An Introduction to the Human Rights Act

Report
ACT Human Rights Commission
Human Rights: OPCAT & ICRPD – Issues of
Adults with Impaired Capacity
Australian Guardianship & Administration Council
Meeting, Hotel Realm, 22 October 2010
Dr Helen Watchirs OAM
ACT Human Rights & Discrimination Commissioner
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 implementation
New 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 can
restrictive 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 detention
UK 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 PSU
Health 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 (AttorneyGenerals & DFAT)
Resources
HRC – http://www.hrc.act.gov.au
OPCAT – AHRC http://www.humanrights.gov.au
ACT Cases
ANU database - http://acthra.anu.edu.au
Victorian cases
HRLRC database – http://www.hrlrc.org.au
International/comparative case law
• European Ct of Human Rights HUDOC database
(big thanks to Gabrielle McKinnon for research assistance)

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