Psychiatric chief physician damands: End Coercion in Mental Health Services

From the board of die-BPE Berlin, Germany

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Dear friends,

Since 2009 we have been fighting our struggle against coercion in psychiatry by using our special psychiatric advance directive, the PatVerfue, forbidding any medical doctor to make a psychiatric diagnosis and of course forbidding him to execute any forced measures, see: http://www.patverfue.de/en
Our view is now shared in an article published in German and English by Dr. Martin Zinkler (chief physician of the psychiatry in Heidenheim) and Dr. Sebastian von Peter in which they describe how the end of coercion in psychiatry would mark the beginning of a support system conforming with UN-Human Rights.
The article is published in English here: https://www.mdpi.com/2075-471X/8/3/19
Its title is: End Coercion in Mental Health Services—Toward a System Based on Support Only
Here some citations as an incentive to read the full article:

Based on the UN Convention on the Rights of Persons with Disabilities (CRPD) (UN 2018a), several UN bodies, among them the High Commissioner for Human Rights, have argued for a complete ban of all coercive interventions in mental health care (UN 2013, 2014, 2017a,2017b, 2018b).

The support system will be obliged to look for new no-restraint interventions as soon as the traditional coercive interventions can no longer be carried out.

The relation between the person concerned and the support system (mental health and social services) should always be based on informed agreement or informed dissent. Treatment and care cannot be determined anymore by a court or an administrative body (who may think that a particular intervention is just what the person needs).

Instead, in the new system, a dialogue would begin with the person on their wish to be discharged and any problems that may emerge from the discharge in this situation. Mental health professionals will outline the support services available in the community. The whole process is guided by the will and the preferences of the patient.

According to the Committee, forced treatment violates Article 12 of the Convention, equal recognition before the law, and several other articles such as the right to personal integrity (Art. 17), freedom from torture (Art. 15) and freedom from violence, exploitation, and abuse (Art. 16). The Committee perceives forced treatment to deny the legal capacity of a person to choose medical treatment, therefore classifying it as a violation of Article 12 of the Convention (UN 2014).

Additionally, in 2017, the UN High Commissioner for Human Rights held that “many practices within mental health institutions also contravene articles 15, 16 and 17 of the Convention on the Rights of Persons with Disabilities. Forced treatment and other harmful practices, such as solitary confinement, forced sterilization, the use of restraints, forced medication and overmedication (including medication administered under false pretenses and without disclosure of risks) not only violate the right to free and informed consent, but constitute ill-treatment and may amount to torture.” (UN 2017a). 

The Committee is equally unambiguous about detention in mental health facilities: the denial of the legal capacity of persons with disabilities and their detention in institutions against their will, either without their consent or with the consent of a substitute decision-maker, is perceived to be an ongoing problem: “this practice constitutes arbitrary deprivation of liberty and violates articles 12 and 14 of the Convention.

Restrictions on their legal capacity based on an assumed impairment in mental capacity are no longer permitted. According to the CRPD, legal capacity “must be given to every individual by virtue of being human (…) (and) recognizes that regardless of perceived or actual decision-making ability, every individual has a right to be respected as a full person before the law with rights, responsibilities and agency—this is the right to legal capacity on an equal basis.” (Arstein-Kerslake and Flynn 2015). The task for health care professionals is to change to support only, based at the same time on the extent of the disability and on the will and the preferences of the person concerned.

Renouncing coercive interventions enables the support system to learn and develop non-restraint interventions (Zinkler and Koussemou 2013;Zinkler 2016). Conceivably, the serious consequences of severe mental health problems like homelessness, family break-ups, and imprisonment would occur less frequently.

We are not suggesting the creation of special rules for these cases or the definition of some kind of last resort use of coercion or some “ultima ratio”. In line with Arstein-Kerslake and Flynn, we believe in the principle, that “even in the hard cases, legislative response must apply equally to people with and without disabilities.” (Arstein-Kerslake and Flynn 2015).

Traditionally, persons who in one way or another pose a danger to themselves or to others and in the eyes of their surroundings suffer from mental illness can be brought to a psychiatric hospital voluntarily or against their will. In many jurisdictions, the police perform this task. In the new system, however, the police lose the option to remove a person to a hospital against their will. A police officer may take someone in police custody, irrespective of an assumed or diagnosed mental illness, but they cannot take the person to a hospital against their will. The police officer would then ask the person if they wanted to have a psychiatric consultation, speak to a counsellor or social worker, or be admitted to hospital. Only if the person agrees would consultation, counseling, or hospital admission be arranged. 

The principle of non-discrimination in the Convention stipulates that persons with an assumed or diagnosed mental illness must not be treated legally different than persons without this attribution.

The relation between the person concerned and the support system (mental health and social services) should always be based on informed agreement or informed dissent. Treatment and care cannot be determined anymore by a court or an administrative body (who may think that a particular intervention is just what the person needs).

Instead, the task for mental health professionals would be to support autonomy by determining the will and preferences of the person and by assisting them if possible. This includes an explanation of support options to enable the person to decide for themselves. Trust-building communication will be essential: “We are here to support you and we will not force you to do anything you don’t want.”

Most jurisdictions allow the police to forcibly remove a person from a public place to a psychiatric hospital. This practice discriminates persons with presumed mental illness, as the removal rests on the presumption of mental illness. Therewith, the law treats persons with an assumed mental illness differently than other persons. Based on the assumption of a mental illness, the person has to see a doctor or some other mental health professional in the community or at a hospital. The outcome of the assessment may then lead to detention in hospital.

However, according to the interpretation of the Convention by the UN Committee (UN 2014), such measures can only be taken with the consent of the person. 

As long as the person agrees to see a doctor or be taken to hospital, these steps can be taken. However, what happens if the person rejects these proposals? Equality before the law (Article 12 of the Convention) stipulates that the person with a presumed or diagnosed mental illness has the same rights as any other person. The person may be taken into police custody only if the general criteria (those not related to mental illness) for police custody are fulfilled. 

Judicial determinations on remand in prison or on prison sentences must not discriminate persons with an assumed or diagnosed mental illness. Therefore, the duration of imprisonment for someone with a diagnosed mental illness must not be longer than for someone without a diagnosis (for a comparable offence). Likewise, for people with mental illness, the curtailments of liberty in prison should not be harsher than for those without mental illness. 

According to the UN Committee on the Rights of Persons with Disabilities and several other UN bodies including the High Commissioner for Human Rights, coercive practice in mental health services is not in line with Article 12 and several other articles of the Convention. 

In the new system, a psychiatric diagnosis will not lead to disadvantages concerning restrictions of liberty. A functional approach toward mental capacity will no longer be used to justify detention or coercive interventions. Legal sanctions for the individual follow a non-discriminatory process that applies to all members of society.