Reading Herczegfalvy v. Austria: What would restorative justice have looked like? What do we need as reparations for psychiatric torture?

1. Consider the case of Istvan Herczegfalvy v. Austria, decided by the European Court of Human Rights in 1992.  

Mr Herczegfalvy assaulted his wife, clients of his television repair business, and public officials.  After he complained about prison conditions, he was was declared partly incapacitated by a guardianship court and assigned an "adviser".  While in detention he continued to assault people and to threaten judges, at one point spitting in the face of a judge.  

He was criminally accused of these assaults as well but instead of trial, psychiatric detention was pursued on the basis of a report that he was "suffering from paranoia querulans, which was equivalent to a mental illness and meant that he was not responsible for his acts; he was extremely aggressive and incapable of understanding that his behavior was unlawful, and there was a risk that attendance at the trial could harm his health."  According to the European Court, it was his spitting in the judge's face that led to the indictment being amended to seek psychiatric detention rather than a trial.

He was locked up in psychiatry for 5 years, during which time he was forcibly drugged with neuroleptics, isolated, handcuffed to "a security bed", and force fed after he went on a hunger strike.  

The Court found that all these measures (the forced drugging etc.) were actually the fault of Mr Herczegfalvy who resisted treatment aggressively, and that "their sole aim had always been therapeutic."  (Furthermore his curator/guardian had agreed to it all.)

Consider this now from a restorative justice perspective.  Why did Mr Herczegfalvy assault all those people in the first place?  What was going on?  No one ever got to the bottom of that, at least as far as we can see from the record in the european court judgment.  Instead his violence was medicalized and the violence used against him to suppress his continuing anger, pain and aggression was also medicalized.  When the psychiatrists had suppressed him to a degree they considered satisfactory they let him out.  The human rights court did him the moral injury of legitimating the violence used against him and creating a narrative in which he exists only as an object and not as a subject.  He paid for his violence but those who abused him could remain smug and self-satisfied and continue doing it to others.  

This case set a standard that still hasn't been disavowed by the court as far as I know, which goes as follows:

The Court considers that the position of inferiority and powerlessness which is typical of patients confined in psychiatric hospitals calls for increased vigilance in reviewing whether the Convention [European Convention on Human Rights] has been complied with.  While it is for the medical authorities to decide, on the basis of the recognised rules of medical science, on the therapeutic methods to be used, if necessary by force, to preserve the physical and mental health of patients who are entirely incapable of deciding for themselves and for whom they are therefore responsible, such patients nevertheless remain under the protection of Article 3 (art. 3), whose requirements permit of no derogation.

The established principles of medicine are admittedly in principle decisive in such cases; as a general rule, a measure which is a therapeutic necessity cannot be regarded as inhuman or degrading.  The Court must therefore satisfy itself that the medical necessity has been convincingly shown to exist.  (para 82)

In this case, even the use of handcuffs and a "security bed" was considered by the Court to fall within the framework of "medical necessity" "according to the psychiatric principles generally accepted at the time."  

2. This decision came in 1992, and it's helpful to look at what the Special Rapporteur on Torture said in 2008 that directly contradicts this approach in pertinent respects.  First, the Rapporteur does not accept that "inferiority and powerlessness" are inherently a condition attributable to the human beings confined against their will in institutions; he acknowledges that, while depending on others for support or services related to a disability might make a person an easier target for abuse, "It is often circumstances external to the individual that render them 'powerless,' such as when one's exercise of decision-making and legal capacity is taken away by discriminatory laws and practices and given to others." (para 50)

Second, the Rapporteur rejected the principle of therapeutic necessity as a defense to allegations of torture and ill treatment, saying:

Furthermore, the requirement of intent in article 1 of the Convention against Torture [defining what constitutes torture] can be effectively implied where a person has been discriminated against on the basis of disability. This is particularly relevant in the context of medical treatment of persons with disabilities, where serious violations and discrimination against persons with disabilities may be masked as “good intentions” on the part of health professionals. Purely negligent conduct lacks the intent required under article 1, and may constitute ill-treatment if it leads to severe pain and suffering. (para 49)

The Rapporteur framed his argument with reference to the principle of non-discrimination that aligns the CAT definition of torture with the Convention on the Rights of Persons with Disabilities.  CAT Article 1 "expressly proscribes acts of physical and mental suffering committed against persons for reasons of discrimination of any kind." (para 48)  The CRPD adopts a broad definition of discrimination based on disability, meaning:

“any distinction, exclusion or restriction on the basis of disability which has the purpose or effect of impairing or nullifying the recognition, enjoyment or exercise on an equal basis with others, of all human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field. It includes all forms of discrimination, including lack of reasonable accommodation”. 

The Rapporteur found that forced psychiatric interventions, including electroshock, psychosurgery, and enforced or nonconsensual administration of mind-altering drugs such as neuroleptics, as well as restraint, seclusion, and psychiatric detention and institutionalization, could amount to torture and ill treatment. (see paras 37, 40, 41, 47, 55-65)  While he adopted a case-by-case approach rather than a per se classification, which disappointed some survivors, caution was to be expected in this first instance of a human rights mandate adopting such a standard, and with our continued educative efforts can be strengthened.  

3. What would be "transformative justice" in relation to psychiatric torture?  Maybe we, like the South Africans who negotiated an end to apartheid, would forgo criminal prosecutions and create a process of truth telling and ceremonial honoring of the victims and survivors.  All those of us who in any way participated in or colluded in forced psychiatry would have the chance to come clean and ask forgiveness.  Those of us who were harmed could demonstrate generosity while expressing any lingering pain, grief and anger needed to register the enormity and seriousness of what happened and what the community needs to learn.  

I'm not certain about what would be the preconditions for such a process.  Do we need to defeat forced psychiatry as an institution in national law and policy before proceeding?  Could it be said that CRPD, and the standards of the Torture Rapporteur, are enough, and can we undertake such a process internationally?  The South African TRC included people from all parts of the political spectrum including the far right.  But the ANC had won an election and the Black majority could no longer be marginalized.  If we included similar diversity of experiences and standpoints in relation to psychiatry, what would be the moral compass or the shift in power that could allow survivors to have a voice and a role commensurate with our needs?  

We would have to include national governments (and subnational, where relevant and interested) in such a process, not only the psychiatric profession or industry.  A partial precedent could be seen in the work of the Ad Hoc Committee that created the CRPD, particularly the Working Group established on a representative basis that included both non-governmental organizations and government delegations, as well as a national human rights institution.  Something similar could be created that also included representatives of psychiatry.  Those directly affected by human rights violations (i.e. organizations of users and survivors of psychiatry) would have a preeminent role in the creation and operation of such a commission, in order to demonstrate good will and letting go of power inequality in the service of discrimination.  This could be the equivalent of the apartheid government's relinquishment of power and allowing free elections.  

It would not be a mere civil society tribunal holding psychiatry guilty in absentia.  All those who comprised the commission would probably need to start by acknowledging their own complicity and/or their own experiences of being harmed.  We might want to hold any number of other processes, and the concept of crimes against humanity is not inappropriate.  The full weight of psychiatry's crimes has to be held in mind and heart by the international community before letting it go so that we can create new ways of being.  

On the CRPD (US ratification) ... Rethinking

An update to say that my fears proved more correct than my instinct to carefully calibrate what could be acceptable.  The sad thing is, that I allowed myself to think that silence could be safe.  Maybe there are times when that is the case, but this time it wasn't.

On July 26, the anniversary of the ADA, the Senate Foreign Relations Committee put in a bunch of new RUDs.  The one that went over the line for me was a declaration saying that in light of the reservations, U.S. law fulfills or exceeds its obligations under the treaty.  Some of us are calling this the "exceptionalism" declaration to mock its hubris - instead of an outright reservation saying that the country intends to maintain the status quo of its own laws and not conform its law to the requirements of the CRPD, it makes a blanket declaration that its current law fulfills or exceeds all obligations, with the possible exception of state laws that now there is no intention to rectify unless they violate current federal law.  

If that is hard to follow, the reasoning is probably meant to be.  There are lawyers who say that it means no more than what the federalism reservation already said, but this is inaccurate.  The federalism reservation left open the possibility that federal legislation might have to be changed or created as a means by which state law could be brought into compliance.  

The declaration furthermore has the effect of formalizing the conclusions drawn by the administration in its memorandum on U.S. law and the CRPD, making it a binding aspect of the ratification.  The administration had concluded that no laws needed to be changed, but neither this conclusion nor the memorandum had the force of law.  Now it will, if the ratification goes through without change.

The organizations who are promoting ratification with the current set of RUDs, are acting like used car salesmen, trying to create momentum and support now in the disability community and enforcing a blackout as much as they can on objections to the RUDs.  I regret that with my own silence such as it was before, when I failed to openly and honestly analyze the federalism RUD and others in the administration's set, I contributed to the situation we have now.

I'm not certain still if it was a mistake of principle or a mistake of strategy, or just an unfortunate circumstance that the "stealth" strategy being used to push through CRPD ratification didn't work as planned, or at least didn't work as some of those involved were telling us it would.

The cat is out of the bag now but not by much.  Initially I still tried to walk a line that in my mind was one of both principle and strategy, not being willing to trash the CRPD ratification but unable to keep silent in the face of a RUD that destroyed most of the value of ratification.  Part of the problem is that in the U.S. ratification of a human rights treaty doesn't mean much anyway - mainly civil society gets the opportunity to go to the treaty monitoring committee every four years or so and put a lot of time and energy and money into complaining about systemic human rights violations.  And if the committee takes an interest they will make recommendations that can be used in publicity and advocacy.  

We would still have that if ratification goes through with all the RUDs, but it will be quite hollow.  I'd like to imagine an Occupy-type action where people would demonstrate the nonsense of such a ratification, but it's not permitted in the UN and hard to know how to make it felt how the disrespect of our human rights not only in fact but as a matter of policy (through the RUDs) impacts on not only the advocacy, but also the self-respect of the disability community.

I am continuing to circulate a letter opposing the "exceptionalism" position and have also now said that the federalism reservation is simply wrong.   I may end up by saying the ratification should not happen under these circumstances, it may be better to make a clean break.  I'm continuing to think through both issues of principle and strategy, as well as the emotions that inevitably accompany something that is so important to my community and that I have personally put a lot of myself into.  

You can read more about this including a cursory analysis of all the RUDs at my Mad In America blog, and also at the CHRUSP blog.

Rhetorical Disability and Legal Capacity

Reading the book "Mad at School: Rhetorics of Mental Disability and Academic Life" by Margaret Price, I am introduced to the concept of "rhetoricity" and "rhetorical disability". Rhetoricity is "the ability to be received as a valid human subject" and "a diagnosis as mentally ill 'necessarily supplants one's position as rhetor'" so that "'to be disabled mentally... is to be disabled rhetorically'" [quoting Catherine Prendergast].

Rhetorical disability is the silencing we face by family organizations like NAMI and the persistent, wounding failure of the media, governments, and our own allies (dissident mental health professionals, human rights organizations, academics) to cite our scholarship and advocacy. It is the conspiracy of gender, race, all forms of "otherness" together with open identification as a person with psychosocial disability (or as a survivor of psychiatry: the subtleties and shield of personal privacy are always lost) that demands of us a super-compliance with what Price calls "rules of civility" particularly at the very moments when we are protesting the silencing of our scholarship, advocacy and ownership of the discourse about us.

It is that which makes it possible for members of a cross-disability organization or even one of our own organizations to expel or ignore one of us who forcefully expresses a political challenge to hegemony of any kind... from another angle it is the dirty side of organizational life, petty politics, get over it. But a) what if we can't? and b) shouldn't we be developing an accessibility consciousness that pushes us to do better?

In her second chapter called "Ways to Move," Price adopts concepts that are familiar to me from my own grappling with the CRPD (Convention on the Rights of Persons with Disabilities) model of equal legal capacity. She gives descriptive examples of things that can be done to make academic courses more accessible for students with mental disabilities (her preferred terminology) and significantly, says that there is no static recipe to apply but instead a necessary questioning and revising, "ways to move" in working towards universal instructional design that can meet the needs of any student without requiring her to proactively request accommodation. In my work on legal capacity, I have also highlighted the need for universal design (of the legal system and rules for asserting legal rights and determining legal responsibilities), with attention to systematic accessibility for all users of that system including people with psychosocial disabilities, also incorporating the principle of accommodation where needed in any particular case and the availability of intensive personal support as a positive measure that may go beyond the capabilities of more systemic measures. (From my reading of Price, I may want to reconsider the relationship of the positive measure of support, with universal design: and I recall that some of us had discussed making support itself universally available, just as Price invites students to discuss their particular learning needs without requiring them to identify as having a disability.)

Legal incapacity is the most disabling implication, or consequence, of rhetorical disability. It is a meta-discourse that invites people to judge one another's "ability to be received as a valid human subject" with the effect of invalidating people as legal subjects. Price calls attention to this when she says:

To lack rhetoricity is to lack all basic freedoms and rights, including the freedom to express ourselves and the right to be listened to.

In the Convention on the Rights of Persons with Disabilities, we explicitly determined that, as a matter of international human rights law, legal capacity is a right accorded to all persons without discrimination based on disability. Rhetorical disability is thus both de-legitimized as a form of discrimination and disablement (insofar as the right to legal capacity is as broad as social life itself, which is justified by the CRPD text recognizing the legal capacity of persons with disabilities "on an equal basis with others in all aspects of life"), and de-coupled from legal consequences or authority (i.e. if individuals continue to make meta-judgments about each other's "ability to be received as valid human subjects" these judgments amount to mere opinion and prejudice rather than an exercise of power validated by law: "I think you're a jerk and I won't interact with you" rather than "I can have you institutionalized despite your protests, because your refusal is invalid").

The concept of "rhetorical disability" is especially powerful I think, to bring out the broadest sense and reach of the right to legal capacity. It helps us to argue that refusing to negotiate a contract with a person with psychosocial or intellectual disability is discrimination, and that making the independent exercise of legal capacity conditional on "at least one person's understanding of the person's communication" wrongly conflates practical power with legal rights. If I have the legal right to enter into a contract, make health care decisions, etc., there is no guarantee that I will understand what I'm agreeing to, or that the other person will understand what I want: all we can do, as Price argues in relation to accessibility of academic spaces, is to develop "ways to move" that allow us to get as close as possible to satisfaction rather than frustration for everyone using the legal system or its rules for asserting rights, determining responsibilities and creating/ending obligations and relationships.

The concept of "rhetorical disability" needs to be brought out at all levels of our advocacy, beginning with the meta-acceptance of us as valid (and privileged) experts in the discourse about our rights, doing away with the residual discomfort about this that persists in the human rights discourse opened up by our work on the CRPD (extremely influential and successful, but a kind of fluke that took advantage of the general space opened up for disability at the UN: as Price notes citing Cynthia Lewiecki-Wilson, even the disability community tends to stop short at rhetoricity). We need to consider Price's description of "ways to move" as a starting point for the discussion of access, and how it can be applied in other settings, like workplaces, public accommodations (hotels, transportation, shops, etc.), and in creating community strategies to deal with conflict, accountability and justice. Further consideration should be made of how rhetorical disability relates to practices developed in peer support/advocacy and alternative mental health (such as Intentional Peer Support, Hearing Voices Network, Personal Ombudsperson, Soteria, first person phenomenological understanding of suicidality and self-harm, etc.) and to other frameworks holding the value of solidarity plus autonomy, like (some descriptions of) Restorative Justice.

I'll end here, noting that I haven't finished the book yet and may have more to say, but it is already immensely valuable to me and I thank Margaret Price for her work.