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Recovering from the Effects of Institutionalised Practises of Torture, Inhuman, Cruel and DegradingTreatment in Mental Health Care Settings. Why can the Continued Practices of Involuntary Electroconvulsive Therapy in the UK be considered violations of the Convention Against Torture?

1. The Adaptive Nature of the Definition of Torture and Inhuman, Cruel and Degrading Treatment.

Torture, as defined by the UN Convention against Torture (CAT) constitutes “any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions”. This definition therefore has 5 fundamental prerequisites for an action being determined as torture or ill-treatment: 1) it must inflict severe pain or suffering, whether physical or mental; 2) the action must intend to cause pain or suffering for a purpose such as punishment, intimidation, coercion and discrimination; 3) there must be a specific purpose of causing pain or suffering; 4) the action must be performed by the hands of a state official; and 5) the action must be unlawful. Additional legislation, such as the article 7(e) of the ICC Rome Statute introduces the concept of powerlessness of the detainee, who is “in the custody or under the control of the accused”. Torture, whilst constituting the most severe form of ill-treatment, is differentiated from cruel or inhumane treatment which, although satisfying the criterion of severe pain or suffering, fails to satisfy the other definition criteria. Torture is differentiated from degrading treatment or punishment when the action is particularly humiliating whilst not reaching the same threshold of severe pain or suffering.

2. The Paradigm Shifting CRPD. The ‘incompetency’ of the mentally ill to make their own decisions was widely accepted as the status quo within the treatment frameworks afforded for mentally ill patients, until 2008 when the Convention on the Rights of Persons with Disabilities (CRPD) entered force. This revolutionary convention marked a paradigm shift regarding persons with disabilities, transforming the perception of disabled persons from passive charity recipients to active rights holders, translating disability into the language of human rights. This was fundamental in empowering disabled persons, globally recognising both their inherent vulnerability and the lack of legal protection afforded to them. One of the core principles of the CRDP is respecting the “individual autonomy including the freedom to make one’s own choices”, which directly challenges the institutionalised nature of human rights violations within medical practises and reaffirms the right of disabled persons to make their own decisions regarding their lives and medical treatment offered to them.

Whilst the prohibition of torture was originally applied in the context of interrogation, punishment or intimidation of a detainee, the concepts of torture and ill-treatment are being increasingly conceptualised within health care settings to address the severe abuse which until now have rarely been recognised as torture and ill-treatment. Both the European Court of Human Rights (ECtHR) and the Inter-American Court of Human Rights have stated that the definition of torture is adaptive, and subject to reassessment in the light of changes in modern-day conditions and values in democracies. This marks a significant shift in our understanding of torture. As the international community increasingly recognises health-care settings as places of abuse, the shroud of ‘medical necessity’ which has allowed the abuse of individuals to continue under the auspices of medical “expertise” is being slowly lifted. This reveals abuses for what they really are, instead of justifying them through medical expertise, and recognises health care settings as sites of torture and ill-treatment, increasing state obligations to protect vulnerable people within them and eliciting a self reflection process within health care professionals and institutions, allowing them to analyse their own practises and standards of care under a human rights lens.

Article 15 of the CRPD states “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his or her free consent to medical or scientific experimentation”. Whilst this seems conducive to banning the practise of involuntary treatment in mental health settings, an explicit reference to forced interventions was dropped during the drafting of article 15 as many state parties believed its practise was still permitted under domestic legislation. Much like article 15, articles 17 (Protecting the Integrity of the Person) and 25 (Right to Health) of the CRPD are both closely related to and emphasise the notion of consent, although they also fail to explicitly prohibit involuntary treatment. This demonstrates a recognition of the necessity of involuntary treatment in certain situations, but provides no guidance on how to define them.

Interpretations of the CRPD by the OHCHR demonstrate the growing consensus that involuntary treatment constitutes forms of ill-treatment and torture, calling for the abolishment of the practise of psychiatric detention and institutionalisation, as well as the use of compulsory treatment, restraints and seclusion in mental health settings and the nullification of laws affording for these practises. The CRPD has also been interpreted to invalidate earlier norms such as the 1991 ‘Principles for the Protection of Persons with Mental Illness’ which also afforded for involuntary detention and treatments, reinforcing the recognition of these practises as inhumane on a global basis. Since entering into force in 2008 many governments, including the UK, have retained discriminatory mental health legislation which allows the continual involuntary treatment and detention of persons determined mentally ill, which can result in a violation on CRPD Art 25(d) “health professionals.. [must].. provide care… on the basis of free and informed consent…[and] autonomy”. There is therefore a recognition within international law of the necessity of involuntary practises of detention and treatment, and the European Court of Human Rights (ECtHR) played a fundamental role in determining when involuntary practises can be used. Although the court is limited in its case law regarding torture and mental health, the case of Herczegfalvy v. Austria (1992) played an essential role in demonstrating the powerlessness of mentally disabled persons, and stated that medical professionals must be adequately able to demonstrate a real medical necessity to practise involuntary practises on patients, as then they “cannot be regarded as inhuman or degrading”.

2 Institutionalised Powerlessness of Mentally Ill Persons, Through the Evolution of Mental Health Law Governing Mental Health Practise. 

The history of the social stigmatisation of mentally disabled persons is of pivotal importance to our understanding of modern day mental health, not only because these sociocultural, ideological and attitudinal discriminatory responses to mental health underlie our modern day perceptions of mental health, but also because the historical laws and medical practises which served to silence the mentally ill community have formed the basis of modern day mental health law and practise, affording for the involuntary treatment of patients.  Historically, mental heath was supposed to have supernatural causes and those with mental disorders were commonly stigmatised, hidden from society and abused both physically and mentally. As mental health was institutionalised in the sixteenth century so too were the practises of violent restraint and involuntary treatment. This stigmatised institutionalisation of the mentally ill occurred in parallel to the evolution of the principle of natural rights, and was afforded for by the law of natural rights. Locke identified that although we all share in “one Community of Nature”, not all people are born into or develop the “full state of Equality”, which excluded them from these rights. “Lunaticks [sic] and idiots…. [and] Madmen” were excluded from this full state of equality, and left those suffering from mental disorders vulnerable to human rights violations, many of which would today qualify as torture, in order to “seek and procure their good for them”. This historical exclusion of the mentally ill from rights has evolved and been incorporated into the modern day legal provisions which govern the treatment of mentally ill persons in modern day societies throughout the world (eg. the UK Mental Health Act). This provides medical professionals with the authority and legal basis to rob mentally ill persons of their autonomy, exclude them from their rights and subject them to involuntary treatments.

It is of course known that at certain times, people suffering from mental disorders may pose a threat to to either themselves or others in general, and therefore involuntary detention and treatment mechanisms may well be necessary in certain situations, as stated by the Committee on the Prevention of Torture and ECOSOC. Although this infringes on the right to liberty, it is justified for states to fulfil their positive obligation to protect the right to life of the patient and other society members. It is also true that at certain times psychiatric diseases can impair one’s “capacity for reasonable judgement” that can be argued to warrant the need to limit an individuals autonomy which is enshrined in the general principles of the CRPD.  The UK Mental Health Act, as an example of a law affording the right for doctors to provide treatments in the absence of informed consent, states that the only prerequisite required for doctors to pursue involuntary treatment is for two registered medical practitioners and a social worker to certify“that the patient is not capable of understanding the nature, purpose and likely effects of treatment” and that “it is appropriate for the treatment to be given”. These criteria are not objectively measurable, and are therefore dependent on the subjective interpretation of the nature of suffering, prospective benefit of treatment and danger posed to society by a mentally ill individual. When compared across different European states, the practises of involuntary detention and treatment been shown to be determined more by mental health professionals’ beliefs and values than by legislation, demonstrating country specific attitudes to involuntary treatment vary in their attitudes towards involuntary treatment, and questioning the necessity of involuntary treatment. Although these laws were intended to safeguard individuals’ right to life in cases where patients are in need of essential care and unable to provide their explicit consent, this system can be abused. The hierarchical power structure of medical institutions throughout the world, where medical practitioners differentially present potential therapies depending on their own personal beliefs, the practises standardised by the states health department, and also the economic capabilities of the state, localises power within the ‘expertise’ of medical professionals. These professionals who, although having extensive knowledge to predict to the best of their ability the best treatment option available, have been seen in the UK to be influenced by economic factors, demonstrating how an ‘appropriate treatment’ is not dependent on the needs of the patient, but instead the needs of medical institutions. Mental Health Law is therefore capable of both restricting the legal capacity of patients to refuse treatment and overriding a refusal to consent to treatment, exposing them to unwanted treatments which have been shown by the UN Special Rapporteur on Torture to amount to torture or ill treatment.

3. Electroconvulsive Therapy in Mental Health Care Settings 

ECT is the process in which electric currents are passed through the brain to induce an epileptic fit, which has been shown to reduce aggression in schizophrenic patients, psychotic patients and also in bipolar patients presenting manic symptoms. Since its development in the 1930s, many countries have imparted restrictions upon its use. The UK currently only uses ECT in last resort situations, and only in it’s ‘modified’ form (with anaesthesia, muscle relaxants or oxygenation) with the hope of reducing the medical consequences associated with non-modified ECT including severe pain, bone, ligament and spinal fractures, cognitive deficits and a possible loss of memory. Unmodified ECT is banned in the UK, but is important to note that it is still practised frequently in non-european states. The side effects of non-modified ECT have been demonstrated to elicit suffering serious enough to constitute torture or ill-treatment, and resulted in the Special Rapporteur of the Human Rights Council of Torture and Inhuman, Cruel and Degrading Treatment and Punishments to condemn unmodified ECT as an unacceptable medical practise, and restrict the use of modified ECT only “with the free and informed consent of the person concerned”.

As well as condemning the use of unmodified ECT as a method of torture, the UN Special Rapporteur on Torture also stated that “ECT be administered only with the free and informed consent of the person concerned”, therefore condemning any involuntary use of ECT in both forms. Although the use of anaesthesia, muscle relaxants and oxygenation drastically decrease the occurrence of severe side effects associated with unmodified ECT such as bone fractures and extreme pain, the modified form of ECT is also associated with physical side effects ranging from headaches, nausea, prolonged muscle relaxation and vomiting, to more severe physical side effects including cardiovascular complications, spleen ruptures and pulmonary oedema, all of which can be life threatening. Cognitive side effects are also associated with modified forms of ECT including confusion, difficulties concentrating and memory disturbances (both anterograde and retrograde) which are relatively common and have been observed to be severe enough to interfere with the everyday life of patients. Deaths due to the practise of modified ECT are extremely rare but have been observed, due to unexpected reactions between the myriad of analgesic, antipsychotic, antidepressants and other drugs which mentally ill patients who undergo modified ECT are subjected to. Whilst the UN Special Rapporteur on Torture has not condemned the practise of modified ECT for patients who consent, his reasoning for condemning the practise of unmodified ECT included “cognitive deficits and possible loss of memory” which he concluded surmounted to surpass the threshold of suffering necessary to satisfy the suffering threshold in article 1 of the CAT. Modified ECT also elicits cognitive deficits and memory loss in patients which can be severe and permanent, and have been shown to be devastating to be devastating to a patients personal identity. The UK Mental Health Act affords for the involuntary treatment of mentally ill persons in certain conditions with modified ECT, and the most recent Mental Health Act Annual Report by the UK Care Quality Commission (2014/15) demonstrated that the number of requests to Second Opinion Appointed Doctors to use unmodified ECT on non-consenting patients is slowly increasing, demonstrating a increasing prevalence of involuntary ECT treatments in the UK. Practises of involuntary modified ECT can therefore be defined as torture or ill-treatment if a patient experiences severe permanent side effects such as memory loss or cardiovascular issues, as these elicit a severe level of suffering.

Within the literature investigating the efficacy of ECT in treating mental disorders, there is also a wealth of literature where both unmodified and modified ECT have been shown to have no effect in reducing mental health issues when larger sample sizes were analysed and placebo controls were used. This suggests that the beneficial effects of ECT could have been exaggerated by small sample sizes, or could represent the placebo effect, or simply could be effective in some patients but not in others, due to the differential nature of the specific cellular neuropathology underlying mental disorders. Because the scientific literature has demonstrated a potential lack of efficacy in the practise of ECT and the severe side effects associated with its practise, it can be argued that this practise cannot be justified as a “medical necessity” at any point, as demanded by the ECtHR, because the risks outweigh the potential therapeutic outcomes. Leading medical practitioners found that the practise of ECT was the most harmful treatment for a wide variety of mental health patients, and its lack of efficacy has lead leading scientists to condemn its practise stating “the cost-benefit analysis for ECT is so poor that its use cannot be scientifically justified”.

4. The Intent and Purpose of Health Care Officials to Elicit Severe Pain and Suffering.

4.1 Discrimination

The definition of discrimination is clarified by the CRPD, which greatly aids the contextualisation torture and ill-treatment within mental health facilities. Discrimination is defined in the CRPD as ‘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’ . State laws that afford for the involuntary detention and treatment of disabled persons are therefore clearly discriminatory, as they impair upon an individuals right to autonomy on the sole basis of their disability. The mandate of the UN Special Rapporteur on Torture has previously demonstrated that the discriminatory nature of involuntary detentions and treatments, when committed against persons with psychosocial disabilities, was enough to satisfy the intent and purpose required under article 1 of the Convention Against Torture. This landmark statement demonstrates that discrimination alone is enough to satisfy the intent and purpose of torture, regardless of the “good-intentions” of medical professionals. Using this concrete definition of discrimination, it is clear that the practise of involuntary treatment of a patient based solely on the presence of a mental illness is discriminatory, which can under certain circumstances fulfil the criteria of ‘intent and purpose’ within the torture definition framework.

4.2 Coercion

Hidden coercion within mental health facilities has rarely been addressed but there is a growing body of evidence to suggest that many patients are subjected to a huge amount of coercion before they voluntarily agree to a practise. Rose et. al. (2005) found that patients were not only pressured by mental health professionals to agree to treatment plans, but were also not provided with all the necessary information to make an informed decision, or addressed just after receiving their medication so they were not in a fit state of mind to consent to ECT. In line with the ‘CPT Standards’ consent to treatment can only be qualified as free and informed if it is “based on full, accurate and comprehensible information about the patient’s condition and the treatment proposed”. This demonstrates that although patients may have signed a consent form for practises, this voluntary consent may be the product of pressure from medical professionals, or have been obtained whilst the patient was in an altered state of mind or unaware of the full consequences of its practise, and cannot therefore be defined as free and informed consent. Individual autonomy and the legal capacity of disabled persons to exercise the right to free and informed consent are enshrined within the CRDP, and the existence of any disability cannot justify a denial of these rights. It has been shown that the power inequalities between disabled persons and medical professionals leaves them especially vulnerable to coercion, where medical professionals are able to exert undue pressure for a patient to agree to a treatment such as ECT, by threatening them with repercussions if they don't agree or by unduly stressing the benefits of accepting medical intervention. This therefore demonstrates that expertise and superiority of the mental health system can exert undue pressure on people suffering from mental disorders, who are already vulnerable to human rights abuses, to accept medical intervention. This coercion invalidates a patients consent, and therefore torture and ill-treatment may be determined in cases of voluntary treatment with modified ECT, if it can be proved that the patient was not given all the full information, or pressured heavily into getting the treatment.

5. Safeguards Against Torture and Ill-Treatment in Medical Care Settings.

Because of the potential need to involuntarily detain and treat mentally ill persons, domestic laws are required to encode safe guards to ensure that involuntary detention and treatment are not misused. This is of vital significance when considering if an application of modified ECT constitutes as torture or ill-treatment, as the relevant case law (all be it scarce) has demonstrated that if medical professionals adhere to these safeguard practises, they can justify the medical necessity of involuntary detentions and treatments. In 1997, the UN Human Rights Commission (HRC) considered the case of A v. New Zealand - a 42 year old man who was involuntarily detained for 9 years under the grounds he posed a threat to others and himself. The HRC found no violation of the right to liberty, as it noted that New Zealand: 1) performed careful and lengthy psychiatric examinations by three specialists; 2) Mr A had the opportunity to challenge his placement before several courts; 3) his detention was in compliance with domestic legislation; 4) regular reviews of Mr. A’s detention were performed. Although this case references involuntary detention and not treatment, it demonstrates the importance of the satisfaction of domestic safeguards in order for states to justify the necessity of medical practises. States must therefore include procedures in their internal legislation which affords the rights of patients to: 1) obtain an independent second opinion; and 2) appeal against involuntary treatment, whilst affording obligations to mental health professionals: 1) they must obtain permission from an independent authority based on professional recommendations; and 2) use a periodic review mechanism to analyse whether involuntary treatment is still justified. If patients are able to prove that one or more of these rights or obligations was not adhered to, the case will be considered whether their treatment constituted torture or ill-treatment.

This paper has demonstrated how the involuntary treatment of mentally unwell persons using modified ECT, which is afforded for by the UK Mental Health Act, can violate all the criteria of torture and ill-treatment laid out in article 1 of the CAT. The permanent and severe memory loss which has been observed in some patients of modified ECT treatments have been observed to cause severe distress to patients, which the UN Special Rapporteur for Torture stated satisfied the criteria for unmodified ECT practices to be defined as torture or ill-treatment. Discrimination has been shown to be deeply embedded in both the UK’s mental health law and medical services, and under the definition of discrimination in the CRPD, has been demonstrated to satisfy the prerequisites of intent and purpose for the contextualisation of torture and ill-treatment in mental health settings. The same is true for coercion, which has been shown to be deeply institutionalised within the UK’s health system. There is not enough data on coercion within the UK’s medical system, but it is clear that there is a number of patients who, although they technically consented to treatment, did so because of coercion, which invalidates their consent. This allows torture and ill-treatment to be pursued in cases where patients consented to the treatment and experienced suffering as a result, further expanding the definition of torture. Previous case law have demonstrated that states are “directly responsible for the action of private institutions when its outsources medical services”, and as the NHS is run by the Department of Health all workers within mental health facilities are acting as ‘hands of the state’. This affords accountability directly to the state, and the practise of involuntary treatment marks a failure of the UK to protect its citizens from torture within mental health facilities. This system is however regulated, and a case will only be pursued against the UK if a patient can prove the necessary safeguards against the misuse of involuntary treatment in mental health settings were not utilised. This would constitute a breach of law, satisfying the final criterion that the action was not legal. Within the international community here is a growing consensus that involuntary treatment represents institutionalised discrimination against mentally ill persons, and that this already vulnerable group need to be further protected from torture and inhumane treatment in mental health care settings.

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