Torture not Treatment - Disability Rights International

TORTURE NOT TREATMENT
…As a general matter, it is the Department's strong policy that behavior modification
procedures which pose a significant risk of physical or psychological harm to the clients
or which are highly intrusive or restrictive should be used only as a last resort, subject to
the most extensive safeguards and monitoring. Such interventions, under normal
circumstances, would be considered to be corporal punishment and ordinarily would not
be permitted in facilities operated, licensed or funded by the State. 167
The regulation goes on to recognize ―that there are extraordinary cases in which there is a need
to treat the most difficult or dangerous behavioral problems.‖ This is the exception that permits
treatment at JRC. ―In such cases it may be necessary to use extraordinary behavior modification
procedures which would otherwise involve too much risk or potential harm to the dignity, health
or safety of the client to be permitted.‖ 168 It then creates extensive procedural protections to
determine when such treatment is authorized, including ―rigorous review and approval by
clinicians, human rights committees, and the Department.‖ 169 Ultimately, any procedure must
meet the standard that ―the likely benefit of the procedure to the individual out-weighs its
apparent risk, intrusiveness, or restrictiveness.‖
The regulations then divides up interventions into three tiers, depending on their level of
intensity. Level I interventions entail only positive reinforcement and aversive stimuli that
‗involve no more than a minimal degree of risk, intrusion, restriction on movement, or possibility
of physical or psychological harm.‖ 170 Level II interventions include those approved as Level I
but ―must be physically enforced to overcome the individual‘s active resistance.‖ 171 The
description of Level III punishments are described as follows:
1. Any Intervention which involves the contingent application of physical contact
aversive stimuli such as spanking, slapping or hitting.
2. Time Out wherein an individual is placed in a room alone for a period of time
exceeding 15 minutes.
3. Any Intervention not listed in 115 CMR 5.14 as a Level I or Level II Intervention
which is highly intrusive and/or highly restrictive of freedom of movement.
4. Any Intervention which alone, in combination with other Interventions, or as a result
of multiple applications of the same Intervention poses a significant risk of physical or
psychological harm to the individual [emphasis added]. 172
Under a 1987 consent agreement between JRC and the state of Massachusetts, JRC has agreed to
submit any case of Level III interventions to a court for review. 173 The court must find that the
parents or guardian consent to Level III aversives. Additionally, the court must find that the
person is mentally incompetent and would consent to treatment if he or she is capable of doing
so. Finally, the court must determine whether the treatment meets the final standards, identified
above that the likely benefit to the individual outweighs its risk.
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