 |
 |
|
|
|
|
|
Back to: Guide to Ad Hoc Committee Documents Article 11 : Freedom from Torture or Cruel, Inhuman or degrading Treatment or PunishmentDraft Proposal
FREEDOM FROM TORTURE OR CRUEL, INHUMAN, OR DEGRADING TREATMENT OR PUNISHMENT
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- 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.
|