July 2013

Psychiatric Treatments and the United Nations 1985 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment                                      PDF


Bob Sapey, July 2013


Introduction


Various psychiatric treatments including the use of neuroleptics without consent have been considered torture by the United Nations since 1986. This means that most mental health professionals are engaged in activities that could lead to their prosecution for torture.


I have written and spoken about this a few times, but have been aware that the background and documentation relating to this issue may not be familiar to many people. So I thought it might be helpful to write a blog as a guide to the key UN documents so that they can be used in teaching.


Each of the five documents listed in the references at the end can be found at the UN Commission on Human Rights website (www.ohchr.org) by searching for the document codes:
• E/CN.4/RES/1985/33
• E/CN.4/1986/15
• E/CN.4/1987/13
• A/63/175
• A/HCR/22/53


Psychiatric torture


In 1985, 40 years after the end the Second World War and one year after The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment had been adopted by the United Nations General Assembly, the UN Commission on Human Rights decided to appoint a special rapporteur to examine questions relevant to torture. The Commission wished to pay tribute to those who helped end the Second World War whilst also responding to their serious concerns ‘about the alarming number of reported cases of torture and other cruel, inhuman or degrading treatment of punishment taking place in various parts of the world’ (UNCHR, 1985). This appointment was initially for one year, but the role has been continuously renewed.


In 1986, Mr. Peter Kooijmans from the Netherlands submitted his report to the Commission (UNCHR, 1986).  In this he set out the range of activities that constituted torture (paragraph 119). Torture can be both physical and psychological. Physical torture includes:
1. Beating
2. Extraction of nails and teeth
3. Burns
4. Electric shocks
5. Suspension by feet, hands, testicles
6. Suffocation
7. Exposure to excessive light or noise
8. Sexual aggression
9. Administration of drugs in detention or psychiatric institutions, including ‘neuroleptics, that cause trembling, shivering and contractions, but mainly make the subject apathetic and dull his intelligence’  (UNCHR, 1986:29).
10. Prolonged denial of rest or sleep
11. Prolonged denial of food
12. Prolonged denial of hygiene
13. Prolonged denial of medical aid
Psychological torture includes:
14. Total isolation and sensory deprivation
15. Being kept in constant uncertainty, in terms of space or time
16. Threats to kill or torture relatives
17. Being forced to help torture relatives
18. Total abandonment
19. Simulated executions
20. Disappearance of relatives
This list is of acts of torture, not other cruel, inhuman and degrading treatment and punishments also covered by the Convention.


The following year, Mr. Kooijman's report on the qeustion of torture was presented to the UN General Assembly. He dealt with the issue of psychiatric treatment in greater depth and the record of the session records that:
'Consequently, the Special Rapporteur of the Sub-Commission proposed the adoption of a draft body of principles, guidelines and guarantees for the protection of the mentally ill or persons suffering from mental disorder. They include the following: "difficulties of adaptation to certain moral, social, cultural or political values or religious beliefs shall not be a determining factor in diagnosing a mental illness or a mental disorder" (draft art. 5, para. 2); "certain therapies and treatments, such as psychosurgery and electroconvulsive treatment, shall never be applied without the patient's consent or the consent of his legal representative" (draft art. 9, para. 3); "medication shall be given to a patient only for therapeutic purposes and shall not be administered as a punishment or used for the purpose of restraint or for the convenience of the medical and nursing staff" (draft art. 10, para. 1); and "every patient shall have the right to refuse treatment" (draft art. 11, para. 1). (UNCHR, 1987, Para. 34)


In 2008, following the adoption by the UN of the Convention on the Rights of Persons with Disabilities in 2006, the special rapporteur to the Commission on Human Rights, Manfred Nowak reported to the Commission on the same questions of torture, but with a specific focus on disabled people and this was also presented to the UN General Assembly (UNCHR, 2008).  In this report Manfred Nowak referred back to the work of Mr Kooijmans in stating:
'Inside institutions, as well as in the context of forced outpatient treatment, psychiatric medication, including neuroleptics and other mind-altering drugs, may be administered to persons with mental disabilities without their free and informed consent or against their will, under coercion, or as a form of punishment. The administration in detention and psychiatric institutions of drugs, including neuroleptics that cause trembling, shivering and contractions and make the subject apathetic and dull his or her intelligence, has been recognized as a form of torture'.
(UNCHR, 2008, para. 63)


He went on to refer to a case of Viana Acosta v. Uruguay in which
'...the Human Rights Committee concluded that the treatment of the complainant, which included psychiatric experiments and forced injection of tranquillizers against his will, constituted inhuman treatment'.
(UNCHR, 2008, para. 63)


He concludes this brief discussion by stating that,
'The Special Rapporteur notes that forced and non-consensual administration of psychiatric drugs, and in particular of neuroleptics, for the treatment of a mental condition needs to be closely scrutinized. Depending on the circumstances of the case, the suffering inflicted and the effects upon the individual’s health may constitute a form of torture or ill-treatment.' (UNCHR, 2008, para. 63)


Earlier this year the current special rapporteur, Juan E. Méndez’s recommendations in respect of persons with psychosocial disabilities to the Human Rights Council were put to the UN General Assembly.
The Special Rapporteur calls upon all States to:
a) Review the anti-torture framework in relation to persons with disabilities in line with the Convention on the Rights of Persons with Disabilities as authoritative guidance regarding their rights in the context of health-care;
b) 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. The obligation to end forced psychiatric interventions based solely on grounds of disability is of immediate application and scarce financial resources cannot justify postponement of its implementation;
c) Replace forced treatment and commitment by services in the community. Such services must meet needs expressed by persons with disabilities and respect the autonomy, choices, dignity and privacy of the person concerned, with an emphasis on alternatives to the medical model of mental health, including peer support, awareness-raising and training of mental health-care and law enforcement personnel and others;
d) Revise the legal provisions that allow detention on mental health grounds or in mental health facilities, and any coercive interventions or treatments in the mental health setting without the free and informed consent by the person concerned. Legislation authorizing the institutionalization of persons with disabilities on the grounds of their disability without their free and informed consent must be abolished. (UNHRC, 2013, para. 89)

References


United Nations Commission on Human Rights (1985) Resolution 1985/33. Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. E/CN.4/RES/1985/33 [www.ohchr.org].


United Nations Commission on Human Rights (1986) Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment Report by the Special Rapporteur, Mr. P. Kooijmans, appointed pursuant to Commission on Human Rights resolution 1985/33. E/CN.4/1986/15 [www.ohchr.org].


United Nations Commission on Human Rights (1987) Question of the human rights of all persons subjected to any form of detention or imprisonment torture and other cruel, inhuman or degrading treatment or punishment. Report by the Special Rapporteur, Mr. P. Kooijmans, appointed pursuant to Commission on Human Rights resolution 1986/50. E/CN.4/1987/13 [www.ohchr.org].


United Nations Commission on Human Rights (2008) Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. A/63/175 [www.ohchr.org].


UNHRC (2013) Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, Juan E. Méndez. A/HCR/22/53 [www.ohchr.org].

Comment by Bill Penson on August 1, 2013 at 7:57
Bob, this is such an informative contribution with enormous implications. If this is also placed alongside the International Federation of Social Work code of practice which states social workers will not participate in torture, and they are also signing up to UN conventions, and British Association of Social Work is one of the IFSW affiliates, it further questions the AMPHs role.
Comment by julie gosling on August 1, 2013 at 9:03
Very important references - lets look for the loopholes that will be used to justify the continuance of these degrading practices
Comment by Janie Greville on August 21, 2013 at 17:09

Bob - right now I would like to meet you, buy you a drink and give you a huge hug. Thank you x infinity for this exponentially empowering information and for providing the resources from which you have drawn it and have so clearly and engagingly presented it. 

I suspect you will hear more of me, little by little.... and not inconsequentially because of this outstanding blog contribution.

Affectionately Yours,

Janie Greville

Comment by Alex Davis on September 18, 2013 at 16:31

 I would like to start my comment with a few quotes,the first two from Richard Jones,"Mental Health Act Manual", Fifteenth edition,2012.

"The United Nations Convention on the Rights of Persons with Disabilities was adopted by the General Assembly on December 13,2006. As an unincorporated treaty it does not have direct effect in UK law." page 15.

"The only international instrument against which UK mental health law can be judicially tested is the ECHR  (European Convention on Human Rights)...The Human Rights Act 1998 incorporates articles from the ECHR into UK law." page 16.

My final quote is from Javaid Rehman, "International Human Rights Law",Second Edition, 2010.

"While it is true that the findings and recommendations of the Special Rapporteur (On Torture) do not have any binding effect and cannot be enforced,they nevertheless had an impact in raising awareness of the subject..." page 846.

So I don't think that AMHP's need to worry just yet about appearing court while fulfilling their role,with due dilligence,etc.

So while I disagree with Bob that Uk mental health professionals are currently acting unlawfully he is absolutely right to raise this important topic.

But I think that the ECHR and the work of the European Court of Human Rights is a better place to start.

As I understand it the key piece of European case law here is "Winterwerp v Nertherlands (A/33) (1979-80, summarised in Jones (see above), "..determined that detention on the grounds of mental disorder is only lawful under art.5 (Right to Liberty and security) of the ECHR if (1) there is objective medical evidence that the patient suffers from mental disorder;(2) the mental disorder is of a kind or degree warranting compulsory confinement; and (3) the mental disorder persists." page 415.

Thanks Alex Davis. 

Comment by Janie Greville on September 18, 2013 at 19:05

Thanks for that Alex - I'm starting to think that you might be one of those info ocd squirrels - a much needed animal in this sphere (or indeed all?).  I take your point - it's not, then a blog entry of info to open a floodgate of litigation. But it does open stuff up for more confident debate.

My question to you is this -- '(2) the mental disorder is of a kind or degree warranting compulsory confinement' - this is extremely woolly wording: are there any boundaries to it? Otherwise it can be interpreted literally anyway one wants: being found 'one drink over the top' could be a reason; annoying someone could constitute a reason (and indeed in my own case always did); expressing un-common views could be seen as a reason - the observer has as much or as little lee-way as they happen to feel entitled to were this definition to stand alone.

Be good to hear your response - and anyone else's,

Cheers, Janie Greville

Comment by Alex Davis on September 18, 2013 at 19:49

hi Janie,there's no easy answer to your question. What Jones has done is to give a brief brief summary of Winterwerp. The full text of the judgement is available on line at Winterwerp v. The Netherlands-HUDOC Search Page.  

 But I am not sure that would answer your question. Each jurisdiction has its own criteria. For us it is of course the Mental Health Act 1983 ,alongside both national case law and case law from the European Court that provide the criteria. Some jurisdictions do not have specific mental health laws. They rely on general legislation. Alex Davis.

Comment by Bob Sapey on September 20, 2013 at 17:31
I agree that redress in England would be through the Human Rights Act and the status of the UN Convention on the Rights of Persons with Disabilities is not superior to this. But the UN convention that my blog draws on is the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment that was ratified in 1985. Forcing people to consume neuroleptics contravenes this convention.
Comment by Alex Davis on September 21, 2013 at 12:48

I still don't agree,my apologies for not tackling the European Convention against Torture directly.

Article 1 of the Convention defines "torture".

"For the purpose of this Convention,the term "torture" means any act by which severe pain or suffering,whether physical or mental, is inflicting on a person for such purposes as obtaining from him or a third person information or a confession,punishing him for an act he or a third party has committed or is suspected of committed,or intimidating or coercing him or a third person,or for any other reason based on discrimination of any kind,when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from,inherent in or incidental to lawful sanctions".

As the Association for the Prevention of Torture points out,this definition involves 3 cumulative elements:

1 the intentional infliction of severe mental or physical suffering;

2 by a public official,who is directly or indirectly involved;

3 for a specific purpose.

In terms of this definition I would argue that all incidents  of psychotropic medication given to a non-consenting patient are not torture,though some might be.

If we think back to the days of Soviet Psychiatry then there were many incidents of torture,using the above definition, involving psychotropic medication.

"Dissidents" were routinely diagnosed with such labels as "philosophical intoxication",I think it means thinking too much, and forced to take medication.

However, I don't think that the majority of compulsory psychiatric treatment in the UK,for all its faults, meets the Article 1 definition.

It fails on both the first and third elements, it is not the intentional infliction of severe mental suffering (even though such suffering may happen) and it is not for a specific purpose ,in the terms of such purposes detailed in Article 1.

Incidently I went to the "Freedom From Torture"( previously the Medical Foundation for the Care of Victims of Torture) West Midlands Open Day in Birmingham yesterday. Some of it was quite harrowing as a number of survivors of torture spoke about their struggles to recover and get some quality of life in England.Not aided of course by the Home Office and the other official agencies. Freedom from Torture have  started a service user organisation  called "Survivors Speak Out",rings a few bells.

The survivors and the clinicians talked about the various mental health issues that they had to deal with,not just the original torture experience but also the often very dangerous journeys they had to undertake to get here.

I thinks its important that we try and make some links. Alex Davis.

Comment by Janie Greville on September 22, 2013 at 17:56

Alex, I would agree with everything you say (though this doesn't also mean that I consider the laws pertaining to compulsory treatment are acceptabtable). I notice the point about there being room for occasional errors of judgement - where, for example, psychotropics are used amongst other coercive and threatening behaviours by 'medical' staff to ensure that the 'patient' 'adheres' to the 'party line' on 'reality' - this is  most certainly true. It was true in my case from 1997 and particularly true by 98 and beyond. The challenge is this: where 'medical staff'' are deluded; misguided into believing a story that is false by a third party (for example, an ex-husband, or an appearing 'husband') then their sincerity is beyond question whilst their actions are proving to constitute 'torture' by effect (eg - believe this (which is not true but we don't realise this) or you are insane and you must lose your children; take this psychotropic medication (to lower your resistance and ease you into despair) to assist you to believe this and then you can keep your children and we won't imprison you.' 

What is the legal position in relation to such a case, Alex?

Janie

Comment by Alex Davis on September 22, 2013 at 19:32

Hi Janie, I think your question is beyond my competence. You would need to find a sympathetic solicitor who is a member of the Law Society's Mental Health Accreditation Scheme. The problem is that I don't think that you would qualify for legal aid. You would need to check it out. Alex Davis.

Comment by Janie Greville on September 22, 2013 at 20:28

spot on alex = I sense that you are au fait with my sensitive predicament: if truth be known, unless I feel confident that my experience is generic not unique or extraordinary then I'm loathe to take action.... ;-)

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