"YOUR OLD ROAD IS RAPIDLY AGIN'": INTERNATIONAL HUMAN RIGHTS STANDARDS AND THEIR IMPACT ON FORENSIC PSYCHOLOGISTS, THE PRACTICE OF FORENSIC PSYCHOLOGY, AND THE CONDITIONS OF INSTITUTIONALIZATION OF PERSONS WITH MENTAL DISABILITIES.

• Published date: 01 January 2018
• Author: Perlin, Michael L.
• Date: 01 January 2018

I. Introduction 82
                II. The Relevant International Human Rights Law 86
                 A. Recent Developments in International Human Rights
                 Standard's Impact on Forensic Psychology 86
                 B. The meaning of human rights 90
                III. Conditions in Psychiatric Institutions Worldwide 93
                IV. Forensic Psychology's and Forensic Psychiatry's Need
                 to be More Involved in these issues 97
                V. Sanism, Pretextuality, and Therapeutic Jurisprudence 100
                VI Conclusion: a Challenge 110
                

INTRODUCTION

For years, the focus of how international human rights standards should govern forensic psychology has been organized around psychology's impact on and response to prisoner abuse at Guantanamo Bay and Abu Ghraib. (1) That focus has not been substantially changed as discussions and debates on that issue show no sign of abating. (2) In contrast, scant attention has been paid to potential international human rights violations of persons with mental or intellectual disabilities at forensic institutions, (3) and this silence of organized forensic psychology facing this mistreatment is equally disturbing. In light of the ratification of the United Nations Convention on the Rights of Persons with Disabilities ("CRPD"), (4) the problem is more pointed that organized forensic psychology still largely remains silent about how this significant Convention demands rethinking the humanitarian principles that must control the ways we seek to institutionalize persons around the world. (5) In reality, circumstances in many parts of the world are bleak: services are provided in segregated settings that cut people off from society, often for life; (6) persons are arbitrarily detained from society and committed to institutions without any modicum of due process; (7) individuals are denied the ability to make choices about their lives when they are put under plenary guardianship, also often known as "civil death"; (8) there is a wide-spread denial of appropriate medical care or basic hygiene in psychiatric facilities, (9) individuals are subject to powerful and often dangerous psychotropic medications without adequate standards, (10) and there is almost no human rights oversight or enforcement mechanisms to protect against the broad range of institutional abuse. (11) Although there is a robust literature developing-mostly in Australia and New Zealand-on how such institutional conditions violate the international human rights of this population, (12) organized forensic psychology has virtually been silent about these abuses in the United States.

This article will first briefly introduce the controversy enveloped in organized psychology for the past fifteen years. Part I discusses the relevant international human rights law that applies to violations against persons with mental and intellectual disabilities. Part II examines the current state of conditions in mental health institutions worldwide. Part III argues why forensic psychology needs to become more aggressively involved in countering international human rights violations at these institutions. Part IV explains the significance of understanding sanism and pretextuality in dealing with the underlying presumptions of forensic psychologists' behaviors and explains how the principles of therapeutic jurisprudence can ameliorate the situation. Part V concludes the article by advocating for changes in forensic psychology to embrace international human rights mandates.

The title of this article comes from Bob Dylan's anthemic early song, The Times They Are A-Changing, characterized by the critic Howard Soames as "a rallying call... as America raced through momentous changes," (13) and by the critic Robert Shelton as "a timeless dialogue between those restrained by old ways and those daring something new." (14) In this song, Dylan challenged everyone-parents, politicians, and citizens-to "get out of the new [road] if [they] can't lend [a] hand" because "[t]he [old] order is rapidly fadin.'" (15) And in the same couplet, he sings, "[The] old road is rapidly agin.'" (16) He had that absolutely right in 1963--in the time of the glory of the American civil rights movement-when he wrote that song. (17) But I think his admonition is just as valid for us today.

I. THE RELEVANT INTERNATIONAL HUMAN RIGHTS LAW (18)

A. Recent Developments in International Human Rights Standard's Impact on Forensic Psychology

The attention to behavioral standards of forensic psychologists and forensic psychiatrists has been rising dramatically in recent years. This new attention mostly flows from revelations of the Bush Administration's sanctioning torture at prison camps in Guantanamo Bay and Abu Ghraib. (19) This led to a spirited debate on the application of international human rights to what some psychologists and psychiatrists have done in the context of armed conflict. In the words of Kenneth Pope, in his recent "Member of the Year" address to the Canadian Psychological Association: "the torture controversy and the choices that led up to it provide a grim inventory of guild ethics, willful ignorance, denial, and discrediting critics." (20)

The American Psychological Association's ("APA") failure to mandate that psychologists adhere to international human rights standards (21) has been sharply criticized. (22) Among these critics is the NGO Physicians for Human Rights ("PHR"). "PHR was founded on the idea that physicians, scientists, and other health professionals possess unique skills that lend significant credibility to the investigation and documentation of human rights abuses[;] [it uses its] specialized expertise... to advocate for persecuted health workers, prevent torture, document mass atrocities, and hold those who violate human rights accountable." (23) Along with other NGOs such as Amnesty International, PHR sent an open letter to APA about what it termed APA's '"grievous mismanagement of this issue'; APA's 'providing ethical cover for psychologists' participation in detainee abuse; [and] APA's handling of the detainee interrogation issue creating 'the greatest ethical crisis' in the profession's history and making a 'terrible stain on the reputation of American psychology.'" (24) Then, in 2015, PHR subsequently sent a letter to the APA leadership, encouraging the association to adopt a ban on psychologists' participation in interrogations and any activities that do not comply with obligations under the U.N. Convention against Torture--to which the U.S. is a signatory (25)--including the use of sleep deprivation, prolonged isolation, and sensory deprivation. (26)

It is important to underscore that "torture" goes beyond prototypical notions of physical abuse and includes psychological abuse as well. (27) In this context, it is also important to note in some jurisdictions--especially, but not solely, in Eastern and Central Europe and China, and some in the United States--the existence of a sorry and shoddy history of mental health professionals complying with governmental officials seeking to suppress political dissenters. (28) So this should not be seen as merely a one-time aberration. (29)

This all leads to a critical question: should international human rights law only function to prevent politically motivated torture in forensic psychology and forensic psychiatry, or should international human rights law have a boarder mandate that governs forensic psychologists and psychiatrists' general behaviors in all contexts?

I speak often to psychiatrists, psychologists, and criminologists about international human rights law and its relationship to mental disability law, and remained stunned by the few audience members in the United States who are familiar with this relationship, and the even fewer who are familiar with the UN Convention on the Rights of Persons with Disabilities. This differs sharply from my experiences abroad: whether I am lecturing in a nation with a developed economy or a developing economy, virtually every audience member is familiar with this body of law. (30)

Why is this? The reason may be as benignly simple as the fragmentation of scholarly research agendas (that, simply, different cohorts of scholars have chosen to write about the different aspects of this connection), an explanation that appears to be supported by the astonishing paucity of available legal literature in this area. Or, perhaps it is as darkly complex as the reality that this topic is just not of much interest to the main cohorts of individuals whom we most logically might expect to embrace it: international human rights activists, academically-focused forensic psychologists and forensic psychiatrists, and mental disability law scholars. In this context, it is necessary to recall that it was not until January 2002 that Amnesty International acknowledged, albeit grudgingly, that violations of international human rights law in the cases of persons institutionalized in psychiatric facilities were international human rights violations. (31) I am forced to conclude that the question at the heart of this article--the relationship between international human rights standards and the institutional work of forensic psychologists and forensic psychiatrists (especially, but certainly not exclusively, the work that takes place in the psychiatric institutions of civil law nations)--is one that is essentially ignored by academics, both as a topic of scholarly discourse, and as a topic of classroom study. (32)

I find this pathetic. I also find it baffling, given the shameful history of human rights abuses in psychiatric institutions on every continent. (33) A series of reports issued over the past twenty years by Mental Disabilities Rights International ("MDRI," now Disabilities Rights International, "DRI") and the Mental Disability Advocacy Centre ("MDAC") excoriating the governments of numerous Central and Eastern European and Central and South American nations (34) have drawn scholars and policymakers to these issues, (35) and have even had an impact on the political...