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Article 15 - Freedom from torture or cruel,
inhuman or degrading treatment or punishment
Background Documents | Article 15 Background
Seventh Session | Fifth Session | Fourth
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Working Group | References
Fifth Session
Governments
Non-governmental organizations
Comments, proposals and amendments submitted electronically
Governments
EUROPEAN UNION
Proposed Modifications to Draft Article 11
FREEDOM FROM TORTURE OR CRUEL, INHUMAN OR DEGRADING TREATMENT OR PUNISHMENT
1. States Parties shall take all effective legislative, administrative, judicial,
educational or other measures to prevent persons with disabilities from being
subjected to torture or cruel, inhuman or degrading treatment or punishment.
2. In particular, States Parties shall prohibit, and protect persons with disabilities
from, medical or scientific experimentation without the free and informed consent
of the person concerned, and shall protect persons with disabilities from forced
interventions or forced institutionalisation aimed at correcting, improving,
or alleviating any actual or perceived impairment.1
EU Proposal: EU suggests the deletion of “and shall protect persons
with disabilities from forced interventions or forced institutionalisation aimed
at correcting, improving, or alleviating any actual or perceived impairment
” from Paragraph 2.
NEW ZEALAND
Proposed modifications to draft Articles 11 and 12
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.
Non-governmental organizations
INTERNATIONAL DISABILITY CAUCUS
- Information sheet
Why are forced interventions a form of torture?
Forced interventions meet the definition of torture under the Convention Against
Torture.
Torture is:
• An intentional act;
• That causes severe pain and suffering (physical or mental); and
• Done for any reason based on discrimination of any kind.
The required intent is not a specific intent to cause the victim to experience
pain or suffering, but a general intent to perform the act knowing that severe
pain or suffering is likely to result.
Forced interventions are torture because those who perform such interventions
know that severe pain or suffering is likely to result.
Examples follow:
• Persons with disabilities may be given medication that can alter their brain
irreversibly and may have painful effects; these effects are known by the practitioner
administering them but they are perceived to be less severe than the disability
itself;
• A father forced his daughter with a disability to undergo sterilization for
personal hygiene purposes;
• Women with intellectual disabilities are often sterilized with the aim of
“protecting” them from pregnancy in case of sexual abuse; while in fact forced
sterilization may actually provoke such cases;
• Sometimes when people with physical disabilities undergo many subsequent surgeries
resulting, often times, in multiple disabilities;
• Interventions, like corrective surgery, forced psychotropic medication, electro-shock
therapy etc. If the person’s choice is that he/she wants to be different from
the non-disabled community, and the person feels that there is no need to undergo
a specific intervention, then the Convention should respect their right to freedom
of choice. Forced interventions without a person’s consent undermines their
ability to achieve self determination and is degrading to an individual.
- Draft proposal
1. States Parties shall take all effective legislative, administrative, judicial,
educational or other measures to prevent persons with disabilities from being
subjected to torture or cruel, inhuman or degrading treatment or punishment.
2. In particular, States Parties shall prohibit, and protect persons with disabilities
from, medical or scientific experimentation without the free and informed consent
of the person concerned, and shall protect persons with disabilities from forced
interventions or forced institutionalisation aimed at correcting, improving,
or alleviating any actual or perceived impairment.
- Plenary address on Forced Intervention
Intervention for February 3, 2005 at the United Nations Fifth Session of the
Ad Hoc Committee on a Comprehensive and Integral Convention on the Protection
and Promotion of the Rights and Dignity of Persons with Disabilities.
My name is Myra K from Support Coalition International. We are a sister organization
to the World Network of Users and Survivors of Psychiatry. Support Coalition
International represents over 100 organizations of users and survivors of psychiatry
worldwide. I am also representing the International Disability Caucus on the
subject of forced interventions as contained in Articles 11 and 12. I live in
the United States -- the country with the most highly developed mental health
system in the world and the country with the most highly developed system of
“legal safeguards” in the world, including the right to refuse treatment (with
exceptions) and the right to treatment in the least restrictive alternative.
I am diagnosed with a major “mental illness” -- with a severe psychotic disorder.
I have been tied down in an ambulance and taken to the emergency room of a privately
owned general hospital where I was tightly bound in leather restraints for two
hours -- a legally safeguarded length of time. There I was injected with a mind
altering substance and forcibly hospitalized. In the hospital I was locked in
a seclusion room – again for a legally safeguarded length of time -- with no
access to a bathroom. I urinated all over myself. (We would not treat a dog
in such a manner.) I was then convinced to take anti-psychotic medication –
coerced by the further threat of involuntary injections and by the threat of
being sent to a State operated psychiatric center for an extended period of
time if I did not take the prescribed medication. I need to stress the point
that as long as involuntary treatment exists, there is, in fact, no true freedom
of choice or freedom of consent in accepting any treatment from the mental health
system.
The “treatment” to which I have been subjected and the fear that I will be subjected
to it again can be considered nothing less than cruel, inhuman and degrading
and is tantamount to torture. I have felt so discouraged that I’d rather be
dead than go through the experience of involuntary hospitalization again. No
matter how good the legal safeguards are, forced treatment is still torture.
No exceptions or legal safeguards can change this reality. We must not use this
convention to simply codify existing mental health laws and practices in the
various countries. This issue cannot simply be folded into the discussion of
a new article on informed consent. I challenge to you use this Convention to
actively promote the dignity and protect the human rights of persons who are
considered to have psychosocial disabilities. I thank you for your attention.
- Supplementary paper
Advocacy Note: Forced Interventions Meet International Definition of Torture
Standards
Tina Minkowitz
Forced interventions on people with disabilities , which are aimed at preventing,
correcting, improving or alleviating any actual or perceived impairment, meet
the elements of thedefinition of torture under international law.
The Convention Against Torture defines torture as an intentional act that inflicts
severe pain or suffering on the victim, done for one of a number of purposes.
The required intent is not a specific intent to cause the victim to experience
pain or suffering, but a general intent to perform the act knowing that severe
pain or suffering is likely to result.
Torture usually requires the participation of a public official, but failure
to provide redress or protection from acts of private violence which would otherwise
qualify as torture may also violate this norm. Forced interventions are often
performed by public officials or pursuant to authority delegated by law; meaningful
redress and protection are virtually unheard of.
Doctors, traditional healers and others who may perform forced interventions
know that severe pain or suffering is likely to result. The victim’s resistance,
refusal to consent, or expression of fear, anger or despair in response to the
proposed intervention convey the information that it is unwelcome. Furthermore,
the contexts in which forced interventions are performed reflect a systemic
imbalance of power, often including deprivation of liberty, routine violations
of human rights and dignity, and dehumanization of human beings as medical objects
based on disability. Perpetrators reveal a profound indifference to the effects
of such interventions on people with disabilities, even when it is commonly
accepted that similar interventions on non-disabled people would cause severe
pain and suffering. This indifference demonstrates that forced interventions
are carried out with the requisite knowledge and intent.
Forced interventions cause severe pain and suffering to disabled people . These
interventions are rationalized as attempts to prevent, correct, improve or alleviate
an impairment, without appreciating that impairment is a value-laden concept
meaning deficiency, lack or absence. People with disabilities experience ourselves
as whole human beings and any attempt to alter us against our will attacks our
sense of identity as well as mental and bodily integrity. The experience often
results in lifelong trauma as well as additional disability.
Purposes of torture include obtaining information or a confession, intimidation,
coercion, punishment, or any reason based on discrimination of any kind.
Discrimination is always a factor in forced interventions. Encouragement or
coercion to make us more closely resemble non-disabled people perpetuates a
hierarchical classification of human beings according to disability, contrary
to the principle of “acceptance of disability as part of human diversity and
humanity” and the right to be different as expressed in the UNESCO Declaration
on Race and Racial Prejudice.
Furthermore, often interventions used on disabled people do not make us non-disabled;
they make us differently disabled and may create additional impairments; such
interventions do nothing to address the social and environmental dimension of
disability. The pain, suffering and diminishing of existing capacities inherent
in many interventions used against disabled people reflects the discomfort of
non-disabled people when faced with non-conforming body types, sensory abilities,
self-expression and behavior, and a willingness to sacrifice people with disabilities
in the name of saving us from ourselves.
Coercion is a factor in forced interventions, not only in that they are by definition
coercive, but also in the attempt to undermine our identity and cause us to
accept subordination to authorities which are purported to have expert knowledge
of our condition. A person’s body and mind are integral to identity and every
human being has the right to have his or her physical and mental being, no less
than other aspects of identity such as religion and political beliefs, protected
from interference. Furthermore, forced intervention is also used in directly
coercive ways, as when behavior is attributed to a disability and interventions
are used to prevent the behavior, either by being used as a deterrent to the
undesired behavior, or by diminishing the person’s physical or mental capacities
to carry out the undesired behavior.
Punishment is a factor in forced interventions, since in institutions or other
situations of power imbalance, interventions that assault a person’s identity
and mental and bodily integrity are a convenient method of punishment. The threat
of forced interventions is also used to intimidate people with disabilities
into complying with demands of people in positions of authority, including the
demand to comply with interventions on a voluntary basis.
The Inter-American Convention to Prevent and Punish Torture clarifies the international
definition by presenting a variation: measures intended to obliterate the personality
or diminish the physical or mental capacities of the victim, whether or not
such measures cause pain or suffering. Commentators believe that such measures
are implicit in the prohibition of torture in the UN Convention Against Torture,
since such measures may not cause immediate pain or suffering but cause psychological
or physical damage that can become evident in the long term.
As already discussed, forced interventions on people with disabilities are often
designed to diminish the person’s mental or physical capacities, and to change
important aspects of the person’s identity. Some egregious interventions are
intended to obliterate the personality. This provision from the Inter-American
Convention is widely understood to refer particularly to use of mind-altering
substances and procedures, which is one of the most predominant types of forced
interventions.
The above exposition shows that forced interventions satisfy the elements of
the international definition of torture. Since the aim of the norm against torture
is to prevent and protect against all instances of torture, and since protection
of minority groups is explicitly encouraged by incorporating discrimination
into the definition of torture, international instruments and jurisprudence
should address forced interventions on people with disabilities as a matter
of utmost concern.
Footnotes:
1 NOTE: We support retention of article 11 as in the Working Group text. Forced
interventions have long been recognized by people with disabilities ourselves
as a serious violation of our mental and bodily integrity, comparable to rape
and other forms of torture. The definition in the Convention Against Torture
includes discrimination as a purpose of torture, which is clearly relevant in
the disability context. Measures intended to obliterate the personality or to
diminish the physical or mental capacities of the victim are also regarded as
torture, in the Inter-American Convention to Prevent and Punish Torture and
by leading commentators. Many forced interventions used against people with
disabilities would fall into this category, since they are intended to diminish
capacities of the individual which are seen as undesirable, or compel people
with disabilities to give up their identity as disabled people and mimic non-disabled
reality.
The ICCPR treats medical and scientific abuse as an instance of torture, in
the context of experimentation without consent. For people with disabilities,
both experimentation and forced interventions by medical personnel and others
violate our rights and assault our dignity as human beings.
We oppose amendments to articles 11 or 12 that would under some circumstances
permit forced interventions. Alternative formulations of the obligation to protect
against forced interventions would be acceptable, as long as they maintain the
norm without exceptions.
The EU has proposed the following language for article 12:
In particular, States Parties shall protect persons with disabilities from all
forms of medical or related interventions, carried out without the free and
informed consent of the person concerned.
This text is acceptable if it stops here. However, the EU goes on to propose
three paragraphs of exceptions that swallow the rule. First the EU proposes
surrogate decision-making based on an evaluation of the person’s decision-making
capacity. Second, the EU asserts a prerogative to perform forced interventions
on people with disabilities to “prevent imminent danger” to the person or to
others. Third, the EU requires a “best interest” standard and unspecified legal
safeguards for all forced interventions.
We have dealt with the harm done by surrogate decision-making in our discussions
of article 9. The concept of capacity as a measurable attribute discriminates
among different kinds of intelligences, favoring the cognitive over the emotional
and intuitive. This must be fundamentally challenged, in order to fulfill the
purpose of this Convention to guarantee equal effective enjoyment of human rights
to all people with disabilities.
The attempted justification of forced interventions as a preventive measure
raises serious alarms. Danger to others does not justify carrying out medical
(or related) interventions on a person. Medical interventions are not a legitimate
means of law enforcement; used this way they violate medical ethics and become
torture. Consider sterilization of prisoners or administration of psychotropic
drugs to create confusion and fear and to diminish the ability to resist authority.
Danger to oneself similarly cannot justify medical interventions without consent;
individuals may decide to accept or refuse risks of various kinds including
the risks associated with medical interventions.
The third paragraph of the EU’s exceptions is vague and paternalistic; and demonstrates
the low value of the term “best interests”. What does it mean to say that a
medical intervention carried out on one person for the benefit of others is
in that person’s best interests? By cheapening individual worth and dignity,
the amendment is in sharp contrast with the overall human rights regime.
New Zealand’s amendment would place a prohibition of torture and cruel, inhuman
or degrading treatment or punishment in article 12 on violence and abuse, and
would retain article 11 with the new title “Free and Informed Consent to Interventions.”
New Zealand has stated that the reason for removing forced interventions from
the article on torture was because torture does not permit any exceptions.
We could accept some of New Zealand’s language as an alternative to the Working
Group text.
FREE AND INFORMED CONSENT TO INTERVENTIONS
* 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.
* Such measures shall include the provision of appropriate and accessible information
to persons with disabilities and their families.
* States Parties shall accept the principle that forced institutionalisation
of persons with disabilities on the basis of disability is illegal.
In subsequent paragraphs, New Zealand proposes language that would allow governments
to meet lesser standards if they have not abolished “involuntary treatment”
(apparently referring to both forced interventions and forced institutionalization).
“Involuntary treatment” might be used “only in the most exceptional circumstances”
and must be “minimized through the active promotion of alternatives.” Furthermore,
any instance of “involuntary treatment” would have to meet certain requirements.
This language is not as onerous as that of the EU’s amendment, since it does
not purport to carve out exceptions for all time but only as a standard to be
met if governments have not yet adopted the more far-reaching norm. However,
we are concerned that forced interventions will not be meaningfully reduced
by such standards since the standards reflect fear and mistrust of people with
disabilities combined with a “best interests” approach that negates individual
will and self-determination.
The Ad Hoc Committee should refuse to incorporate language in the Convention
that restricts or limits the rights of any people with disabilities, or that
conflicts with the principles stated in Draft Article 2. The task of social
transformation that the Convention is intended to accomplish will not be possible
if the Convention contains internal contradictions or elements adopted in opposition
to people with disabilities. We can accept a flexible timeline for implementation,
but we cannot accept a text that would be a basis for unequal rather than equal
enjoyment of rights.