A/HRC/22/53
68.
Involuntary commitment to psychiatric institutions has been well documented.83
There are well-documented examples of people living their whole lives in such psychiatric
or social care institutions. 84 The Committee on the Rights of Persons with Disabilities has
been very explicit in calling for the prohibition of disability-based detention, i.e. civil
commitment and compulsory institutionalization or confinement based on disability. 85 It
establishes that community living, with support, is no longer a favourable policy
development but an internationally recognized right.86 The Convention radically departs
from this approach by forbidding 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).
69.
Deprivation of liberty on grounds of mental illness is unjustified if its basis is
discrimination or prejudice against persons with disabilities. Under the European
Convention on Human Rights, mental disorder must be of a certain severity in order to
justify detention.87 The Special Rapporteur believes that the severity of the mental illness is
not by itself sufficient to justify detention; 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”.88 As detention in a psychiatric context may lead to nonconsensual psychiatric treatment,89 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 (A/63/175, para. 65). In making such an
assessment, factors such as fear and anxiety produced by indefinite detention, the infliction
of forced medication or electroshock, the use of restraints and seclusion, the segregation
from family and community, etc., should be taken into account. 90
70.
Moreover, the effects of institutionalization of individuals who do not meet
appropriate admission criteria, as is the case in most institutions which are off the
monitoring radar and lack appropriate admission oversight, 91 raise particular questions
under prohibition of torture and ill-treatment. Inappropriate or unnecessary non-consensual
83
84
85
86
87
88
89
90
91
16
See Thomas Hammarberg, “Inhuman treatment of persons with disabilities in institutions”, Human
Rights Comment (2010).
See Dorottya Karsay and Oliver Lewis, “Disability, torture and ill-treatment: taking stock and ending
abuses”, The International Journal of Human Rights, vol. 16, No. 6 (2012), pp. 816-830.
See also CRPD/C/HUN/CO/1, paras. 27-28.
See CRPD/C/CHN/CO/1 and Corr.1, paras. 92-93.
See Peter Bartlett, “A mental disorder of a kind or degree warranting confinement: examining
justifications for psychiatric detention, The International Journal of Human Rights, vol. 16, No. 6
(2012), pp. 831-844.
See ECHR, Winterwerp v. The Netherlands, Application No. 6301/73 (1979) and ECHR, E v.
Norway, Application No. 11701/85 (1990).
See Bartlett, “A mental disorder”.
Stop Torture in Healthcare, “Torture and ill-treatment of people with disabilities in healthcare
settings”, Campaign Briefing, 2012.
See CAT/C/JPN/CO/1, para. 26.
Select target paragraph3
Connect to a paragraph
Connect to an entity
Disable highlights
Add to table of contents