On 1 February 2013, the UN Special Rapporteur, Juan E. Méndez, reported to the Human Rights Council on forms of abuse in healthcare settings which may give rise to breaches of Article 3 ECHR. His report is available here.
Whilst the report is of sufficient interest to warrant reading in full, some of the key points arising are the following:
- The report acknowledges that the conceptualisation of abuses in healthcare settings as torture or ill-treatment is a relatively new phenomenon and that this type of abuse presents particular challenges as actions may be defended on grounds of administrative efficiency, behaviour modification or medical necessity. However, ensuring special protection of minority and marginalised groups and individuals is a critical component of the State‟s obligation to prevent torture and ill-treatment;
- The report emphasises the importance of informed consent and the intimate link between forced medical interventions based on discrimination and the deprivation of legal capacity. It reiterates the observation of the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health, that "informed consent is not mere acceptance of a medical intervention, but a voluntary and sufficiently informed decision. Guaranteeing informed consent is a fundamental feature of respecting an individual‟s autonomy, self-determination and human dignity in an appropriate continuum of voluntary health-care services". The formal recommendations include ensuring that the importance of informed consent is communicated through training doctors, judges, prosecutors and the police.
- Torture presupposes a situation of powerlessness – deprivation of legal capacity is one such circumstance. Medical treatments of an intrusive and irreversible nature when lacking a therapeutic purpose may constitute torture or ill-treatment when enforced or administered without the free and informed consent of the person concerned. "This is particularly the case when intrusive and irreversible, non-consensual treatments are performed on patients from marginalized groups, such as persons with disabilities, notwithstanding claims of good intentions or medical necessity."
Different forms of abuse in health care settings have been recognised in the context of:
- Compulsory detention in rehabilitation centres including compulsory treatment centres that consist primarily of physical discipline;
- Abuses of reproductive rights (genetic testing, access to abortion);
- Denial of pain treatment – whilst this often involves acts of omission rather than commission, the failure to ensure access to controlled medicines for the relief of pain and suffering threatens fundamental rights to health and to protection against cruel, inhuman and degrading treatment. Governments must guarantee essential medicines – which include, among others, opioid analgesics – as part of their minimum core obligations under the right to health, and take measures to protect people under their jurisdiction from inhuman and degrading treatment;
- People with severe psychosocial disabilities who continue to be victims of neglect, mental and physical abuse and sexual violence.
A number of steps are recommended by the Special Rapporteur and the formal recommendations are set out at pages 21-23 of the report. In summary, these include taking steps to promote rights through:
- the introduction of a new normative framework which looks specifically at the measures needed to prevent torture and ill-treatment against people with disabilities;
- an absolute ban on restraints and seclusion - there can be no therapeutic justification for the use of solitary confinement and prolonged restraint of persons with disabilities in psychiatric institutions;
- revision of domestic legislation allowing forced interventions in the context of an individual‟s best interests - to the extent that they inflict severe pain and suffering, they violate the absolute prohibition of torture and cruel, inhuman and degrading treatment
- ensuring full respect of each person‟s legal capacity; and
- an examination of the practices of involuntary commitment in psychiatric institutions – inappropriate or unnecessary non-consensual institutionalisation of individuals may amount to torture or ill treatment as use of force beyond that which is strictly necessary.