OPCAT monitoring of psychiatric institutions and related issues in other forms of detention: CRPD Framework The Center for the Human Rights of Users and Survivors of Psychiatry (CHRUSP), Ubuntu Centre South Africa, the World Network of Users and Survivors of Psychiatry (WNUSP), Inclusion International and the International Disability Alliance (IDA) make the following recommendations to the Subcommittee on Prevention of Torture (SPT) on monitoring psychiatric institutions under its mandate, and on related issues facing people with psychosocial disabilities in other forms of detention. This document deals with the CRPD as a new normative framework to be applied transversally to the rights of persons with disabilities under all existing human rights obligations. We have experts at our disposal who are prepared to work with the SPT to develop detailed guidelines for monitors in relation to psychiatric institutions and related issues in other forms of detention, using the CRPD framework. A. CRPD as new normative paradigm Monitoring of psychiatric institutions for the purpose of preventing torture and ill-treatment begins with correctly identifying the applicable norms of international law. In particular, new interpretations of earlier treaty norms are required in light of the Convention on the Rights of Persons with Disabilities (CRPD). Convention on the Rights of Persons with Disabilities (CRPD), entered into force May 3, 2008, U.N. Doc. A/RES/61/106. CRPD Article 12 requires states to recognize the legal capacity of persons with disabilities to make their own decisions, equally with others, and to be supported to make their own decisions rather than someone else deciding for the person with a disability. CRPD Article 12, paragraphs 2, 3 and 4. CRPD Article 14 prohibits deprivation of liberty based on the existence of a disability. CRPD Article 14, paragraph 1(b). CRPD Article 19 requires states to ensure that persons with disabilities have the opportunity to choose their place of residence and where and with whom they live on an equal basis with others and are not obliged to live in a particular living arrangement. CRPD Article 19, paragraph (a) CRPD Article 25 requires states to ensure that health care is provided to persons with disabilities on the basis of free and informed consent. CRPD Article 25(d). Both the Special Rapporteur on Torture and the Office of the High Commissioner for the Human Rights (OHCHR) have come to the conclusion based on these and other provisions, that, unlike earlier non-binding standards, the CRPD does not accept involuntary treatment or involuntary confinement of persons with disabilities as a lawful practice. Interim Report of the Special Rapporteur on Torture and other cruel, inhuman and degrading treatment or punishment, (Special Rapporteur on Torture) U.N. Doc. A/63/175 (July 28, 2008), paragraph 44; Thematic Study by the Office of the United Nations High Commissioner for Human Rights on enhancing awareness and understanding of the Convention on the Rights of Persons with Disabilities, U.N. Doc. A/HRC/10/48, January 26, 2009, see especially paragraphs 48-49; Dignity and Justice for Detainees Week Information Note No. 4: Persons with Disabilities (OHCHR Information Note). In addition, administration of psychiatric treatments such as neuroleptic drugs and electroshock without the free and informed consent of the person concerned may constitute torture or ill-treatment. Special Rapporteur on Torture, paragraphs 40, 41, 47, 59, 61, 62-63. Involuntary commitment to psychiatric institutions for any reason may also constitute torture or ill-treatment. Id., paragraphs 64-65. OHCHR makes it clear that laws allowing psychiatric detention must be abolished: Legislation authorizing the institutionalization of persons with disabilities on the grounds of their disability without their free and informed consent must be abolished. This must include the repeal of provisions authorizing institutionalization of persons with disabilities for their care and treatment without their free and informed consent, as well as provisions authorizing the preventive detention of persons with disabilities on grounds such as the likelihood of them posing a danger to themselves or others, in all cases in which such grounds of care, treatment and public security are linked in legislation to an apparent or diagnosed mental illness. OHCHR Thematic Study, paragraph 49. The Special Rapporteur on Torture noted that, “in relation to persons with disabilities, the Convention on the Rights of Persons with Disabilities complements other human rights instruments on the prohibition of torture and ill-treatment by providing further authoritative guidance.” Special Rapporteur on Torture, paragraph 44. While psychiatric detention is regulated by law in many countries, and was considered lawful under earlier non-binding international standards, In particular, the Principles for the Protection of Persons with Mental Illness and for the Improvement of Mental Health Care, U.N. Doc. A/RES/48/119, December 17, 1991, which is now superseded by the CRPD to the extent of any conflict (UN Enable Newsletter, March 3, 2008). it is no longer an acceptable practice under international law, after the adoption and entry into force of the CRPD. CRPD Article 14.1(b) specifically contravenes such detention. This needs to be taken into consideration in all aspects of OPCAT Implementation, including the composition of the Subcommittee on Prevention of Torture and the National Preventive Mechanisms (NPMs), and the standards these bodies should apply when conducting their visits. In addition, psychiatric interventions or treatments without the free and informed consent of the person concerned, which are openly practiced and regulated by law under earlier standards, Id. are no longer acceptable under international law, and may constitute torture or ill-treatment. CRPD Articles 12.2 and 25(d) specifically contravene forced and nonconsensual psychiatric interventions, as persons with disabilities have an equal right with others to make decisions about medical treatment and procedures. The standards set out by the Special Rapporteur on Torture in this regard should be noted and followed. In particular, the administration of mind-altering drugs such as neuroleptics, or of electroshock, as treatment for a mental condition, is an intrusive and irreversible medical treatment aimed at correcting or alleviating a disability, and may constitute torture or ill-treatment if performed without the free and informed consent of the person concerned. Special Rapporteur on Torture, paragraphs 40, 47, 61-63. Such practices may also constitute torture or ill-treatment if administered without free and informed consent of the person concerned for non-therapeutic purposes including those enumerated in Article 1 of the Convention Against Torture (obtaining a confession, coercion, intimidation, or punishment). Special Rapporteur on Torture, paragraphs 47, 61-63. The obligation to prevent nonconsensual psychiatric interventions begins with recognizing the right to refuse in any manner and under any circumstances. Persons with disabilities must be recognized as having the legal capacity to make decisions about mental health treatment, and if necessary provided with support, including accessible communication, to ensure that their will and preferences are being respected. CRPD Articles 12 and 25, also Special Rapporteur on Torture paragraphs 44, 50, 73-74. Complementary to the prohibitions of psychiatric detention and compulsory treatment, the model of supported decision-making suggests a framework for positive measures. Better practices for the elimination of restraint, seclusion and all forms of coercion in mental health facilities and programs, the creation of a totally voluntary mental health system, and for supportive approaches to meeting the needs of people in altered states of consciousness or mental health crises, should be researched and promoted. Tina Minkowitz, Abolition of Mental Health Laws to Comply with the Convention on the Rights of Persons with Disabilities, forthcoming in in B McSherry and P Weller (eds), Rethinking Rights-Based Mental Health Laws (Oxford: Hart Publishing, 2010). See also, World Network of Users and Survivors of Psychiatry, Implementation Manual on the Convention on the Rights of Persons with Disabilities, available at http://www.wnusp.net, pp. 29 et seq. The CRPD norms also have relevance for persons with disabilities who are in prisons or other detention centers for reasons such as criminal arrest or conviction, or immigration status offenses. These individuals are entitled to the same guarantees as others under international human rights law CRPD Article 14, paragraph 2. (for example, those found in ICCPR Articles 7, 9, 10, and 14), and to be “treated in accordance with the objectives and principles of the CRPD, including by provision of reasonable accommodation.” Compulsory mental health treatment in prisons, and transfer of prisoners to the custody of mental health professionals (including jail diversion programs that have a penalty for noncompliance with treatment), violate the CRPD standards. Prisoners should have access to a range of support options and not be limited to medical-model treatment with psychotropic drugs. B. Monitoring mechanisms The Subcommittee and NPMs should give some thought to the relationship between independent monitoring of facilities and programs designed to serve persons with disabilities, as required by CRPD Article 16.3, and OPCAT monitoring. CRPD Article 16.3 monitoring is not contingent on detention, unlike OPCAT. It is suggested that monitoring under OPCAT and CRPD Article 16.3 be coordinated so as to protect against involuntary confinement contrary to the CRPD, as well as other forms of torture and cruel, inhuman or degrading treatment that may take place in psychiatric hospitals and outpatient clinics, and other facilities and programs designed to serve persons with disabilities. Such monitoring may continue to be appropriate even after involuntary confinement is abolished under domestic law, so long as persons with disabilities are exposed to discrimination and abuse. Monitoring should be therefore extended to any place where there is reason to believe that people are prevented from feely leaving, their freedom of movement is restricted or their freedom of choice of treatment is compromised whether this is by coercive or non coercive means. NPMs and independent monitoring mechanisms under CRPD Article 16.3 should draw heavily on users and survivors of psychiatry in monitoring psychiatric facilities and programs. First, users and survivors of psychiatry have developed expertise in monitoring institutions as well as in creating supportive alternatives. Second, visibility of users and survivors as monitors contributes to eliminating the power inequalities that give rise to abuse. Third, people confined in institutions or using mental health services may report abuse more readily to those who have had similar experiences and can relate to them as equals. All members of mechanisms monitoring psychiatric institutions should be chosen in close consultation with organizations of users and survivors of psychiatry, which should also be integral in national legislative drafting and policy design setting the mandate of the monitoring mechanism and its functions and setting the criteria for suitable characteristics, qualifications and expertise of the members to serve on the NPM. In countries where there is a substantial population of persons with intellectual disabilities confined in psychiatric institutions, persons with intellectual disabilities and their supporters should be involved in the monitoring of these institutions. The dual functions of prevention and protection are especially relevant to monitoring psychiatric institutions. It is envisaged that NPM’s will play a role in consulting and closely liaising with governments to ensure that access to rights are implemented and that procedures and policies are put in place to prevent any abuse. The other arm of the NPM is protectionist which requires unannounced visits and inspections which risks’ exposing human rights abuses. This reporting of abuses may compromise relationships and previous work with government officials. This may lead to conflict between NPM and State. It is therefore necessary to recognize that theses are two separate functions of the NPM and thus requires separate styles and methods of monitoring. This must be clear from the beginning of consultation and design so that the NPM works as a system that is both a protectionist and preventative body and unrestrained in acting in both these manners. Contact: Tina Minkowitz, Esq. Center for the Human Rights of Users and Survivors of Psychiatry 44 Palmer Pond Rd. Chestertown, NY 12817 USA tminkowitz@earthlink.net