![Sample our Politics & International Relations journals, sign in here to start your FREE access for 14 days]({"type":"image" , "src" : "/sda/5947/TOC-Subject-Sample-2021-Politics-International-Relations.jpg"})
Abstract
This article considers the implications of the United Nations Convention on the Rights of Persons with Disabilities (CRPD) on the inspection standards of human rights monitoring bodies such as the Council of Europe's (COE) Committee on the Prevention of Torture (CPT). It will be suggested that the standards of human rights monitoring bodies such as the CPT need to be reformulated to reflect the human rights of persons with disabilities as articulated in the CRPD and in particular the ‘paradigm shift’ in thinking on legal capacity as set out in Article 12. Inspection standards should examine detention of persons with disabilities as an unjustifiable interference with their legal capacity. The article argues that the CPT should further embed the right to independent living and inclusion in the community in their standards in line with Article 19 of the CRPD. Article 12 of the CRPD requires a move away from guardianship and detention in institutions towards a supported decision-making model that facilitates persons with disabilities in exercising their legal capacity. It is argued that the standards need to reflect the supported decision-making approach as the European Court of Human Rights through its case law is edging towards an interpretation of legal capacity in line with Article 12 of the CRPD. The article also discusses the trend in other regional human rights systems such as the Organization of American States (OAS) towards the supported decision-making model. It will be contended that involuntary detention and treatment of persons with mental health problems is inconsistent with the CRPD and that the CPT and similar bodies have a role in directing states away from this form of substitute decision-making towards supported decision-making models that comply with international human rights law.
Notes
The views expressed in this article are the author's own.
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.
Interim Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Juan Mendez), UN doc. A/66/268, 5 August 2011. Importantly, the Special Rapporteur found that where physical conditions and solitary confinement cause severe mental and physical pain or suffering (when used as a punishment, during pre-trial detention, indefinitely, prolonged) on juveniles or persons with mental disabilities, it can amount to cruel, inhuman or degrading treatment or punishment and even torture. He also found that the use of solitary confinement increases the risk that acts of torture and other cruel, inhuman or degrading treatment or punishment will go undetected and unchallenged.
For recent discussion on these themes see the publications of the European Union Agency for Fundamental Rights, Involuntary Placement and Involuntary Treatment of Persons with Mental Health Problems (Vienna: FRA – European Union Agency for Fundamental Rights, 2012); and Choice and Control: The Right to Independent Living Experiences of Persons with Intellectual Disabilities and Persons with Mental Health Problems in Nine EU Member States (Vienna: FRA – European Union Agency for Fundamental Rights, 2012). See also The European Union and the Right to Community Living Structural Funds and the European Union's Obligations under the Convention on the Rights of Persons with Disabilities (New York: Mental Health Initiative Open Society Public Health Program, Open Society Foundations, May 2012).
See Rannveig Traustadóittir, ‘Disability Studies, the Social Model and Legal Developments’, in The UN Convention on the Rights of Persons with Disabilities: European and Scandinavian Perspectives, ed. Oddný Mjöll Arnardóttir and Gerard Quinn (Leiden: Martinus Nijohoff, 2009), 3; Colin Barnes, ‘A Legacy of Oppression: A History of Disability in Western Culture’, in Disability Studies: Past, Present and Future, ed. Len Barton and Mike Oliver (Leeds: The Disability Press, 1997), 324; Colin Barnes, Mike Oliver and Len Barton, eds, Disability Studies Today (Cambridge: Polity, 2002); Douglas Baynton, ‘Disability as a Useful Category of Historical Analysis’, Disability Studies Quarterly 17 (1997): 85; Gerard Goggin and Christopher Newell, Disability in Australia: Exposing a Social Apartheid (Sydney: UNSW Press, 2005); Helen Meekosha and Leanne Dowse, ‘Enabling Citizenship: Gender, Disability and Citizenship in Australia’, Feminist Review 57 (1997): 49–72; Mike Oliver, The Politics of Disablement (London: Macmillan Education, 1990); Joseph Shapiro, No Pity: People with Disabilities Forging a New Civil Rights Movement (New York: Times Books, 1994).
See Rannveig Traustadóittir, ‘Disability Studies, the Social Model and Legal Developments’, 4; and Albrecht, ‘American Pragmatism, Sociology and the Development of Disability Studies’, in Disability Studies Today, ed. Colin Barnes, Mike Oliver and Len Barton (Cambridge: Polity Press, 1996), 179–95.
Colin Barnes, Mike Oliver and Len Barton, Disability Studies Today, 179–95. In academia the social model of disability has emerged as part of what is now called disability studies. There has been a growing interest amongst academics and civil society in the subject and meaning of disability.
Chris Bell, ‘Introducing White Disability Studies: A Modest Proposal’, in The Disability Studies Reader, ed. Davis, 2nd ed. (New York: Routledge, 2006), 275–282.
The core human rights instruments include the International Covenant on Civil and Political Rights (New York, 16 December 1966); International Covenant on Economic, Social and Cultural Rights (New York, 16 December 1966); Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (New York, 10 December 1984); Convention on the Elimination of All Forms of Discrimination against Women (New York, 18 December 1979); International Convention on the Elimination of All Forms of Racial Discrimination (New York, 7 March 1966); International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families (New York, 18 December 1990); Convention on the Rights of the Child (New York, 20 November 1989). The International Convention for the Protection of All Persons from Enforced Disappearances (New York, 20 December 2006) was adopted and entered into force on 23 December 2010.
Gerard Quinn, Theresia Degener et al. Human Rights and Disability: The Current Use of the Potential of United Nations Human Rights Instruments in the Context of Disability (New York & Geneva: Office of the United Nations High Commissioner for Human Rights, 2002).
See Gerard Quinn, ‘Resisting the “Temptation of Elegance”: Can the Convention on the Rights of Persons with Disabilities Socialise States to Right Behaviour?’, in The UN Convention on the Rights of Persons with Disabilities: European and Scandinavian Perspectives, ed. Oddný Mjöll Aranardóittir and Quinn (Leiden: Martinus Nijohoff, 2009), 215; Gerard Quinn and Theresia Degener ‘Human Rights and Disability: The Current Use of the Potential of United Nations Human Rights Instruments in the Context of Disability’ (New York and Geneva: Office of the United Nations High Commissioner for Human Rights, 2002).
Mexico was also committed to ensuring that persons with disabilities and the organisations that represent them were included in the convention process. See Gráinne de Búrca, ‘The European Union in the Negotiation of the UN Disability Convention’, European Law Review 35, no. 2 (2010): 174–96, at 183 and 188. de Búrca notes that the European Union was supportive of stakeholder participation in the negotiation of the convention but that it was not ‘an active proponent and campaigner on behalf of the stakeholder participation during the negotiations’ in the same way as the delegations from New Zealand and Mexico.
Preamble to the United Nations Convention on the Rights of Persons with Disabilities, at paragraph (e), http://www.un.org/disabilities/default.asp?id=150.
Gerard Quinn, ‘Resisting the “Temptation of Elegance”’, 215–16.
Ibid.
Ibid.
See Gerard Quinn and Suzanne Doyle, Getting a Life – Living Independently and Being Included in the Community: A Legal Study of the Current Use and Future Potential of the EU Structural Funds to Contribute to the Achievement of Article 19 of the United Nations Convention on the Rights of Persons with Disabilities (Geneva: Office of the United Nations High Commissioner for Human Rights Regional Office for Europe, April 2012).
For a discussion on the experimentalist nature of the convention see de Burca, ‘The European Union in the Negotiation of the UN Disability Convention’, 174–96. Other striking experimental features according to de Burca include the focus on monitoring at the national level, the lack of a definition of disability and an open-ended definition of discrimination to include the failure to provide reasonable accommodation; and a substantive biennial meeting of the state parties to the convention, see 183–4.
See Ibid., 183.
Ibid.
Ibid.
See Amita Dhanda, ‘Legal Capacity in the Disability Rights Convention: Stranglehold of the Past or Lodestar for the Future?’, Syracuse Journal of International Law and Commerce 34 (2007): 2, 429–62.
See Gerard Quinn, ‘Personhood & Legal Capacity Perspectives on the Paradigm Shift of Article 12 CRPD’, HPOD Conference, Harvard Law School, February 20, 2010, http://www.nuigalway.ie/cdlp/staff/gerard_quinn.html.
Ibid.
Ibid.
See Article 12(4) above.
See Submission on Legal Capacity to the Oireachtas Committee on Justice, Defence & Equality (Galway: Centre for Disability Law & Policy, NUI Galway, August 2011), http://www.nuigalway.ie/cdlp/documents/cdlp_submission_on_legal_capacity_the_oireachtas_committee_on_justice_defence_and_equality_.pdf.
The Committee on the Rights of Persons with Disabilities (CRPD) is the body of independent experts which monitors implementation of the convention by the states parties.
‘Consideration of Reports Submitted by States Parties under Article 35 of the Convention: Concluding Observations of the Committee on the Rights of Persons with Disabilities’, Committee on the Rights of Persons with Disabilities: Fifth Session, 11–15 April 2011, at p. 4, http://www.ohchr.org/EN/HRBodies/CRPD/Pages/Session5.aspx.
Ibid.
Ibid.
‘Consideration of Reports Submitted by States Parties under Article 35 of the Convention: Concluding Observations of the Committee on the Rights of Persons with Disabilities’, Committee on the Rights of Persons with Disabilities: Sixth Session, 19–23 September 2011, at p. 6. http://www.ohchr.org/EN/HRBodies/CRPD/Pages/Session6.aspx.
Ibid.
‘Consideration of Reports Submitted by States Parties under Article 35 of the Convention: Concluding Observations of the Committee on the Rights of Persons with Disabilities’, Committee on the Rights of Persons with Disabilities: Seventh Session 16–20 April 2012, at pp. 4–5, http://www.ohchr.org/EN/HRBodies/CRPD/Pages/Session7.aspx.
Office of the High Commissioner for Human Rights, From Exclusion to Equality Realizing the Rights of Persons with Disabilities: Handbook for Parliamentarians on the Convention on the Rights of Persons with Disabilities and its Optional Protocol (Geneva: United Nations, Office of the High Commissioner for Human Rights, 2007), 68, http://www.un.org/disabilities/documents/toolaction/ipuhb.pdf.
Ibid.
Ibid.
Ibid.
Facilitated decision-making involves an appointed person taking a decision based on an understanding of the person's will and preferences and one which has the potential to augment the decision-making of the person in question, rather than a third party making decisions in their ‘best interests’. For a more in-depth discussion of this see Michael Bach and Lana Kerzner, A New Paradigm for Protecting Autonomy and the Right to Legal Capacity (Ontario: Law Commission of Ontario, October 2010); Submission on Legal Capacity to the Oireachtas Committee on Justice, Defence & Equality; and ‘Essential Principles: Irish Legal Capacity Law’, Dublin, April 2012, http://amnesty.ie/sites/default/files/report/2012/04/PRINCIPLES_WEB.pdf.
Gerard Quinn, Rethinking Personhood: New Directions in Legal Capacity Law & Policy (Vancouver: University of British Columbia, 29 April 2011).
Hilary Brown, Safeguarding Adults and Children with Disabilities against Abuse (Strasbourg: Council of Europe Publishing, 2003), 10.
World Health Organization and the World Bank, World Report on Disability (Geneva: World Health Organization and the World Bank, 2011).
Ibid.
See Submission on Legal Capacity to the Oireachtas Committee on Justice, Defence & Equality.
See ‘The Right of People with Disabilities to Live Independently and be Included in the Community’, Strasbourg: CommDH/IssuePaper(2012)3, 13 March 2012.
Niemietz v. Germany (13710/88) European Court of Human Rights, 16 December 1992, at para. 29.
Botta v. Italy (153/1996/772/973) European Court of Human Rights, 24 February 1998, at para. 32.
For a discussion on the origin of the best interests principle see The Best Interests of the Child: Towards a Synthesis of Children's Rights and Cultural Values (Florence: UNICEF, Innocenti Studies, 1996), http://www.unicef-irc.org/publications/pdf/is_best_interest_low_eng.pdf.
The only references to ‘best interests’ in the UN Convention on the Rights of Persons with Disabilities emerge in respect of children with disabilities (see Articles 7 and 23).
See, for example, Article 15 – Freedom from torture or cruel, inhuman or degrading treatment or punishment, and Article 16 – Freedom from exploitation, violence and abuse.
Supports can include advance planning (including advance directives regarding health and mental health care decisions), self-directed decision-making, the right to accessible information, reasonable accommodation, the provision of advocacy, supported decision-making, and facilitated decision-making. Amnesty International Ireland and the Centre for Disability Law and Policy, NUI Galway, in partnership with a number of NGOs, drafted a set of principles for legal capacity law needed for compliance with Article 12 of the CRPD. See ‘Essential Principles: Irish Legal Capacity Law’. For a discussion of different systems that would comply with Article 12 of the CRPD see Submission on Legal Capacity to the Oireachtas Committee on Justice, Defence & Equality.
‘Who Gets to Decide? Right to Legal Capacity for Persons with Intellectual and Psychosocial Disabilities’, Strasbourg: CommDH/IssuePaper(2012)2, 20 February 2012.
Winterwerp v. Netherlands 6301/73 ECHR 4, 24 October 1979, at para. 75.
See H.F. v. Slovakia ECHR, 54797/00, 8 November 2005.
Shtukaturov v. Russia App. No. 44009/05, 27/06/2008, http://cmiskp.echr.coe.int/tkp197/view.asp?item=1&portal=hbkm&action=html&highlight=Shtukaturov%20%7C%20Russia&sessionid=668105&skin=hudoc-en.
The applicant, a Russian national, claimed to have a mental disability. In 2004 the applicant, aged 22, was placed in a hospital for in-patient treatment. Shortly after his mother initiated legal proceedings challenging the legal capacity of her son. The applicant was not formally notified about these proceedings. An expert psychiatric examination of the applicant was commissioned, which required the doctors to answer whether the applicant had a mental illness and whether he was able to understand his actions or control them. In December 2004 a hearing on his legal capacity took place which lasted approximately 10 minutes, and the applicant was declared legally incapable. The applicant was not informed about the hearing, and therefore did not attend. As he was unaware of the decision of the court appointing his mother as his guardian he did not lodge an appeal within the 10-day timeframe following the judgment, resulting in the appointment of his mother as his guardian. He first became aware of the legal proceedings in November 2005 when he found documentation among his mother's belongings. Two days later he was placed in hospital at the request of his mother. As his mother was his legal guardian he was detained as a voluntary patient and did not require the authorisation of a court. The hospital management refused to allow the applicant's lawyer to visit him. Following a number of failed attempts in Russian courts challenging his client's detention, the applicant's lawyer requested the ECtHR to indicate to the Russian government interim measures under Rule 39 of the Rules of the Court. The ECtHR directed that the Russian government should allow a meeting between the applicant and his legal counsel. However, the chief doctor of the hospital informed the lawyer that he did not regard the court's decision on interim measures as binding. On appeal to the St Petersburg City Court it was held that the Russian Federation, as a special subject of international relations, enjoys immunity from foreign jurisdiction and is not bound by coercive measures applied by foreign courts. The St Petersburg City Court also concluded that the lawyer had no authority to act on behalf of the applicant, as the applicant's mother was his legal guardian and had authority to act on behalf of the applicant in all legal transactions. The applicant in this case was effectively denied any independent legal remedy to challenge his detention.
Shtukaturov v. Russia EHRR, 44009/05, 27 March 2008, at para. 94.
Thomas Hammarberg, ‘Persons With Mental Disabilities Should Be Assisted But Not Deprived of Their Individual Human Rights’, Council of Europe, Viewpoint, 21 September 2009, http://www.coe.int/t/commissioner/viewpoints/090921_en.asp.
App. No. 36760/06 (ECtHR, 17 January 2012).
Ibid., at para. 244.
Ibid, at para. 72.
DD v. Lithuania (Application No. 13469/06), Judgment, Strasbourg, 14 February 2012.
For a more detailed discussion of the decision of the ECtHR in Stanev see Oliver Lewis, ‘Stanev v Bulgaria: On the Pathway to Freedom’, Human Rights Brief 19, no. 2 (Winter 2012): 2–7.
Genevra Richardson, ‘Mental Capacity at the Margin: The Interface Between Two Acts’, Medical Law Review (2010): 56.
Ibid.
Ibid.
The implications of Article 14 of the UN disability convention are outside the scope of this article. For a discussion on this issue see Philip Fennell and Urfan Khaliq, ‘Conflicting or Complementary Obligations? The UN Disability Rights Convention, the European Convention on Human Rights and English Law’, European Human Rights Law Review (2011): 662; and Tina Minkowitz, ‘Abolishing Mental Health Laws to Comply with the Convention on the Rights of Persons with Disabilities’, in Rethinking Mental Health Laws, ed. Bernadette McSherry (Oxford: Hart, 2010): 151–177.
See Neil Rees, ‘The Fusion Proposal: A Next Step?’, in Rethinking Mental Health Laws, ed. Bernadette McSherry (Oxford: Hart, 2010); Genevra Richardson, ed., ‘A Model Law Fusing Incapacity and Mental Health Legislation: Is it Viable; is it Advisable’, Journal of Mental Health Law (Special Issue, 2010):1–140; and O'Mahony and Hackett, ‘The CRPD and the Fusion of Mental Health and Legal Capacity Legislation’, in The United Nations Convention on the Rights of Persons with Disabilities: Comparative, Regional and Thematic Perspectives, ed. Charles O'Mahony and Gerard Quinn (Intersentia, forthcoming October 2012).
See ‘Consultation Paper Guardianship’, Victoria: Victoria Law Reform Commission, CP 10, 2011; and ‘Final Report Guardianship’, Victoria: Victoria Law Reform Commission, Final Report 24, 2012.
Office of the High Commissioner for Human Rights, ‘General Comment 3’, 14 December 1990, at paras 2–3, http://www.unhchr.ch/tbs/doc.nsf/0/94bdbaf59b43a424c12563ed0052b664?Opendocument.
See, in particular, NIDUS (a not for profit group set up to support personal networks), http://www.nidus.ca/.
Claire Henderson et al., ‘Effect of Joint Crises Plans on Use of Compulsory Treatment in Psychiatry: Single Blind Randomised Controlled Trial’, British Medical Journal 329 (2004): 136.
‘General Comment: The Committee for the Elimination of All Forms Of Discrimination Against Persons with Disabilities’, San Salvador, El Salvador, 4 and 5 May 2011.
Ibid., 10.
Ibid.
Ibid.
This approach is consistent with the approach of the UN Committee on the Rights of Persons with Disabilities in their concluding observations to Tunisia, Spain and Peru. The CRPD Committee included awareness-raising recommendations as measures that state parties could adopt in order to better respect a number of different convention rights.