Article 16 - Freedom from exploitation, violence and abuse
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International Disability Caucus
Comments, proposals and amendments submitted electronically
Proposed Modifications to Draft Article 12
FREEDOM FROM VIOLENCE AND ABUSE
1. States Parties recognise that persons with disabilities are at greater risk, both within and outside the home, of violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual exploitation and abuse. States Parties shall, therefore, take all appropriate legislative, administrative, social, educational and other measures to protect persons with disabilities, both within and outside the home, from all forms of violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual exploitation and abuse.
EU Proposal: Move the first sentence to the Preamble. Delete the word “therefore” from the second sentence.
EU Proposal 4th AHC: insert “abduction” after “abuse” in the penultimate line.
[Come back to question whether/where to insert a reference to “harassment”].
Insert “harassment” between “treatment” and “maltreatment”.
2. Such measures should prohibit, and protect persons with disabilities from, forced interventions or forced institutionalisation aimed at correcting, improving, or alleviating any actual or perceived impairment, and abduction.
EU Proposal: Replace by: “States shall take the necessary measures
to ensure that medical and related interventions, including corrective surgery,
are not undertaken without the free and informed consent of the person concerned”
(Moved and reworded from Article 21(k))
EU Proposal 4th AHC: replace by new paragraphs
2(a) and (b)2,
3, 4 and 5:
“2. (a) 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. All such involuntary interventions shall be illegal, except as provided for in subparagraph (b) paragraphs 3 to 5 below.
3. Where the person lacks the capacity to give or withhold informed consent, an intervention may only be carried out where the consent of his or her legal representative or a competent court or authority has been obtained prior to the intervention.
However, this This shall not prejudice any such intervention
necessary to prevent an imminent danger to the life or health of the person
concerned or to the life or safety of others.
5. All such interventions shall be carried out in the best interest of the person concerned, in accordance with the procedures established by law and with the application of appropriate legal safeguards.”
3. States Parties shall also take all appropriate measures to prevent violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual exploitation and abuse, by ensuring, inter alia, support for persons with disabilities and their families, including the provision of information.
EU Proposal: The bulk of paragraph 3 repeats the content of paragraph 1 of the Article. The EU recommends the deletion of existing paragraph 3,
except for the concept of “provision of information”.
The EU suggests the following new paragraph 3:“Such measures shall include the provision of appropriate information to persons with disabilities and their families”.
EU Proposal: EU suggests the inclusion of new paragraph 3 bis.
i. States Parties shall accept the principle that forced intervention of persons with disabilities is illegal, save in exceptional circumstances in accordance with the procedures established by law and with the application of appropriate legal safeguards.
ii. The law shall provide that in any case of forced intervention of persons with disabilities, the best interests of the person concerned will be fully taken into account.
4. States Parties shall ensure that all facilities and programmes, both public and private, where persons with disabilities are placed together, separate from others, are effectively monitored to prevent the occurrence of violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual exploitation and abuse.
EU Proposal 4th AHC: insert “abduction” after “abuse” in the penultimate line.
[Come back to question whether/where to insert a reference to “harassment”]. and insert “harassment” between “treatment” and “maltreatment”. Paragraph 4 will be renumbered into paragraph 6.
5. Where persons with disabilities are the victim of any form of violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual exploitation and abuse, States Parties shall take all appropriate measures1 to promote their physical and psychological recovery and social reintegration.
EU Proposal 4th AHC: insert “abduction” after “abuse” in the first line.
back to question whether/where to insert a reference to “harassment”]. and
insert “harassment” between “treatment” and “maltreatment”. Paragraph 5 will
be renumbered into paragraph 7.
6. States Parties shall ensure the identification, reporting, referral, investigation, treatment and follow-up of instances of violence and abuse, and the provision, as appropriate, of protection services and, as appropriate, judicial involvement.
EU proposal: Replace "treatment" with "prosecution".
EU proposal 4th AHC: replace by “States parties shall put in place effective policies and legislation to ensure that instances of violence and abuse against persons with disability are identified, investigated and, where appropriate, prosecuted and that protection services are available in such cases”. Paragraph 6 will be renumbered into paragraph 8
Proposed modifications to draft Article 12
FREEDOM FROM VIOLENCE AND ABUSE
States Parties shall take all appropriate measures to protect the right to integrity of the person, of persons with disabilities, on a basis of equality with others, and shall in particular:
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.
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.
Proposed modifications to draft Article 12
FREEDOM FROM VIOLENCE AND ABUSE
New Amendment by South Africa: Article 12 Paragraph 1:
1. States Parties shall take all appropriate legislative, administrative, social, educational and other measures to protect persons with disabilities, especially women and children from all forms of neglect, exploitation, violence and abuse.
INTERNATIONAL DISABILITY CAUCUS
- Information sheet
Persons with disabilities are disproportionately vulnerable to violence and abuse, specifically children and women with disabilities. This is understood to include:
Hate, Physical or mental and emotional or sexual abuse,
negligent treatment, and injury
Much of this violence is experienced at the hands of formal and informal caregivers, in the context of regulated service and support environments. For example, caregivers will withhold food or personal items as a form of punishment or as an attempt to alter an individual’s behaviour. In addition, continued use of non-therapeutic chemical or surgical sterilization of women with disabilities as young as eleven to alleviate personal hygiene responsibilities of formal and informal caregivers, unfortunately is still a reality in some countries.
Too often violent crimes or violent responses towards persons with disabilities are tolerated in circumstances they would not otherwise be.
Acts of violence and abuse are too often couched in terms of “treatment” and “restraint”. Many persons with disabilities are subject to physical, chemical and environmental restraints as a means of control. Similar treatment to persons without a disability considered as an assault and would be punishable in a court of law.
It is essential that this Convention recognize the disproportionate vulnerability of persons with disabilities to violence and abuse and take adequate and appropriate steps to protect persons with disabilities from such acts. Recently, a young man with a disability was attacked in a park. He was approached by a group of youth who started pushing him and calling him names. One of the youth poured lighter fluid on the young man and set him on fire. The young man suffered from second-degree burns to his head, ears, neck and chest. He is recovering from his burns but has been scarred for life.
Violence and abuse against persons with disabilities must be recognized as such, and person’s perpetrating these acts must be prosecuted. We believe that Article 12 should include a reference to this effect. We would like to draw your attention to the proposed new article on Access to Justice, paragraph 1(e) in the text prepared by the International Disability Caucus. We find that this paragraph is better placed in article 12 and is attached for your reference.
We also believe that with regards to the prohibition of medical experimentation without consent and forced interventions and institutionalization, the Convention must be unequivocal. Such acts are always a violation of the person’s mental and physical integrity and it is unacceptable for the Convention to permit forced interventions of any kind.
- Draft proposal
6. States Parties recognize that persons with disabilities may be at greater risk, both within and outside the home, of all forms of violence and abuse. Violence and abuse is understood to include hate, bias, harassment, victimization, violence, injury, physical or mental and emotional or sexual abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual and economic exploitation. States Parties shall, therefore:
(a) Take all appropriate legislative, administrative, social, educational and other measures to protect persons with disabilities, both within and outside the home, from all forms violence and abuse.
(b) Secure the equal rights of children to protection from all forms of violence and abuse.
(c) Prohibit, and protect persons with disabilities from abduction, and any forced interventions or forced institutionalisation aimed at correcting, improving, or alleviating any actual or perceived impairment.
(d) Reaffirm that persons with disabilities have the right to make choices about their own bodies and shall prohibit forced sterilization or abortion.
(e) Provide information, support and education to persons with disabilities, their families, and persons working with persons with disabilities about how to avoid, recognize, report, and seek protection from violence and abuse.
(f) Ensure that facilities and programmes, both public and private, where persons with disabilities live or receive services, are effectively monitored by independent authorities, which shall include persons with disabilities, to prevent the occurrence of violence and abuse.
(g) Where persons with disabilities are the victim of any form of violence and abuse, States Parties shall take all appropriate measures to promote their physical and psychological recovery and social reintegration which shall at all times respect personal autonomy and dignity of the persons concerned.
(h) Ensure the identification, reporting, referral, investigation, treatment and follow-up of instances of violence and abuse, and the provision of protection services and, as appropriate, judicial involvement.