Daily Summary related to Draft Article 11
FREEDOM FROM TORTURE OR CRUEL, INHUMAN OR DEGRADING TREATMENT OR PUNISHMENT
Prepared by Landmine Survivors Network

Volume 3, #8
January 14, 2004

Morning Session
Commenced: 10:19 AM
Adjourned: 1:03 PM

FREEDOM FROM TORTURE OR CRUEL, INHUMAN OR DEGRADING TREATMENT OR PUNISHMENT

Canada recommended that the question of intervention is more appropriate in a separate article, or an article on health. If this is to be retained however, it should be qualified as “medical intervention.” There is in addition the need for a further qualification, that would allow the government to intervene in the best interests of the PWD involved, at the end: “without a procedure that is established by law and with the application of relevant legal safeguards.”

WNUSP highlighted the perceptions and attitudes of society and medical professionals that fundamentally question the right of people with psycho-social disabilities to make their own decisions. This is connected to autonomy and the right to be different. Institutionalisation does not belong in an article on health – it needs to be acknowledged as a form of torture, inhuman and degrading treatment.

Japan supported Canada’s position and suggested adding similar wording to this para.

Ireland again cited the EU text on this issue which does refer to preventing cruel, inhuman or degrading punishment in situations of forced institutionalization but does not completely prohibit the latter. “In the most exceptional cases”, forced intervention may be necessary, in which case the principle of protection of the PWD would apply. “Forced” should precede references to both intervention and institutionalisation. As stated in the paragraph, the notion of medical experimentation without consent constitutes torture fits within this article. However the last clause of the paragraph should be qualified, except “in certain circumstances for the purpose of alleviating a condition” The Canadian proposal to subject any such institutionalization to safeguards would be an improvement in the text. Either way there is a need for a more precise explanation of the two terms and perhaps this recommendation can be made of the AHC.

Morocco agreed that no PWD should be subject to experimentation, scientific or otherwise. However due to the fact that some people “cannot decide for themselves like disabled children and the severely intellectually disabled,” it suggested amendments accordlingly.

Slovenia echoed the concerns of Canada, supported its amending language, highlighted the exceptional nature of these interventions. There is a need for further clarification of these concepts given that there may be links with the article on the liberty and security of the person.

Inclusion International illustrated an example from Germany of an institution that existed to separate its detainees from the rest of society. This was judged to constitute “degrading treatment.” In order to account for such situations, the following additional language was suggested to the last sentence: “or providing care.”

China preferred that forced interventions be addressed under the topic freedom from violence and abuse. The qualifying phrase “aimed at” gives the impression that institutionalization with another stated intent is valid. In principle, forced institutionalization should be opposed with qualifiers for exceptional circumstances.

Sweden agreed with Ireland that the paragraph should be separated given the absolute prohibition on torture on the one hand and the qualified opposition to forced institutionalization on the other. With regard to the need for disabled children to have representatives, this position is in contradiction to the CRC, which calls for children to participate in their own decisionmaking.

WNUSP again highlighted the differences in a discussion where the voices of people who choose to speak on behalf of PWD take precedence over those of PWD who have experienced these interventions. The distinction between interventions that are justified as being for so-called “therapeutic” purposes and those for more punitive purposes are false.

Colombia drew a distinction between medical treatment and scientific experimentation and noted that provision should be made to ensure that in the case where the PWD is unable to give consent, that of a proxy would be acceptable.

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