4(B)(vii). Institutional conditions
The living conditions in which people are forced to live in many institutions are appalling and lawyers may instinctively want to challenge these first. The reason that this topic appears last in the arguments pool is that lawyers should exercise caution about the remedies they request in such cases. Governments and donors frequently choose to renovate institutions when the investment should have gone into establishing community support services.[36] New radiators in an institution may make the place warmer, but renovations solidify institutions as the default option, to the detriment of ensuring inclusion. In legal terms, poor the conditions may constitute torture or inhuman and degrading treatment or punishment, in violation of Article 3 of the ECHR and Article 15 of the CRPD.
Both these provisions require governments to actively take steps to prevent torture or ill-treatment. Article 15 specifies that they must take “all effective legislative, administrative, judicial or other measures” to prevent persons with disabilities from being subjected to such treatment, on an equal basis with others. If Article 15 is being considered, lawyers should also consider arguing other CRPD points, including:
a) Article 16: freedom from exploitation, violence and abuse;
b) Article 17: respect for physical and mental integrity;
c) Article 25: right to health, including consent to treatment.
Torture and DisabilityJuan E. Méndez Torture, as the most serious violation of the human right to personal integrity and dignity, presupposes a situation of powerlessness, whereby the victim is under the total control of another person. Persons with disabilities often find themselves in such situations, for instance when they are deprived of their liberty in prisons or other places, or when they are under the control of their caregivers or legal guardians. In a given context, the particular disability of an individual may render him or her more likely to be in a dependent situation and make him or her an easier target of abuse. However, it is often circumstances external to the individual that render them “powerless”, such as when one’s exercise of decision-making and legal capacity is taken away by discriminatory laws or practices and given to others.[37] |
UN Convention against Torture, Article 1"[T]orture" means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions. |
The UN Special Rapporteur on Torture has stated that the requirement of intent in the above definition “can be effectively implied where a person has been discriminated against on the basis of disability.”[38] This should be read alongside Article 2 of the CRPD which clarifies that denial of reasonable accommodation is a form of discrimination.[39]
The failure to provide reasonable accommodations to a person with a disability in a place of detention, such as a mental health or social care institution may amount to torture or inhuman or degrading treatment.[40] Article 3 of the ECHR requires States to protect the physical wellbeing of people deprived of their liberty. This includes ensuring that:
- a person is detained in conditions which are compatible with respect for his or her human dignity,
- the manner in which the person is detained does not subject them to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention, and
- given the practical demands of imprisonment, the person’s health and wellbeing are adequately secured by, among other things, providing the person with healthcare services.[41]
Stanev was the first case in which the ECtHR found that conditions in a social care institution constituted a violation of Article 3 of the ECHR. The ECtHR has found violations of both the substantive (the duty to prevent harm) and procedural obligations (the duty to investigate) of the State under Article 3 in the context of the physical restraint of a person with a mental disability in Bureš v Czech Republic. The ECtHR has also found violations of Article 3 in the context of denial of adequate medical treatment,[42] rape,[43] force-feeding and overmedication,[44] intentional humiliation,[45] and segregation.[46]
In assessing the severity of pain and suffering, a court must take into consideration all of the circumstances of the case and conduct an evaluation from both the subjective perspective of the victim, and from the objective perspective of an external viewer.[47] Lawyers acting for a person with a mental disability should ensure that the judge has a full report setting out how the person’s disability has impacted on their experience of ill-treatment. For example, a person’s disability may inhibit their ability to defend themselves and make them appear as easy targets for abuse. It may intensify their experience of particular acts (increased fear or physical effects) while acts of torture or ill-treatment may exacerbate or cause a deterioration in a psycho-social condition or result in the acquisition of new mental health issues such as post-traumatic stress disorder. Consideration must also be given to other aspects of the individual’s identity such as their gender, HIV or other health status, age or religion.
Jurisprudence of the UN Committee against Torture holds that the State must protect marginalised individuals against the risk of torture or ill-treatment.[48] The UN Special Rapporteur on Torture has also recognised this “heightened obligation” with regard to marginalised people who are at a heightened risk of abuse.[49] He clarifies that, “the State’s obligation to prevent torture applies not only to public officials, such as law enforcement agents, but also to doctors, health-care professionals and social workers, including those working in private hospitals, other institutions and detention centres”.[50] These are all statements which lawyers can use in the courtroom.
The UN Special Rapporteur on Torture has highlighted that serious violations and discrimination are often masked as “good intentions” in the context of medical treatment.[51] People in institutions are often subjected to practices such as physical and chemical restraint, seclusion, electro-convulsive therapy (ECT), sterilisation, forced abortion or denial of abortion, or overmedication for the stated purposes of care, therapy, control or because it is in their “best interests”. Inevitably in a courtroom, a healthcare or social care institution will claim that what happened to the client was beneficial: the institution provided safety, care and therapy. As the Special Rapporteur has pointed out, the issue of consent is crucial:
Whereas a fully justified medical treatment may lead to severe pain or suffering, medical treatments of an intrusive and irreversible nature, when they lack a therapeutic purpose, or aim at correcting or alleviating a disability, they may constitute torture and ill-treatment if enforced or administered without the free and informed consent of the person concerned.[52]
If a lawyer finds a client who has suffered grievous abuse or neglect, it may be argued that the institutionalisation and what happened to the client constitute torture.[53]
Article 4(1)(d) of the CRPD requires States to refrain from engaging in any act or practice inconsistent with the CRPD and “to ensure that public authorities and institutions act in conformity with [it].” Article 4(1)(e) requires States to take all appropriate measures to eliminate discrimination “by any person, organization or private enterprise”. Lawyers should raise this provision to argue against rules of liability which may be used by the State to argue that they have no liability in institutions that are privately owned or that they cannot be liable for the actions of individual staff members. This CRPD provision establishes procedural obligations but also opens the possibility for arguing substantive liability of the State even where the direct link is difficult to make.
[36] For example, the European Commission has spent an estimated 30 million EUR on renovating institutions in Romania which warehouse an estimated 18,000 people with disabilities. See: Mental Disability Advocacy Center, “European Commission Funding of Disability Segregation and Abuse Breaches International Law”, (Budapest: MDAC), available at www.mdac.org/Romania (last accessed: 24 September 2014).
[37] Ibid, para. 49.
[38] Set out in section 4(B)(iv). above.
[39] Z.H. v. Hungary, supra note 6.
[40] Kudła v. Poland, supra note 28.
[41] Ilhan v. Turkey, Judgment 27 June 2000, Application No. 22277/93. See also Selmouni v. France [GC], Judgment 28 July 1999, Application No. 25803/94, ECHR 1999-V, paras. 96-105.
[42] Aydin v. Turkey [GC], Judgment 25 September 1997, Application No. 23178/94.
[42] Nevmerzhitsky v. Ukraine, Judgment 5 April 2005, Application No. 54825/00.
[44] Selmouni v. France, supra note 42.
[45] Keenan v. the United Kingdom, supra note 29.
[46] Ireland v. the United Kingdom, Judgment 18 January 1978, Application No. 5310/71, Series A no. 25.
[47] Committee against Torture, General Comment 2: Implementation of Article 2 by States Parties, CAAT/C/GC/2, 24 January 2008, at para. 21.
[48] Human Rights Council, Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, Juan E. Méndez, A/HRC/22/53, 1 February 2013, para. 26.
[49] Ibid, para. 24.
[50] Ibid, para. 49.
[51] Ibid, para. 47.
[52] Ibid, para. 70: “Inappropriate or unnecessary non-consensual institutionalization of individuals may amount to torture or ill-treatment as use of force beyond that which is strictly necessary.”
[53] UN General Assembly, Torture and other cruel, inhuman or degrading treatment or punishment: note by the Secretary-General, 28 July 2008, A/63/175, para. 50.