Two years ago, the World Health Organization (WHO) published a 300-page document titled “Guidance to Community Health Services” that called for a paradigm shift in psychiatric care, with the biomedical model replaced by one that promoted “Person-Centred and Rights-Based Approaches.” In our MIA Report on that publication, we described it as a call for “radical change in global mental health.”
That guidance came from a group at the WHO led by Michelle Funk, head of the Policy, Law, and Human Rights unit at the WHO Department of Mental Health and Substance Abuse. It was a bold document, and one that we at Mad in America celebrated, as it set forth an agenda for rethinking psychiatric care that was, in so many ways, consonant with the call for change that has motivated us since we founded our webzine more than a decade ago.
In October, the WHO and the United Nations Office of the High Commissioner on Human Rights jointly published a lengthy document, Mental Health, Human Rights, and Legislation, that, at least at first glance, could be seen as a welcome follow-up to its 2021 report, with this one providing guidance for enacting legislation that would create “person-centred, recovery-oriented and rights-based mental health systems.” But once I read it, I had a different take: This is much more than a call for a “paradigm shift” in mental health care. It is a full-throated call for liberty and freedom for those that historically have been called “mad” (and today are deemed “seriously mentally ill”).
Indeed, as I read the document, my thoughts flitted to other great declarations of freedom and liberty in English/American history: the Magna Carta, the Emancipation Proclamation, and Martin Luther King’s “I Have a Dream” speech. The WHO document, if could be boiled down to a succinct two-pager, makes this declaration: Forced treatment is a gross violation of human rights, and laws that allow for people to be locked up against their will and forcibly treated must be struck down and replaced with legislation that protects their rights to be free from such coercion.
This is a call that challenges how psychiatry is practiced today and ultimately challenges its power in society. Psychiatry asserts that it has the medical authority to deem certain people “mentally ill,” and that such people can be forcibly treated because they suffer from “anosognosia” and thus lack awareness that they are ill and in need of treatment. That assertion is what gives psychiatry and society a moral fig leaf for locking people up and injecting them with a powerful antipsychotic against their will: Such treatment is for the person’s own good.
However, with this publication, the WHO and the United Nations Office of the High Commissioner on Human Rights are stating, with great clarity: no more. Forced treatment should be understood as a gross violation of human rights and must end.
The Radical CRPD
The most radical element in the WHO’s 2021 document was its embrace of the 2008 United Nations Convention on the Rights of Persons with Disabilities (CRPD) as a governing principle for radical reform. The CRPD declared that people with disabilities should enjoy the same rights and fundamental freedoms as everyone else, and, in essence, declared that forced treatment and forced hospitalization should end.
In 2020, the United Nations Special Rapporteur on Torture took up the issue of forced treatment in psychiatry. Such interventions, the rapporteur wrote, “generally involve highly discriminatory and coercive attempts at controlling or ‘correcting’ the victim’s personality, behaviour or choices and almost always inflict severe pain or suffering. In the view of the Special Rapporteur, therefore, if all other defining elements are given, such practices may well amount to torture.”
The 2021 WHO report echoed that sentiment. It noted that although more than 180 countries had ratified the CRPD, few had adopted standards that met the CRPD call to create “services free of coercion.” The WHO authors wrote:
The perceived need for coercion is built into mental health systems, including in professional education and training, and is reinforced through national mental health and other legislation. Coercive practices are pervasive and are increasingly used in services in countries around the world, despite the lack of evidence that they offer any benefits, and the significant evidence that they lead to physical and psychological harm and even death. People subjected to coercive practices report feelings of dehumanization, disempowerment, being disrespected and disengaged from decisions on issues affecting them. Many experience it as a form of trauma or re-traumatization leading to a worsening of their condition and increased experiences of distress. Coercive practices also significantly undermine people’s confidence and trust in mental health service staff, leading people to avoid seeking care and support as a result. The use of coercive practices also has negative consequences on the well-being of the professionals using them.
The United States, for its part, is one of the few countries in the United Nations that has not ratified the CRPD. Forced treatment is ingrained into the system here, with a standard for locking up a person against his or her will that is quite fungible: a person simply needs to be deemed a danger to self or others. And with the expansion of Assisted Outpatient Treatment, this coercion can now follow a person into the community. Forced treatment is on the march in the United States, with psychiatry as its bandleader, and that is true in many other countries as well.
The CRPD as the Normative Standard
In the WHO’s October report, Michelle Funk and her coauthors, drawing on the collective input from human rights around the globe, stated that compliance with the CRPD should be the legislative goal of all countries:
The CRPD reinforces the protection of international standards of human rights in mental health care and recognizes that the rights of persons with mental health conditions and psychosocial disabilities are equal to those of any person. The CRPD creates an enabling legal environment from which to develop rights-based mental health systems that prioritize a person’s empowerment and active participation in their own recovery.
This publication, prepared jointly by WHO and OHCHR, is a call to action to realize such a vision. It offers a blueprint for laws that promote human rights in mental health, supports legal and attitudinal change, and encourages reforms that protect the rights of all persons interacting with mental health systems. It proposes steps towards establishing mental health services that are respectful of human dignity and comply with international human rights norms and standards.
With that CRPD framework in place, numerous passages in the WHO document make the case for an end to forced treatment, and do so as a call for “liberty and freedom” for all. Here is a selection of such passages:
From a section on “international human rights law”:
All persons should be able to exercise their right to give free and informed consent to accept or reject treatment in mental health systems. Denial of legal capacity, coercive practices and institutionalization must end. To date, 187 countries and the European Union have ratified the CRPD1 and are thus legally bound to replace harmful practices with community-based services and support structures that enable the full exercise of human rights.
From a section on the “case against coercion”:
From a human rights perspective, coercive practices in mental health care contradict international human rights law, including the CRPD. They conflict with the right to equal recognition before the law, and protection under the law, through the denial of the individual’s legal capacity. Coercive practices violate a person’s right to liberty and security, which is a fundamental human right. They also contradict the right to free and informed consent and, more generally, the right to health.
Coercion can inflict severe pain and suffering on a person, and have long-lasting physical and mental health consequences which can impede recovery and lead to substantial trauma and even death. Moreover, the right to independent living and inclusion in the community is violated when coercive practices result in institutionalization or any other form of marginalization.
Coercive practices in mental health care violate the right to be protected from torture or cruel, inhumane and degrading treatment, which is a non-derogable right.
From a section on the “legal capacity” of people with disabilities:
Legal capacity is a precondition for the exercise of rights and for making autonomous health care decisions . . . Article 12 of the CRPD recognizes that all persons with disabilities, including those with psychosocial disabilities, enjoy the right to exercise their legal capacity on an equal basis with others in all areas of life. Accordingly, a person’s “mental capacity” cannot be the basis for denial of legal capacity. People should have the right to make legally-binding decisions and, if wanted, be provided with access to the support they may require in exercising their legal capacity, including formal and informal support. According to the CRPD States, Parties have an obligation to replace all forms of substitute decision-making, such as guardianship, curatorship, and conservatorship, with supported decision-making schemes.
From a section on “liberty and security of person”:
The mental health legislation of most countries authorizes the deprivation of a person’s liberty based either on a mental health diagnosis or impairment, or in combination with other factors, most commonly when the individual presents an alleged risk to self or others, or is deemed in need of care. Article 14 of the CRPD reaffirms that persons with disabilities enjoy the right to liberty and security on an equal basis with others, and clarifies that “the existence of a disability shall in no case justify a deprivation of liberty.” The Committee on the Rights of Persons with Disabilities has stressed that Article 14 establishes an absolute ban on deprivation of liberty based on impairment, thereby precluding all forms of involuntary commitment to mental health facilities, including on the basis of “dangerousness” or “need of care.”
From a section on “free and informed consent”:
Currently, most mental health laws continue to restrict the right to free and informed consent for the treatment of persons with mental health conditions and psychosocial disabilities, and favour substitute decision-making.
Article 25(d) of the CRPD provides that States Parties ensure that health care for persons with disabilities is provided on the basis of free and informed consent; Article 15 stipulates that no one shall be subjected to medical or scientific experimentation without their free consent. Involuntary treatment has been interpreted as being a violation not only of the right to health, but also of legal capacity (Article 12), freedom from torture and ill-treatment (Article 15), freedom from violence, exploitation and abuse (Article 16), and personal integrity (Article 17). A fundamental shift is needed to create an enabling legal framework for the development of mental health services that respect the rights of all service users and base all treatment decisions on the free and informed consent of the individual.
From a section on “living independently”:
Historically, persons with mental health conditions and psychosocial disabilities have been subjected to practices of segregation, institutionalization and isolation in mental health and social care.
Article 19 of the CRPD recognizes the equal right of all persons with disabilities to live independently and be included in the community. This involves a person exercising freedom of choice and control over the decisions affecting their life, with the maximum level of self-determination and independence within society (153). Accordingly, persons with mental health conditions and psychosocial disabilities must have the opportunity to choose how, where, and with whom to live, on an equal basis with others, without being obliged to live in a particular living arrangement, such as an institutional setting.
From a section on “access to justice”:
Access to justice for persons with mental health conditions and psychosocial disabilities has commonly been restricted, affecting their right to a fair trial and denying them the possibility to contest arbitrary detention, forced treatment and abuses in mental health services. Examples include laws that restrict a person’s right to file a complaint or stand trial; diversion from criminal, civil and administrative processes resulting in deprivation of liberty, forced treatment and institutionalization; lack of credibility; ineffective remedies; and lack of legal aid. These compounded barriers leave persons with mental health conditions and psychosocial disabilities without effective access to justice, increasing their risk of abuse and neglect within mental health services and beyond, and rendering them significantly overrepresented in the criminal justice system.
Such is the spirited language of liberty and freedom in the recent publication by the WHO and the United Nations. The publication is a powerful call to enact laws that will protect the basic rights of those that societies call “mad.” They have a right to be the authors of their own lives, and to not be subject to a loss of liberty for reason of their being deemed a danger to self or others. Indeed, after reading this publication, I was reminded of the promise present in the Declaration of Independence, which the founders of the United States penned on July 4, 1776:
We hold these Truths to be self-evident, that all Men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness.
The great struggle in American history has been to extend that promise to all citizens, to women and to African Americans, and this recent document is in that vein: The promise of liberty needs to be extended to those deemed “mad.” Forced treatment is a wrongful taking of liberty, and the U.S. and all countries need to see it as such.
Or, as the title of this essay states, “Let Freedom Ring for the Mad.”