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Review and Analysis of UN Prohibition of Psychiatric Commitment

October 15, 2013

tminkowitzTina Minkowitz, WNUSP International Representative has published an article, UN Prohibition of Psychiatric Committment: Review and Analysis that is very important for all our advocacy. It is important that we use these standards in our advocacy and encourage governments and their structures to adhere to them. You can read full the article by accessing the this link: http://www.madinamerica.com/2013/10/un-leaves-doubt-end-mental-health-detention/

The following extract from the article demonstrates some of the important standards established. Concluding Observations of the CRPD Committee were adopted in 2013 on the three countries under review, El Salvador, Austria and Australia .

Take note that all take the resoundingly clear position that psychiatric detention is prohibited under Article 14. You can read them in full on the UN website.

In particular:

  • Legislation that allows detention in a psychiatric facility “when [a person has] a psychosocial disability and it is forecast that they might endanger themselves or other persons” is in conflict with Article 14.  (Austria CO, para 29)
  • Such legislation falls within Article 14′s prohibition of deprivation of liberty based on an actual or perceived disability.  (Austria CO, para 29)
  • The country should “take all necessary legislative, administrative and judicial measures to ensure that no one is deprived against their will in any kind of mental health facility.”  (Austria CO, para 30)
  • The country should repeal “legal provisions that authorize commitment of individuals to detention in mental health services, or the impositin of compulsory treatment either in institutions or in the community via Community Treatment Orders (CTOs).”  (Australia CO, para 34)
  • The country should “abolish norms that authorize deprivation of liberty based on disability, which attribute to disability the possibility of causing harm for the person or others, or that ascribe to it the need for care and treatment, and should establish suitable procedures so that health services, including mental health, proceed only after the free and informed consent of the person concerned.”  (El Salvador CO, para 32)

There is still more good news.  Article 14 of the CRPD has a second paragraph that guarantees equal treatment to persons with disabilities who are deprived of their liberty by any process to which they remain subject as members of the public (such as criminal arrest and detention).  There has been controversy as to whether this provision prohibits people from being committed to psychiatric institutions as a result of criminal proceedings (e.g., when the person is found not guilty by reason of insanity or is considered unfit to stand trial).  The Office of the High Commissioner for Human Rights, in its Study on legal measures linked above, gave early support to our view that the insanity defense itself is inconsistent with the CRPD guarantee of equal legal capacity in another provision of the treaty, Article 12.  The issues raised under Article 14 in the criminal context, in particular the prohibition of criminal or forensic psychiatric commitment, are now beginning to be addressed by the Committee and also by the Special Rapporteur on Torture.  I will try to address this in more detail in a later blog, but for now will point to additional highlights from September’s Concluding Observations, and from the latest report of the Special Rapporteur on Torture:

  • The country was urged “to ensure that persons with psychosocial disabilities are ensured equal substantive and procedural guarantees as others in the context of criminal proceedings and in particular to ensure that no diversion programs are implemented that transfer individuals to mental health commitment regimes or that require the individual to participate in mental health services rather than providing such services on the basis of the individual’s free and informed consent.”  (Australia CO, para 29)
  • It was further urged “to ensure that all persons with disabilities who are accused of crimes and are currently detained in jails and institutions without a trial are promptly allowed to defend themselves against criminal charges and are provided with required support and accommodation to facilitate their effective participation.”  (Australia CO, para 30)
  • “Rules 82 and 83 [which provide for forensic psychiatric commitment and other segregation of “insane and mentally abnormal prisoners”] should be replaced with a provision that applies to all persons with disabilities. Such a provision should state explicitly that inmates with disabilities are entitled to be eligible for all programmes and services available to others, including voluntary engagement in activities and community release programmes, and to be housed in the general prison population on an equal basis with others without discrimination. It should also provide a clear articulation of certain rights enshrined in the Convention on the Rights of Persons with Disabilities: the duty to provide reasonable accommodation (arts. 5 and 14); the duty to work towards creating an accessible environment (art. 9); the duty to ensure that persons with disabilities have access to all amenities without having to rely on assistance from fellow inmates (e.g., arts. 5, 20 and 28); the duty to respect the choices of persons with disabilities and to establish effective mechanisms to support decision-making in order to enable people with psychosocial or intellectual disabilities to exercise their legal capacity on an equal basis with others (see arts. 12 and 13).” (Special Rapporteur on Torture SMR report, para 72)

And lastly, with regard to the Committee’s stance against forced psychiatric drugging and other coercive practices, they are continuing to be quite firm, addressing forced psychiatry as a form of torture and ill-treatment as well as a violation of the right to free and informed consent in health care, the right to integrity of the person, and the right to legal capacity.  (See El Salvador CO paras 28, 33, 37 and 52; Austria CO para 28; Australia CO paras 25, 35, 36.)  This reaffirms the bottom line as expressed by the Special Rapporteur on Torture earlier this year (see also clarifying statement), when he called on all countries to:

“Impose 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.”

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