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Contribution by Governments

New Zealand

Proposed modifications to draft Articles 11
FREEDOM FROM TORTURE OR CRUEL, INHUMAN OR DEGRADING TREATMENT OR PUNISHMENT

and 12
FREEDOM FROM VIOLENCE AND ABUSE

Historically, institutional and involuntary care or treatment for disabled people has violated many individual human rights. These practices continue to be a great concern to NGOs and perhaps constitute one of the most appalling ongoing and systematic abuses of human rights experienced by disabled people across the globe. Therefore, it is not surprising that clauses preventing or limiting institutional approaches to disability are dotted throughout the draft text.

Discussion at this Committee, including many proposals to shift paragraphs and re-structure the text around these issues, indicate that the repetitive and unfocussed organisation is not satisfactory and that there is not always a common understanding about the concept of ‘institutionalisation’.

New Zealand believes the convention must more effectively deal with such an important aspect of human rights. In a similar sense to the ‘capacity’ issue debated around Article 9, this issue requires a ‘paradigm’ or ‘conceptual’ shift in our thinking to ensure a forward looking convention, and one that does not erode existing human rights.

Therefore, we would like to begin with some general comments from an aspirational point of view about what we are trying to achieve with the relevant paragraphs. We find there are three useful distinctions to be made around human rights in relation to the concept forced interventions and institutionalisation.

Using positive language we could say that the aim is to promote:

1. liberty or freedom from arbitrary detention in institutions (covered in Article 10);
2. choices and responsibilities, equal to others, to move around and live where and as you wish in a community setting (covered in Article 15); and
3. free and informed consent to any intervention (medical, spiritual, scientific, experimental etc) (covered in Articles 11.2, 12.2, 21(j) and (k) and 15).

In relation to this third point we think that the rights pertaining to these issues are particularly important for disabled people and warrant emphasis through the use of an article solely focussed on them.

At the 4th session of the Convention we proposed to bring the substance of clauses 11.2, 12.2, 21(j) and (k) together in a revised Article 11 which specifically addresses the right to free and informed consent to any intervention (medical, spiritual, scientific etc).

The draft Article we developed is currently in the compilation text from the 4th session as Article 11. We propose that this proposal should now be considered as Article 12 bis.

In this way Article 11 should remain as an absolute protection from torture or cruel, inhuman or degrading treatment or punishment and Article 12 could continue to deal with protecting people with disabilities from violence and abuse.

For the purpose of clarity New Zealand believes that we should be careful to separate the right to free and informed consent from issues related to torture and abuse etc. This is partly because this has been a commonly abused right for people with disabilities. It is also for the reasons that the EU have mentioned, that is unlike torture or violence there are exceptions to the right to free and informed consent. New Zealand believes that if this convention is to outline these exceptions, which essentially allow for some forms of involuntary treatment, then they must be given strong qualifiers and detailed attention.

On Wednesday lunchtime the International Disability Caucus convincingly described why they consider any form of involuntary treatment to fit the definition of torture or cruel, inhuman or degrading treatment or punishment. We consider that where involuntary treatment is established as a form of torture or violence and abuse then it will clearly be illegal. The convention should be clear that there are absolutely no circumstances where violence, abuse and torture or cruel, inhumane or degrading treatment is acceptable.

We note that if it is deemed that a particular treatment procedure is inhuman or cruel, such as has been established for many historical treatments for disability for example, the frontal lobotomy, then it will remain illegal whether consented to or not.

We also note that as society evolves, its views about what is deemed to be violent, cruel or degrading will change. In the future society may deem many current aspects of involuntary treatment to be inhuman and degrading. If this occurs then the Conventions Article 11 and Article 12 should offer protection regardless of whether another article allows for involuntary treatment or detention in exceptional circumstances.

In relation to our proposals for the Article 12 bis we wish to reiterate the importance of ensuring that not only are safeguards provided around the use of involuntary treatment but that its use must be minimised through the provision of better care thereby encouraging voluntary treatment and through the promotion of alternatives such as advance directives. Also that it should always be provided in the least restrictive setting possible.

Further, we wish to reiterate that we consider forced ‘institutionalisation’ that does not relate to either criminal activity or some form of treatment must be prohibited and is a violation of human rights and this should be clear.

New Zealand would like to refer to the conclusions in a report of the Secretary-General to the General Assembly in July 2003. It was submitted on the request of the Commission on Human Rights. The report is A/58/181 and its title is “progress of efforts to ensure the full recognition and enjoyment of the human rights of persons with disabilities”.

In paragraph 47 it states that “The serious likelihood of immediate or imminent harm to him or herself may not represent a sufficient reason to justify a measure that infringes dramatically on the enjoyment of several human rights, including the right to liberty and security of person and the right to freedom of movement.” Furthermore when referring involuntary treatment the report suggests that it should be carried out “In accordance with the principle of the least restrictive alternative, the decision on involuntary admission should at the very least provide evidence on (a) the risk of serious deterioration in the person’s health conditions and (b) the lack of other viable alternatives, such as community-based rehabilitation. The decision on psychiatric commitment should always be subject to judicial review and reconsidered periodically.”

While New Zealand’s proposals for Article 12 bis essentially affirm that ‘institutionalisation’ people on the basis of disability is illegal. It is acknowledged that ‘involuntary treatment’ may in some tightly prescribed circumstances be legal. It should be noted that this in some cases this may involve some short term deprivation of liberty. Such detention where it occurs would be subject to the provisions of Article 10.

We acknowledge a view, put forth by NGOs, that any mention of the use of involuntary treatment albeit in relation to safeguards will in fact diminish existing rights for disabled people. In particular those rights elaborated on in draft Article 7 of non-discrimination on the basis of disability.

However, we also acknowledge the reality that there are circumstances which most States consider justify the use of involuntary treatment. And that where this occurs these circumstances must be prescribed by law, not be based on disability and that there must be legal safeguards.

Proposed modifications to draft Article 12bis
FREE AND INFORMED CONSENT TO INTERVENTIONS

1. States Parties shall take the necessary measures to ensure that medical or scientific, experimentation or interventions, including corrective surgery, aimed at correcting, improving or alleviating any actual or perceived impairment, are undertaken with the free and informed consent of the person concerned

2. Such measures shall include the provision of appropriate and accessible information to persons with disabilities and their families

3. States Parties shall accept the principle that forced institutionalisation of persons with disabilities on the basis of disability is illegal.

4. In countries where Involuntary treatment has not been abolished it shall be used only in exceptional circumstances prescribed by law and its use shall be minimised through the active promotion of alternatives

5. States Parties shall ensure in any case of involuntary treatment of persons with disabilities that:

a. it is undertaken in accordance with the procedures established by law and with the application of appropriate legal safeguards
b. the law shall provide that the interventions are in the least restrictive settings possible and the best interests of the person concerned will be fully taken into account
c. forced interventions are appropriate for the person and provided without financial cost to the individual receiving the treatment or to his or her family.