The
adoption of the Convention on the Rights of Persons with Disabilities (CRPD) is
re-configuring the interpretation of human rights law within the United Nations
human rights system, which has long relegated persons with disabilities to the
margins or ignored disability within the human rights framework. Juan Méndez, the
Special Rapporteur on torture and other cruel, inhuman or degrading treatment
or punishment, released a report on 1
February 2013, identifying abuses in health care settings that may constitute torture
or inhuman treatment. Although the
report breaks some new ground, it also leaves important questions unanswered.
The Special Rapporteur proposes a review of the
anti-torture framework, using the CRPD, and examining the context of the rights
of persons with disabilities in health care settings. The report further calls for an absolute ban
on all forced and non-consensual medical interventions against persons with
disabilities, including psychosurgery, electroshock, mind-altering drugs, and
the use of restraint and solitary confinement. The report asserts that States
Parties have an obligation to end forced psychiatric interventions immediately,
and that scarce financial resources cannot justify postponement.
The Special
Rapporteur’s report emphasizes the
right to community living for persons with disabilities, respecting the
autonomy, choices, dignity and privacy of the person involved. It notes the importance of emphasizing
alternatives to the medical model of mental health, including peer support,
awareness-raising, and training of mental health care officials, law
enforcement personnel, and others. Finally, the report
recommends the amendment of laws that permit detention in mental health facilities
as well as the use of coercive interventions without informed consent. Legislation
authorizing the institutionalization of persons with disabilities without their
free and informed consent must be abolished.
While focusing primarily on abuse
perpetrated against persons with psychosocial disabilities in health care
settings, the report could have been more explicit in explaining that persons
with a wide variety of disabilities experience this kind of abuse. Persons with physical, sensory, and
psychosocial disabilities are often detained in institutions under the guise of
“health care” or “care” and are subjected to much of the same cruel, inhuman,
and degrading treatment. Additionally,
conditions in such institutions often lead to secondary disabilities. For example, a child with a physical or
sensory disability who is institutionalized in an orphanage may acquire a
psychosocial disability as a result. For
over 15 years, Disability Rights International (DRI) has carefully documented
human rights abuses perpetrated against persons with disabilities in
institutional settings around the world.
Recent work by DRI also raises an issue overlooked in the Special
Rapporteur’s report, namely, the link between disability and human trafficking. DRI cited a case in Guatemala, demonstrating
that women in a psychiatric hospital were routinely trafficked across the
street into a male prison for the purpose of exploitation.
There
are some aspects of the Special Rapporteur’s report that fail to evoke the new
paradigm reflected in the CRPD. In categorizing persons with disabilities as
“suffering from illness,” the Special Rapporteur to some extent perpetuates an
outmoded framing of disability. This
should not, however, detract from the significant step of stating, unequivocally,
that various forms of treatment of persons with disabilities around the world constitute
human rights abuses and often amount to torture. The effective transition of persons with
disabilities from institutions to healthy and supportive community-based living
arrangements remains a significant responsibility of the disability and human
rights community.
Please see Human Rights. Yes! Action and Advocacy
on the Rights of Persons with Disabilities for
an overview of the CRPD torture prohibition, as well as participatory exercises
related to torture and access to health care in disability contexts.
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