Editor’s note: Mad in Ireland editors Dr Líam Mac Gabhann and Jennifer Hough published an article in the Irish Examiner in response to the one-sided debate taking place in the Irish media in relation to mental health reform. Read it here. This article further discusses the topics highlighted.
Mental health systems the world over use coercion as a technology of control—a mechanism to enforce compliance with treatment deemed “medically necessary” by psychiatric professionals. Coercive measures within mental health systems include involuntary detention, forced medication, seclusion, and electroconvulsive therapy (ECT). However, as an understanding of human rights has expanded, and as the voices of those with lived experience has gained prominence, it has become increasingly clear that such practices can inflict profound harm—psychological, emotional and physical.
Bracken advocates that “decision-making powers that are currently given to psychiatry cannot be justified on either scientific or moral grounds.” He argues if psychiatry is going to take away liberty and use invasive methods of treatment it needs to be “confident that we can predict outcomes, and happy that we understand how our treatments work and for whom.” His conclusion is that psychiatry cannot reach this efficacy standard.
It is relatively easy to –and many have, made the case for how the use ECT, restraints and involuntary detention violates human rights. But even considering the most benign treatment the current system of mental health uses –medication, there is a strong case to be made of a deeply damaging mode of treatment. Moncrieff lays out evidence that the mechanism of the drugs that are widely used in mental health treatment make them akin to any other psychoactive substance. In other words they are not correcting something, they are not targeting anything. Yet despite a vast array of evidence of the harms of psychiatric drugs, the “pervasive myth of psychiatric drugs dominates much of contemporary ‘mental health’ policy and practice.”
These critiques rock the foundation of how most of the western world view and treat mental illness currently. If they are accepted, and indeed they are scientifically robust analyses, it raises a shocking spectre for the profession of psychiatry, which, with the law on its side, engages in treating people – whether forcibly or not, with highly questionable methods. Perhaps this is not surprising, given the history of psychiatry. The fact that a “technological paradigm” persists to this day, becomes all the more shocking when one considers that despite billions spent and with all the weight of modern medicine, still no biological causes for mental illness have been found. All of this points to a deeply dysfunctional system, one that perhaps if it did not have the law upholding it, would have disintegrated many years ago.
When does treatment equal torture?
Under Article 3 of the European Convention on Human Rights (ECHR), torture, along with inhuman or degrading treatment or punishment, is absolutely prohibited. This prohibition is a fundamental principle of international human rights law and is also enshrined in the UN Convention against Torture and other international instruments. Although the right to liberty is also a fundamental human right, it can be overridden under certain circumstances. European Court of Human Rights (ECtHR) jurisprudence has done little to challenge the outdated “persons of unsound mind” reason for loss of liberty contained within Article 5 of the ECHR, other than adding, the mental disorder must be of a kind or degree warranting compulsory confinement. Nevertheless, the ECHR has found in favour of applicants making an Article 3 claim in respect of their confinement and treatment. For example, in Stanev v. Bulgaria, the court held that because of poor conditions and the lack of autonomy provided for in the service, this amounted to degrading treatment. Similarly, in Dougaz v Greece, the court found that cumulative effects of poor care and excessive restraint met the threshold of degrading treatment. However, the ECtHR continues to have a very high threshold for relief and defers to medical evidence. This is a deeply disturbing replication of the power imbalance people experience within services and points to an almost impossible task of challenging treatment and conditions in court. It also begs the question, if the use of “medical necessity” is a defence in almost every case, does this dilute the absolute nature of the prohibition on torture or inhuman treatment? Bartlett argues that such uncritical deference to medical authority undermines the very human rights protections the ECHR is meant to guarantee.
Bartlett also highlights the inherent vulnerability of people who are detained under mental health law and how “situational vulnerability,” means that courts should not defer to doctors but should apply a strict necessity and proportionality test. Also using a vulnerability framing, O’Rourke, in an analysis of the torture norm in respect of care of older people, makes the argument that in spaces where individuals may lack control over basic aspects of life, even well-intentioned interventions can reinforce harm if they fail to respect autonomy and lived experience. This is important, as with a torture violation, there must be an intent to harm, but to reach the legal threshold for inhumane or degrading treatment one must just demonstrate that the treatment or punishment, regardless of the intent, results in severe suffering that is either physical or mental. Mavronicola highlights that use of “force or invasions of bodily integrity that exceed what is strictly necessary or which intentionally humiliate or demean are considered incompatible with Article 3.” This, coupled with a situational vulnerability analysis, in a system where autonomy is overridden and power imbalance is the norm – and even when the intent is therapeutic, means there is a clear risk of inhuman and degrading treatment.
CRPD and differing thresholds
In contrast to the contortions that must be undertaken in the ECHR framework to prove that treatment and/or conditions can amount to torture, under UN international legal standards, compulsory treatment has formally been recognised as a form of torture. In 2013, the UN Special Rapporteur on Torture found that forced psychiatric treatment can amount to torture or ill-treatment, even if medically “justified.” The UN Convention on the Rights of Persons with Disabilities calls for the abolition of non-compulsory treatment and involuntary hospitalisation. Minkowitz, a drafter of the Convention, argues that nonconsensual psychiatric interventions violate multiple CRPD provisions, particularly Articles 12 (equal recognition before the law), 14 (liberty and security of the person), and 15 (freedom from torture and inhuman treatment).
Clearly then, there is serious divergence between what ECHR sees as torture and what the CRPD considers it to be. In an analysis on these divergences, Fiala-Butora considers the case of Rooman v. Belgium, highlighting what he calls a shift in the ECtHR’s jurisprudence. The judgment emphasises that detention without “real therapeutic measures” partially violates Article 5 of the ECHR (right to liberty), and Article 3 (freedom from inhuman and degrading treatment). So now, “there exists a close link between the ‘lawfulness’ of the detention of persons suffering from mental disorders and the appropriateness of the treatment provided for their mental condition.” Interestingly, Kelly also sees Rooman as providing an opportunity, stating “there should be no involuntary admission without meaningful treatment being delivered.” This could be seen as a radical statement were it not for the realisation that the psychiatrist in question is using the argument as a bid to continue treating people without consent, albeit cloaked in the language of human rights. It is submitted, however, that the definition of “real therapeutic measures” must be scrutinised, and the question posed, as Bracken asks: does psychiatric treatment stand up to scientific scrutiny? Bartlett also sets out a number of key questions in relation to Herczegfalvy v Austria, the case that established that “a measure which is a therapeutic necessity cannot be regarded as inhuman or degrading,” such as: “What exactly is the scope of the phrase ‘therapeutic necessity’? What evidence is required, and what criteria must the court require to satisfy itself that the medical necessity has been ‘convincingly shown to exist’?”
Another question would be to interrogate closely where the medical evidence provided to courts is coming from and to compare it to the most recent evidence on modes of treatment. If the concept of therapeutic necessity is based on treatments that lack efficacy and in fact cause harm, then mental health “treatment” is indeed akin to torture, regardless of the framings that are used to deny this.
Where to next?
It is widely accepted that the medical model of mental health is outdated, lacks evidence and favours coercion over recovery. As the UN Human Rights Council special rapporteur stated: coercion and the medical model which are “vestiges of traditional psychiatric care relationships, must be replaced with a modern understanding of recovery and evidence-based services that restore dignity and return rights holders to their families and communities. Even the World Psychiatric Association has called for a fundamental shift away from coercive practices. Meaningful change on the ground is another thing and there can be no change until there is law reform. Psychiatry retains legal power, therefore psychiatric practices dominate services and psychiatrists are seen as superior to other professionals in the field. This dynamic reinforces the status quo, as psychiatric authority is granted near-total deference. A good example of this can be seen in the current law reform process underway in Ireland. Despite years of discussion, legal experts weighing in, lived experience brought to the fore, proposed reforms to Irish mental health law are falling a long way short of delivering the comprehensive changes required by the UNCRPD.
Gostin and Gable provide a logical and solid rationale that people with mental disabilities are systematically denied their basic rights and that moving towards a rights-based legal system that treats people as rights-holders, not as subjects of legal/state control or medical discretion is urgently required. They also point out that people who are at risk of inhumane or degrading treatment are also being denied their fundamental right to health. This strikes to the heart of the issue in mental health care: different people want and need different solutions and they have a right to be able to access evidence-based healthcare. It is unquestionable that evidence-based care should be at the core of cancer or heart, or any other type of health treatment. Therefore, it cannot be the purview of just one highly contested profession (psychiatry) to impose what is increasingly seen as a dogmatic ideology onto people who are already in a vulnerable state. This is not to say psychiatry should not be part of a suite of measures available to people, but mental health care should be based around consent and choice.
As Mavronicola highlights, Article 3 of the ECHR does not simply prohibit torture and inhuman or degrading treatment but contains positive obligations on the part of the State to protect the individual from “acute ill-treatment, whether physical or mental, whatever its source.” Positive obligations can be triggered by ill-treatment as well as by the risk of ill-treatment. Therefore, coercive and degrading practices that persist, despite increasing evidence of limited efficacy and potentially harmful effects, may constitute a systemic failure to protect people from ill-treatment. Inaction on the part of the State could therefore amount to state-sanctioned ill-treatment under Article 3. Governments should be aware of this, as should everyone who practices within the current mental health system. A threat of legal action, or legal action itself, is often an impetus for change, perhaps even more so if the State and its agents are accused of torture. The crux of the matter that must be accepted by people with the power to reform the law –politicians, is that a rights based approach to mental health treatment is incompatible with psychiatry in its current form. Law makers who wish to avoid moral and legal allegations that people are being force treated in a systemically damaging system should take note – and action.