Is the CRPD prohibition of forced treatment absolute?

1. Is the CRPD prohibition of forced treatment absolute? Tina Minkowitz

2. Scope and significance • Forced psychiatric interventions • General principle of free and informed consent/ right to refuse unwanted treatment • Medical emergencies • Psychosocial crisis situations • Situations in which it is not possible to obtain expression of will and ‘best interpretation’ becomes applicable • Includes admission to a medical facility for care, treatment, rehabilitation or long-term placement

3. Debates • Is there some forced treatment that is allowed under human rights law, that does not discriminate against PWD? • Could that ever include forced psychiatric treatment? • Do ‘forced’, ‘against the person’s the will,’ and ‘without the free and informed consent of the person concerned’ have the same meaning? • Can a ‘best interpretation of will and preferences’ ever allow forced treatment? • How should duty-bearers respond to conflicting expressions of will by the person, or conflicting evidence for best interpretation? • Are forced psychiatric interventions uniquely egregious or only a particular instance of nonconsensual treatment?

4. Roots of ‘absolute prohibition’ • Legal capacity includes right to decide yes or no, to medical treatments • Free and informed consent in health care and corollary, right to refuse treatment – right to control one’s own body and health • Civil right – recognition as person before the law, and respect for integrity of the person • Right to be free from nonconsensual medical and scientific experimentation and intervention, as part of freedom from torture and other ill-treatment • Right to be free from infliction of severe mental or physical pain or suffering for reasons based on discrimination, or for purposes such as coercion, punishment, or obtaining a confession • Right to be free from interventions designed to diminish capacities or to destroy the personality

5. Roots 2 • Right to be different • Acceptance of PWD as part of human diversity and humanity • Right to be free from forced or nonconsensual interventions aimed at correcting or alleviating an impairment • Right to non-discrimination in protection against torture and other ill-treatment • Forced/nonconsensual psychiatric interventions against non-disabled persons recognized as torture/ill-treatment; settled and uncontroversial international law • ‘Therapeutic’ or ‘medical necessity’ arguments cannot be used to justify use of destructive or forced/nonconsensual interventions constituting torture/ill-treatment against PWD

6. From 1986 report by Special Rapporteur on Torture (E/CN.4/1986/15)

7. Returning to debates • Is there some forced treatment that is allowed under human rights law, that does not discriminate against PWD? • Could that ever include forced psychiatric interventions? • Forced psychiatric interventions are always discriminatory – based on attributed impairment • (Or, otherwise violative of international law as mere chemical restraint) • GC1; G14 - forced treatment violates the right to legal capacity and the right to respect for physical and medical integrity; African Protocol • Right to make decisions applies at all times, including emergency situations • Communicable diseases? - remaining dilemma

8. Returning to debates 2 • Do ‘forced’, ‘against the person’s the will,’ and ‘without the free and informed consent of the person concerned’ have the same meaning? • ‘Forced’ should be understood as shorthand for ‘against the person’s will or without the free and informed consent of the person concerned’ • GC1 - violation of the right to legal capacity • Invokes the right to decide substantively about matters affecting physical and mental integrity, and not only question of how the unconsented intervention is accomplished (whether force is applied to inject, or whether threat results in the person’s cooperation)

9. Returning to debates 3 • Can a ‘best interpretation of will and preferences’ ever allow forced treatment? • GC1 guarantees respect for decisions at all times, including in crisis situations (presumably including medical emergencies and psychosocial crisis situations) • How should duty-bearers respond to conflicting expressions of will by the person, or conflicting evidence for best interpretation? • Interpretation of expression of will is not new issue for law – factual inquiry based on available evidence • Conflict and ambivalence inherent to human life and decision-making – third parties have no legitimacy to impose resolution • Amounts to functional and/or outcome-based deprivation of legal capacity • Japanese case demonstrates violation of the right to life – https://mainichi.jp/english/articles/20190307/p2a/00m/0na/007000c • Woman expressed wish to die and changed her mind, psychiatrist said her long-term will was to die and terminated dialysis treatment.

10. Returning to debates 4 • Are forced psychiatric interventions uniquely egregious or only a particular instance of nonconsensual treatment? • We have argued consistently that they are egregious because: • Disability-based – attacks the right to be different • Already understood as assault on human personality in jurisprudence addressing forced psychiatric drugging and incarceration of non-disabled people • Specific regime of state-sponsored violence targeting a subgroup of PWD for medicalization of their disability and violent alteration of mind and body • Used incidentally against PWCD, PWID, others as form of restraint – but only PWPSD are medicalized and this violence promoted as ‘treatment’ for the disability

11. Conclusions • CRPD Committee should continue to promote the absolute prohibition of forced treatment and help states to understand their obligations: • All forced treatment violates the right to legal capacity and the right to respect for physical and mental integrity. • Best interpretation of will and preferences done correctly approximates free and informed consent and does not proceed against the person’s will. • Communicable diseases problem needs to be resolved. • It is essential to highlight and deal particularly with the regime of forced psychiatric interventions, including forced admission and detention in mental health settings for any period of time as well as forced drugging, forced electroshock, restraint and seclusion – state-sponsored violence amounting to torture and other ill-treatment. • Medicalization of people with psychosocial disabilities is at the root of the continuing justification of this regime by states, and must be understood and directly combatted.

12. Resources on holistic view of rights of PWPSD • Chilean Mad Pride movement (Spanish): http://www.periodismoudec.cl/tiemporeal/2018/12/19/el-orgullo-loco-emerge-en-un-chile-doliente/ • Transforming Communities for Inclusion (TCI) Asia-Pacific, Bali Declaration: https://transformingcommunitiesforinclusion.wordpress.com/2018/10/01/full-text-of-the-bali-declaration/ • Pan African Network of People with Psychosocial Disabilities (PANUSP) Cape Town Declaration: http://www.globalmentalhealth.org/sites/default/files/docs/PANUSP%20Cape%20Town%20Declaration%2010.2011.pdf • 10th Conference on Human Rights and Against Psychiatric Oppression Principles (mainly North America): https://mindfreedom.org/kb/act/movement-history/1982-principles/ • ENUSP submission to DGD on Article 19, http://enusp.org/wp-content/uploads/2016/03/ENUSP_submission_DGD_art_19_CRPD_sent_2March2016.pdf • World Network of Users and Survivors of Psychiatry – Human Rights Position Paper: http://www.wnusp.net/index.php/human-rights-position-paper-of-the-world-network-of-users-and-survivors-of-psychiatry.html

13. Presenter information • tminkowitz@earthlink.net • www.chrusp.org • https://uio.academia.edu/TinaMinkowitz • www.crpdcourse.org • www.absoluteprohibition.org