Medical Whistleblower Advocacy Network

P.O. Box C Lawrence, KS 66044

The United States Declaration of Independence declared that all men

are endowed with certain inalienable rights, and that "among these

are life, liberty, and the pursuit of happiness".

Dear Governmental Official:

As an advocate for human rights of ___________________________ I

wish to bring to your attention the issue of “least restrictive” mental health treatment which is a human right, supported in international human rights

law. I wish to educate you on how forced psychiatric drug treatment is viewed by the international human rights bodies and by the jurisprudence of

international human rights courts. The principle of the Least Restrictive Alternative is a key feature of the Principles for the Protection of People

with Mental Illness and for the Improvement of Mental Health Care (UN Assembly 1991).

The U.S.A. is party to the Universal Declaration of Human Rights (UHDR),

the International Covenant on Civil and Political Rights (ICCPR), the Convention against Torture (CAT), and the International Convention on the

Elimination of Racial Discrimination (CERD), all of which must be applied without discrimination based on disability. The U.S. has signed but not yet

ratified the Convention on the Rights of Persons with Disabilities (CRPD), as well as the Convention on the Rights of the Child (CRC) and the International

Covenant on Economic, Social and Cultural Rights (ICESCR). The human

rights of patients are also delineated in the Universal Declaration on Bioethics and Human Rights.

The U.S.A. as a nation is obligated to realize human rights in three ways:

• to respect, must not interfere with the exercise of a right

• to protect, must ensure others do not interfere with the exercise of a right, primarily through effective regulation and remedies

• to fulfill, this includes the duty to promote rights, facilitate access to rights,

and provide for those unable to provide for themselves

Under the Convention on the Rights of Persons with Disabilities – General

Principles (CRPD Article 3)

“(a) Respect for inherent dignity, individual autonomy including the freedom

to make one's own choices, and independence of persons;

(b) Non-discrimination;

(c) Full and effective participation and inclusion in society;

(d) Respect for difference and acceptance of persons with disabilities as part

of human diversity and humanity;

(e) Equality of opportunity;

(f) Accessibility;

(g) Equality between men and women;

(h) Respect for the evolving capacities of children with disabilities and

respect for the right of children with disabilities to preserve their identities.”

According to the Equal Protection Clause of the 14th Amendment of the

U.S. Constitution, the laws must not discriminate in the way they are applied: an individual in given conditions and circumstances must be treated

in the same manner as other people who are in similar conditions and

circumstances. A violation occurs when a particular class of individuals the right to engage in an activity but denies other individuals the same right.

The United States Supreme Court was a world leader in establishing the principle of the Least Restrictive Alternative, by stating that a government

must achieve its goals by the most narrow means available to it (Perlin

2000). A Wisconsin Federal Court held that even where dangerousness and mental illness are present, a person could be involuntarily hospitalized only

as a last resort. In addition, the Court held that it was the responsibility of the persons seeking the involuntary order to investigate alternatives to

involuntary admission, and to demonstrate that these alternatives, such as day hospital, staying in hospital only overnight or remaining in the

community with support, were not suitable. (Munetz & Geller 1993) Factors to be considered regarding the factors to be considered when thinking about

the Least Restrictive Alternative include environmental restrictiveness, the use of physical and chemical restraint, clinical variables, the availability of

family and community support and the effectiveness of alternative care and treatment. The Least Restrictive Alternative was used to justify the right to

refuse treatment, but it was used equally in the argument for the right to treatment. So cases should be decided on an individual case basis. The

restrictiveness of forced use of psychotropic medication must be considered

and also the relative access to mental health or rehabilitation services.

(Munetz and Geller1993:972)

In addition in the U.S.A. disabled persons are covered under national

legislation such as the Americans with Disabilities Act (ADA) which prohibits discrimination based on disability. Title II of the Americans with Disabilities

Act (“ADA”), 42 U.S.C. §§ 12131, 12132, prohibits discrimination against

individuals with disabilities. Title II requires, inter alia, that “a public entity shall administer services, programs, and activities in the most integrated

setting appropriate to the needs of qualified individuals with disabilities.” See 28 C.F.R. § 35.130(d) (emphasis added). Section 504 of the Rehabilitation

Act, 29 U.S.C. § 794, imposes similar obligations.

In Olmstead v. L.C., 527 U.S. 581 (1999), the U.S. Supreme Court held that

the ADA is violated when a state places people with mental illness in “unjustified isolation.” Id. at 597. The Court also held that a person with a

mental illness may sue the state for failing to ensure that he or she is placed “in the most integrated setting appropriate to [his or her] needs.” and that

undue institutionalization of a person with a mental illness is discrimination by reason of disability under Title II of the ADA. Id. at 587.

The U.S.A. as a nation is obligated to realize human rights in three ways:

• to respect, must not interfere with the exercise of a right

• to protect, must ensure others do not interfere with the exercise of a right, primarily through effective regulation and remedies

• to fulfill, this includes the duty to promote rights, facilitate access to rights,

and provide for those unable to provide for themselves

The Principle of Least Intrusive Treatment [United Nations “Principles for the Protection of Persons with Mental Illness” MI Principle 9(1)] states

that patients should be treated with the least restrictive and intrusive treatment appropriate in the circumstances. This means that patients should

not be given any form of treatment if a less invasive (milder) form of treatment might work just as well.

The Principle of Individualized Care Plans [United Nations “Principles for

the Protection of Persons with Mental Illness” MI Principle 9(2)] states that treatment and care should be based on a plan that is designed only for the

patient and in consultation with the patient. This plan should be reviewed regularly and changed as necessary to suit the patient’s changing needs.

The United States under international treaty obligations has direct

responsibility for human rights violations when committed by state agents or officials. Even when human rights violations are committed by non-state

actors, primary responsibility, and accountability, in international law rests with the government of the national government in whose jurisdiction the

violation occurs. The US government must do more than refrain from violating human rights and this includes the rights of persons with mental

health disabilities. It must put effective measures in place so that violations committed by private individuals are prevented insofar as possible, and

victims protected. Where violations occur, it must ensure that perpetrators are brought to justice with effective sanctions imposed, and reparation

provided to the victim. This is called the Duty of Due Diligence.

The right to mental health is not just a right to mental health services, but it is also closely related to and dependent upon other rights. This includes the

rights to food, housing, work, education, human dignity, life, non-discrimination, equality, the prohibition against torture, privacy, access to

information, and the freedoms of association, assembly and movement. In addition, mental health care must be available, accessible, acceptable and of

appropriate quality. [The Committee on Economic, Social and Cultural Rights (in its General Comment 14)]

The U.S.A. has signed and ratified the International Covenant on Civil and

Political Rights (CCPR), and thus is bound under international law to abide by its’ principles . The CCPR seeks guarantee a broad range of universal human

rights across a wide range of human endeavor. The preamble to the CCPR recognizes that the rights derive from the inherent dignity of the human

person. The CCPR sets out certain "civil and political" rights. Among these

are many human rights relevant to the issue of least restrictive mental health treatment.

Persons with mental health disabilities have under the CCPR, the Right of self-determination. This is the right of all peoples of self-determination,

including a right to determine freely political status and dispose of natural

wealth and resources (CCPR Article 1).

Under the CCPR, those with mental health disabilities have the Right to life.

The right to life, including restrictions on the circumstances in which capital punishment may be imposed (CCPR Article 6). The Universal Declaration of

Human Rights, adopted by the United Nations General Assembly declared in

Article 3 states:

“Everyone has the right to life, liberty and security of person.”

Convention on the Rights of Persons with Disabilities Article 10 Right to life -

states:

“States Parties reaffirm that every human being has the

inherent right to life and shall take all necessary measures to ensure its effective enjoyment by persons with disabilities on

an equal basis with others,”

There is under numerous human rights treaties and instruments a prohibition against torture, cruel and degrading treatment. This is clearly

stated in the Convention Against Torture (CAT) which the U.S.A. has both signed and ratified. The Prohibition of torture is also stated in the CCPR:

“The right not to be subjected to torture or cruel, inhuman or

degrading treatment or punishment, including the right not to be subjected to non-consensual medical or scientific

experimentation (CCPR Article 7).”

Many in the field of human rights believe that hospital confinement and forced psychiatric treatment can be humiliating and degrading and leaves

lifelong stigma and emotional trauma to the patient and can impact the patients’ life in a negative way permanently. Little is more degrading than

for patients to be treated as warehoused commodities for the growing

industry of for-profit mental facilities. Disabled persons are viewed as chattel, as a “cash cow” for private for profit facilities and for profit

guardians (surrogate decision makers). The use of a disabled person as a means to maximize profit and to extract taxpayer money in the form of

expensive medical treatment under Medicaid and Medicare is demeaning to their humanity and dignity as human beings. These warehouse facilities

utilize loopholes in the welfare laws to chemically restrain and control disabled and elderly people and thus force them to be compliant with

medical fraud. This coupled with the removal of the patient’s legal rights to file complaints with the local, state or federal authority means that medical

facilities and providers who are human rights violators have no oversight or monitoring of their behavior. Thus when making medical decisions for the

physical and mental health of patients who are entirely incapable of making decisions for themselves, there still is an obligation under Convention

Against Torture (CAT) - for freedom from torture, inhuman or degrading

treatment or punishment.

The CCPR also states a Prohibition of slavery or servitude - The right not to be held in slavery or servitude, or (subject to certain express exceptions)

to be required to perform forced or compulsory labour (CCPR Article 8).

Often mentally disabled persons are forced to work on a per-diem payment

system, in order to maximize government payments to the facility. This “rehabilitation” comes with governmental payment of the facility employees

to “supervise” the mental patient in their “rehab” work and also additional “targeted case management” to ensure compliance with the work program.

Mental patients are often not paid comparatively to other persons doing similar work. The facility staff thus maximizes their own personal salaries at

taxpayer expense, using the mental patients as forced labor. This mirrors the system of slavery, which also is a for-profit enterprise that involves

imprisoning people against their will and forcing them to work and using them to generate profit. Mental patients often have no choice in what work

they are allowed to do, being forced to fit into whatever “rehab” program the facility made available.

Forced detention of mental health patients and chemical restraint as a

pharmaceutical means of control is in violation of the basic human rights principle of Prohibition of arbitrary arrest or detention - The right to

liberty and security of the person, including a prohibition on arbitrary arrest or detention and on deprivations of liberty other than by law (CCPR Article

9(1)). When persons are arrested or detained they have the rights: 1) to be informed of the reason for an arrest and of any charges (CCPR Article 9(2);

2) to be brought promptly before a judicial officer (CCPR Article 9(3)); 3)to

trial within a reasonable time or release (CCPR Article 9(3)); 4) to take proceedings before a court to have the lawfulness of an arrest or detention

determined without delay, habeas corpus (CCPR Article 9(4)); 5) to obtain compensation if unlawful arrest or detention is established (CCPR Article

9(5)).

Persons with mental health disabilities have the right to Freedom of movement within some basic principles. The right to freedom of

movement, including the freedom to choose a place of residence, the right to leave any country, and the right to re-enter one's own country (CCPR

Article 12).

All persons with any physical, emotional, cognitive or mental disability have the basic human right to Equality and Freedom from discrimination. The

right to equality before the law and to equal protection of the law, and freedom from discrimination on grounds such as race, colour, sex, language,

religion, political or other opinion, national or social origin, property, birth or other status (CCPR Article 26). This right to non-discrimination does apply to

those with mental health challenges.

Many times mental health patients are arbitrarily and without proper substantive due process denied their human right to Recognition as a

person before the law by the assignment of a surrogate decision maker –

often a court appointed guardian. This can be a violation of the patient’s

human right, the right to recognition everywhere as a person before the law (CCPR Article 16). The growing use of strangers as court paid legal

guardians and medical proxy decision makers contractually and financially tied to the mental warehouse institutions means that the surrogate decision

makers are often for-profit entrepreneurs who do guardianship of vulnerable persons as a for profit business. These for-profit guardians often do not

discuss their decisions with the protected ward at all and merely utilize the ward as a means of depleting the finances of the ward’s estate and to

maximize Medicaid and Medicare payments to their associated medical facilities and providers.

Warehousing mental health patients to locked facilities and controlled

medical facilities often violates the patient’s right to Privacy and reputation - the right not to be subject to arbitrary or unlawful interference

with privacy, family, home or correspondence, nor to unlawful attacks on one's honour or reputation (CCPR Article 17). In addition the constant

surveillance and interference with communication with family, friends and associates means a curtailment of the patient’s right to Freedom of

thought, conscience and religion and the Freedom of opinion and expression. The right to freedom of thought, conscience and religion (CCPR

Article 18)). The right to hold opinions without interference and to freedom

of expression, including the freedom to seek, receive and impart information and ideas of all kinds (CCPR Article 19).

International human rights law imposes a responsibility and obligation to the United States as a nation and also on all governmental officials to not to

inflict torture, inhuman or degrading treatment or punishment on

individuals. United States officials also have a positive obligation to take pro-active measures to protect its citizens from ill-treatment – whether

carried out by state officials or private individuals or groups. The U.S.A. as a nation has a duty to take steps to protect mental health patients from

inhuman or degrading treatment or any form of exploitation or abuse. So the U.S.A. should make sure that an effective investigation is carried out if

inhuman or degrading treatment, exploitation or abuse is alleged.

The prohibition of torture and inhuman or degrading treatment or punishment is absolute. The International Courts have emphasized that such

a fundamental right deserves no exceptions or limitations, nor any derogations.

“All human beings are born free and equal in dignity and

rights.” [Article 1 of the Universal Declaration of Human Rights

(UDHR)]

International human rights standards are delineated in the Principles for the

Protection of Persons with Mental Illness and the Improvement of Mental Health Care (MI Principles), which were adopted by the UN General

Assembly in 1991. All human rights are based on the basic principle of dignity.

“All persons with a mental illness, or who are being treated as

such persons, shall be treated with humanity and respect for the inherent dignity of the human person.” [MI Principle 1(2)]

Authorities are under an obligation to protect the health of persons deprived of liberty. The position of inferiority and powerlessness which is typical of

patients confined in psychiatric hospitals or under mental health care calls for increased vigilance in reviewing whether accepted international human

rights standards have been complied with. Any invasion of a person’s body

is an interference with private life. The Stroudsburg Court has said that “Mental health must also be regarded as a crucial part of private life

associated with the aspect of moral integrity”. (Bensaid v. United Kingdom, 6 February 2001, paragraph 47).

The principle of Free, Prior and Informed Consent is an important human

right which has been addressed in many international and domestic laws and practices. When treatment is initiated against the wishes of the patient and

without informed consent then it must be determined that the treatment itself does not constitute punishment and that the medical necessity has

been shown to convincingly exist. The lack of appropriate non-drug medical treatment of a person deprived of his/her liberty may amount to a human

rights violation under international human rights law. So in addition, in order to validate the use of forced drugging, it also must be proven that a

therapeutic means more acceptable to the patient and more in concert with the wishes of the family is not applicable.

Essentially, people have the right to make treatment decisions. Principle 19

of the UN’s “Principles for the Protection of Persons with Mental Illness” mandates that:

“Informed consent is consent obtained freely, without threats or

improper inducements, after appropriate disclosure to the patient of adequate and understandable information in a form and language

understood by the patient on: (a) The diagnostic assessment;

(b) The purpose, method, likely duration and expected benefit of the proposed treatment;

(c) Alternative modes of treatment, including those less intrusive;

(d) Possible pain or discomfort, risks and side-effects of the proposed

treatment.”

In Canada patients with mental disabilities who have the mental capacity to make treatment decisions have a right to make those decisions, whether or

not they are in hospital, and whether or not they are subject to legal

confinement. This has resulted in better outcomes and actually caused few practical problems in implementation. Canadian medical professionals have

indicated broad acceptance with these changes in policy because many believe these changes have caused medical practitioners to discuss

treatment options more closely with their patients, thus re-enforcing good medical practice.

The US courts have recognized that psychotropic medications are a "high-

risk treatment" that "has potentially devastating effects." (In re Guardianship of Roe, 421 N.E.2d at 54) Thus "a person has a constitutionally

protected interest in being left free by the state to decide for himself whether to submit to the serious and potentially harmful ... administration

,or antipsychotic drugs." [Rogers v. Olein, 634 F.2d 650, 653 (1st Cir. 1980), vacated and remanded sub nom. Mills v. Rogers, 457 U.S. 291

(1982).]

Thus research has proven that psychiatric medications are not without risk

of serious and life endangering effects and thus the Right to Life can also be a human rights concern.

Psychiatrists unfortunately have shown a consistent bias toward the use of

psychotropic drugs to the exclusion of considering other options (counseling, group therapy, individual psychotherapy, or assignment to constructive,

therapeutic activities). Psychologists who are expert in non-drug therapies should be consulted and alternative options considered. There must be

thorough exploration of reasonable alternatives to forced drugging so as to not abrogate a constitutional liberty interest.

I respectfully suggest that __________________________ be placed in the

most integrated setting appropriate to his/her needs and in a manner that is consistent with the Principles of Mental Health Care of the United Nations

and the World Health Organization. The United Nations Principles for the protection of persons with mental illness and the improvement of mental

health was adopted by General Assembly resolution 46/119 of 17 December 1991. My concern is brought under human rights principles and I ask you to

pay special attention to Principle 1, 3, 4, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16,

17, 18, 19, 22, 24, and 25 of said document. This concern is also brought

concerning the World Health Organization’s Ten Basic Principles of Mental

Health Care (Geneva 1996) and especially on Principles 3, 4, 5, 6, 7, and 8.

Thus I respectfully submit to you these legal concepts of international human rights for your consideration.

Please feel free to contact me for further information if needed.

Sincerely,

Dr. Janet Parker DVM

Medical Whistleblower

P.O. Box C

Lawrence, KS 66044

For purposes of this communication I have used the following definitions:

Torture: Deliberate inhuman treatment causing very serious and cruel

suffering.

Inhuman treatment or punishment: Intense physical or mental suffering

Degrading treatment or punishment: Treatment which arouses in the victim feelings of fear, anguish and inferiority capable of humiliation and

debasement and possibly breaking physical or moral resistance.