OVERVIEW OF RELEVANT STANDARDS
also explicitly deal with reasonable accommodation.104 Depending on the national
context, the Committee has referred to:
• the need to ensure access to healthcare
on an equal footing with others, on the
basis of their free and informed consent,
and to the same level of health care as
that provided in society at large;
• repeal extrajudicial intervention programmes that involuntarily commit individuals to mental health establishments
or force them to register with the mental
health services;
• ensure their participation in and access to
all services and activities, on an equal basis
with others, in prisons or other centres of
detention; and
• establish an independent formal complaints mechanism accessible to all
persons detained in prisons or in forensic
institutions.
The UN Special Rapporteurs on Torture have
taken different positions. Most pertinent
are the positions of Manfred Nowak in his
2008 interim report105 and Juan Mendez,
documented in the report on “Torture in
Healthcare Settings: Reflections on the
Special Rapporteur on Torture’s 2013
Thematic Report”.106 More specifically, the
Special Rapporteur noted that:
• Forced and non-consensual administration
of psychiatric drugs, and in particular of
neuroleptics, for the treatment of mental
conditions (or chemical restraints) need to
be closely scrutinised and ‘may constitute
a form of torture or ill treatment. Such outcome will depend on the circumstances
of the case and the suffering inflicted’.107
• The administration of electro convulsive
therapy in its unmodified form (e.g., without anaesthetic and muscle relaxants) can
no longer considered to be an acceptable
medical practice and may constitute
torture or ill-treatment. The administration of electroconvulsive therapy in its
modified form is only acceptable with the
34
free and informed consent of the person
concerned.
• No therapeutic justification can be used
for the use of solitary confinement and
prolonged restraints of persons with disabilities in psychiatric institutions, which
may amount to torture and ill-treatment.
Mendez noted that any type of restraints
of persons with disabilities in psychiatric
institutions, regardless their duration,
may amount to torture and ill-treatment.
Other UN treaty bodies do not seem to
go as far as the UNCRPD Committee in
their recommendations. The UN Committee Against Torture (CAT Committee)
has expressed its concern about the
high number of persons with disabilities
deprived of their liberty in social, medical
and psychiatric institutions without their
free and informed consent – including
through the use of solitary confinement,
restraints and forced medication, which
may amount to inhumane and degrading
treatment – and about the absence of legal
safeguards.108 The CAT Committee, while
accepting the possibility of lawful involuntary committal and involuntary treatment,
has recommended ensuring effective
supervision and monitoring, appropriate
legal safeguards, proper training for medical and non-medical staff, and the use of
de-institutionalization strategies and outpatient and community-based services.109
It has not adopted a consistent position
on the provision by the person concerned
of their free and informed consent to
treatment and institutionalisation Inn the
past, it has upheld a person's right to give
or withhold their consent110 and has also
allowed for third parties to provide it.111
A similar approach is adopted by the
Human Rights Committee (HRC), which
recommended that States put in place comprehensive procedures for seeking consent
for the administration of psychiatric treatment. It recommends that States ensure
that non-consensual psychiatric treatment
may only be applied, if at all, in exceptional
cases as a measure of last resort and when
absolutely necessary to protect the health
Select target paragraph3
Connect to a paragraph
Connect to an entity
Disable highlights
Add to table of contents