The UN Special Rapporteur on Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, Juan E. Méndez, issued a report and a statement* to the UN Human Rights Council on 4th March this year, in which he discusses medical interventions which override a person’s choices on disability related grounds – including involuntary treatment and detention. He places them in the context of the UN Convention on the Rights of Persons with Disabilities and discusses their relationships with inhuman and degrading treatment and – in some cases – torture.
UN Convention on the Rights of Persons with Disabilities as the ‘new normative paradigm’ for interpreting norms around torture, inhuman and degrading treatment
The Special Rapporteur’s report and statement are firmly grounded in the normative ordering of the UN Convention on the Rights of Persons with Disabilities (CRPD). Contrary to some recent suggestions that treaties like the UN CRPD simply ‘replicate’ the rights contained in other treaties for people with disabilities, the UN CRPD contains some radical departures from other human rights norms, especially in the area of involuntary treatment and confinement of persons with mental disabilities. The Special Rapporteur stated that ‘the Convention on the Rights of Persons with Disabilities offers the most comprehensive set of standards on the rights of persons with disabilities, inter alia, in the context of health care’ . As we shall shortly see, he is critical of other human rights standards which permit involuntary treatment and confinement of persons with disabilities.
No denial of legal capacity or ‘best interests’ decision making
The Special Rapporteur clearly endorses the CRPD Committee’s repeated affirmation that Article 12 CRPD – the right to equal recognition before the law – requires states to replace substituted decision-making regimes with supported decision-making, which respects the person’s autonomy, will and preferences . For readers less familiar with the language of the CRPD, what this means is that it is unacceptable to make a decision in a person’s ‘best interests’ on the basis that they ‘lack capacity’. The Special Rapporteur recognises the ‘wide public support’ that best interests decision making often enjoys , but this paradigm is still very explicitly rejected in this report.
The Rapporteur states that ‘Fully respecting each person’s legal capacity is a first step in the prevention of torture and ill-treatment’ (p4). One of the recommendations from the report is that states ‘Safeguard free and informed consent on an equal basis for all individuals without any exception’, and revise any legal provisions to the contrary ‘such as provisions allowing confinement or compulsory treatment in mental health settings, including through guardianship and other substituted decision-making’ (recommendation (e), emphasis mine).
Involuntary treatment and confinement can constitute inhuman and degrading treatment, and may be torture
Perhaps the part of the Rapporteur’s report which will most unsettle the legal, medical and social care establishment is the Rapporteur’s identification of certain forms of involuntary treatment and confinement as inhuman and degrading treatment, which may sometimes constitute torture. The Rapporteur is well aware of the power of identifying such treatments with inhuman or degrading treatment, as this falls within an absolute prohibition under leading human rights norms (including the European Convention on Human Rights), and thus would appear to place the treatments themselves under an absolute prohibition.
On a first speed reading of the report, I had assumed the Special Rapporteur had identified all involuntary treatment and confinement with inhuman and degrading treatment, which would indeed be a radical break with the past. On a second, closer, reading, I am less sure. He reiterates the recognition of the previous Rapporteur that ‘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’ . Later on he says that:
‘Forced interventions, often wrongfully justified by theories of incapacity and therapeutic necessity inconsistent with the Convention on the Rights of Persons with Disabilities, are legitimized under national laws, and may enjoy wide public support as being in the alleged “best interest” of the person concerned. Nevertheless, to the extent that they inflict severe pain and suffering, they violate the absolute prohibition of torture and cruel, inhuman and degrading treatment’ 
Yet both these descriptions seem to call for something more than mere involuntariness of treatment. The first appears to include only treatments which lack ‘a therapeutic purpose’ and are of ‘an intrusive and irreversible nature’; the second that ‘they inflict severe pain and suffering’. I doubt many people would think it a good idea to administer treatments which serve no therapeutic purpose, or which inflict severe pain and suffering – that hardly seems controversial. There are many possible involuntary treatments which are not irreversible, or which might not inflict severe pain – and I wonder if the Special Rapporteur has deliberately excluded these? As for therapeutic purpose, that’s a highly contestable issue for more psychiatric treatments – with some holding that certain treatments do serve a therapeutic purpose and others denying that they do. I’ll say a bit more about emergency interventions below as well.
Rejection of ‘medical necessity’ (including Herczegfalvy)
’34. In those cases, dubious grounds of medical necessity were used to justify intrusive and irreversible procedures performed on patients without full free and informed consent. In this light, it is therefore appropriate to question the doctrine of “medical necessity” established by the ECHR in the case of Herczegfalvy v. Austria (1992), where the Court held that continuously sedating and administering forcible feeding to a patient who was physically restrained by being tied to a bed for a period of two weeks was nonetheless consistent with article 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms because the treatment in question was medically necessary and in line with accepted psychiatric practice at that time.’
35. The doctrine of medical necessity continues to be an obstacle to protection from arbitrary abuses in health-care settings. It is therefore important to clarify that treatment provided in violation of the terms of the Convention on the Rights of Persons with Disabilities – either through coercion or discrimination – cannot be legitimate or justified under the medical necessity doctrine.’
No deprivation of liberty on grounds of mental illness (rejection of Winterwerp criteria)
And Herczegfalvy is not the only European Court of Human Rights judgment that comes in for a pasting by the Special Rapporteur, who also takes to task Article 5(1)(e) of the European Convention which permits detention on disability related grounds. He first observes that:
The Convention … [forbids] deprivation of liberty based on the existence of any disability, including mental or intellectual, as discriminatory. Article 14, paragraph 1 (b), of the Convention unambiguously states that “the existence of a disability shall in no case justify a deprivation of liberty”. Legislation authorizing the institutionalization of persons with disabilities on the grounds of their disability without their free and informed consent must be abolished. This must include the repeal of provisions authorizing institutionalization of persons with disabilities for their care and treatment without their free and informed consent, as well as provisions authorizing the preventive detention of persons with disabilities on grounds such as the likelihood of them posing a danger to themselves or others, in all cases in which such grounds of care, treatment and public security are linked in legislation to an apparent or diagnosed mental illness (A/HRC/10/48, paras. 48, 49). 
He notes that – following Winterwerp v The Netherlands – deprivation of liberty is only permitted under the European Convention if it is of a particular severity, then states ‘The Special Rapporteur believes that the severity of the mental illness is not by itself sufficient to justify detention’ . Intriguingly, the Special Rapporteur then goes on to say:
‘…the State must also show that detention is necessary to protect the safety of the person or of others. Except in emergency cases, the individual concerned should not be deprived of his liberty unless he has been reliably shown to be of “unsound mind”. As detention in a psychiatric context may lead to non-consensual psychiatric treatment, the mandate has stated that deprivation of liberty that is based on the grounds of a disability and that inflicts severe pain or suffering could fall under the scope of the Convention against Torture’ 
Is it just my reading, or does this sound somewhat more permissive of detention on disability related grounds that the overall tenor of his report would first suggest? He seems to be content with deprivation of liberty where it is ‘necessary to protect the safety of the person or of others’, ‘in emergency cases’ and where a person ‘has been reliably shown to be of “unsound mind”’; I am pretty certain that isn’t what the drafters of Article 14 CRPD intended. In fact, being reliably shown to be of unsound mind sounds more permissive than the Winterwerp criteria to me. It also appears difficult to reconcile with comments in the preceding paragraph that:
‘Legislation authorizing the institutionalization of persons with disabilities on the grounds of their disability without their free and informed consent must be abolished. This must include the repeal of provisions authorizing institutionalization of persons with disabilities for their care and treatment without their free and informed consent, as well as provisions authorizing the preventive detention of persons with disabilities on grounds such as the likelihood of them posing a danger to themselves or others, in all cases in which such grounds of care, treatment and public security are linked in legislation to an apparent or diagnosed mental illness (A/HRC/10/48, paras. 48, 49).’ 
I have to say I am truly puzzled by what the Rapporteur envisages in relation to detention; it is unfortunate that there is not more clarity on such a fundamental issue.
Absolute prohibition on restraint and seclusion in all health and social care settings
Moreover, any restraint on people with mental disabilities for even a short period of time may constitute torture and ill-treatment. It is essential that an absolute ban on all coercive and non-consensual measures, including restraint and solitary confinement of people with psychological or intellectual disabilities, should apply in all places of deprivation of liberty, including in psychiatric and social care institutions. The environment of patient powerlessness and abusive treatment of persons with disabilities in which restraint and seclusion is used can lead to other non-consensual treatment, such as forced medication and electroshock procedures. 
I struggled a bit with this paragraph. If a place is a place of deprivation of liberty, it is difficult to see how it can exist without some measure of restraint – how can you deprive liberty without restricting it? And whilst I have considerable concerns about involuntary treatment and involuntary institutional placement, I do feel that there are some situations where an absolute prohibition on restraint – which the Rapporteur appears to call for – is problematic. I’ve worked with young people like P in Cheshire, and whilst I do not deny for one second that restraint is (very) often inappropriately used or overused (see CQC’s 2012 reports on care of people with learning disabilities, and observe that a huge percentage of them are non-compliant with standards on restraint), that it is often degrading and dangerous, there are also situations where it is extremely difficult to see how to do without it. Cheshire is a pretty good example – should he really be allowed to choke on his own incontinence pads without staff intervening? Or with respect to people with no sense of road safety (sometimes, no sense of what a road even is), should they be left to wander into busy traffic? I would love to ask the Special Rapporteur whether he means to prohibit restraint in such circumstances, and I worry that by invoking an absolute prohibition without acknowledging the sheer diversity of circumstances when restraint might be used, the credibility of his argument is somewhat diminished.
What does this all mean…?
At first glance, I thought this was a fairly straightforward reiteration of the norms of Articles 12 (legal capacity), 14 (deprivation of liberty), and 17 (physical and mental integrity) CRPD. But as you read it carefully, there appear to be a number of caveats where involuntary treatment and commitment are – if not endorsed – then not outright labelled as inhuman and degrading treatment. I found, as I noted, the Rapporteur’s comments around deprivation of liberty somewhat confusing – as he appears to reject deprivation of liberty on grounds related to mental illness in one paragraph, only to resurrect it as a possibility in the next.
The comments on deprivation of legal capacity also seemed fairly straightforward at first – all persons must have full legal capacity at all times. Yet there is an odd dangling statement to the effect that ‘Only in a life-threatening emergency in which there is no disagreement regarding absence of legal capacity may a health-care provider proceed without informed consent to perform a life-saving procedure’ [65, emphasis mine]. What can this mean, if we have already outlawed deprivation of legal capacity? It might be helpful to link it to the preceding sentence, which holds that ‘criteria that determine the grounds upon which treatment can be administered in the absence of free and informed consent should be clarified in the law, and no distinction between persons with or without disabilities should be made’ . So, deprivation of legal capacity does appear to be tolerated, but it cannot be permitted on disability related grounds. “Hmmm…” I thought, “hmmmm”. The trouble is, it is easy to imagine legislation like the Mental Capacity Act 2005 functioning pretty much exactly as it already does if one removed the diagnostic criterion – because the functional test would still disproportionately pick out people with mental functioning which diverges from the norm. It might pick out other people too, and be more inclusive, but that hardly liberates those who are already within its reach.
It is clearly of great, great, significance that the Special Rapporteur has explicitly accepted the CRPD as an authoritative source of normative standards for human rights law, and noted that where it conflicts with other standards (such as the European Convention on Human Rights or the 1991 Principles for the Protection of Persons with Mental Illness and for the Improvement of Mental Health Care) it should lead to a revision of such standards. The trouble is that the Special Rapporteur’s report is not especially clear on what such standards should be. Pithy statements around legal capacity, involuntary treatment and deprivation of liberty are complicated by what look like possible exceptions to the rule, but they are not very clearly explained. If I may make so bold, this is a pretty common pattern with a lot of work on these elements of the CRPD. As Peter Bartlett (2012, ‘The United Nations Convention on the Rights of Persons with Disabilities and Mental Health Law’, Medical Law Review, 75, 752-778) recently noted:
In short, the CRPD provides a vision of equality which is compelling and which must become the international norm: the pre-CRPD status quo in which rights were largely illusory for people with mental disability cannot be considered an option. However much we may support this new vision, however, on key points in mental health and mental capacity law, we do not really know what it entails or how to achieve it.
Sometimes these statements around legal capacity, involuntary treatment and deprivation of liberty feel so difficult to translate to real life scenarios, it is just not obvious what they want us to do. It is one thing to acknowledge that there is something desperately wrong with the ‘old’ paradigm of ‘care and control’, it is quite another to know what we should be doing to replace it.
*Unless otherwise stated, all paragraph numbers pinpoint paragraphs in the report, not the statement.