Human Rights: OPCAT & ICRPD – Issues of Adults with Impaired CapacityAustralian Guardianship & Administration Council Meeting, Hotel Realm, 22 October 2010

Dr Helen Watchirs OAMACT Human Rights & Discrimination Commissioner

ACT Human Rights Commission

Overview• ACT Human Rights Act 2004 (& Victorian Charter 2006)• Optional Protocol to the Convention Against Torture

(OPCAT)• Convention on the Rights of Persons with Disabilities

(ICRPD)• Restrictive practices & rights of people with impaired

capacity• UK, European Court of HR, & ACT cases

ACT Human Rights Act 2004• Protects civil & political rights - implements international obligations

in ICCPR (limited coverage in Constitution & common law): - respect (government abstain from interference)- protect (prevent other’s interference)- fulfil (necessary measures to realise)• Proposal to extend to ESCR eg health, housing, education (First &

fifth year Reviews of the HR Act)• Enforcement mechanisms:

– Compatibility statements of Bills by Attorney-General– Legislative Assembly Scrutiny Committee – Interpretation legislation consistently with human rights– Supreme Court may issue a declaration of incompatibility (s.32),

but Assembly has final say on validity of legislation – nil in ACT (but first in Victoria under Charter of Rights & Responsibilities Act 2006: Momcilovic – High Court appeal)

Human Rights Commissioner’s functions

• S.36 intervention power (with leave of the court) of HR Commissioner & notification provisions - new Guidelines

• Review of effect of Territory laws on human rights (s.41), ie audit power - focus on most vulnerable ie Quamby (Juvenile Detention Facility) 2005, adult Corrections 2007, [+ Psychiatric Services Unit Services Review 2009]

• Advise & report on systemic laws, policies & issues – eg anti-terrorism, bikie gangs, emergency involuntary Electro Convulsive Therapy

• Education & training• no complaint handling (cf discrimination)• Agency Annual Report measures: respect, protect, promote

human rights

Public Authorities• Public authorities defined to include government agencies (core

public authorities) • Entities performing functions of a public nature on behalf of

the Territory (functional public authorities).• Likely to include Territory funded NGO mental health and

disability service providers, but may not reach federally funded aged care services.

• Obligation to act consistently with human rights & to take relevant them into account in decision making.

• Victim of breach of rights can take action in the Supreme Court – any remedy except damages (cf Morro, N & Ahadizad: compensation for unlawful detention s.18(7)).

Case Study: new ACT prison• AMC opened mid 2009 – light, glass, open space green,

natural/normalised design, cottages & campus style• 2007 HR Audit criticisms of detention facilities: old facilities

inhumane, overcrowded, few activities, some bullying culture, bussing women between facilities was sex discrimination

• Controversial aspects: pilot Needle & Syringe program - Hepatitis C case Australian first (ACT first condoms in 1990s); conjugal visits; SOTR; pregnant female prisoner

• Criticisms: Management Unit too small and mixing mains/protected and sentenced/remand; lockdowns – rooftop protest; slab heating ineffective in cell-blocks

Optional Protocol of CAT• Australia signed 19 May 2009, but not yet ratified. Parties

can postpone implementation for 3 years (+ extend 2 years)• Model European Convention & Committee (sample visits)• Optional Protocol establishes a system of regular visits

undertaken by independent international and national bodies to places where people are deprived of their liberty, in order to prevent torture and other cruel, inhuman or degrading treatment or punishment.

Features of OPCAT

• UN Subcommittee on the Prevention of Torture (SPT) - cannot publish Reports/Recommendations without State Party agreement

• Requires one or more National Preventative Mechanisms (NPM). Likely to be Australian HRC, complies with Paris Principles for NHRIs – functional independence, available resources, experts balance

• Must have power to regularly examine the treatment of persons detained, and to make recommendations to the authorities with regard to improving the treatment, and conditions of persons detained, and to submit proposals or comment on legislation.

• States Parties required to cooperate & undertake to provide them with wide-ranging access to relevant locations, information and persons.

• NPMs are expected to prepare an annual report on their activities, to be published and disseminated by the State eg NZ HRC meet quarterly

New Zealand implementationNew Zealand has designated 5 NPMs: •  New Zealand Human Rights Commission (Central National

Preventive Mechanism) • Ombudsman – in relation to prisons, premises used for

immigration detention, health and disability places of detention and youth justice residences

• Independent Police Conduct Authority – in relation to people held in police cells or otherwise in police custody

• Children’s Commissioner – in relation to children’s residences established under children’s legislation

• Inspector of Service Penal Establishments – in relation to defence force custody and service corrective establishments

NZ 2008/2009 Report Examples of concerns raised by NPM:• A mental health patient who had been in virtually constant

restraint and seclusion for nearly six years to prevent the patient from assaulting other patients and staff.

• A young mentally disabled patient, held pursuant to the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003, who had been kept in seclusion for a lengthy period.

• The Chief Ombudsman wrote to the respective Chief Executives of the District Health Boards concerned - one patient moved to a more suitable facility, and the other now has a management plan to facilitate a move into a suitable community based facility.

General - Restrictive Practices “Restrictive practices may include detention, locked door

and window policies, containment or seclusion within a specific area (such as one’s room, for ‘time-out’), the use of mechanical restraint, such as a belt to prevent injury, the use of chemical restraint to reduce anxiety or control sexual behaviour, and the use of electronic monitoring devices.

  Forms of restrictive practice are used, often on a daily basis, in mental health facilities, disability homes, aged care and nursing homes, respite facilities, hospitals and in private homes”

The Framework of Mental Health and Related Legislation in the ACT: Options Paper, November 2009

Authority for Restrictive Practices

• On what basis canrestrictive practices be

justified?• Common law Doctrine

of necessity• Human rights considerations• Who can consent? - in the ACT guardians

cannot consent to coercive treatment

UK Bournewood case• HL is an adult with Autism, unable to speak & limited understanding –

‘non-protesting patient’• Lived for over 30 years in Bournewood hospital. Released in 1994 to

paid carers & attended day care. • Following self-harming behaviour in 1997, he was re-admitted to

Bournewood on an informal basis for assessment & treatment. • HL not able to consent or object to admission, & treated for 4 months.

Carers requested his discharge, but rejected & not allowed to visit HL. • UK Court of Appeal found that HL was being unlawfully detained. HL

was subsequently formally ‘sectioned’ under Mental Health Act, but then discharged after independent psychiatrist report and review.

• House of Lords overturned Ct Appeal based on “doctrine of necessity”• Lord Steyn noted that this was an “unfortunate result” as the doctrine

had “none of the safeguards of the MH Act”

European Court of Human Rights: HL v United Kingdom 2004

• HL claimed violation of right to liberty & security of person, not detained in accordance with the law as ‘informal patient’

• European Court of HR found that HL was under continuous supervision & control & was not free to leave – ie was deprived of his liberty

• Absence of procedural safeguards amounted to arbitrary detention – breach of articles 4 & 5 established

Response to informal detentionUK Mental Health Commission submission to House of Lords in Bournewood – based on questionnaire to hospitals and nursing homes – 48,000 patients pa were informally detained in UK without procedural safeguards.

ECHR decision led to the UK Mental Capacity Act 2005

Principles of best interest & least restrictive option

available

Some relevant Human Rights Standards• ICCPR – Art 9: Right to liberty and security of

person.• ICCPR – Art 7: UNCAT No one shall be subjected

to torture or to cruel, inhuman or degrading treatment or punishment.

• UNCRPD – Art 19: Persons with disabilities have the opportunity to choose their place of residence and where and with whom they live on an equal basis with others and are not obliged to live in a particular living arrangement

Mental health cases• UK Carol Savage (2008) - young woman detained in a mental health

facility who subsequently suicided in front of a train. House of Lords held that the right to life encompassed: a negative duty from taking life; a positive duty to properly & openly investigate deaths in custody; and a positive duty to protect the lives of those in their jurisdiction, with a higher duty in respect of vulnerable persons under their control.

• ACT Robertson (2005) Supreme Court sent case back to the Mental Health Tribunal as reasons were not given for using coercive power

• ACT v JT (2009) held mentally ill (psychosis & schizophrenia) 69 yo man weighing 41kg force fed by doctors as he lacked ability to consent to refuse treatment/nourishment (end of life): found not inhumane

• Victoria Kracke (2009) – involuntary treatment orders ongoing breached right to fair trial because reviews were not timely as delay of two years (also statutory requirements of regular review not met)

Services Review of PSUHealth Services Commissioner reviewed services provided in detention in

a closed psychiatric unit (PSU) at The Canberra Hospital in 2009: • better responsiveness to requests and enquiries from consumers; • further information on rights to consumers and carers/families; • training for staff to use intrusive/invasive treatment as a last resort; • maintaining a register of involuntary searches (as is currently required

in relation to seclusion and mechanical restraints);• keeping written records of incidents involving physical confrontations;• replacing furniture and removing graffiti/painted numbers above beds;• better security and privacy for female consumers in new facility;• providing one-on-one care (‘specialling’) young people under 18 yo,

not just under16 yo

International Convention on the Rights of Persons with Disabilities

• Signed by Australia on 30 March 2007 & ratified on 17 July 2008• Committee chaired by Australian Professor Ron McCallum• Article 33 requires three mechanisms:

1. Focal-point & co-ordination mechanisms within Government – accountability, resources & responsibility

2. Independent mechanisms/framework to promote, protect & monitor implementation – Australian HRC coordinate State/Territory agencies (ACHRA)

3. Civil society involved in monitoring process - participate in regular liaison & dialogue, eg NGO Human Rights Forums (Attorney-Generals & DFAT)

ResourcesHRC – http://www.hrc.act.gov.auOPCAT – AHRC http://www.humanrights.gov.auACT CasesANU database - http://acthra.anu.edu.auVictorian casesHRLRC database – http://www.hrlrc.org.auInternational/comparative case law• European Ct of Human Rights HUDOC database

(big thanks to Gabrielle McKinnon for research assistance)