11 March 2013

Consent to ill-treatment

Psychiatry, religion and culture all assert considerable power over individuals. A human rights approach can rebalance this power.

I want to address the question: should the law allow someone to consent to what she believes to be a cure, but what others consider to be “inhuman or degrading treatment” which is banned under international law?

I was in Nigeria recently, a trip you can read about in my previous entry. Colleagues in Lagos told me that the following is a common scenario across the country:


Person: “Hello, I think I need some help because I don’t feel mentally well.”

Traditional healer: “You are possessed by the devil and you need 20 lashes to drive the devil out.”

Person: “Ok. Here’s some money. Please do the lashing.”


Let me make three preliminary points. First, I’m not aware of any empirical evidence that suggests that lashing someone helps that person in recovering from mental health problems. On the contrary, there’s lots of evidence that violence causes mental health problems and exacerbates pre-existing problems. Second, in all jurisdictions which I know about, lashing someone against their will is quite rightly considered a criminal offence. Third, I was told that in most cases it is the family which takes the afflicted person to the traditional healer, so this dialogue may not occur very often. But it’s not a philosophical thought experiment: it really does happen.

I have to confess that upon hearing about consent-to-lashing I immediately thought of sadomasochism. Some people derive pleasure from pain.

The European Court of Human Rights dealt with this in the 1997 case of Laskey v. the UK. The applicants complained to the Strasbourg court of their successful prosecution in the UK for having sex with each other. The sex was consensual and carried out in private. The judges were at pain (sorry) to point out that they were looking at the sadomasochistic aspect, rather than the detail that all of the participants were men.

The Court considered that “one of the roles which the State is unquestionably entitled to undertake is to seek to regulate, through the operation of the criminal law, activities which involve the infliction of physical harm” (para. 43 of the judgment). The Court found no violation of the European Convention on Human Rights on the grounds that the UK parliament had the authority to regulate such behaviour through the criminal law. Personally I’ve always thought this to be a cop out. The Court could have with equal force said that criminalising consensual acts in private is a violation of the right to private life under Article 8 of the European Convention on Human Rights.

If one of the men in the Laskey case had claimed he was forced into a dungeon whereupon other men started whipping him and sexually abusing him, we would think very differently about the case. We would feel that he was not consenting.

Similarly, if A stands over B with a gun to his head and B ‘agrees’ to hand over £1,000, B can (perhaps at a later date when his life is no longer in danger) convincingly claim that he was not truly agreeing depart with the cash because he was being forced to do so. The presence of the gun alters the dynamic of the consent.

Clearly, voluntariness is one of the key elements of consent.

I often say to students that consent is the biggest joke in mental health law, because these laws render lawful what would otherwise be unlawful. False imprisonment and actual bodily harm is dressed up as confinement for your own protection, and treatment in your own best interests. In mental health transactions, voluntariness is often absent. I have seen lots of examples of coercion all over the world: people being forced to sign the papers to be a voluntary patient; a person agreeing to this treatment because otherwise they will be forced to get that treatment; a person agreeing to take their medications in the community as a prerequisite to their liberty. The joke is that we are all being taken for a ride: the last laugh is on the law which paints a veneer of legitimacy for a person’s wishes to be ignored, and his or her bodily and mental integrity to be violated.  

I am such a consent sceptic that at some level I don’t believe that it is possible to give an authentic voluntary agreement in a system where the other side can lawfully resort to coercion. But the consequence of saying that consent is never valid in the mental health context is that it follows that we should regard no mental healthcare-related decision to be valid. Thus all treatment would have to be classed as involuntary. I find this equally unsatisfactory. Law would step in and provide heaps of safeguards such as independent advocacy, assigning lawyers to the case, filling out various bits of paperwork to be sent to hospital managers and so on. My experience of safeguards is that their main effect is to legitimise the coercion rather than alter the ultimate experience of the person concerned. Coercion with bells on is still coercion.

The UN Convention on the Rights of Persons with Disabilities (CRPD) obliges governments to “adopt immediate, effective and appropriate measures […] [t]o combat stereotypes, prejudices and harmful practices relating to persons with disabilities…” (Article 8(1)(b)). These harmful practices may (depending on State involvement) constitute “torture” and would likely constitute “inhuman or degrading treatment or punishment” which are all prohibited in Article 15 of the CRPD, and in Articles 1 and 16 of the UN Convention against Torture. And lashings certainly constitute violence and abuse which are both banned in Article 16 of the CRPD.

So in the lashing-the-devil-out example, the measures which a government should carry out include (i) prohibiting lashings and other physical violence carried out for any purpose by a doctor, traditional healer, priest or any other person attempting to cure, rectify or otherwise treat mental illness, evil spirits and so on; (ii) ensuring that anyone who does this is prosecuted, and that victims are protected, and (iii) carrying out awareness-raising at the community level about the nature of disability and how to prevent and remedy abuse.

Should the law prohibit lashing as a treatment for mental health problems where the person who is being lashed believes they are possessed by the devil and believes that the beating will help drive out the evil spirits and therefore cure the problem? Yes. A victim’s apparent consent does not legitimise ill-treatment. International human rights law permits ill-treatment in no circumstances whatsoever.

photo credit: winterofdiscontent via photopin cc