In his authoritative report presented to the Human Rights Council on 4 March, UN Special Rapporteur on torture Juan Méndez takes a new, groundbreaking look at different aspects of healthcare treatment that he claims amount to cruel, inhuman or degrading treatment or torture. More specifically, the report focuses on the need for consent of all patients and particularly patients belonging to marginalised groups, including people with disabilities, people suffering from addiction, lesbian, gay, bisexual, transgender and intersex persons and women. The UN Special Rapporteur urgently asks States to reform their healthcare systems, banning all forms of compulsory detention or restraint for medical conditions and calls on States to move towards voluntary, community-based treatments. This report is particularly relevant as many countries continue to resort to forced treatment of patients.
The report contains a strong focus on persons with disabilities, calling on states to review their legislation to ensure that it is in line with the Convention on the Rights of Persons with Disabilities, read in light of the prohibition of torture and other ill-treatment. National legislation must also be reformed to recognise the indispensable nature of narcotic and psychotropic drugs, protect LGBTI persons from forced treatment and ensure women have access to emergency treatment, including post-abortion care, without fear of reprisals.
All forced and non-consensual medical interventions, treatments or commitment must be banned according to Professor Méndez, who also recommends education of healthcare professionals to adopt attitudes that promote a culture of respect for human integrity and dignity, respect for diversity and the elimination of attitudes of pathologisation and homophobia.
By redefining violations in healthcare as falling under the international prohibition of torture, one of the few absolute and non-derogable human rights, States have a positive obligation to prevent and redress abuse. This affords greater protection than the right to health, which calls on states to progressively realise the right within their available resources. With this additional protection, States will not be able to justify non-compliance because of resource constraints for core obligations falling under the torture protection framework.
Professor Méndez’s report was well-received by a majority of states, who welcomed his insight into mistreatment of vulnerable people in healthcare facilities. Most states agreed that healthcare providers needed to respect the personal autonomy and dignity of patients regardless of their gender, sexual orientation, disability, age or ethnicity. A minority of states argued that the Special Rapporteur had exceeded his mandate, but most agreed with the Special Rapporteur that the abuses outlined in his report were examples of cruel, inhuman or degrading treatment or torture that must be put to an end immediately.
Australia in particular said that it strongly opposed the use of torture and cruel, inhuman or degrading treatment by any country in any circumstances. This new report should provide guidance to future healthcare reforms, including in Victoria and Western Australia who are currently reviewing their mental health legislation.
A copy of the report is available at: http://www.ohchr.org/Documents/HRBodies/HRCouncil/RegularSession/Session22/A.HRC.22.53_English.pdf.
Candice Van Doosselaere is a volunteer at the Human Rights Law Centre.