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Back to: Third Session of the Ad Hoc Committee
NGO Comments at the third session
Comments by NGOs at the Third Session
World Network of Users and Survivors of Psychiatry
Article 9
May 26, 2004
Article 9 of the draft text contains the essential elements for the
elimination of substituted decision-making and the provision of assistance
to those who wish to have it. Paragraphs b and c(i) guarantee that no
person will be deprived of legal capacity which means the right to have
the final choice in one’s own decision-making. Paragraph d requires
states to ensure the availability of assistance in decision-making and
related activities to those who require it.
At our side event yesterday a speaker provided information about a
model for supported decision-making developed by a Canadian organization
and partially implemented in a provincial government in Canada. We are
providing excerpts of that report, which outline the main features of
the model, and a url for an accessible version of the full report, on
the table outside. Besides guaranteeing autonomy in the sense that the
final decision is always up to the person him or herself, the model
recognizes that interdependence in decision-making is a fact of life
for all human beings and is based on the recognition and facilitation
of relationships of trust between individuals. No competency tests would
be imposed under this model and procedural safeguards only exist to
ensure that the person providing support is meeting his or her obligations
including the obligation to follow the wishes of the person receiving
support. A new public office would be created to facilitate the development
of trusting relationships for individuals who are currently isolated,
and there is a residual judicial power of decision-making when the wishes
of an individual cannot be ascertained or interpreted and an important
decision must be made.
World Network of Users and Survivors of Psychiatry believes that it
is premature to propose specific text based on the proposal we have
looked at. The proposal was written within a specific national context
and needs to be translated into text appropriate for an international
convention. We would prefer to do this by means of consultation among
all interested parties after this Ad Hoc Committee meeting and before
the next one.
Draft article 11
FREEDOM FROM TORTURE OR CRUEL, INHUMAN OR DEGRADING TREATMENT OR PUNISHMENT
May 26, 2004
Article 11 obligates states to prevent torture and other ill treatment
of people with disabilities, in particular, medical or scientific experimentation
without the free and informed consent of the person concerned, and forced
interventions or institutionalization to correct, improve or alleviate
any actual or perceived impairment.
This is crucial for people with psychosocial disabilities. World Network
of Users and Survivors of Psychiatry is familiar with situations all
over the world where people are subjected to invasive and harmful psychiatric
procedures as well as experimentation, without their consent. These
procedures range from psychosurgery and electroshock without anesthesia,
to forced and coerced administration of drugs that interfere with our
mental functioning and distort our personalities.
Such interventions violate the international human rights norm prohibiting
torture, under certain conditions. The definition of torture in the
Inter-American Convention to Prevent and Punish torture includes:
the use of methods upon a person intended to obliterate the personality
of the victim or to diminish his physical or mental capacities.
Inter-American Convention to Prevent and Punish Torture, Article 2
When psychiatric interventions are used against the will of any person
to interfere with the person’s capacity to produce certain kinds of
thoughts, destroy the person’s existing psychological makeup, or prevent
the person from carrying out actions, this fits within the definition
of torture in the Inter-American Convention. This concept is closely
related to the freedom of thought enshrined in ICCPR article 18, which
is not subject to any limitations or derogations.
ICCPR article 18, paragraph 2 reads:
No one shall be subject to coercion which would impair his freedom
to have or to adopt a religion or belief of his choice.
Psychiatric interventions that invade the brain and interfere with
its capacity to produce thoughts violate article 18. No procedures or
legal standards are contemplated by the ICCPR to allow limitation of
this freedom or the corresponding state obligation to refrain from any
coercive interventions.
The definition of torture in the UN Convention Against Torture reads,
For the purposes of this Convention, the term "torture"
means any act by which severe pain or suffering, whether physical or
mental, is intentionally inflicted 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 person has committed or is suspected of
having committed, or intimidating or coercing him or a third person,
or for any 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.
Convention Against Torture, Article 1(1)
Psychiatric interventions such as psychosurgery, electroshock and drugging
with neuroleptics (often considered a “chemical straitjacket”) are often
done for coercive purposes to induce the individual to change his or
her behavior. Under such circumstances, it is appropriate to speak of
the intentional infliction of severe mental and physical pain and suffering
for a coercive purpose. This happens, for example, when a psychiatrist
orders the forcible administration of one neuroleptic drug which makes
a person vomit and feel extremely unwell mentally and physically, for
the purpose of inducing her to accept another neuroleptic drug that
she has refused. Another example of medical technology being used as
torture is the use of implants under the skin to deliver psychiatric
drugs against the person’s will, and beyond the person’s capacity to
resist. Such technology is currently under development in research trials.
Another factor to be noted in the definition of torture is the element
of discrimination. All forced psychiatric interventions are based on
the notion that people with psychosocial disabilities should be extremely
distressed to be who they are, and that failure to accept disabling
interventions shows poor judgment. This violates the principle of respect
for human diversity and for impairment as an ordinary part of the human
condition, as well as the principles of autonomy and equality.
Forced psychiatric interventions, even of the most ordinary kind, cause
severe mental and physical pain and suffering. A quick survey in the
United States drew several personal stories of the devastating short-
and long-term effects of such interventions. We should not be in the
business of creating additional or secondary disability such as post
traumatic stress, tardive dyskinesia (a brain disorder causing painful
movements that can also be life-threatening, which is caused by neuroleptic
drugs), or obliteration of memory, learned skills and creativity (which
can be caused by electroshock). Medical interventions must follow the
principles outlined in the supported decision-making model discussed
under article 9. No human being is without the inherent human capacity
to make choices and any interventions to support or assist the person
must approach the person with solidarity, as a human being whose choices
must be respected, and not as an object to be made over to the specifications
of medically-prescribed normality.
Draft article 12
FREEDOM FROM VIOLENCE AND ABUSE
May 26, 2004
World Network of Users and Survivors of Psychiatry generally supports
the Working Group text for articles 9 through 12, and
in particular urges that the following language be retained.
In Article 9:
States parties shall
…
(b) accept that persons with disabilities have full legal capacity on
an equal basis as others, including in financial matters;
(c) ensure that where assistance is necessary to exercise that legal
capacity:
(i) the assistance is proportional to the degree of assistance required
by the person concerned and tailored to their circumstances, and does
not interfere with the legal capacity, rights and freedoms of the person;
…
(d) ensure that persons with disabilities who experience difficulty
in asserting their rights, in understanding information, and in communicating,
have access to assistance to understand information presented to them
and to express their decisions, choices and preferences, as well as
to enter into binding agreements or contracts, to sign documents, and
act as witnesses;
In Article 10:
1. States Parties shall ensure that persons with disabilities:
…
b) are not deprived of their liberty unlawfully or arbitrarily, and
that any deprivation of liberty … in no case shall be based on disability.
In article 11:
1. States Parties shall take all effective legislative, administrative,
judicial, educational or other measures to prevent persons with disabilities
from being subjected to torture or cruel, inhuman or degrading treatment
or punishment.
2. In particular, States Parties shall prohibit, and protect persons
with disabilities from, medical or scientific experimentation without
the free and informed consent of the person concerned, and shall protect
persons with disabilities from forced interventions or forced institutionalisation
aimed at correcting, improving, or alleviating any actual or perceived
impairment.
In article 12:
2. Such measures should prohibit, and protect persons with disabilities
from, forced interventions or forced institutionalisation aimed at correcting,
improving, or alleviating any actual or perceived impairment….
Intervention on Article 21
RIGHT TO HEALTH AND REHABILITATION
- Full range of health care without discrimination – in institutions
of all kinds people are deprived of medical attention, and doctors
may see all health problems as related to the disability so when they
see a psychiatric diagnosis they ignore physical health complaints
and vice versa. This is in chapeau and para a of article 21.
- For us, the issue is not so much separating health and rehabilitation
as having access to diverse options for services. Much of what we
want, such as peer support, psychotherapy for all types of distress
including schizophrenia and psychosis, and counseling, may be included
under rehabilitation – but it should be understood that this is a
primary service for people experiencing psychosocial crisis or distress,
equivalent to primary medical care. For us, medical treatment by psychiatry
is one option among many, and should not be emphasized. We support
the proposal to separate health and rehabilitation because it challenges
the medical model of disability and will increase the diversity of
options available to us.
- Having diverse options is only meaningful if we have the right
to choose among them and not have treatments or interventions imposed
on us against our will. For this reason, it is necessary to include
provisions in both the articles on health and on rehabilitation requiring
free and informed consent for each service offered (as proposed by
New Zealand), to prohibit unwanted interventions (addressed in para
k) and to ensure access to and confidentiality of personal records
and information (second part of para j, and proposed consolidation
and amendment by New Zealand). Informed consent should be understood
within a context of supported decision-making as discussed under article
9 to preserve the individual right of choice without making it subject
to traditional tests of legal capacity.
- One further item is the need to explain “respite places” included
in para d. For people with psychosocial disabilities, this can be
an important alternative to psychiatric hospitalization in a time
of crisis.
Draft article 22
RIGHT TO WORK
The World Network of Users and Survivors of Psychiatry would like to
reaffirm this article especially sub-section (a) that States Parties
shall take appropriate steps to safeguard and promote the realization
of the right to work, including measures to promote a labor market and
work environment that are open, inclusive and accessible to all persons
with disabilities. One reason for the support of this article is that
public services employment application forms often ask about past medical
history of mental illness. It would be good if it was to help the person
to cope with the work but it is used negatively to screen the person
out.
We would also like to see that subsection (h) is retained as per draft
because it provides explicit protection in all aspects of employment.
We oppose the idea of sheltered workshops for people with psychosocial
disabilities because this leads to segregation in the work environment
but would like to have reasonable accommodation as provided for in subsection
(e). We would also like equal pay for equal work as indicated in (h)
to protect against economic exploitation which can happen in sheltered
workshops.
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