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Medical whistleblower model letter least restrictive


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Medical whistleblower model letter least restrictive

  1. 1. Medical Whistleblower Advocacy Network P.O. Box C Lawrence, KS 66044The 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 ___________________________ Iwish to bring to your attention the issue of “least restrictive” mental healthtreatment which is a human right, supported in international human rightslaw. I wish to educate you on how forced psychiatric drug treatment isviewed by the international human rights bodies and by the jurisprudence ofinternational human rights courts. The principle of the Least RestrictiveAlternative is a key feature of the Principles for the Protection of Peoplewith Mental Illness and for the Improvement of Mental Health Care (UNAssembly 1991).The U.S.A. is party to the Universal Declaration of Human Rights (UHDR),the International Covenant on Civil and Political Rights (ICCPR), theConvention against Torture (CAT), and the International Convention on theElimination of Racial Discrimination (CERD), all of which must be appliedwithout discrimination based on disability. The U.S. has signed but not yetratified the Convention on the Rights of Persons with Disabilities (CRPD), aswell as the Convention on the Rights of the Child (CRC) and the InternationalCovenant on Economic, Social and Cultural Rights (ICESCR). The humanrights of patients are also delineated in the Universal Declaration onBioethics 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 aright, 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 themselvesUnder the Convention on the Rights of Persons with Disabilities – GeneralPrinciples (CRPD Article 3)
  2. 2. “(a) Respect for inherent dignity, individual autonomy including the freedomto make ones 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 partof 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 andrespect for the right of children with disabilities to preserve their identities.”According to the Equal Protection Clause of the 14th Amendment of theU.S. Constitution, the laws must not discriminate in the way they areapplied: an individual in given conditions and circumstances must be treatedin the same manner as other people who are in similar conditions andcircumstances. A violation occurs when a particular class of individuals theright to engage in an activity but denies other individuals the same right.The United States Supreme Court was a world leader in establishing theprinciple of the Least Restrictive Alternative, by stating that a governmentmust achieve its goals by the most narrow means available to it (Perlin2000). A Wisconsin Federal Court held that even where dangerousness andmental illness are present, a person could be involuntarily hospitalized onlyas a last resort. In addition, the Court held that it was the responsibility ofthe persons seeking the involuntary order to investigate alternatives toinvoluntary admission, and to demonstrate that these alternatives, such asday hospital, staying in hospital only overnight or remaining in thecommunity with support, were not suitable. (Munetz & Geller 1993) Factorsto be considered regarding the factors to be considered when thinking aboutthe Least Restrictive Alternative include environmental restrictiveness, theuse of physical and chemical restraint, clinical variables, the availability offamily and community support and the effectiveness of alternative care andtreatment. The Least Restrictive Alternative was used to justify the right torefuse treatment, but it was used equally in the argument for the right totreatment. So cases should be decided on an individual case basis. Therestrictiveness of forced use of psychotropic medication must be considered
  3. 3. 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 nationallegislation such as the Americans with Disabilities Act (ADA) which prohibitsdiscrimination based on disability. Title II of the Americans with DisabilitiesAct (“ADA”), 42 U.S.C. §§ 12131, 12132, prohibits discrimination againstindividuals with disabilities. Title II requires, inter alia, that “a public entityshall administer services, programs, and activities in the most integratedsetting appropriate to the needs of qualified individuals with disabilities.” See28 C.F.R. § 35.130(d) (emphasis added). Section 504 of the RehabilitationAct, 29 U.S.C. § 794, imposes similar obligations.In Olmstead v. L.C., 527 U.S. 581 (1999), the U.S. Supreme Court held thatthe 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 amental 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 thatundue institutionalization of a person with a mental illness is discriminationby 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 aright, 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 themselvesThe Principle of Least Intrusive Treatment [United Nations “Principlesfor the Protection of Persons with Mental Illness” MI Principle 9(1)] statesthat patients should be treated with the least restrictive and intrusivetreatment appropriate in the circumstances. This means that patients shouldnot be given any form of treatment if a less invasive (milder) form oftreatment might work just as well.The Principle of Individualized Care Plans [United Nations “Principles forthe Protection of Persons with Mental Illness” MI Principle 9(2)] states thattreatment and care should be based on a plan that is designed only for thepatient and in consultation with the patient. This plan should be reviewedregularly and changed as necessary to suit the patient’s changing needs.
  4. 4. The United States under international treaty obligations has directresponsibility for human rights violations when committed by state agents orofficials. Even when human rights violations are committed by non-stateactors, primary responsibility, and accountability, in international law restswith the government of the national government in whose jurisdiction theviolation occurs. The US government must do more than refrain fromviolating human rights and this includes the rights of persons with mentalhealth disabilities. It must put effective measures in place so that violationscommitted by private individuals are prevented insofar as possible, andvictims protected. Where violations occur, it must ensure that perpetratorsare brought to justice with effective sanctions imposed, and reparationprovided 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 itis also closely related to and dependent upon other rights. This includes therights to food, housing, work, education, human dignity, life, non-discrimination, equality, the prohibition against torture, privacy, access toinformation, and the freedoms of association, assembly and movement. Inaddition, mental health care must be available, accessible, acceptable and ofappropriate 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 andPolitical Rights (CCPR), and thus is bound under international law to abide byits’ principles . The CCPR seeks guarantee a broad range of universal humanrights across a wide range of human endeavor. The preamble to the CCPRrecognizes that the rights derive from the inherent dignity of the humanperson. The CCPR sets out certain "civil and political" rights. Among theseare many human rights relevant to the issue of least restrictive mentalhealth treatment.Persons with mental health disabilities have under the CCPR, the Right ofself-determination. This is the right of all peoples of self-determination,including a right to determine freely political status and dispose of naturalwealth 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 capitalpunishment may be imposed (CCPR Article 6). The Universal Declaration ofHuman Rights, adopted by the United Nations General Assembly declared inArticle 3 states: “Everyone has the right to life, liberty and security of person.”
  5. 5. 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 aprohibition against torture, cruel and degrading treatment. This is clearlystated in the Convention Against Torture (CAT) which the U.S.A. has bothsigned 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 andforced psychiatric treatment can be humiliating and degrading and leaveslifelong stigma and emotional trauma to the patient and can impact thepatients’ life in a negative way permanently. Little is more degrading thanfor patients to be treated as warehoused commodities for the growingindustry of for-profit mental facilities. Disabled persons are viewed aschattel, as a “cash cow” for private for profit facilities and for profitguardians (surrogate decision makers). The use of a disabled person as ameans to maximize profit and to extract taxpayer money in the form ofexpensive medical treatment under Medicaid and Medicare is demeaning totheir humanity and dignity as human beings. These warehouse facilitiesutilize loopholes in the welfare laws to chemically restrain and controldisabled and elderly people and thus force them to be compliant withmedical fraud. This coupled with the removal of the patient’s legal rights tofile complaints with the local, state or federal authority means that medicalfacilities and providers who are human rights violators have no oversight ormonitoring of their behavior. Thus when making medical decisions for thephysical and mental health of patients who are entirely incapable of makingdecisions for themselves, there still is an obligation under ConventionAgainst Torture (CAT) - for freedom from torture, inhuman or degradingtreatment or punishment.The CCPR also states a Prohibition of slavery or servitude - The right notto be held in slavery or servitude, or (subject to certain express exceptions)to be required to perform forced or compulsory labour (CCPR Article 8).
  6. 6. Often mentally disabled persons are forced to work on a per-diem paymentsystem, in order to maximize government payments to the facility. This“rehabilitation” comes with governmental payment of the facility employeesto “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 doingsimilar work. The facility staff thus maximizes their own personal salaries attaxpayer expense, using the mental patients as forced labor. This mirrorsthe system of slavery, which also is a for-profit enterprise that involvesimprisoning people against their will and forcing them to work and usingthem to generate profit. Mental patients often have no choice in what workthey are allowed to do, being forced to fit into whatever “rehab” program thefacility made available.Forced detention of mental health patients and chemical restraint as apharmaceutical means of control is in violation of the basic human rightsprinciple of Prohibition of arbitrary arrest or detention - The right toliberty and security of the person, including a prohibition on arbitrary arrestor detention and on deprivations of liberty other than by law (CCPR Article9(1)). When persons are arrested or detained they have the rights: 1) to beinformed 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)totrial within a reasonable time or release (CCPR Article 9(3)); 4) to takeproceedings before a court to have the lawfulness of an arrest or detentiondetermined without delay, habeas corpus (CCPR Article 9(4)); 5) to obtaincompensation if unlawful arrest or detention is established (CCPR Article9(5)).Persons with mental health disabilities have the right to Freedom ofmovement within some basic principles. The right to freedom ofmovement, including the freedom to choose a place of residence, the rightto leave any country, and the right to re-enter ones own country (CCPRArticle 12).All persons with any physical, emotional, cognitive or mental disability havethe basic human right to Equality and Freedom from discrimination. Theright to equality before the law and to equal protection of the law, andfreedom from discrimination on grounds such as race, colour, sex, language,religion, political or other opinion, national or social origin, property, birth orother status (CCPR Article 26). This right to non-discrimination does apply tothose with mental health challenges.Many times mental health patients are arbitrarily and without propersubstantive due process denied their human right to Recognition as aperson before the law by the assignment of a surrogate decision maker –
  7. 7. often a court appointed guardian. This can be a violation of the patient’shuman right, the right to recognition everywhere as a person before the law(CCPR Article 16). The growing use of strangers as court paid legalguardians and medical proxy decision makers contractually and financiallytied to the mental warehouse institutions means that the surrogate decisionmakers are often for-profit entrepreneurs who do guardianship of vulnerablepersons as a for profit business. These for-profit guardians often do notdiscuss their decisions with the protected ward at all and merely utilize theward as a means of depleting the finances of the ward’s estate and tomaximize Medicaid and Medicare payments to their associated medicalfacilities and providers.Warehousing mental health patients to locked facilities and controlledmedical facilities often violates the patient’s right to Privacy andreputation - the right not to be subject to arbitrary or unlawful interferencewith privacy, family, home or correspondence, nor to unlawful attacks onones honour or reputation (CCPR Article 17). In addition the constantsurveillance and interference with communication with family, friends andassociates means a curtailment of the patient’s right to Freedom ofthought, conscience and religion and the Freedom of opinion andexpression. The right to freedom of thought, conscience and religion (CCPRArticle 18)). The right to hold opinions without interference and to freedomof expression, including the freedom to seek, receive and impart informationand ideas of all kinds (CCPR Article 19).International human rights law imposes a responsibility and obligation to theUnited States as a nation and also on all governmental officials to not toinflict torture, inhuman or degrading treatment or punishment onindividuals. United States officials also have a positive obligation to takepro-active measures to protect its citizens from ill-treatment – whethercarried out by state officials or private individuals or groups. The U.S.A. as anation has a duty to take steps to protect mental health patients frominhuman or degrading treatment or any form of exploitation or abuse. So theU.S.A. should make sure that an effective investigation is carried out ifinhuman or degrading treatment, exploitation or abuse is alleged.The prohibition of torture and inhuman or degrading treatment orpunishment is absolute. The International Courts have emphasized that sucha fundamental right deserves no exceptions or limitations, nor anyderogations. “All human beings are born free and equal in dignity and rights.” [Article 1 of the Universal Declaration of Human Rights (UDHR)]
  8. 8. International human rights standards are delineated in the Principles for theProtection of Persons with Mental Illness and the Improvement of MentalHealth Care (MI Principles), which were adopted by the UN GeneralAssembly in 1991. All human rights are based on the basic principle ofdignity. “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 deprivedof liberty. The position of inferiority and powerlessness which is typical ofpatients confined in psychiatric hospitals or under mental health care callsfor increased vigilance in reviewing whether accepted international humanrights standards have been complied with. Any invasion of a person’s bodyis an interference with private life. The Stroudsburg Court has said that“Mental health must also be regarded as a crucial part of private lifeassociated 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 humanright which has been addressed in many international and domestic laws andpractices. When treatment is initiated against the wishes of the patient andwithout informed consent then it must be determined that the treatmentitself does not constitute punishment and that the medical necessity hasbeen shown to convincingly exist. The lack of appropriate non-drug medicaltreatment of a person deprived of his/her liberty may amount to a humanrights violation under international human rights law. So in addition, inorder to validate the use of forced drugging, it also must be proven that atherapeutic means more acceptable to the patient and more in concert withthe wishes of the family is not applicable.Essentially, people have the right to make treatment decisions. Principle 19of 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;
  9. 9. (d) Possible pain or discomfort, risks and side-effects of the proposed treatment.”In Canada patients with mental disabilities who have the mental capacity tomake treatment decisions have a right to make those decisions, whether ornot they are in hospital, and whether or not they are subject to legalconfinement. This has resulted in better outcomes and actually caused fewpractical problems in implementation. Canadian medical professionals haveindicated broad acceptance with these changes in policy because manybelieve these changes have caused medical practitioners to discusstreatment options more closely with their patients, thus re-enforcing goodmedical practice.The US courts have recognized that psychotropic medications are a "high-risk treatment" that "has potentially devastating effects." (In reGuardianship of Roe, 421 N.E.2d at 54) Thus "a person has a constitutionallyprotected interest in being left free by the state to decide for himselfwhether 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 riskof serious and life endangering effects and thus the Right to Life can alsobe a human rights concern.Psychiatrists unfortunately have shown a consistent bias toward the use ofpsychotropic 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 therapiesshould be consulted and alternative options considered. There must bethorough exploration of reasonable alternatives to forced drugging so as tonot abrogate a constitutional liberty interest.I respectfully suggest that __________________________ be placed in themost integrated setting appropriate to his/her needs and in a manner that isconsistent with the Principles of Mental Health Care of the United Nationsand the World Health Organization. The United Nations Principles for theprotection of persons with mental illness and the improvement of mentalhealth was adopted by General Assembly resolution 46/119 of 17 December1991. My concern is brought under human rights principles and I ask you topay 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
  10. 10. concerning the World Health Organization’s Ten Basic Principles of MentalHealth Care (Geneva 1996) and especially on Principles 3, 4, 5, 6, 7, and 8.Thus I respectfully submit to you these legal concepts of internationalhuman rights for your consideration.Please feel free to contact me for further information if needed.Sincerely,Dr. Janet Parker DVMMedical WhistleblowerP.O. Box CLawrence, KS 66044For purposes of this communication I have used the followingdefinitions:Torture: Deliberate inhuman treatment causing very serious and cruelsuffering.Inhuman treatment or punishment: Intense physical or mental sufferingDegrading treatment or punishment: Treatment which arouses in thevictim feelings of fear, anguish and inferiority capable of humiliation anddebasement and possibly breaking physical or moral resistance.