to set aside the supporter’s wishes and follow those of the person being supported. This is the opposite of forced psychiatry and its enabling legal frameworks, including review hearings, as reflected in the “Consumer” section of this report. The supportive approach affirms what many of us in the movement of users and survivors of psychiatry, our friends and supporters have learned by experience: it is possible to communicate with people who are going through madness, and it is imperative to respect the person’s choices and values, especially those related to the crisis itself (such as whether or not to use psychoactive drugs to bring the crisis to an end).

Advance directives and pre-crisis planning can help by encouraging people to think through their own values and communicate them to relevant others, including supporters and health care providers. Advance directives, if legally binding (that is, if health care providers are required to obey them and not merely to take them into consideration), can help make the transition from the current regime of incapacity and compulsion to supported decision-making as required by the Convention.

Users and survivors of psychiatry are poised to take a leading role in reshaping both the legal framework and the service systems that govern our lives. The journey from substandard rights to full equality will demand adjustments at every level, and its rewards are immense: not only an end to shameful violations of human rights, but a liberation of human potential.

Tina Minkowitz[2]

Co-chair of the World Network of Users and Survivors of Psychiatry.

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