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.