Art.15 Protection against Torture and Cruel or Inhuman or Degrading Treatment or Punishment
Edited By: Ilias Bantekas, Michael Ashley Stein, Dimitris Anastasiou
- Freedom from torture and cruel, inhuman, or degrading treatment — Disability — Jurisdiction
(p. 426) Article 15 Protection against Torture and Cruel or Inhuman or Degrading Treatment or Punishment
1. No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his or her free consent to medical or scientific experimentation.
2. States Parties shall take all effective legislative, administrative, judicial or other measures to prevent persons with disabilities, on an equal basis with others, from being subjected to torture or cruel, inhuman or degrading treatment or punishment.
Article 15 prohibits torture and cruel, inhuman or degrading treatment or punishment (CIDTP), acts which have been prohibited and regulated extensively before the advent of the CRPD. As Kanter comments:1
The final language tracks the language of the Universal Declaration of Human Rights (UDHR), the prohibitions against torture and ill-treatment in the International Covenant on Civil and Political Rights (ICCPR) and the Convention against Torture (CAT) as well as the regional European Convention on Human Rights (ECHR) the American Convention on Human Rights and the African Charter of Human and Peoples’ Rights.
These provisions prohibit in absolute terms torture or CIDTP, irrespective of the circumstances and the victim’s behaviour.2 Torture is also a crime against humanity, punishable under the Statute of the International Criminal Court (ICC).3 Like article 7 ICCPR, article 15 CRPD is jus cogens, a peremptory norm which is non-derogable and cannot be reserved.4 There can be no justification for any forms of torture or inhuman or degrading treatment. As will be demonstrated below, the application of article 15 CRPD by the Committee on the Rights of Persons with Disabilities (CRPD Committee) must be understood in the context of the jurisprudence of these other international entities (whether international tribunals, standing human rights courts or human rights treaty bodies). Article 15(1) adopts verbatim the language of article 7 ICCPR and provides that ‘no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment’. In particular, no one shall be subjected without his free consent to medical or scientific experimentation.
Article 15(2) deals with preventive measures, requiring states to take ‘all effective legislative, administrative, judicial or other measures to prevent persons with disabilities, on an equal basis with others, from being subjected to torture or cruel, inhuman or degrading treatment or punishment’. This provision mirrors article 2 of the UN Convention Against Torture (CAT), which obliges each state party to take actions that reinforce the prohibition through legislative, administrative, or judicial actions that must, in the end, be effective in preventing torture and CIDTP.5As the ICTY put it in ICTY Prosecutor v Furundžija:
The prohibition against torture is particularly stringent and sweeping. States are obliged not only to prohibit and punish torture, but also to forestall its occurrence: it is insufficient merely to intervene after the infliction of torture, when the physical or moral integrity of human beings has already been irremediably harmed. Consequently, States are bound to put in place all those measures that may pre-empt the perpetration of torture.6
Whether torture or CIDTP is inflicted by a state official or a private party, the state has a positive duty to take effective measures to protect the rights of people with disabilities, to prevent torture or CIDTP, and to carry out an official investigation which is capable of identifying those responsible and leading to their punishment.7 In Furundžija the ICTY held that this positive duty will be breached by: (i) failure to adopt the national measures References(p. 428) necessary for implementing the prohibition, and (ii) the maintenance in force or passage of laws which are contrary to the prohibition.8 Moreover states are under a positive duty to introduce specific criminal offences of torture and CIDTP, and efficient criminal law provisions enabling these to be enforced.9
The UN Human Rights Committee’s General Comment on article 7 ICCPR requires states to afford all necessary protection through legislative and other means against any acts prohibited by article 7, whether inflicted by persons acting in their official capacity or in a private capacity.10 This was one of the main reasons the CRPD drafters followed the ICCPR rather than the CAT wording, but, as will be explained below, by the time the CRPD came into force, the CAT was being interpreted as applying to acts committed by private parties.11
Lord describes the text that emerged from the drafting process as ‘a relatively sparse provision’, which ‘adds little to existing human rights law on the prohibition against torture, at least if read apart from other CRPD provisions that most certainly expand its meaning and intended application’.12 Nevertheless, as Lord also points out, and as other commentators are generally agreed, article 15 must be read in the context of the general principles in article 3 CRPD: respect for individual human dignity; freedom from discrimination on the basis of disability; and the rights to autonomy, independence, and equality.13 Also important are the duties of states parties under article 5(1) CRPD to References(p. 429) secure to people with disabilities equality before the law and equal protection of the law, as well as under 5(2) to ‘take all appropriate steps to ensure that reasonable accommodation is provided’.
Article 15 CRPD rights overlap with rights under other CRPD articles, including the right to legal capacity on an equal basis with others under article 12; the right to liberty and security under article 14; the right to protection against violence, exploitation, and abuse under article 16; the right to physical and mental integrity under article 17; and the right to health care on an equal basis with others and based on informed consent under article 25. As Kanter comments: ‘even if certain polices, practices, conduct or conditions do not constitute a violation of article 15, they may violate one of the other articles of the CRPD’.14
The CRPD is universally described as representing a ‘new paradigm’ in human rights protection of persons with disability, based on an absolute prohibition of involuntary detention and non-consensual treatment of persons with disabilities. The previous human rights paradigm, which the new paradigm seeks to replace, is reflected in a sophisticated body of case law of the European Court of Human Rights (ECtHR), which accepts that people can be detained on grounds related to mental or psychosocial disability, as long as this is subject to substantive and procedural safeguards, including rights of challenge. Quinn describes this evocatively as ‘an ever more perfect and safeguarded process of loss’.15 The new paradigm rejects clinical power to detain and treat without consent. The old paradigm accepts as legitimate the parens patriae power of the state over people with mental disabilities, as well as police power to detain people with mental disabilities where necessary to prevent danger to the public.16
References(p. 430) 2. Background and Travaux Préparatoires
Lord notes that the consensus text masks the ‘shared understanding and outstanding disagreement’ that characterized the drafting process.17 The origins of the linkages between article 15 and other CRPD rights arise from the key issue for debate during the drafting process, namely whether involuntary hospitalization and treatment should be brought within the absolute prohibition of the anti-torture provision. There were two broad groupings. On one side were the disability rights NGOs (the World Network of Users and Survivors of Psychiatry (WNUSP) and the International Disability Caucus (IDC)). Their goals included (a) an absolute prohibition against all forms of involuntary detention based in whole or in part on disability and; (b) recognition that all non-consensual treatment should be classed as torture or cruel, inhuman, or degrading treatment. Their policy goal was based on the idea that regimes of legal powers based on involuntary detention and treatment create a fertile breeding ground for human rights abuses, no matter how many procedural safeguards they might have. On the other side of the debate were other organizations and most states (including the EU), who did not wish to bring these practices within the scope of the absolute and unconditional prohibition of (what is now) article 15.18
The Ad Hoc Committee on a Comprehensive and Integral International Convention on the Protection and Promotion of the Rights and Dignity of Persons with Disabilities (Hereafter the Ad Hoc Committee) held eight sessions between July 2002 and December 2006. At the first of these the Committee had before it a working paper from Mexico including a draft Convention, draft article 9 of which was a loosely drafted provision whereby ‘states parties recognize that persons with disabilities are particularly vulnerable to different forms of violence, as well as torture and other cruel, inhumane or degrading treatment or punishment, in public and private spheres. Therefore, states shall guarantee respect for the dignity and integrity of persons with disabilities.’19
The second Ad Hoc Committee session received a report from America’s regional seminar held in Quito, Ecuador in April 2003, which recommended amending the Mexico draft to recognize that persons with disabilities were particularly vulnerable to exploitation as well as torture and CIDT and to add a requirement that states should guarantee security as well as respect for dignity and integrity of person.20 An expert group meeting held in Bangkok in June 2003 suggested that the non-derogable right to freedom from cruel, inhuman, or degrading treatment could be ‘drawn on in relation to forced intervention, and institutionalization’, an early indication of ‘new paradigm’ thinking.21 At the second session the Committee established a working group consisting of twenty-seven representatives of states, twelve representatives from NGOs and one representative from References(p. 431) a national human rights organization (the South African Human Rights Commission) to prepare a draft text which would form the basis of state negotiations.22 According to the representative of the WNUSP, Tina Minkowitz, it was at this Working Group meeting in January 2004 that the new paradigm really began to crystallize.23 As Degener and Begg put it:
As well as the Mexican and Venezuelan drafts, the Working Group now had draft conventions from China, the European Union and India, as well as a draft submitted by the Chair of the Committee and a draft submitted by a regional meeting of national human rights institutions in Bangkok.24
The EU draft was very much aligned with the old paradigm. The issue was dealt with under draft article 7 under the general heading of autonomy. This did not mention torture, but required prohibition and prevention of CIDT of persons with disabilities, particularly in situations of forced intervention or institutionalization. The assumption was that compulsory detention and treatment without consent were legitimate as long as carried out in accordance with a procedure prescribed by law and subject to safeguards. States were to take appropriate measures to protect people with disabilities from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation.25
The Bangkok Draft, produced by the regional workshop held in Bangkok In October 2003,26 dealt with torture and CIDT in draft article 12(1), providing that:
No person with disability shall be subjected to torture or cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his or her free consent to medical or scientific experimentation [or intervention].
The proposal was that the prohibition would potentially extend to all interventions without consent, not just medical or scientific experimentation, and throughout the Ad Hoc Committee proceedings debate would rage around those words in square brackets. Draft article 12(4) was an early forerunner of article 15(2), placing a positive duty on states to take all appropriate legislative, administrative, social and educational measures to protect persons with disabilities, in particular, women and children with disabilities, from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse.
Two alternative versions of draft article 12(2) were put forward in the Bangkok draft. The first adopted a relatively conservative ‘old paradigm’ approach, providing for the continuation of proxy consent: ‘Where any person with disability is unable to give free and informed consent, no intervention shall occur unless a form of consent is given on their behalf by a duly authorized authority.’ The more radical alternative version of draft References(p. 432) article 12(2) stipulated that ‘everyone has the right not to be subjected to forced or coerced interventions of a medical nature or otherwise, aimed at correcting, improving, or alleviating any actual or perceived impairment’.27 This latter formulation would not find its way into the final text of the Convention, despite the fact that its inclusion in the anti-torture provision was a key aim of the International Disability Caucus.
Degener and Begg describe how the ‘Working Group was able to complete a text in two weeks because … it focused on concluding a text which had the widest possible support, and by reflecting any major disagreements in footnotes to the text.’28 Draft article 11 of the new draft text dealt with torture and CIDT stated that:
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 institutionalization aimed at correcting, improving or alleviating any actual or perceived impairment.29
The differences of opinion masked by the consensus text were flagged up in this footnote:
Members of the Working Group had differing opinions on whether forced intervention and forced institutionalization should be dealt with under ‘Freedom from torture’, or under ‘Freedom from violence and abuse’, or under both. Some members also considered that forced medical intervention and forced institutionalization should be permitted in accordance with appropriate legal procedures and safeguards.30
During the Working Group discussion Canada recommended that the question of forced interventions should be removed from the provision on torture to a separate article or to the provision on health, and that the prohibition should be qualified to allow intervention in the best interests of the person subject to a procedure prescribed by law and subject to legal safeguards. In this they were supported by Japan, Ireland, Morocco, Slovenia, Sweden, and Colombia. China thought the prohibition would be better dealt with under draft article 12 on freedom from violence and abuse. The European Disability Forum strongly supported the prohibition of forced interventions and institutionalization in both draft articles 11 and 12. The WNUSP maintained that ‘institutionalization does not belong in an article on health and that it needs to be acknowledged as a form of torture, inhuman and degrading treatment’ and moreover that ‘the distinction between interventions that are justified as being for so-called “therapeutic” purposes and those for more punitive purposes is false’.31
Degener and Begg describe how close the process came to being derailed in the third session of the Ad Hoc Committee (24 May–4 June 2004) where, ‘rather than focus on the key issues identified by the Working Group in its annotations’, delegations proposed amendments to every part of the text, so that ‘by the end of the meeting the 25 page References(p. 433) Working Group Draft had ballooned into a 60 page document that was so heavily bracketed that it was, in places, virtually unreadable’.32 The EU and China wished to remove from paragraph 11(2) of the Working Group text the words ‘and shall protect persons with disabilities from forced interventions or forced institutionalization aimed at correcting, improving or alleviating any actual or perceived impairment’.33 This remained a subject of vigorous debate throughout the discussions of the Ad Hoc Committee.
At the fourth session the EU, supported by the Netherlands, again proposed removing the protection against forced intervention and forced institutionalization.34 The discussion by the states representatives focused primarily on this issue and a proposal from Mexico recommending the use of the monitoring mechanism of the Optional Protocol of the Convention against Torture. New Zealand supported the EU view that forced institutionalization should be considered illegal, save in exceptional circumstances, must not be based solely on disability, and must be subject to safeguards. These exceptional circumstances should only apply to involuntary treatment, which is a sub-set of forced institutionalization, and must be prescribed by law, not be based solely on disability and subject to legal safeguards.35 The EU position was also supported by Canada, Mexico, China, India, Thailand, and Malaysia.36 When the meeting on draft article 11 was opened to NGO delegates, the International Disability Caucus (IDC) supported the Mexican proposal to refer to other human rights instruments to assist in monitoring obligations under this article.
At the fifth session the Committee conducted discussions on draft articles 7–15, during which draft article 11 was amended to introduce wording based on article 7 ICCPR. The report noted that several delegations had pointed out that draft article 11 ‘lacked mention of the important and absolute prohibition of the use of torture, as contained in other human rights treaties’.37
The opening words of article 7 ICCPR were initially amended to be more disability-specific by replacing ‘no-one’ with the words ‘no person with disabilities’. It was also agreed to add the first phrase from paragraph 2 of the Working Group’s text, so that the paragraph accurately mirrored article 7 ICCPR. The new text of draft article 11(1), therefore, read:
No person with disabilities shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. 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.38
References(p. 434) The final text of article 15(1) replaced the words ‘no person with disability’ with the words ‘no-one’, since article 15(1) must be read in the context of article 1 CRPD, which states the purpose of the Convention as being ‘to promote, protect and ensure the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities, and to promote respect for their inherent dignity’.
The next substantial discussion of torture and CIDT took place at the seventh session.39 The Chair had produced a Working Text, with provisions in the positions they would occupy in the Convention as finally adopted.40
Article 15(2) was as finally adopted. Paragraph (1) remained subject to significant debate until the last possible minute. The IDC, which included the WNUSP, urged the reinsertion into paragraph (1) of a prohibition on interventions aimed at correcting, improving or alleviating any actual or perceived impairment without free and informed consent, and also the addition of an extra sub-paragraph (3) providing that ‘every person with a disability has the right to have his or her physical, mental and moral integrity respected’. The principal aim of these provisions was to outlaw electro-convulsive therapy and neuroleptic drugs, which according to the IDC, ‘paralyze the will and destroy human initiative’.41 Mental Disability Rights International (MDRI) also urged the merger of the right to integrity with the anti- torture provision in article 15, along the lines of the right to humane treatment in article 5 of the American Convention on Human Rights (ACHR), which includes both sets of guarantees as follows:
2. No one shall be subjected to torture or to cruel, inhuman, or degrading punishment or treatment. All persons deprived of their liberty shall be treated with respect for the inherent dignity of the human person.42
The WNUSP, IDC, and MDRI all wanted the draft anti-torture provision to be modelled specifically on article 5 ACHR and to include language in the draft torture provision prohibiting ‘unwanted medical and related interventions as a form of torture or cruel, inhuman or degrading treatment or punishment … and prohibiting any kind of confinement based in whole or in part on disability’.43
It is important to understand the relationship with article 14 CRPD and the circumstances in which detention in breach of article 14 might amount to cruel, inhuman or degrading treatment (CIDT) contrary to article 15, as well as the relationship with articles 17 and 25, and the circumstances where treatment without consent might amount to torture or CIDT. Article 14 prohibits deprivation of liberty based on disability, and the provision was hotly debated during the negotiating process, with strong efforts being References(p. 435) made to outlaw any detention, which was in any way based on the existence of a disability. At first, the strategy was to bring detention on grounds of disability under the umbrella of an absolute ban on torture and CIDT in article 15. When this was not successful, the focus shifted to securing that article 14 would in effect provide an absolute ban on any detention linked to disability. A significant number of states (including Australia, Canada, China, New Zealand, South Africa, Uganda, and the European Union)44 supported deprivation of liberty based on disability being permitted, when coupled with other grounds. At the seventh session of the Ad Hoc Committee Japan, supported by China, sought to amend the text to read that ‘in no case shall the existence of a disability “solely or exclusively” justify a deprivation of liberty’.45 The proposed insertion of ‘solely or exclusively’ was rejected.46
A similar campaign was waged by the IDC to move the protections on mental and physical integrity from article 17 to article 15. The IDC wanted the wording from the ACHR whereby ‘every person has the right to have his physical, mental and moral integrity respected’ to be placed in article 15, along with the wording of draft article 17(2) that ‘states parties shall protect persons with disabilities from forced interventions or forced institutionalization aimed at correcting, improving or alleviating any actual or perceived impairment’.47
At the eighth session the IDC firmly maintained this position, which ‘would allow us to address a broad category of human rights violations that we commonly experience’.48 Referring to the new paradigm, the IDC reaffirmed that in no case could they accept:
language in the Convention that takes an equivocal position on forced interventions or suggests that the right to respect for integrity of the person can ever be legitimately compromised … In this article we are making the paradigm shift from seeing people with disabilities as the subjects of medical expertise, to respecting us in all our diversity as equal members of society whose pain is acknowledged and whose contributions and inherent worth are valued.49
The Chair’s text of article 17 still had in square brackets a paragraph placing an obligation of states to ‘ensure that involuntary treatment of persons with disabilities was minimized through the active promotion of alternatives, undertaken only in exceptional circumstances in the least restrictive setting, in accordance with procedures prescribed by law, and subject to appropriate safeguards.’ The IDC urged the deletion of this clause because it was ‘nothing but a derogation of the right to free and informed consent, based on disability’ and continued to maintain that there should never be any exception for (p. 436) forced interventions, and so there should be no need for safeguards.50 Degener and Begg describe how at the final meeting:
The Committee was close to agreeing a compromise … —to retain mention of safeguards, but without specifically mentioning forced interventions. But time ran out before all delegations could be convinced. An alternative text, containing only a short one-sentence principle on the right to physical and mental integrity was put forward by the International Disability Caucus. Consensus quickly coalesced around it, and given the lack of time to consider anything more complicated, the rest of the article was discarded.51
The IDC proposals failed to win enough support for physical and mental integrity and involuntary institutionalization to be included in the final draft of article 15. Institutionalization is dealt with in article 14 on the right to liberty and security, while issues relating to incapacity and substitute decision-making are covered by article 12. The protections in relation to treatment without consent are now contained in article 17 and article 25, which sets out the right to the highest attainable standard of healthcare without discrimination on the basis of disability. This includes the duty under article 25(d) CRPD to require health professionals to provide care of the same quality to persons with disabilities as to others, including on the basis of free and informed consent.
This prompts the question as to when treatment without consent might be dealt with as a breach of articles 17 and 25 and when might it reach the level of severity to engage article 15.52 Article 15 is clearly a compromise. As Lord presciently remarked in 2010:
As drafted, many core human rights issues with the potential to trigger Article 15 will require elaborate argumentation that draws on a holistic reading of the CRPD and engages provisions on non-discrimination and reasonable accommodation (articles 2, 3, and 5), legal capacity (article 12), Physical and mental integrity (article 17), informed consent (articles 1 and 25) and liberty of the person (article 14).53
Australia entered a ‘declaration of its understanding’ that ‘the Convention allows for compulsory assistance or treatment of persons, including measures taken for the treatment of mental disability, where such treatment is necessary, as a last resort and subject to safeguards’.54 Having resisted attempts to prohibit mental health detention and treatment without any consent as CIDT, Australia wanted to ensure that mental health laws authorizing these practices would be maintained.
The characterization of the CRPD as representing a new paradigm in human rights for people with disabilities is a familiar one, particularly in relation to people with mental or psychosocial disabilities. It is important to sketch the key contours of what might be References(p. 437) described as the old and the new human rights paradigms. The key difference resides in their respective attitudes to what Robert Castel describes as relations de tutelle—tutelary relationships—relationships of tutelage or guardianship. In Castel’s words:
The contractual basis of liberalism necessitates the comparison of the insane person with the child. This is the great pedagogical analogy of the medicine of mental health within whose framework its whole history develops. Either the family relationship or guardianship by official mandate: for medicine there is no other alternative.55
The old human rights paradigm acknowledges the legitimacy of tutelary relations, accepting the power of the state to detain and treat people with mental disabilities for paternalist reasons or for public protection, but insisting on restrictions on medical decision-making affecting the right to liberty, the right to be free from torture or inhuman or degrading treatment, and the right to physical and psychological integrity. The new paradigm seeks to universally prohibit these interventions as manifestations of disability discrimination and social exclusion. As the UN Special Rapporteur on the Right to the Highest Attainable Standard of Physical and Mental Health put it, the CRPD Committee ‘emphasizes full respect for legal capacity, the absolute prohibition of involuntary detention based on impairment and the elimination of forced treatment. That responds to the inadequacy of procedural safeguards alone, requiring sharpened attention to non-coercive alternatives and community inclusion to secure the rights of persons with disabilities.’56 The Special Rapporteur on Health remarked that within the ‘evolving framework’, not all human rights mechanisms have embraced the absolute ban on involuntary detention and treatment articulated by the Committee, and that, at present there is an impasse over how obligations in relation to non-consensual treatment are implemented in light of the provisions of the CRPD given the different interpretations by international human rights mechanisms.57 An example of adherence to the old paradigm is the Council of Europe anti-torture framework.
The old paradigm is reflected in the case law of the European Court of Human Rights in respect of articles 3, 5, and 8 ECHR, the UN Mental Illness Principles adopted in 1991,58 the Council of Europe Principles concerning the Legal Protection of Incapable Adults issued in 1999,59 and the 2004 Council of Europe Recommendation of the Committee of Ministers concerning the protection of the human rights and dignity of persons with mental disorder.60 These documents all acknowledge the legitimacy of clinical power and tutelary authority, provided they are subject to substantive and procedural limitations.
References(p. 438) 3.1.1 Detention on Grounds of Unsoundness of Mind
A tutelary relationship may be initiated through a number of gateways. The first is detention under mental health legislation. Under article 5(1)(e) ECHR, detention on grounds of unsoundness of mind can be accepted as lawful, provided it is carried out in accordance with a procedure prescribed by law. This law must require objective medical evidence to be presented to a competent authority that the person suffers from a true mental disorder of a kind or degree warranting confinement and that deprivation of liberty is a proportionate response.61 The ECtHR has stressed that ‘involuntary hospitalisation may be used only as a last resort for want of a less invasive alternative, and only if it carries true health benefits without imposing a disproportionate burden on the person concerned’.62
In Mihailovs v Latvia63 the ECtHR held that detention must be in accordance with the substantive criteria for involuntary placement in article 17 of the 2004 Council of Europe Mental Disorder Recommendation,64 namely that the person has a mental disorder, that their condition presents a significant risk of serious harm to their health or to other persons, that the placement has a therapeutic purpose, that there is no less restrictive way of meeting the person’s needs, and that the person’s own opinion has been take into consideration.
Once detained, the person must be notified of the fact that they are detained, as well as their rights to challenge, and must be able to apply for speedy review of the lawfulness of the detention to an independent court or tribunal with the power to order release if detention is not warranted.65 The review body must apply a procedure appropriate to determine the lawfulness of deprivation of liberty and the burden of proof is to be on the authority seeking to justify detention.66
The second potential gateway to the imposition of a tutelary relationship on a person with disabilities is via a finding of incapacity and the subjection of the person to the guardianship of another who is given power to commit the person to an institution and to control their treatment. In Central and Eastern Europe there has been a widespread practice of using adult guardianship laws to deprive people of liberty, to make decisions about their treatment, and indeed to exercise all aspects of their rights as citizens.67 The person is formally deprived of legal capacity and a guardian is appointed with power to admit them to psychiatric hospital, to consent to treatment on their behalf, and to References(p. 439) exercise any rights on their behalf to challenge detention. Such arrangements effectively deprive people of all their Convention rights to challenge detention or treatment without consent, since the guardian could consent to detention and treatment and in many cases only the guardian could challenge these interventions.68
In 2008, in Shtukaturov v Russia the ECtHR held that determinations of incapacity engaged the right to respect for private life under article 8 ECHR; that any interference with the right had to be proportionate and; that article 8 imposed a positive obligation to use a decision-making process which is fair and such as to ensure due respect of the interests safeguarded by article 8.69 Mr Shtukaturov had not been present at the hearing. The Court found a violation of the right to a fair trial under article 6 ECHR, noting that ‘the applicant played a double role in the proceedings: he was an interested party, and, at the same time, the main object of the court’s examination. His participation was therefore necessary not only to enable him to present his own case, but also to allow the judge to form his personal opinion about the applicant’s mental capacity’.70 The ECtHR also adapted the 30-year-old Winterwerp criteria for lawful psychiatric detention, to develop a similar ‘kind or degree’ requirement for capacity proceedings, holding that:
The existence of a mental disorder, even a serious one, cannot be the sole reason to justify full incapacitation. By analogy with cases on deprivation of liberty, in order to justify full incapacitation the mental disorder must be ‘of a kind or degree’ warranting such a measure.71
Shtukaturov was decided two months before the CRPD came into force. In contrast to the new paradigm approach of article 12 CRPD, the European Court of Human Rights accepted the principle that the state had the power to deprive people of legal capacity based on mental disability. The Court sought to set substantive and procedural limits on the use of this power, based on the Council of Europe’s Incapacity Principles,72 to which it has had frequent resort in subsequent cases. By 2012 the ECtHR had developed a significant body of case law on incapacity, the right to a fair trial under article 6 ECHR and the right to respect for private life under article 8, whereby expert medical reports were required, which ‘address the degree of a person’s incapacity’.73
The ECtHR approach is to permit individuals to be deprived wholly or partially of legal capacity, provided that procedural safeguards and substantive requirements of proportionality are met, and that there is objective medical evidence of mental disorder of a kind or degree warranting deprivation of capacity. This runs counter to the CRPD Committee’s interpretation of article 12 in General Comment No 1 issued in 2014.74 There, the CRPD Committee noted the ‘general failure to understand that the human References(p. 440) rights-based model of disability implies a shift from the substitute decision-making paradigm to one that is based on supported decision- making’.75 The General Comment goes on to reaffirm that ‘a person’s status as a person with a disability or the existence of an impairment (including a physical or sensory impairment) must never be grounds for denying legal capacity or any of the rights provided for in article 12. All practices that in purpose or effect violate article 12 must be abolished in order to ensure that full legal capacity is restored to persons with disabilities on an equal basis with others … Article 12 does not permit such discriminatory denial of legal capacity, but, rather, requires that support be provided in the exercise of legal capacity.’76
Although mental and physical integrity and non-consensual interventions aimed at correcting or alleviating a perceived disability were not accepted into the text of article 15, immediately after the CRPD was adopted, Manfred Nowak, the UN Special Rapporteur on Torture, offered significant support to the new paradigm in his Interim Report of July 2008. He stated that ‘medical treatments of an intrusive and irreversible nature, when they lack a therapeutic purpose, or aim at correcting or alleviating a disability, may constitute torture and ill-treatment if enforced or administered without the free and informed consent of the person concerned.’77 What made persons with disabilities particularly vulnerable to torture and CIDTP in Nowak’s view, was that they were more likely to be in a situation of powerlessness, subject to a tutelary relationship and in a situation of dependence where decision-making power is taken away from them by ‘discriminatory laws and practices’ and given to others, and hence they become ‘an easier target of abuse’.78
As to the circumstances in which unlawful detention might amount to cruel, inhuman or degrading treatment (CIDT), Special Rapporteur Nowak said this:
In certain cases, arbitrary or unlawful deprivation of liberty based on the existence of a disability might also inflict severe pain or suffering on the individual, thus falling under the scope of the Convention against Torture. When assessing the pain inflicted by deprivation of liberty, the length of institutionalization, the conditions of detention and the treatment inflicted must be taken into account.79
This approach was later applied by the UN Committee on the Rights of Persons with Disabilities in dealing with the individual communication in Noble v Australia, where a detention in breach of article 14 ICCPR was held also to breach article 15 CRPD, discussed further below.80
In February 2013, the UN Special Rapporteur on Torture, Juan Mendez, issued a report focusing on ‘certain forms of abuses in health-care settings that may cross a threshold of mistreatment and which is tantamount to torture or cruel, inhuman or degrading treatment or punishment’. The report identified the policies that promote these practices and existing protection gaps,81 reinforcing the mandate’s adherence to the new paradigm. Special Rapporteur Mendez ‘embraced the ongoing paradigm shift, which increasingly encompasses various forms of abuse in healthcare settings within References(p. 441) the discourse on torture’.82 The ‘new normative paradigm’ under the CRPD in his view offered the most comprehensive set of standards on the rights of persons with disabilities, applicable most notably in relation to healthcare, where the choices of people with disabilities could be overridden in their ‘supposed best interests’.83 It was here that ‘serious violations and discrimination against persons with disabilities may be masked as ‘good intentions’ of health professionals. Special Rapporteur Mendez declared it ‘necessary to highlight additional measures needed to prevent torture and ill-treatment against people with disabilities, by synthesizing standards and coordinating actions in line with the CRPD’.84
Special Rapporteur Mendez rejected the validity of the medical necessity doctrine, considering that it ‘continues to be an obstacle to protection from arbitrary abuses in health-care settings’. In his view this made it all the more important to clarify that ‘treatment provided in violation of the terms of the CRPD—either through coercion or discrimination—cannot be legitimate or justified under the medical necessity doctrine’.85 Hence, the CRPD new paradigm does not accept these interventions under any circumstances, and rejects the doctrine of medical necessity as a potential legitimation of such practices.
A detailed discussion of the Mendez Report was published by Washington College School of Law in 2014. This included a critical response in the form of a Joint Statement from the American Psychiatric Association and the World Psychiatric Association, arguing against the statements requiring abolition of provisions allowing confinement or compulsory treatment in mental health settings, an absolute ban on all forced and non-consensual medical interventions against persons with disabilities, on the grounds that ‘the hospitalization of persons with mental disorders can be life-saving, and result in restoring a person with the ability to direct his or her own life’.86 Similarly, the Psychiatric Bodies disagreed with the statement that ‘confinement and restraint on people with mental disabilities … constitute torture and ill-treatment’, on the grounds that for psychotic patients attempting to severely injure themselves or others, restraint may be the only way to prevent severe injury to the patient and essential to the protection of other patients and staff. ‘It should be noted that patients in restraint should be monitored carefully, and such restraints must only be used for the shortest time possible. Short term restraint, when applied humanely, can be life saving.’87 As for involuntary treatment, whilst the APA and the WPA agreed that when involuntary treatment is used to inflict severe pain and suffering, rather than for the patient’s benefit, it may constitute CIDT. However, they disagree with the statement that ‘involuntary treatment and other psychiatric interventions in health care facilities are forms of torture and ill-treatment. It should be recognized that involuntary treatment, when used appropriately, is not a form of torture or ill-treatment.’88
The views expressed by the APA and the WPA reflect more closely the Council of Europe approach to human rights. At the core of the new normative paradigm is the ideal of ‘guaranteeing informed consent’ as ‘a fundamental feature of respecting an individual’s autonomy, self-determination and human dignity in an appropriate continuum of (p. 442) voluntary health-care services’.89 The Council of Europe CPT Standards concur with the idea that ‘patients should, as a matter of principle, be placed in a position to give their free and informed consent to treatment’.90 They go on to say that the fact that a person has been admitted to a psychiatric hospital on an involuntary basis is not to be construed as authorizing treatment without his consent, and that every competent patient, whether through voluntary or involuntary means, should be given the opportunity to refuse treatment or any other medical intervention. However, the Standards also accept that this ‘fundamental principle’ can be derogated from, as long as the derogation is ‘based on law and only relates to clearly and strictly defined exceptional circumstances’.91 As will be discussed further below, the CPT Standards also accept that restraint may be used as a last resort in limited circumstances as long as it is necessary and proportionate to prevent harm to the person or to others. This is where new and old paradigm part company. The new paradigm does not accept derogations from the principle of informed consent, even if those are based on law and are strictly or narrowly defined.
The new paradigm seeks to prohibit absolutely the imposition of tutelary relationships, regimes of substitute decision-making, and non-consensual treatment on people with disabilities. We have already characterized as ‘old paradigm’ the Council of Europe enforcement system under the ECHR. The CRPD and CAT regimes are charged with delivering the ‘new paradigm’ rights. Hence, Council of Europe member states and the EU, which are also signatories to the CRPD and its Optional Protocol, are subject to two parallel anti-torture jurisdictions, the UN general human rights enforcement apparatus on the one hand and the European Court and the Committee for the Prevention of Torture on the other. Having considered the background and context of article 15, we now turn to its interpretation and application.
Torture and CIDTP have been defined over time through customary international law and entrenched in multilateral treaties. Such treaties deal either with the human rights dimension of this conduct (eg the ECHR and indeed the CRPD) or/and its criminal dimension, as is the case with the UN Convention against Torture (CAT). Article 15 CRPD relies on this extensive body of treaty and case law for its own definition of the conduct prohibited in paragraph 1.92
References(p. 443) In Ireland v United Kingdom the ECtHR defined torture as ‘deliberate inhuman treatment causing very serious and cruel suffering’.93 Article 1 CAT offers a more elaborate definition:
Any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.
In 2001 the UN Special Rapporteur for the Commission on Human Rights reminded governments that ‘the prohibition of torture relates not only to acts that cause physical pain but also to acts that cause mental suffering to the victim, such as intimidation and other forms of threats’. Moreover, ‘the fear of physical torture may itself constitute mental torture’.94 Acts falling short of the torture definition may constitute cruel, inhuman, or degrading treatment or punishment under article 16 CAT.
As the ECtHR has repeatedly held, the purpose of the distinction between torture and inhuman or degrading treatment was ‘to attach a special stigma to deliberate inhuman treatment causing very serious and cruel suffering’.95 The ECtHR has also referred to the ‘purposive element (of) torture, as recognized in CAT, which in article 1 defines torture in terms of the intentional infliction of severe pain or suffering with the aim of obtaining information, inflicting punishment or intimidating, or for any reason connected with discrimination’.96 In Cestaro v Italy the European Court of Human Rights considered its previous case law on torture and reiterated that the basis of the concept was deliberate inhuman treatment causing very serious and cruel suffering. Applying the principle from Selmouni v France,97 the Court held that ‘the severity of the suffering is, in the nature of things, relative; it depends on all the circumstances of the case, such as the duration of the treatment, its physical or mental effects and, in some cases, the sex, age, and state of health of the victim, etc’.98 The ECtHR went on to refer to the ‘purposive element’ in the definition of to torture In article 1 CAT ‘as the intentional infliction of severe pain with the aim of obtaining information, inflicting punishment, intimidating, or for any other discriminatory purpose’. Here severe violence was gratuitously inflicted by police on a person who had already surrendered to arrest and was seated with hands raised above his head, apparently as a reprisal. This was clearly torture.99
References(p. 444) Although article 15 CRPD is modelled on article 7 ICCPR, there are strong links with the enforcement apparatus of CAT. In his report issued in July 2008, two months after the CRPD came into force, the UN Special Rapporteur on Torture, Manfred Nowak, welcomed the opportunity that the CRPD provided to review the anti-torture framework in relation to persons with disabilities.100 This report, together with the report of his successor, Juan Mendez, in 2013 set the tone for the implementation of article 15 CRPD, further developing and affirming the new paradigm. Nowak emphasized that the application of article 15 CRPD ‘can be informed by the definition of torture in article 1 CAT’.101
Four elements are required under CAT in order to substantiate the crime of torture, namely: severe pain or suffering, a specific (torture) intent, purpose, and state involvement. Two ECtHR cases involving force-feeding of prisoners illustrate the presence of all these factors. In each the state was found guilty of torture. In Nevmerzhitsky v Ukraine, the Court held that the manner in which the applicant had been forcibly fed with the use of handcuffs and a mouth widener could amount to torture within the meaning of article 3 ECHR if there was no medical necessity for the force-feeding.102 In the circumstances, the force-feeding was so severe and disproportionate to the circumstances of the victim that it warranted the characterization of torture. The Court inferred that the intention was to punish the prisoner under the pretext of a medical intervention.103
Four years later, in Ciorap v Moldova104 the Court again found a breach of article 3 ECHR, finding that repeated force-feeding, ‘not prompted by valid medical reasons’ but rather with the aim of ‘forcing the applicant to stop his protest, and performed in a manner which unnecessarily exposed him to great physical pain and humiliation, can only be considered as torture’.105 In both cases the interventions were intentional and the improper purpose was present, in that they were aimed at punishing the victims. Hence, the absence of a therapeutic purpose can ensure that a measure will be designated as torture. The absence of any proof that appropriate procedures had been authorized by a doctor led the Court to conclude that the interventions had no therapeutic purpose. This was a decisive factor. Whilst measures that constitute a medical necessity will not amount to torture or CIDT for the purposes of the ECHR, medical necessity does not provide a defence under the CRPD.106 Interestingly, the CRPD Committee tends to characterize ill-treatment as a breach of article 15 rather than making a distinction between torture and CIDTP. Indeed, in some cases where the sole purpose has been punishment or discipline rather than therapy, the CRPD Committee has characterized the treatment as CIDTP rather than torture. For example, in its concluding observations on Chile, the CRPD Committee expressed ‘deep concern that practices such as psychosurgery, electroconvulsive therapy, extended isolation in cells without heating or basic services, physical restraints and other types of treatment deemed to be cruel, inhuman or degrading are employed in the state party with the sole purpose of “disciplining” or “correcting deviant behaviour” in persons with psychosocial disabilities’.107 Treatment established as having such a sole purpose, would probably be characterized as torture under the ECtHR case References(p. 445) law. Similarly in respect of Korea, the Committee described solitary confinement, constant beating, restraint, and excessive drug treatment as CIDT rather than torture.108 We now examine each of the four elements in the torture definition.
Torture requires the infliction of physical or mental pain and the victim’s suffering must be severe. The UN Human Rights Committee’s General Comment No 20 on article 7 ICCPR emphasizes that ‘the prohibition in article 7 relates not only to acts that cause physical pain but also to acts that cause mental suffering to the victim’.109 As the ECtHR has repeatedly emphasised, the severity of the suffering is ‘in the nature of things, relative; it depends on all the circumstances of the case, such as the duration of the treatment, its physical or mental effects and, in some cases, the sex, age and state of health of the victim’.110 In this respect some of the jurisprudence of the ECtHR is relevant. Until the 2001 ruling in Keenan v United Kingdom,111 the ECtHR had always maintained a strict requirement that ill-treatment must attain a minimum level of severity to engage article 3 ECHR. Although this minimum level of severity involved demonstrating physical injury or recognized psychological damage, in Keenan v United Kingdom the ECtHR adapted the test to enable closer scrutiny of the treatment afforded to mentally vulnerable detainees. If a person who is detained and suffering from a mental illness is subject to disproportionate force, ‘proof of the actual effect on the person may not be a major factor’, and this could amount to inhuman or degrading treatment.112 The Court found a breach of article 3 ECHR because of the disproportionate use of force in placing Mr Keenan in solitary confinement and a failure to provide adequate medical treatment.113
This is an important general point, which is of direct relevance to article 15 CRPD and its applicability. Such an adaptation of the minimum level of severity requirement is essential to enable human rights bodies to exercise the necessary ‘special vigilance’ to protect persons with intellectual or psychosocial disabilities. In his July 2008 Report, Nowak showed clear support for the new paradigm when he noted that ‘the acceptance of involuntary treatment and involuntary confinement runs counter to the provisions of the CRPD’ and:
Medical treatments of an intrusive and irreversible nature, when they lack a therapeutic purpose, or aim at correcting or alleviating a disability, may constitute torture and ill treatment if administered without the free and informed consent of the person concerned.114
This rationale adopts the wording put forward by DRI and WNUSP before the Ad Hoc Committee and signifies that treatments addressing mental disorders, which are of an intrusive or irreversible nature and administered without consent, depending on the nature of the treatments, their purpose, and the circumstances in which they are administered, References(p. 446) may amount to cruel, inhuman, or degrading treatment or punishment. This approach has been adopted by the CRPD Committee in several concluding observations.115
In order to amount to torture, the severe pain and suffering must be intentionally inflicted. In ICTY Prosecutor v Kunarac and Others, the defendants had raped their victims and argued that their intention was of a sexual nature. The Appeals Chamber of the ICTY distinguished between intention and motivation and held that the crucial question as far as intent was concerned was ‘whether the perpetrator intended to act in a way which, in the normal course of events, would cause severe pain or suffering, whether physical or mental, to his victims’.116
In his 2008 Report, Nowak stated that the requirement of intent ‘can be effectively implied where a person has been discriminated against on the basis of disability’. This was particularly relevant in the context of medical treatment of persons with disabilities, where serious violations and discrimination against persons with disabilities may be masked as ‘good intentions’ on the part of health professionals. Conduct which is negligent lacked the intent required to amount to torture under article 1, but it could in the Special Rapporteur’s opinion, constitute ill-treatment if it led to severe pain and suffering.117
Treatment falling short of the definition of torture may amount to inhuman or degrading treatment. In Stanev v Bulgaria the ECtHR held that ‘treatment has been held to be “inhuman” because, inter alia, it was premeditated, was applied for hours at a stretch and caused either actual bodily injury or intense physical or mental suffering’. It has been considered ‘degrading’ when the treatment is such as to ‘arouse in its victims feelings of fear, anguish and inferiority capable of humiliating and debasing them and possibly breaking their physical or moral resistance or driving them to act against their will or conscience.’118 The ECtHR will also consider whether, as far as the consequences are concerned, the ill-treatment adversely affected the person’s personality. Whether there was intention to debase or humiliate is a factor to be taken into account, but the absence of any such purpose or intent does not mean there has been no breach of article 3.119 Hence, there is a clear shift from the ‘specific intent’ of CAT in the jurisprudence of the ECtHR and other non-criminal law-based courts and tribunals.
References(p. 447) 3.2.3 State Involvement
As noted above, a key reason why the formulation of article 15(1) CRPD follows that of article 7 ICCPR rather than article 1 CAT, is because the former is clearly applicable to acts committed by private parties, whereas the latter was drafted with a view to encompassing torture inflicted by state officials.120 In 1982, General Comment No 7 on article 7 ICCPR states that it is ‘the duty of public authorities to ensure protection by the law against such treatment even when committed by persons acting outside or without any official authority’.121 International humanitarian law extends to impose liability for acts of torture committed by non-state actors. In ICTY Prosecutor v Kunarac the Appeals Chamber concluded that the public official requirement was not a requirement under customary international law in relation to the criminal responsibility of an individual for torture outside of the framework of the CAT.122 This was reaffirmed in 2005 in ICTY Prosecutor v Kvocka and Others.123
By the time the CRPD entered into force, the CAT was being interpreted as being applicable to conduct attributed also to private parties.124 The ECtHR has also repeatedly held that the obligation under article 1 ECHR to secure to everyone within their jurisdiction the rights and freedoms defined in the Convention, taken in conjunction with article 3, places states under a positive obligation ‘to take measures designed to ensure that individuals within their jurisdiction are not subjected to torture or inhuman or degrading treatment, including such ill-treatment administered by private individuals.’125 In 2008 Nowak said this in his annual report:
The language used in Article 1 of the CAT concerning consent and acquiescence by a public official clearly extends state obligations into the private sphere and should be interpreted to include state failure to protect persons within its jurisdiction from torture and ill-treatment committed by private individuals.126
In 2013, his successor expressed the view in his report that the ‘state’s duties to prevent torture apply not only to public officials … but also to doctors, healthcare professionals and social workers, including those working in private hospitals’.127 In da Silva Pimentel v Brazil, the CEDAW Committee observed that: ‘the state is directly responsible for the action of private institutions when it outsources its medical services’ and ‘always maintains the duty to regulate and monitor private health-care institutions’.128
References(p. 448) 3.2.4 Prohibited Purpose
As far as prohibited purpose is concerned, the list in article 1 CAT includes ‘such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind’. In ICTY Prosecutor v Kunarac and Others the ICTY held that ‘If one prohibited purpose is fulfilled by the conduct, the fact that such conduct was also intended to achieve a non-listed purpose, even one of a sexual nature, is immaterial.’ In Kunarac the victims had been raped because they were Muslims, and so the prohibited purpose of discrimination had been met. The purposes listed in article 1 CAT are illustrative and not exhaustive. The purposes of intimidation, punishment or for any reason based on discrimination of any kind, are the most apt to cover cases involving persons with disabilities. As Special Rapporteur Mendez noted in 2013:
Although it may be challenging to satisfy the required purpose of discrimination in some cases, as most likely it will be claimed that the treatment is intended to benefit the ‘patient’, this may be met in a number of ways. Specifically, the description of abuses outlined below demonstrates that the explicit or implicit aim of inflicting punishment, or the objective of intimidation, often exist alongside ostensibly therapeutic aims.129
In his July 2008 report Nowak made particular reference to the situation of people with intellectual or psychosocial disabilities who may be deprived of their liberty for long and potentially indefinite periods in situations where they ‘are frequently subjected to unspeakable indignities, neglect, severe forms of restraint and seclusion as well as physical, mental and sexual violence’. They may be ‘exposed to medical experimentation and intrusive and irreversible medical treatments without their consent (eg sterilisation, abortion, and interventions aiming to correct or alleviate a disability, such as electroshock treatment and mind altering drugs including neuroleptics)’. The Special Rapporteur expressed concern that ‘in many cases such practices, when perpetrated against persons with disabilities, remain invisible or are being justified, and are not recognized as torture or other cruel, inhuman or degrading treatment or punishment’.130
The CAT definition of torture expressly proscribes acts inflicting physical and mental suffering committed against persons for reasons of discrimination of any kind. Nowak noted that this could include treatments administered without consent.
Medical treatments of an intrusive and irreversible nature, when they lack a therapeutic purpose, or aim at correcting or alleviating a disability, may constitute torture and ill treatment if administered without the free and informed consent of the person concerned.131
Hence non-consensual interventions that are intended to correct or alleviate a disability could amount to torture or CIDT. This could cover a wide range of interventions. Special Rapporteur Nowak used lobotomy and psychosurgery as examples to illustrate the principle that the more intrusive and irreversible the treatment, the greater was the obligation on states to ensure that health professionals provide care to persons with disabilities only on the basis of their free and informed consent.132
(p. 449) The 1991 UN Mental Illness Principles already provided that psychosurgery and other intrusive and irreversible treatments for mental disorder ‘shall never be carried out on a patient who is an involuntary patient in a mental health facility and, to the extent that domestic law permits them to be carried out, they may be carried out on any other patient only where the patient has given informed consent and an independent external body has satisfied itself that there is genuine informed consent and that the treatment best serves the health needs of the patient’.133 This principle could extend to other interventions, such as psychotropic medication administered without consent, sterilisation, abortion, surgical castration as a treatment for sex offenders subject to ‘protective measures’, electro convulsive therapy (ECT), restraint, physical and chemical, and seclusion or solitary confinement.
In addition to torture and CIDTP, article 15(1) prohibits medical or scientific experimentation without the person’s free consent. We have already seen how the IDC and the WNUSP tried to extend this prohibition to all non-consensual medical interventions, and to detention of persons with disabilities. Article 15(1) prohibits medical and scientific experimentation without free consent, but this prohibition does not extend to non-consensual medical treatment. It should be noted that the CRPD Committee does not confine itself to commenting on research, but also deals with non-consensual psychiatric treatment under the heading of article 15 and calls upon states to introduce concrete measures to protect persons with disabilities by prohibiting and preventing medical procedures and experimentation without their free and informed consent.134 Where states have laws authorizing guardians to give proxy consent to research or experimentation, the Committee has called for their repeal.135 In the case of the EU, the Committee expressed concern that research funded by the European Union is not accompanied by ethics guidelines to ensure that all persons with disabilities involved in such research are enabled to give their informed consent, and recommended that the EU review its ethics guidelines in this regard, provide easy to read consent forms, and prevent substituted decision-making in this area.136
References(p. 450) 4. Paragraph 2
Article 15(2) requires states parties to take all effective legislative, administrative, judicial, or other measures to prevent persons with disabilities, on an equal basis with others, from being subjected to torture or cruel, inhuman, or degrading treatment or punishment. As has been noted above, this provision mirrors article 2 CAT.137 This is reiterated in the Human Rights Committee’s General Comment on article 7 ICCPR, whether ‘inflicted by persons acting in their official capacity or in a private capacity’.138 The ruling in ICTY Prosecutor v Furundžija makes it clear as a matter of International criminal law that states have a positive duty to put in place all those measures that may pre-empt the perpetration of torture.139
Whether torture or CIDTP is inflicted by a state official or a private party, the state has a positive duty to take effective measures to protect the rights of people with disabilities, to prevent torture or CIDTP, and to carry out an official investigation which is capable of identifying those responsible, and leading to their punishment.140 In Furundžija the ICTY held that this positive duty is breached in case of: (i) failure to adopt appropriate measures necessary for implementing the prohibition and (ii) the maintenance in force or passage of laws which are contrary to the prohibition.141 Moreover states are under a positive duty to introduce specific criminal offences of torture and CIDTP, and efficient criminal law provisions enabling these to be enforced.142
The ECtHR has developed a significant body of case law on the prohibition of torture and inhuman and degrading treatment in article 3 ECHR as it applies to health and social care provision. As with the CRPD, the ICCPR and the CAT, there is a positive obligation on states under article 3 to take measures to provide protection against abuse by private parties, and ‘these measures should provide effective protection, in particular, of children and other vulnerable persons and include reasonable steps to prevent ill-treatment of which the authorities had or ought to have had knowledge’.143
References(p. 451) In Bures v Czech Republic the ECtHR emphasized that wilful ill-treatment (in this case restraint) of persons who are within the control of the state cannot be remedied exclusively by the award of compensation to the victim. There had to be a criminal sanction against such conduct.144 In Cestaro v Italy the ECtHR reiterated its insistence that article 3 of ECHR and article 4 CAT imposed a positive obligation on states to introduce efficient criminal law provisions criminalizing torture, and capable of imposing appropriate penalties on those responsible for acts of torture.145
In certain circumstances psychiatric medication administered to persons with mental disabilities without their free and informed consent or against their will, under coercion, or as a form of punishment may amount to torture or CIDT. Antipsychotic drugs, often referred to as neuroleptics, have traditionally been administered as emergency sedation or rapid tranquilization without consent in psychiatric hospitals as an alternative to other tranquilizers such as Lorazepam. Anti-psychotics or neuroleptics are often referred to also as major tranquilizers, because of their highly sedating effect. The so-called old-style anti-psychotics have a side effect profile that includes Parkinsonian symptoms and in some cases an illness called tardive dyskinesia, which can be fatal. In many countries, old style anti-psychotics have been replaced by a second generation of neuroleptic drugs which are thought not to have the same adverse effects, but which are associated with other side effects, such as extreme weight gain and type two diabetes. All of these drugs have strong sedative properties. Special Rapporteur Nowak referred to the side effects of neuroleptics, including ‘trembling, shivering and contractions’ and noted that these drugs ‘make the subject apathetic and dull his or her intelligence’.146 In Viana Acosta v Uruguay, the Human Rights Committee had concluded that the treatment of the complainant, which included psychiatric experiments and forced injection of tranquillizers against his will, constituted inhuman treatment.147 Nowak noted that forced and non-consensual administration of psychiatric drugs, and in particular of neuroleptics, for the treatment of a mental condition needs to be closely scrutinized and ‘may constitute a form of torture or ill treatment. Such an outcome will depend on the circumstances of the case and the suffering inflicted.’148What psychiatry refers to as ‘rapid tranquilization’ or ‘emergency sedation’ is consistently referred to in CRPD Committee reports as ‘chemical restraint’, condemned as inhuman or degrading treatment and states parties are recommended to discontinue the practices and reform those laws which allow them to take place.149 Other concluding observations refer to forced medical treatment, forced psychiatric treatment, or excessive drug treatment and call upon states to ban these.150 In the case of Peru, the References(p. 452) Committee expressed concern at ‘consistent reports of the use of continuous forcible medication, including neuroleptics’.151 As noted above, in the case of Germany these practices were seen as torture, rather than CIDTP.152
The Council of Europe CPT standards do not rule out psychiatric medication without consent. The issue is generally dealt with by the ECtHR under article 8 ECHR as an infringement of physical or psychological integrity. Article 8 will allow medication without consent as long as it is authorized by law, necessary (ie a proportionate response) to prevent the person harming themselves or others, and open to independent supervision and review by a court.153 Nevertheless, it appears from recent pronouncements of the CPT that the manner of administration of forced medication may take it across the threshold of CIDTP. The CPT Report on the United Kingdom expressed ‘some reservations’ at the forcible administration of the anti-psychotic drug Clozapine through the naso-gastric tube to patients in high secure special hospitals. Clozapine is an anti-psychotic drug for ‘treatment of resistant schizophrenia’. It is not available in injectable form, so it is usually only given with consent. The drug carries a risk that patients will develop neutropenia, a potentially fatal side effect, and so patients must be subject to a blood-monitoring regime, administered by the manufacturer. Although expressing reservations, the CPT did not go so far as to say this was inhuman or degrading treatment. The delegation noted that they ‘had an opportunity to speak with the consultant psychiatrists who initiated the procedure, read about the team’s approach and findings and met with patients who had undergone the NGT procedure while being restrained manually by a number of nurses’.154 Before drawing any firmer conclusions the CPT wished to examine carefully the individual patient documentation provided by the hospital and indicated that it would return to the issue in a separate communication to the UK authorities.155
Sterilization of women and men with learning disabilities or psychosocial disabilities has long been a human rights issue, dating back at least to the first compulsory sterilization legislation in the USA, passed by Indiana in 1907, followed by Washington and California in 1909.156 Indeed, the US sterilization statutes were used as the model for the 1933 Nazi Law to prevent Hereditarily Diseased Offspring, which came into force in 1934 and under which an estimated 400,000 people were sterilized.157 The International anti-torture provisions developed in the 1940s and 1950s had their origins in the medical experiments carried out on persons detained in concentration camps in Nazi Germany, References(p. 453) which included the development of programmes of mass sterilization by X Ray.158 A proposal was made by the British delegation during the travaux préparatoires of the ECHR to extend the scope of the prohibition of torture and inhuman or degrading treatment in article 3 by adding the following words:
In particular, no person shall be subjected to any form of mutilation or sterilisation, or to any form of torture or beating. Nor shall he be forced to take drugs, nor shall they be administered to him without his knowledge or consent. Nor shall he be subjected to imprisonment with an excess of light, darkness or silence as to cause mental suffering.159
The proposal was dropped following resistance from the Swedish, Danish, and Norwegian, all of which had legislation permitting sterilization of people with learning disabilities and ‘sexual criminals’.160
A key question is whether forced or involuntary sterilization engages article 15, or instead articles 17, 23, and 25 CRPD. Articles 17 and 25 have already been discussed above. Article 23 requires states to eliminate discrimination against persons with disabilities in all matters relating to marriage, family, parenthood, and relationships, on an equal basis with others, so as to ensure inter alia that ‘persons with disabilities, including children, retain their fertility on an equal basis with others’.
There are strong indications that the anti-torture framework is engaged. In his January 2008 report Nowak noted that the UN Human Rights Committee had found the sterilization of women without their consent to be in breach of article 7 ICCPR. He stressed that ‘forced abortions or sterilizations carried out by state officials in accordance with coercive family planning laws or policies may amount to torture’.161 Given the particular vulnerability of women with disabilities, ‘forced abortions and sterilizations of these women, if they are the result of a lawful process by which decisions are made by their “legal guardians” against their may constitute torture or ill-treatment’.162
In 2009 the UN CAT Committee expressed deep concern about allegations of continued involuntary sterilization of Roma women and recommended that Slovakia should take urgent measures to investigate promptly, impartially, thoroughly, and effectively all allegations of involuntary sterilization of Roma women, prosecute, and punish the perpetrators and provide the victims with fair and adequate compensation.163 Three cases ensued against Slovakia in the ECtHR, all involving Roma women sterilized without their informed consent, who as a result had suffered stigma and ostracism in their community. In VC v Slovakia,164 the applicant was sterilized without her informed consent, immediately after she had delivered a child via Caesarean section, on the basis of consent given while she was in full labour. The ECtHR held that sterilization as such was not, in accordance with generally recognized standards, a life-saving medical intervention. References(p. 454) Where sterilization was carried out without the informed consent of a mentally competent adult, it was incompatible with the requirement of respect for human freedom and dignity.165 Although there had been no intention to ill-treat, the medical staff had acted with gross disregard ‘for her right to autonomy and choice as a patient’.166 This constituted degrading treatment in breach of article 3 ECHR.
In each of the other cases the ECtHR also held that regardless of intention, the staff had acted with gross disregard for the person’s autonomy and that this, coupled with the adverse consequences which had ensued for the women, was enough to meet the threshold requirement for degrading treatment.167 In one of these, IG v Slovakia,168 IG had been sterilized at the age of sixteen, following the delivery of her baby without her knowledge and without her informed consent or that of her guardian. Moreover, she did not find out about it until three years later. The implication of these cases is that if a person has a guardian, the consent of the guardian would legitimize the treatment as being in the person’s best interests.
Proxy consent to sterilization may be acceptable to the ECtHR, but it is not acceptable to the CRPD Committee, which has tended to deal with non-consensual sterilization by proxy consent under article 17 rather than article 15 CRPD as shown below.
In his 2013 Report Special Rapporteur Mendez identified a number of practices that contravened articles 1 or 16 CAT and article 15 CRPD, with a lengthy section on ‘reproductive rights violations’, including abusive treatment in treatment settings, involuntary sterilization, and forced sterilization.169 Mendez declared forced sterilization ‘an act of violence, a form of social control and a violation of the right to be free from torture and other inhuman or degrading treatment’.170 He called upon states to outlaw forced or coerced sterilization in all circumstances and reaffirmed the 2011 statement of the international Federation of Gynaecology and Obstetrics that: ‘sterilization for prevention of future pregnancy cannot be ethically justified on grounds of medical emergency. Even if a future pregnancy may endanger a woman’s life or health, she … must be given the time and support she needs to consider her choice. Her informed decision must be respected, even if it is considered liable to be harmful to her health.’171
As Powell and Stein note, ‘common justifications for sterilizing persons with disabilities fall into three broad categories: eugenic ideologies; the espoused best interest of the individual and/or others; and the perceived unfitness of the individual to parent’.172 All three may be seen in the anti-torture case law. Underlying eugenic ideologies may be seen in the sterilization of Mexican women in California,173 of Roma women in central Europe,174 and forced sterilization of indigenous women in the most vulnerable social sectors of Peru.175 Research carried out in El Salvador, Honduras, Mexico, and Nicaragua, References(p. 455) concluded that women living with HIV, where health providers knew about their condition when they became pregnant, were six times more likely to undergo forced or coerced sterilization in these countries. Many women reported that health-care providers told them that their HIV status meant they had forfeited the right to choose the number and spacing of their children, or to use a contraceptive method of their choice. Health-care workers also provided incorrect information about the consequences for their health and that of their children and denied them access to treatments to minimize mother-to-child HIV transmission to coerce them into becoming sterilized.176 Perceived unfitness to parent was an issue in relation to sterilization of minors in Colombia, discussed further below.177
Forced abortion or sterilization in accordance with coercive family planning laws may amount to torture but certainly fall under cruel, inhuman or degrading treatment. The FIGO Ethical Guidance also states that: ‘Only women themselves can give ethically valid consent to their own sterilization. Family members—including husbands, parents, legal guardians, medical practitioners and, for instance, government or other public officers—cannot consent on any woman’s or girl’s behalf.’178 Sterilizations by ‘lawful guardians’, which can include court-authorized sterilizations, may amount to inhuman or degrading treatment, but, as noted above, these are more likely to be considered under articles 17, 23, and 25 CRPD.
The CRPD Committee’s very first concluding observations on Tunisia in May 2011 contain no reference to article 15, but under article 17 is a veiled reference to sterilization, where the Committee urged the legal ‘abolition of surgery and treatment without the full and informed consent of the patient, and ensure that national law especially respects women’s rights under article 23 and 25 of the Convention’.179 The concluding observations on Spain in October of the same year use the same formulation, but refer specifically to sterilization.180
In 2012, in its concluding observations on Argentina, the Committee referred again to sterilization, expressing concern that where women were under guardianship, their guardians could give consent to their sterilization. The Committee recommended amendment of the law to remove this possibility and requested the state to ‘take steps to provide the necessary support to women under guardianship or trusteeship to ensure that the women themselves are the ones who give their informed consent for a legal abortion or for sterilization’.181 In 2013 the Committee criticized an Australian Senate Committee, which had recently recommended that involuntary sterilization of persons with disabilities should be permitted to continue. The Committee urged Australia to adopt uniform national References(p. 456) legislation prohibiting the sterilization of boys and girls with disabilities, and adults with disabilities, in the absence of their prior, fully informed, and free consent.182
In 2014, the Committee’s concluding observations on Costa Rica expressed deep concern at the practice of forcing women and girls with disabilities to undergo sterilizations and urged the government to take steps to ‘eradicate forced sterilization, to raise awareness of the rights of women and girls with disabilities within their families and among managers of the institutions in which they are interned, and to guarantee full respect for their personal, physical and mental integrity by ensuring that mechanisms providing protection against forced sterilization are effective and accessible’.183 Similar recommendations were made the same year in relation to Korea184 and Mexico185 under article 17.
In 2015 sterilization featured in the concluding observations of many CRPD Committee country reports under article 17. The Committee has consistently defined situations where guardians of persons with disabilities were authorized to consent to sterilization of the person concerned as ‘forced sterilization without free and informed consent and regularly called for repeal of the relevant law, often referring also to abortions carried out on the basis of proxy consent as ‘coerced abortion’.186 States would also be called upon to review cases by an independent authority to conduct investigations, punish perpetrators, adopt measure for compensation and reparation of victims and provide mechanisms of supported decision-making.187 Brazil, for example, was called on to provide support for persons with disabilities in order to make informed choices and to educate families, guardians, medical professionals and managers of institutions of the rights of persons with disabilities, particularly women and girls with disabilities, under article 17.188 In its observation on the EU, the Committee expressed concern that persons with disabilities are exposed to involuntary treatment, including forced sterilization and abortion and called upon the EU to take all possible measures to ensure that the individual’s right to free, prior and informed consent to treatment is upheld and that supporting decision-making mechanisms are provided in member states.189
In 2014, the Constitutional Court of Colombia delivered a decision authorizing sterilization without the consent of minors with intellectual and psychosocial disabilities, (p. 457) based on their best interests and their perceived unfitness to parent.190 The case was a constitutional challenge to article 7 of Law 1412 of 2010, which prohibited the practice of surgical sterilization for contraceptive purposes on minors in all cases. The Constitutional Court declared article 7 constitutional, but went on to state that:
When it comes to minors with disabilities for whom there is a proven impossibility to give consent in the future to undergo sterilization procedures, the parents, or in any case, the legal guardian, must request judicial authorization to allow surgical sterilization. In that sense, previous case law has considered that a person that does not have the capacity to understand what sterilization is or its consequences, as it is the case of mental disabilities, she or he will hardly be in a place to understand the responsibility attached to the exercise of maternity or paternity and therefore, the implications of being able to or not to procreate.191
The Court took the view that sterilization would ensure ‘more dignified living conditions for those who cannot make decisions related to the exercise of their reproductive freedom and that they may be exposed to forced pregnancies in detriment of their dignity and personal integrity’.192 The notion that sterilization can protect against sexual abuse is seriously misplaced in that it is more likely to mask the consequences of sexual abuse and may well make women more vulnerable. Subsequently, this decision was confirmed by two further decisions of the Constitutional Court in 2016.193 In 2016 the CRPD Committee in its concluding observations referred to the issue under article 17 and expressed concern that ‘sterilization of persons with disabilities without their consent, and with the authorization of a judge, is a legal practice’.194 The Committee urged the Colombian government to ‘take the necessary steps to abolish the sterilization of persons with disabilities without their free and informed consent and recommended immediate review of the Constitutional Court decisions ‘with a view to maintaining the prohibition, without exception, of sterilization of persons with disabilities, particularly children, without their free and informed consent’.195 It also recommended the training of judges and prosecutors, ‘with the involvement of organizations of persons with disabilities, on the rights of persons with disabilities and the international obligations of the state party, mainly those relating to non-discrimination on grounds of disability and the personal integrity of children with disabilities’.196
In May 2017 the CRPD Committee’s concluding observations on Canada possibly signalled the reason why this issue is dealt with under article 17. The Committee noted with concern that although forced or compulsory sterilization is illegal in Canada, ‘people with disabilities, particularly people with intellectual and/or psychosocial disabilities, still experience involuntary sterilization through the manipulation of their consent’.197 The Committee recommended that Canada work with the provinces to ensure that health-care and substitute decision-making practices prevent involuntary sterilization, including References(p. 458) in situations where persons with disabilities are deemed to lack legal capacity to consent. This notion of ‘involuntary sterilization through manipulated consent’ includes proxy consent measures, which, as we have seen under previous concluding observations would have been deemed forced sterilization.
Female genital mutilation has featured in four country reports, all of which have dealt with the issue under article 17 CRPD. In relation to Ethiopia the Committee expressed concern at the existence of ‘harmful practices, such as female genital mutilation, which include women and girls with disabilities’ and recommended that the government ‘effectively address female genital mutilation both in law and in practice, including women and girls with disabilities’.198 Gabon too was called upon to ‘adopt all appropriate legal and administrative measures to eradicate female genital mutilation for all women and girls, including women and girls with disabilities, no matter what their country of origin.199 Uganda was called upon to criminalize female genital mutilation.200 Although female circumcision is prohibited by law in Kenya, the Committee was concerned that the practice affects women and girls with disabilities and called upon the government to implement the 2011 recommendations of the CEDAW Committee report on female genital mutilation201 and ensure that the action plan of the Anti-FGM Board includes a compilation of information on the women and girls subjected to such a practice and mechanisms for their reparation and redress.202
There are historical accounts of surgical castration being practised on patients with learning disabilities and psychosocial disabilities. The UK authorities were alerted in 1923 to a patient who had been deported from Hamilton in Canada in 1923 and it was discovered he had been castrated. The Superintendent of the hospital in Canada said that he had sterilized a number of patients in this way, but ‘could not say’ under what legal authority.203 The State of Alberta passed a five-section Sexual Sterilization Act in 1928 that applied when ‘it was proposed to discharge any inmate from a mental hospital’.204 ‘Patients’ had to be examined by a Board that decided whether to recommend sterilization. If the Board decided that the patient might safely be discharged if the danger of procreation with its attendant risk of multiplication of the evil be transmission of the disease by progeny were eliminated, the board could authorize such operation for sexual sterilization as may be specified and appoint a competent surgeon to carry it out.205 The References(p. 459) Act was repealed in 1972, with 2,800 people including both men and women, having been sterilized under its authority.206
In 2012 the CAT Committee reported its concern at the continued use of surgical castration in the Czech Republic for sex offenders, as a measure of protective treatment and that the detention of sex offenders could be of an infinite duration.207 The CAT Committee had also heard that offenders were being told that they faced lifetime detention if they did not accept surgical castration. The Committee recommended that the Czech Republic desist from the practice and amend its legislation in order to bring it in line with international norms. Legislation regarding sex offenders should include procedural safeguards and precise regulations and professional instructions on their treatment and detention, including its duration.208 Of note here is the CAT Committee’s recognition of indefinite detention as a form of cruel, inhuman, or degrading treatment or punishment.
Although surgical castration is usually carried out as a form of protective measure, when the CRPD Committee reported on the Czech Republic in 2015, it noted the continued practice of surgical castration with great concern, viewing it as a breach of article 15 CRPD, and as ‘a form of punishment’. The Committee urged the Czech Republic to put an end to surgical castration and any other kind of forced treatment as a form of punishment against persons with disabilities who are deprived of their liberty.209
The Council of Europe’s CPT Standards make it clear that the administration of ECT in its unmodified form (ie without anaesthetic and muscle relaxants) ‘can no longer be considered as acceptable in modern psychiatric practice’, and constitutes degrading treatment. Apart from the risk of fractures and other untoward medical consequences, the process as such is degrading for both the patients and the staff concerned. Consequently, ECT should always be administered in a modified form.210 The World Health Organization has called for a ban on unmodified ECT and has emphasized that ‘there are no indications for the use of ECT on minors, and hence this should be prohibited through legislation’.211
Special Rapporteur Nowak stated that ECT in its unmodified form ‘cannot be considered as an acceptable medical practice and may constitute torture or ill-treatment’. In its modified form, ECT was only acceptable with the free and informed consent of the person concerned, including on the basis of information on the secondary effects References(p. 460) and related risks such as heart complications, confusion, loss of memory, and even death.212 In 2014 the CRPD Committee expressed concern about the reported number of cases of electro-convulsive therapy (ECT) in Sweden, at its possible use as a compulsory treatment and at reports that ECT is performed more often on women. The Committee recommended abolishing such non-consensual practices with regard to persons with disabilities in medical institutions.213 This indicates that ECT treatment without consent, even in a modified form, with muscle relaxant and anaesthetic, is viewed by the Committee as inhuman or degrading treatment. This view was confirmed by the Committee’s concluding observations on the United Kingdom in 2017, expressing concern at the permissible use of electro-convulsive therapy across the devolved governments and calling on the UK government to ‘prohibit and withdraw practices of non-consensual electro-convulsive therapy on the basis of any form of impairment, in all regions’.214
In 2013 Special Rapporteur Mendez repeated the statement of his predecessor, Manfred Nowak, that there can be ‘no therapeutic justification for the use of solitary confinement and prolonged restraint of persons with disabilities in psychiatric institutions’.215 Mendez had already issued a report on solitary confinement in 2011, stating that its imposition, of any duration, on persons with mental disabilities constitutes cruel, inhuman, or degrading treatment.216 In his 2013 report he stated that ‘any restraint on people with mental disabilities for even a short time may constitute torture and ill-treatment’. He was emphatic that an absolute ban should apply in all places of deprivation of liberty, including psychiatric hospitals and social care institutions on all coercive and non-consensual measures, including restraint and solitary confinement of people with psychological or intellectual disabilities. ‘The environment of patient powerlessness and abusive treatment of persons with disabilities in which restraint and seclusion is used can lead to other non-consensual treatment, such as forced medication and electroshock procedures.’217
In its 2015 concluding observations on Germany the CRPD Committee expressed deep concern that Germany did not ‘recognize the use of physical and chemical restraints, solitary confinement and other harmful practices as acts of torture, or also the use of physical and chemical restraints, in particular for persons with psychosocial disabilities in institutions and older persons in residential care’.218 Physical, mechanical, and chemical restraint and seclusion feature as breaches of article 15 CRPD in many of the concluding observations of the Committee, together with recommendations to discontinue the (p. 461) practices, to reform laws and policies which allow them to take place, and to strengthen monitoring and inspection of facilities where they may take place.219
In 2014 the Mental Disability Advocacy Centre (MDAC) reported on the use of caged beds in the Czech Republic, following up on their previous report carried out in 2003,220 as a result of which metal caged beds were banned, but netted cage beds were still permitted in psychiatric hospitals.221 As the report noted, the European Committee for the Prevention of Torture, the UN Committee against Torture, and the UN Human Rights Committee have all found that caged beds constitute ill-treatment and have called for them to be banned.222 The CAT Committee expressed concern in 2012 at the continued use of cage-beds, despite their prohibition in law, net-beds as well as the use of other restraint measures such as bed strapping, manacle and solitary confinement, often in unhygienic conditions and with physical neglect.223 The Committee was also concerned about the absence of investigations into the ill-treatment and deaths of institutionalized persons confined to cage and net-beds, including suicides and recommended that the state in question take measures to ensure the practical application of the prohibition on caged beds, as well as the extension of the prohibition to net beds, whose effects it found to be similar to those of cage-beds.224
The MDAC study noted that other restraints were also in wide use in Czech hospitals and ‘in some institutions the removal of caged beds has led to increased use of other degrading ‘alternatives’ such as seclusion, chemical restraint, and/or immobilization with belt straps.225 In 2015 the CRPD Committee expressed deep concern that ‘mechanical and chemical restraints, which may amount to torture or cruel, inhuman or degrading treatment, are commonly used in psychiatric institutions’ and urged the Czech government to immediately prohibit the use of mechanical and chemical restraints in psychiatric institutions on persons with psychosocial disabilities.226
In its annual report in 2015 the CRPD Committee expressed concern about the use of physical, mechanical, and chemical restraints and seclusion against persons with disabilities, particularly against persons with psychosocial disabilities institutionalized in psychiatric hospitals, mental health facilities, and prisons.227 The Committee referred to a number of non-consensual practices in psychiatric hospitals as amounting to torture or to inhuman or degrading treatment, expressing concern about: the use of net beds in Austria;228 ECT, restraint, and seclusion of boys and girls in mental health care in Sweden;229 coercive treatment in Denmark, including frequent involuntary application of ECT, the use of straps or belts for more than forty-eight hours, chemical restraints, or the reportedly frequent application of involuntary electro-convulsive therapy;230 and References(p. 462) the subjection of persons with psychosocial disabilities in Korean psychiatric hospitals to acts considered torture or cruel inhuman and degrading treatment, including solitary confinement, constant beating, restraint, and excessive drug treatment. The Committee urged Korea to abolish forced treatment that subjects persons with disabilities to cruel, inhuman, and degrading treatment and punishment.231
As in the case of Korea, various oppressive and coercive types of therapy have been found to constitute inhuman or degrading treatment. In the case of Iran, the Committee was concerned to find physical mutilation as a penal sanction being applied to persons with disabilities and called on Iran to cease physical chastisement of children with disabilities.232 In its May 2016 report on Serbia the CRPD Committee criticized the use of seclusion and chemical and physical restraint on children and persons with psychosocial disabilities.233 In 2013 Special Rapporteur Mendez referred to the use of military style drills or forced labour as a form of treatment in drug addiction treatment centres as inhuman or degrading treatment.234 The CRPD Committee’s report on China in 2012 expressed concern that the ‘correctional therapy’ offered at psychiatric institutions represented inhuman and degrading treatment. Further, the Committee expressed concern that not all medical experimentation without free and informed consent was prohibited by Chinese law.235
The CAT Committee’s report on China in 2015 reported that private and publicly-run clinics in China offer the so-called ‘gay conversion therapy’ to change the sexual orientation of lesbian and gay persons, and that such practices include the administration of electro-shocks and sometimes involuntary confinement in psychiatric and other facilities, which could result in physical and psychological harm.236 The CAT Committee underlined that China should take the necessary legislative, administrative and other measures to guarantee respect for the autonomy and physical and personal integrity of lesbian, gay, bisexual, transgender, and intersex persons and prohibit the practice of so-called ‘conversion therapy’, and other forced, involuntary or otherwise coercive or abusive treatments against them. It also recommended that China undertake investigations of instances of forced, involuntary, or otherwise coercive or abusive treatments of lesbian, gay, bisexual, transgender, and intersex persons and ensure adequate redress and compensation in such cases.237
China decriminalized homosexuality in 1997 and in 2002 the Chinese Society of Psychiatry declared that homosexuality was not a mental disease or disorder. In July 2017 a Chinese provincial court in Henan province ordered a psychiatric hospital to publish an apology in newspapers and pay compensation of around $400 to a thirty-eight-year-old man who had been forcibly admitted to the institution in 2015 by his wife and relatives, diagnosed with ‘sexual preference disorder’. The case was won on the narrow ground that he had been admitted in contravention of China’s 2013 Mental Health Law, which prohibits admission (p. 463) unless the patient has a mental disorder and poses a danger to themselves or to others. He was forced to take medicine and receive injections during his nineteen-day detention.238
In McGlinchey v United Kingdom239 and Keenan v United Kingdom240 the ECtHR found a breach of article 3 ECHR because of a failure to provide adequate medical treatment to detained persons who subsequently died. Ms McGlinchey had not been provided with adequate treatment in relation to her heroin addiction, while Mark Keenan killed himself in solitary confinement. The Court found a lack of effective monitoring of his condition and a lack of ‘informed psychiatric input’ was unacceptable in relation to a person known to be a suicide risk, amounting to inhuman and degrading treatment.241 In Nevmerzhitsky v Ukraine the ECtHR reaffirmed that article 3 ECHR imposes a positive obligation to secure the health and well-being of detainees.242
Article 15 may also be breached by the failure to provide treatment to people who are not detained but are in the community. A person in severe pain who has no access to appropriate pain relief may be able to claim CIDT in relation to an omission to provide pain relief ‘when the suffering is severe and meets the minimum threshold under the prohibition against torture and ill-treatment; when the state is, or should be, aware of the suffering, including when no appropriate treatment was offered; and when the government failed to take all reasonable steps to protect individuals’ physical and mental integrity.243
In his report of 2013, Special Rapporteur Mendez included in his list of reproductive rights violations denial of legally available health services such as abortion and post-abortion care.244 In 2016 he reported that in failing to amend its abortion legislation the Northern Ireland government had violated the right of women to be free from torture or CIDT under the CAT. Abortion is only permitted in Northern Ireland if a woman’s life is at risk or if there is a risk of permanent and serious damage to her physical or mental health.245 These cases show the possibilities for the use of article 15 CRPD in denial of treatment cases, in conjunction with the right to the highest attainable standard of mental and physical health care under article 25, not just in cases where people are deprived of their liberty, but also in relation to people living in the community.
The prohibition of torture and CIDT in article 7 ICCPR is complemented by the positive requirements of article 10(1) ICCPR, which imposes an obligation on states to ensure that ‘all persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person’. The Human Rights Committee issued a General Comment on article 10 emphasizing that:
The application of this rule, as a minimum, cannot be dependent on the material resources available in the State party. This rule must be applied without distinction of any kind, such as race, References(p. 464) colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.246
The ECtHR has affirmed in a number of cases that the conditions under which a person was detained amounted to degrading treatment.247 In Price v United Kingdom, the Court held that ‘to detain a severely disabled person in conditions where she is dangerously cold, risks developing sores because her bed is too hard or unreachable, and is unable to go to the toilet or keep clean without the greatest of difficulty, constitutes degrading treatment contrary to article 3 [ECHR]’.248
Two individual communications have thus far involved the circumstances and conditions under which a person is detained and the applicability of article 15. X v Argentina involved a prisoner with disabilities and limited mobility and the failure of the prison authorities to make reasonable adjustments. The Committee found that Argentina had not ‘irrefutably demonstrated’ that the accommodations made in the prison were sufficient to ensure the author’s independent access to the bathroom and shower, recreation yard, and nursing service. The Committee judged that, in the absence of sufficient explanations, the state had failed to fulfil its obligations under article 9(1) CRPD to take measures to ensure accessibility to buildings and services. It had also failed under article 14(2) CRPD to ensure human rights guarantees for persons with disabilities deprived of their liberty, and provision of reasonable accommodation. In consequence of these breaches, the Committee found that Mr X had been placed in substandard conditions of detention that were incompatible with the right to physical and mental integrity required under article 17 CRPD. However, they were not enough to amount to a breach of article 15. The Committee ‘recalled’ that failure to adopt relevant measures and to provide sufficient reasonable accommodation required by persons with disabilities deprived of their liberty could constitute a breach of article 15(2)’, but on that occasion it considered there was not enough evidence to demonstrate a breach.249 This leaves open the possibility that in future cases failure to make accommodations might reach the level of severity to breach article 15 CRPD.
In Noble v Australia250 the Committee did find a breach of article 15(2) CRPD in relation not to the conditions under which Mr Noble was detained but the psychological consequences of indeterminate and potentially infinite detention. At age nineteen Mr Noble had been arrested and charged with sexual offences, including penetration of a child under thirteen. He was declared unfit to stand trial because of his mental and intellectual disability and was subjected to a custody order. He had no opportunity to plead not guilty and the court made no finding of guilt. He remained in detention for nine years.251 The Committee concluded that articles 12 and 13 CRPD had been breached as he had been denied the right to legal capacity and had not been provided with adequate support or accommodation to ensure effective access to justice and a fair trial.252 The fact that he had not been tried and convicted, but detained on the basis of the state References(p. 465) authorities’ assessment of the potential consequences of his intellectual disability, converted his disability into the core cause of his detention. This meant there was also a breach of the requirement in article 14(1)(b) that ‘the existence of a disability shall in no case justify a deprivation of liberty’. The Committee noted that Mr Noble had been detained for more than thirteen years in total without any indication of the duration of his detention and took into account the irreparable psychological damage that indefinite detention may have on a detained person. It concluded that the indefinite detention to which the author of the complaint was subjected amounted to inhuman and degrading treatment in violation of the Convention. In this case the Committee linked infringements of articles 12, 13, and 14 to a breach of article 15. Indefinite detention in breach of articles 12, 13, and 14 may produce sufficiently serious effects to amount to inhuman and degrading treatment.
1 Arlene Kanter, The Development of Disability Rights under International Law: From Charity to Human Rights (Routledge 2014) 159–200, 159; see also János Fiala-Butora, ‘Disabling Torture: The Obligation to Investigate Ill-treatment of Persons with Disabilities’ (2013) 45 Columbia Human Rights Law Review 214.
7 Soering v United Kingdom (1989) 11 EHRR 439. In Assenov v Bulgaria (1999) 28 EHRR 652, para 102, the Strasbourg Court held that ‘where an individual raises an arguable claim that he has been seriously ill-treated by the police or other such agents of the State unlawfully and in breach of Article 3, that provision, read in conjunction with the State’s general duty under Article 1 of the Convention to ‘secure to everyone within their jurisdiction the rights and freedoms defined in … [the] Convention’, requires by implication that there should be an effective official investigation. This investigation, as with that under Article 2, should be capable of leading to the identification and punishment of those responsible. In Z v United Kingdom (2001) 34 EHRR 97 at para 73, the Court held that Art 3, requires states to take measures designed to ensure that individuals within their jurisdiction are not subjected to torture or inhuman or degrading treatment, including such ill-treatment administered by private individuals. These measures should provide effective protection, in particular, of children and other vulnerable persons and include reasonable steps to prevent ill-treatment of which the authorities had or ought to have had knowledge.
8 Furundžija case (n 4) para 148, based on Soering v United Kingdom (1989) 11 EHRR 439.
9 Art 4 of CAT requires states to take effective measures to prevent torture and other cruel, inhuman, or degrading treatment or punishment from being practised within their jurisdiction. See also in the disability context the decision of the European Court of Human rights in Bures v Czech Republic  ECHR 1819 para 81, and in the policing context Cestaro v Italy Judgment of 7 April 2015  ECHR 352 paras 231 and 243–46.
10 HRCtee, ‘General Comment 20 Article 7 General comment No 20: Article 7 (Prohibition of Torture, or other Cruel, Inhuman or Degrading Treatment or Punishment)’ UN Doc HRI/GEN/1/Rev.9 (Vol. I) (27 May 2008) para 2.
11 Interim Report of the UN Special Rapporteur on Torture Manfred Nowak UN Doc A/63/175 (28 July 2008) para 51, where Mr Nowak said that the prohibition against torture relates not only to public officials, such as law enforcement agents in the strictest sense, but may apply to doctors, health professionals, and social workers, including those working in private hospitals, other institutions, and detention centres. See also General Comment No 2 (2008) of the Committee against Torture on the implementation of article 2 of the Convention UN Doc CAT/C/GC/2 (24 January 2008) para 17. This point had also been emphasized in Special Rapporteur Nowak’s January 2008 Report to the Human Rights Council UN Doc A/HRC/7/3 (15 January 2008) para 31. Also in Report of the Special Rapporteur on Torture, UN Doc A/HRC/22/53 (1 February 2013) para 24, Juan E Mendez re-emphasised that ‘As underlined by the Committee against Torture, the prohibition of torture must be enforced in all types of institutions and States must exercise due diligence to prevent, investigate, prosecute and punish violations by non-State officials or private actors.’ See also the Committee on the Elimination of Discrimination against Women in da Silva Pimentel v Brazil Communication No 17/2008, para 7.5, and the Inter-American Court of Human rights in Ximenes Lopes v Brazil (Series C) No 149 (2006) paras 103, 150.
12 Janet E Lord, ‘Shared Understanding or Consensus Masked Disagreement? The Anti-Torture Framework in the Convention on the Rights of Persons with Disabilities’ (2010–11) 33 Loy L A Int’l & Comp Law Rev 27, 41.
14 Kanter (n 1) 160.
15 Gerard Quinn ‘Liberation, Cloaking Devices and the Law: A Personal Reflection on the Law and Theology of Article 12 of the UN CRPD’ (Rights & Enforcement—The Next Steps. BCNL Conference, Sofia, 16 October 2013), available at: <http://studylib.net/doc/14435705/’liberation--cloaking-devices-and-the-law>.
16 Old paradigm rights are exemplified in the European Agency for Fundamental Rights survey Involuntary Placement and Involuntary Treatment of Persons with Mental Health Problems June 2012, available at: <http://fra.europa.eu/en/publication/2012/involuntary-placement-and-involuntary-treatment-persons-mental-health-problems>; Peter Bartlett, ‘The UN Convention on the Rights of Persons with Disabilities and Mental Health Law’ (2012) 75 Modern Law Review, 752–78; Peter Bartlett, ‘Implementing a Paradigm Shift: Implementing the Convention on the Rights of Persons with Disabilities in the Context of Mental Disability Law’ in Centre for Human Rights and Humanitarian Law, Torture in Healthcare Settings: Reflections on the Special Rapporteur on Torture’s 2013 Thematic Report (American University Washington College of Law 2014) 169–81; Philip Fennell and Urfan Khaliq, ‘Conflicting or Complementary Obligations? The UN Disability Rights Convention, the European Convention on Human Rights and English Law’ (2011) 6 European Human Rights Law Review 662–74; János Fiala-Butora, ‘Disabling Torture: The Obligation to Investigate Ill-treatment of Persons with Disabilities’ (2013) 45 Columbia Human Rights Law Review 21; Tina Minkowitz, ‘The United Nations Convention on the Rights of Persons with Disabilities and the Right to be Free from Non-Consensual Psychiatric Interventions’ (2006–07) 34 Syracuse J Int’l L & Com 405; Tina Minkowitz, ‘A Response to the Report by Juan E Méndez, Special Rapporteur on Torture, Dealing with Torture in the Context of Health Care, as it Pertains to Non-consensual Psychiatric Interventions’ in Centre for Human Rights and Humanitarian Law, Torture in Healthcare Settings: Reflections on the Special Rapporteur on Torture’s 2013 Thematic Report (American University Washington College of Law 2014) 227–46. Minkowitz describes how the ‘new paradigm’ effectively came together at the Working Group on the Convention in January 2004, see Tina Minkowitz, ‘CRPD and Transformative Equality’ (2017) 13(1) International Journal of Law in Context 77–86.
17 Lord (n 12) 43.
18 Kanter (n 1) 180.
19 Ad Hoc Committee, 29 July–9 August 2002 Comprehensive and integral international convention to promote and protect the rights and dignity of persons with disabilities Working paper by Mexico UN Doc A/AC.265/WP.1 (2002), available at: <http://www.un.org/esa/socdev/enable/rights/adhoccom.htm> (accessed 20 October 2017).
20 Session 2 Ad Hoc Committee New York, 16–27 June 2003 Ad Hoc Committee Report UN Doc A/58/118 & Corr 1 ( 3 July 2003); Ferrajolo, J Article 34 (Committee on the Rights of Persons with Disabilities), in Valentina Della Fina, Rachele Cera, Giuseppe Palmisano (eds), The United Nations Convention on the Rights of Persons with Disabilities (Springer 2017) 607–34, at 611.
21 Bangkok recommendations on the elaboration of a comprehensive and integral international convention to promote and protect the rights and dignity of persons with disabilities, in UN Doc A/AC265/2003/CRP/10 (2003) para 29(c).
24 Theresia Degener and Anne Begg, ‘From Invisible Citizens to Agents of Change: A Short History of the Struggle for the Recognition of the Rights of Persons with Disabilities at the United Nations’ in Fina et al (n 20) 1, 20.
25 EU Proposal for the text of an International Convention on the Full and Equal Enjoyment of all Human Rights and Fundamental Freedoms by Persons with Disabilities, available at: <https://www.un.org/esa/socdev/enable/rights/wgcontrib-EU.htm> (accessed 20 October 2017).
26 Proposed Elements of a Comprehensive and Integral international Convention on the Protection and Promotion of the Rights and Dignity of persons with Disabilities October 2003, available at: <https://www.un.org/esa/socdev/enable/rights/bangkokdraft.htm>.
28 Degener and Begg (n 24) 21.
31 Daily Summary related to Draft Article 11 Freedom from Torture or Cruel, Inhuman or Degrading Treatment or Punishment (14 January 2004), Prepared by Landmine Survivors Network, available at: <https://www.un.org/esa/socdev/enable/rights/wgsuma11.htm>.
32 Degener and Begg (n 24) 21; Report of the third session of the Ad Hoc Committee UN Doc A/AC265/2004/5 (2004).
34 Contributions submitted by Governments in electronic format at the Fourth Session Proposed Modifications to Draft Article 11, available at: <http://www..un.org/esa/socdev/enable/rights/ahc4da11.htm>.
36 ‘Daily summary of discussions related to Article 11 (Freedom from Torture or Cruel, Inhuman or Degrading Treatment or Punishment)’, Fourth session of the Ad Hoc Committee—Daily Summary by Landmine Survivors Network Vol 5 No 4 (26 August 2004), available at: <https://www.un.org/esa/socdev/enable/rights/ahc4sumart11.htm>.
39 Seventh Session of the Ad Hoc Committee (16 January–3 February 2006), available at: <https://www.un.org/esa/socdev/enable/rights/ahc7.htm>. The Sixth session of the Ad Hoc Committee (1–12 August 2005) focused on Articles 15–25 of the Working Group Draft, and there was no discussion of the anti-torture provision Report of the Ad Hoc Committee sixth session UN Doc A/60/266 (17 August 2005).
40 Seventh Session of the Ad Hoc Committee 16 January–3 February 2006, available at: <https://www.un.org/esa/socdev/enable/rights/ahc7.htm>; Comments, proposals, and amendments submitted electronically, available at: <https://www.un.org/esa/socdev/enable/rights/ahcstata15sevscomments.htm>. Chair’s Working Text for the seventh session of the Ad Hoc Committee, available at: <https://www.un.org/esa/socdev/enable/rights/ahcstatachairstxt.htm>.
41 Comments, proposals and amendments submitted electronically Intervention of the International Disability Caucus para 2, available at: <https://www.un.org/esa/socdev/enable/rights/ahcstata15sevscomments.htm>.
43 ibid, see also Lord (n 12) 48.
44 Fourth Session comments submitted electronically on Article 14, available at: <https://www.un.org/esa/socdev/enable/rights/ahcstata14fscomments.htm>. See also report of the Co-ordinator to the Fifth Session. For detailed discussion on the Union’s role in the negotiation process, see Grainne De Búrca, ‘The European Union in the Negotiation of the UN Disability Convention’ (2010) 35 European Law Review 174.
45 Seventh Session Comments and Proposals Submitted Electronically on Article 14 Liberty and Security of the Person, available at: <https://www.un.org/esa/socdev/enable/rights/ahcstata14sevscomments.htm#china>.
46 8th Session Final report of the Ad Hoc Committee eighth session UN Doc A/61/611 (14–25 August and 5 December 2006). Also referred to in Interim Report of the UN Special Rapporteur on Torture Manfred Nowak UN Doc A/63/175 (28 July 2008) para 64.
47 Comments on Article 17 at the Seventh Session, available at: <https://www.un.org/esa/socdev/enable/rights/ahcstata17sevscomments.htm#idc>.
48 See (n 47); IDC, ‘A Way Forward Respecting Human Dignity’, available at: <https://www.un.org/esa/socdev/enable/rights/ahc8contngos.htm>.
50 Comments, Proposals, and Amendments Submitted Electronically, Seventh Session, Article 17 IDC Submission, available at: <https://www.un.org/esa/socdev/enable/rights/ahcstata17sevscomments.htm>.
51 Degener and Begg (n 24) 33.
52 This is discussed in Minkowitz (n 23).
53 Lord (n 12) 43.
54 Declaration entered on ratification by Australia, available at: <https://treaties.un.org/pages/ViewDetails.aspx?src=IND&mtdsg_no=IV-15&chapter=4&clang=_en#EndDec>. Notwithstanding the nomenclature used, such statements are of course reservations as defined by Art 2(1)(d) VCLT.
59 Council of Europe Committee of Ministers Recommendations on Principles concerning the Legal Protection of Incapable Adults (R(99)4), available at: <http://www.coe.int/t/dg3/healthbioethic/texts_and_documents/Rec%2899%294E.pdf>.
60 Council of Europe Recommendation of the Committee of Ministers to Member States concerning the protection of the human rights and dignity of persons with mental disorder Rec (2004)10, available at: <https://www.coe.int/t/dg3/healthbioethic/Activities/08_Psychiatry_and_human_rights_en/Rec(2004)10%20EM%20E.pdf>.
64 Recommendation No Rec (2004) 10 of the Committee of Ministers of the Council of Europe concerning the protection of the human rights and dignity of persons with mental disorder (adopted on 22 September 2004).
67 eg in Shtukatorow v Russia (2008) ECHR 223 para 47, the applicant was declared fully incapacitated under Art 29 of the Civil Code of the Russian Federation of 1994 and placed in the care of a guardian with the effect that all legal transactions had to be carried out by the guardian. In Stanev v Bulgaria  ECHR 46, the applicant was declared partly incapacitated under s 5 of the Persons and Family Act of 1949 which allows for a person who is unable to look after their own interests on account of mental illness or mental deficiency must be entirely deprived of legal capacity and placed under plenary guardianship and adults with milder forms of disability were ‘partially incapacitated’ and placed under partial guardianship. These and other cases are discussed further below.
68 See Matter v Slovakia (1999) ECHR 38; Shtukaturov v Russia  ECHR 223; Stanev v Bulgaria  ECHR 46; DDV Lithuania  ECHR 254; Kędzior v Poland  ECHR 1809; Mihailovs v Latvia  ECHR 65 all provide examples of cases where such guardianship laws were at issue. See Lucy Series, Phil Fennell, and Julie Doughty, The Participation of P in Welfare Cases in the Court of Protection (2017) Section 2, available at: <http://sites.cardiff.ac.uk/wccop/new-research-report-the-participation-of-p-in-welfare-cases-in-the-court-of-protection/>.
69 Shtukatorow v Russia (n 68) para 89.
77 ‘Interim Report of the Special Rapporteur on Torture and other Cruel Inhuman or Degrading treatment or Punishment’ (Manfred Nowak) UN Doc A/63/175 (28 July 2008) para 47; on this see also Tina Minkowitz, ‘The United Nations Convention on the Rights of Persons with Disabilities and the Right to be Free from Non-Consensual Interventions’ (2004–2005) 34 Syracuse J Int’l L and Com 405.
78 Nowak Report (n 77) para 50.
79 Nowak Report (n 77) para 65.
86 Torture in Healthcare Settings; Reflections on the Special Rapporteur on Torture’s 2013 Thematic Report’ (n 16) 144–45.
87 ibid 143.
89 ‘Report of the Special Rapporteur (Anand Grover) on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health, Informed Consent’ UN Doc A/64/272 (10 August 2009) paras 9 and 18.
90 CPT Standards Involuntary placement in psychiatric establishments (2017), available at: <http://www.coe.int/en/web/cpt/standards#psychiatry-social>, para 41.
92 Association for the Prevention of Torture, ‘Torture in International Law: A Guide to Jurisprudence’, available at: <http://www.apt.ch/content/files_res/jurisprudenceguide.pdf>; Steven Dewulf, The Signature of Evil: (Re)defining Torture in International Law (Intersentia 2011); Malcolm D Evans, ‘Getting to Grips with Torture’ (2002) 51 ICLQ 365. Juan E Mendez and Andrea Nicolessa, ‘Evolving Standards for Torture in International Law’ in Metin Başoğlu (ed), Torture and Its Definition in International law: An Interdisciplinary Approach (OUP 2017) 215–46; Nicholas Svenass, ‘The United Nations Convention against Torture and Other Cruel Inhuman or Degrading Treatment: The Absolute Prohibition and the Obligation to Prevent in Metin Başoğlu’, ibid 247–72; Yuval Ginbar ‘Making Human Rights Sense of the Torture Definition’, in Başoğlu, ibid 273–14; Lisa Davies ‘The Gendered Dimension of Torture, Rape, and other forms of Gender Based Violence under International Law’ in Başoğlu, ibid 315–71; Manfred Nowak and Elizabeth McArthur, The United Nations Convention Against Torture A Commentary: Oxford Commentaries on International Law (OUP 2008); David Luban, Torture, Power and Law (CUP 2014); OHCHR, Interpretation of Torture in the Light of the Practice and Jurisprudence of International Bodies, available at: <http://www.ohchr.org/Documents/Issues/Torture/UNVFVT/Interpretation_torture_2011_EN.pdf>. OHCHR, Istanbul Protocol Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, available at: <http://www.ohchr.org/Documents/Publications/training8Rev1en.pdf>. OHCHR, Preventing Torture: An Operational Guide for National Human Rights Institutions, available at: <http://www.ohchr.org/Documents/Countries/NHRI/Torture_Prevention_Guide.pdf>.
94 UN Special Rapporteur for the Commission on Human Rights Report of 3 July 2001 to the General Assembly on the question of torture and other cruel, inhuman or degrading treatment or punishment UN Doc A/56/156 (3 July 2001) paras 3 and 7.
98 Cestaro v Italy (n 9) para 171.
106 Mendez Report (n 11) para 54.
114 Nowak Report (n 11) para 47.
115 eg CRPD Committee, ‘Concluding Observations on Chile’ UN Doc CRPD/C/CHL/CO/1(13 April 2016) para 33; Serbia, UN Doc CRPD/C/SRB/CO/ (23 May 2016) para 37; Slovakia UN Doc CRPD/C/SVK/CO/1 (17 May 2016) paras 45–46; Uganda, UN Doc CRPD/C/UGA/CO/1 (12 May 2016) paras 28–29, see also MDAC, ‘Psychiatric Hospitals in Uganda: A Human Rights investigation (2014), available at:
<http://www.mdac.org/sites/mdac.info/files/psyciatric_hospitals_in_uganda_human_rights_investigation.pdf>; Kenya UN Doc CRPD/C/KEN/CO/1 (30 September 2015) paras 29–30; Brazil UN Doc CRPD/C/BRA/CO/1 (29 September 2015) para 29; Republic of Korea UN Doc CRPD/C/KOR/CO/1 (20 October 2014) para 29; Concluding observations on the initial report of Croatia UN Doc CRPD/C/HRV/CO/1 (15 May 2015) para 23 ‘frequent use of involuntary treatment and restraint measures’ amounting to degrading treatment’.
118 Stanev v Bulgaria para 203; see also Keenan v United Kingdom (n 113) para 110 and Jalloh v Germany (2007) 44 EHRR 32 para 68; Price v United Kingdom  ECHR 453, para 30.
119 Price v United Kingdom (n 118) para 30.
120 Janet E Lord, ‘Shared Understanding or Consensus Masked Disagreement? The Anti-Torture Framework in the Convention on the Rights of Persons with Disabilities’ 33 Loy L A Int’l & Comp Law Rev 27–81 2010–2011 54.
122 ICTY Prosecutor v Kunarac (n 118) para 148.
124 In Hajrizi and Others v Serbia and Montenegro Com No 161/2000 CAT Doc CAT/C/29/D/161/2000 (21 November 2002) a civilian pogrom against Roma people in Yugoslavia that was tolerated by the police was held to constitute CIDTP.
125 HLR v France (1997) 26 EHRR 29 para 40; Costello Roberts v United Kingdom (1993) 19 EHRR 112 paras 27–28; A v United Kingdom (1998) 27 EHRR 611 para 22; Z v United Kingdom (2001) 34 EHRR 97 para 73.
127 Mendez Report (n 11) para 24.
129 Mendez Report (n 11) para 22.
130 Nowak report 2008 (n 11) paras 38–41.
134 CRPD Committee, ‘Concluding Observations on the Initial Report of Morocco’ UN Doc CRPD/C/MAR/CO/1 (25 September 2015) paras 32–33; Uganda UN Doc CRPD/C/UGA/CO/1 (12 May 2016) para 28; Kenya UN Doc CRPD/C/KEN/CO/1 (30 September 2015) paras 29–30; El Salvador UN Doc CRPD/C/SLV/CO/1 (8 October 2014) para 34; Turkmenistan UN Doc CRPD/C/TKM/CO/1 (13 May 2015) paras 27–28.
135 CRPD Committee, ‘Concluding Observations on the Initial Report of the United Arab Emirates’ UN Doc CRPD/C/ARE/CO/1 (2 October 2016) para 30; Italy UN Doc CRPD/C/ITA/CO/1(6 October 2016) para 40; Costa Rica UN Doc CRPD/C/CRI/CO/1 (12 May 2014) para 31 (in this case the Committee regretted the progress made towards the passage of legislation to authorize research carried out with the consent of guardians).
139 Furundžija (n 4), para 148.
140 Soering v United Kingdom (1989) 11 EHRR 439. In Assenov v Bulgaria (1999) 28 EHRR 652 para 102, the Strasbourg Court held that ‘where an individual raises an arguable claim that he has been seriously ill-treated by the police or other such agents of the State unlawfully and in breach of Article 3, that provision, read in conjunction with the state’s general duty under Art 1 of the Convention to “secure to everyone within their jurisdiction the rights and freedoms defined in … [the] Convention”, requires by implication that there should be an effective official investigation. This investigation, as with that under Article 2, should be capable of leading to the identification and punishment of those responsible.’ In Z v United Kingdom (n 27) para 73, the Court held that Art 3 ECHR, requires states to take measures designed to ensure that individuals within their jurisdiction are not subjected to torture or inhuman or degrading treatment, including such ill-treatment administered by private individuals. These measures should provide effective protection, in particular, of children and other vulnerable persons and include reasonable steps to prevent ill-treatment of which the authorities had or ought to have had knowledge.
141 Furundžija (n 4).
142 Art 4 CAT requires states to take effective measures to prevent torture and other cruel, inhuman or degrading treatment or punishment from being practised within their jurisdiction. See also in the disability context the decision of the ECtHR in Bures v Czech Republic  ECHR 1819 para 81, and in the policing context Cestaro v Italy (n 9) paras 231 and 243–46.
144 Bures v Czech Republic (n 144) para 81.
146 Nowak Report July 2008 (n 11) para 63.
149 CRPD Committee, ‘Concluding Observations on Serbia’ UN Doc CRPD/C/SRB/CO/1 (23 May 2016) paras 27–28; CRPD Committee, ‘Concluding Observations on the Initial Report by Slovakia’ UN Doc CRPD/C/SVK/CO/1 (17 May 2016) paras 45–46; CRPD Committee, ‘Concluding Observations on the Initial Report by Uganda’ paras 28–29; CRPD Committee, ‘Concluding Observations on the Initial Report by Kenya’ UN Doc CRPD/C/KEN/CO/1 (30 September 2015) paras 29–30.
150 CRPD Committee, ‘Concluding observations on Initial Report of Brazil’ UN Doc CRPD/C/BRA/CO/1 (29 September 2015) para 29. CRPD Committee, ‘Concluding Observations on the Initial Report by Korea’ (n 196) para 29; CRPD Committee, ‘Concluding Observations on the Initial Report of Croatia’ UN Doc CRPD/C/HRV/CO/1 (15 May 2015) para 23 ‘frequent use of involuntary treatment and restraint measures’ amounting to degrading treatment.
159 Council of Europe Assembly Doc 1949, 90 at 235, European Commission on Human Rights preparatory Work on Article 3 of the European Convention on Human Rights DH(56)5 22 May 1956, available at: <http://www.echr.coe.int/LibraryDocs/Travaux/ECHRTravaux-ART3-DH(56)5-EN1674940.pdf 2>.
161 Mendez Report (n 11) para 69.
166 ibid para 119; see also <http://www.humanrightseurope.org/2011/11/sterilised-roma-woman-wins-human-rights-appeal/>.
167 NB v Slovakia (2012) ECHR 991 para 78; IG v Slovakia (n 165) para 123.
168 IG v Slovakia (n 163).
169 Mendez Report 2013 (n 11) paras 45–50.
173 Stern (n 158) 1128, 1129–30.
174 See eg IG v Slovakia (n 163) and other cases discussed in further detail below.
176 Tamil Kendall and Claire Albert, ‘Experiences of Coercion to Sterilize and Forced Sterilization Among Women Living with HIV in Latin America’ 2015 18 Journal of the International AIDS Society 194.
178 FIGO Committee for the Study of Ethical Aspects of Human Reproduction and Women’s Health, ‘Ethical Issues in Obstetrics and Gynaecology’ at 123, available at: <https://www.figo.org/sites/default/files/uploads/wg-publications/ethics/English%20Ethical%20Issues%20in%20Obstetrics%20and%20Gynecology.pdf>.
186 CRPD Committee, ‘Concluding Observations on the Initial Report of the Czech Republic’ UN Doc CRPD/C/CZE/CO/1 (15 May 2015) paras 36 and 37; CRPD Committee, ‘Concluding Observations on the Initial Report of Germany’ paras 37 and 38; CRPD Committee, ‘Concluding Observations on the Initial Report of Croatia’ paras 27–28; CRPD Committee, ‘Concluding Observations on the Initial Report of Mongolia’ UN Doc CRPD/C/MNG/CO/1 (13 May 2015) paras 28–29; Turkmenistan paras 31–32; CRPD Committee, ‘Concluding Observations on the Initial Report of Mauritius’ UN Doc CRPD/C/MUS/CO/1 (30 September 2015) paras 29–30; CRPD Committee, ‘Concluding Observations on the Initial Report of Ukraine’ UN Doc CRPD/C/UKR/CO/1 (2 October 2015) paras 34–35.
203 Phil Fennell, Treatment without Consent: Law Psychiatry and the Treatment of Mentally Disordered People Since 1845 (Routledge 1994) 81. The State of Alberta passed a five section Sexual Sterilization Act in 1928.
204 The Alberta Law Collection, available at: <http://www.ourfutureourpast.ca/law/page.aspx?id=2906151> s 4.
206 Available at: <http://eugenicsarchive.ca/database/documents/5172e81ceed5c6000000001d>. See Also Timothy J Christian and Burke M Barker, The Mentally Ill and Human Rights in Alberta: A Study of the Alberta Sexual Sterilization Act (University of Alberta Faculty of Law 1973).
210 CPT Standards ‘Involuntary Placement in Psychiatric Establishments’, available at: <https://rm.coe.int/16806cd43e> CPT/Inf(98) para 39.
211 See also World Health Organization Resource Book on Mental Health Human Rights and Legislation (WHO Geneva 2005, now withdrawn) at 64 stating that: ‘ECT has been and continues to be used in many countries for certain mental disorders. If ECT is used, it should only be administered after obtaining informed consent, and it should only be administered in modified form, ie with the use of anaesthesia and muscle relaxants. The practice of using unmodified ECT should be stopped.’
212 Nowak Report (n 11) para 61.
215 Report of the Special Rapporteur on Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, Juan E Mendez, to the Human Rights Council UN Doc A/HRC/22/53 (1 February 2013) para 63; Nowak Report (n 11) paras 55–56.
219 CRPD Committee, Concluding Observations on the Initial report of Slovakia’ paras 43–44; CRPD Committee, ‘Concluding Observations on the initial Report of the Czech Republic’ paras 31–33; CRPD Committee, ‘Concluding Observations on the Initial Report of Australia’ paras 33 and 34.
220 Mental Disability Advocacy Centre, Caged Beds: Inhuman or Degrading Treatment or Punishment in Four EU Accession States, available at: <http://www.mdac.org/sites/mdac.org/files/English_Cage_Beds.pdf>.
221 Mental Disability Advocacy Centre Report on the Use of Caged Beds in the Czech Republic (2014), available at: <http://www.mdac.info/sites/mdac.info/files/cagebed_web_en_20140624_0.pdf>.
225 Mental Disability Advocacy Centre Report (n 223) 5.
234 Mendez Report (n 11) paras 40–2.
238 ‘Chinese Man Forced to Undergo Gay Conversion Therapy in Mental Hospital Wins Lawsuit’ The Independent (4 July 2004); see also Human Rights Watch, available at: <https://www.hrw.org/news/2017/07/10/china-court-rules-against-forced-conversion-therapy>.
240 Keenan v United Kingdom (n 113).
242 Nevmerzhitsky v Ukraine (n 112) para 80.
243 Mendez Report (n 11) para 54.
247 Nevmerzhitsky v Ukraine (n 112) para 80.
248 Price v United Kingdom (n 120) para 30.
250 Noble v Australia (n 82).