Mechanical Restraint in Psychiatric Healthcare Facilities

Mechanical restraint in psychiatric healthcare facilities A helpful tool, or torture or other cruel, inhuman or degrading treatment or punishment in disguise? Julia Rudhe

Faculty of Law at Stockholm University Thesis 30 ECTS Subject: Public International Law Spring semester 2021 Supervisor: Per Ahlin

Abstract

The use of mechanical restraint is a common practice in psychiatric care, often defended by medical necessity but seldom questioned from a human rights perspective. The purpose of this thesis has been to investigate under which circumstances mechanical restraint by bed through belt fixation could amount to torture and other cruel, inhuman or degrading treatment or punishment. Persons with psychosocial disabilities are in a particularly vulnerable situation and as the Inter- national Convention on the Rights of Persons with Disabilities (CRPD) is the most comprehensive rights framework for this group, it has been discussed whether the CRPD sets out additional safeguards in relation to restraint. A legal doctrinal approach is the basic methodology used in order to outline the current international and European legal framework on torture and other ill- treatment and disability rights. A survivor-controlled research methodology has been applied and to amplify other voices of persons with firsthand experience of being mechanically restrained, interviews have been conducted with persons from Sweden and Spain. Healthcare professionals have also been interviewed. A feminist perspective on the law is applied. Different international conventions and bodies of the United Nations have diverse interpretations on what acts or omissions that amount to torture and other cruel, inhuman or degrading treatment or punishment, although there is an aim and will to streamline the conventions. It is clear that the use of mechanical restraint can create such intense mental or physical suffering required to reach the common criterion of seriousness. However, some people do not experience the required levels of suffering for it to be considered torture, meaning that it might not amount to torture but rather other ill-treatment. The threshold for being considered torture according to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (UNCAT) seems to be somewhat higher than that of the International Covenant on Civil and Political Rights (ICCPR) and the European Convention of Human Rights (ECHR). In this thesis it was found that the most critical element for this is the requirement of intent. Intent can however be implied under certain circumstances if the practice is of discriminatory nature. If a person has a psychosocial disability, intent might be presumed if States do not provide appropriate health care. In the case of girls and women, intent might also be presumed since they seem to have a higher risk of getting restrained for unlawful reasons. The main conclusion in this thesis is that mechanical restraint by bed through belt fixation could amount to torture or other cruel, inhuman or degrading treatment or punishment according to the UNCAT, ICCPR and ECHR.

Abbreviations

CAT Committee Against Torture CEDAW Convention on the Elimination of All Forms of Dis- crimination against Women CESCR Committee on Economic, Social and Cultural Rights CRC Convention on the Rights of the Child CRPD Convention on the Rights of Persons with Disabilities ECHR European Convention on Human Rights ECtHR European Court of Human Rights EU European Union HRC Human Rights Committee ICCPR International Covenant on Civil and Political Rights ICESR International Covenant on Economic, Social and Cul- tural Rights ICJ International Court of Justice OHCHR The Office of the UN High Commissioner for Hu- man Rights OP Optional Protocol UDHR Universal Declaration on Human Rights UN United Nations UNCAT Convention against Torture and Other Cruel, Inhu- man or Degrading Treatment or Punishment UNGA UN General Assembly UNDAT UN Declaration against Torture

Table of Contents

Abstract ...... 3 Abbreviations ...... 5 1 Introduction ...... 9 1.1 Background ...... 9 1.2 Purpose and research questions ...... 10 1.3 Methodology ...... 10 1.4 Material ...... 11 1.5 Delimitation ...... 12 1.6 Outline ...... 12 1.7 Terminology and language ...... 13 2 Physical restraints in healthcare facilities ...... 14 2.1 Types of restraints ...... 14 2.2 Reasons behind the use of physical restraints ...... 14 2.3 Lack of adequate data on the use of restraints ...... 15 2.4 Recommendations and principles ...... 16 2.5 Impacts on persons with experience of restraints ...... 17 2.5.1 Restraint as a matter of routine ...... 17 2.5.2 Treatment during the restraint ...... 18 2.5.3 Feelings after being restrained ...... 19 2.5.4 Perception on the presence of male staff ...... 20 2.5.5 Complaint, report and redress ...... 21 3 Torture and other ill-treatment ...... 22 3.1 International and regional sources of law ...... 22 3.1.1 The International Covenant on Civil and Political Rights ...... 22 3.1.2 The European Convention of Human Rights ...... 23 3.1.3 The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment ...... 25 3.2 Distinction between torture and other ill-treatment ...... 25 3.3 Torture and other ill-treatment in healthcare settings ...... 27 3.4 Case law on mechanical restraint from the ECtHR ...... 27 3.4.1 Herczegfalvy v. Austria (1992) ...... 28 3.4.2 Case of Wiktorko v. Poland (2009) ...... 28 3.4.3 Case of Bureš v. the Czech Republic (2012) ...... 29 3.4.4 Case of M.S. v. Croatia (No. 2) (2015) ...... 31 3.4.5 Case of Aggerholm v. Denmark (2020) ...... 32 4 Convention on the Rights of Persons with Disabilities ...... 34 4.1 The emergence of the CRPD ...... 34 4.2 Defining disability ...... 35 4.3 Connection to the ECHR and unsound mind ...... 35 4.4 Positive and negative rights ...... 37 5 Intersectionality and the right to health ...... 38 5.1 The International Covenant on Economic, Social and Cultural Rights ...... 38

5.2 Gender mainstreaming ...... 39 5.3 Migration status and race ...... 40 6 Lawfulness of the use of mechanical restraint ...... 42 6.1 Assessing lawfulness, remedies and State obligations ...... 42 6.2 UNCAT ...... 43 6.2.1 Severe physical or mental suffering ...... 44 6.2.2 Intent ...... 44 6.2.3 Specific purpose ...... 45 6.2.4 Involvement or acquiescence of a State official ...... 46 6.3 ICCPR ...... 46 6.3.1 Prescribed by law and legitimate aim ...... 47 6.3.2 Necessary in a democratic society ...... 47 6.3.3 Proportionality ...... 49 6.4 ECHR ...... 50 6.4.1 Margin of appreciation ...... 50 6.4.2 Summary of case law from the ECtHR ...... 51 6.5 CRPD ...... 52 6.5.1 Legitimate aim ...... 53 6.5.2 Suitable ...... 53 6.5.3 Necessary ...... 54 6.5.4 Means-end relevance ...... 55 6.5.5 Proportionality in the strict sense ...... 56 7 Conclusions ...... 58 7.1 International and European human rights framework ...... 58 7.2 Lack of research, data and people willing to speak ...... 59 Bibliography ...... 61

1 Introduction

1.1 Background As Human Rights Watch released the report Living in Chains – Shackling of People with Psychosocial Disabilities Worldwide1 in October 2020 and launched the campaign #BreakTheChains2, light was shed on grave international human rights violations of the rights of persons with disabilities. The report focused on shackling, the chaining of people with mental health conditions under a longer period of time, both by private and State actors. Although some cases were disclosed in Europe, most of the cases concerned countries outside of this region. However, violations of human rights of persons with psychosocial disabilities stretch further than shackling and is not limited to certain regions of the world. The use of mechanical restraint in bed through belt fixation in healthcare facilities is a widely used practice in Europe. Taking place in closed environments, it is often experienced as traumatic for people subject to this coercive measure. The discussion regarding whether this can be considered as a potential human right violation, especially in the form of torture and other cruel, inhuman or degrading treatment or punishment, has received little attention. When debated, it is often defended by medical necessity, without taking into account the systematic pattern and particular vulnerability of the groups of people who are subject to this, often persons with psychosocial disabilities. An assumption can be made that persons who are mechanically restrained in psychiatric facilities have some kind of mental health condition as domestic laws that permit physical restraints often set out criteria of a severe mental illness and immediate risk of harm to oneself or others.3 Even though not all mental illnesses can be classified as disabilities, some might, which makes it crucial to look into the Convention on the Rights of Persons with Disabilities (CRPD). The CRPD might indicate that the use of mechanical restraints is prohibited prima facie. If it is discriminatory, torture could possibly be presumed if the other elements of torture are satisfied. From an intersectional perspective, it is important to note that girls, women and non-binary people face an additional cap of discrimination on the basis of gender, which increases the particular position of vulnerability.

1 Human Rights Watch, Living in Chains: Shackling of People with Psychosocial Disabilities Worldwide, 6 October 2020, “https://www.hrw.org/news/2020/10/06/people-mental-health-conditions-living-chains”, retrieved: 20 January 2021. 2 Human Rights Watch, #BreakTheChains, “https://www.hrw.org/BreakTheChains”, retrieved: 20 January 2021. 3 Fernández Rodríguez, Ángela & Zabala Blanco, Jaime, Restricción física: revisión y reflexión ética, Gero- komos vol. 25, no. 2, Barcelona, 2014, pp. 63–67.

1.2 Purpose and research questions The purpose of this thesis is to investigate under which circumstances mechanical restraint by bed through belt fixation4 in psychiatric healthcare facilities po- tentially could amount to torture and other cruel, inhuman or degrading treatment or punishment. There is a special focus on disabilities and gender. The research questions are the following: What is the international and Euro- pean human rights framework on the use of mechanical restraints? What is the impact on the legal norms on the use of mechanical restraint when the Conven- tion on the Rights of Persons with Disabilities is applicable?

1.3 Methodology The main methodology applied is the legal doctrinal approach. This method is based on interpretating established sources of law and mapping out current law systems in order to solve legal issues.5 Since the focus is on whether mechanical restraint could amount to torture or other ill-treatment, different sources of international human rights law that address this topic are analyzed in order to es- tablish the current legal framework. This requires a review of international cove- nants, international customary law, doctrine, case law, reports and comments by different bodies of the United Nations (UN). Since torture and other ill-treatment are prohibited in various sources of law, the different treaties and their treaty bodies’ interpretation of the conduct must be examined in order to assess which legal requirements that have to be fulfilled in accordance with each treaty. Most studies on mechanical restraint and persons with disabilities have been carried out by psychiatrists. Few formal studies have been done by people with actual experience themselves, although preamble (o) and Article 33(3) of the CRPD state that persons with disabilities in particular should have the opportunity to be involved in the process of decision-making regarding policies and programs relating to the CRPD, as well as the monitoring of its implementation. With reference to this, I agree with Anna Nilsson, postdoctoral researcher in law, on the right to make use of personal experiences.6 I claim my right as a person with psychosocial disabilities to make use of my own personal experiences of being mechanically restrained. For the same reason, I have also conducted interviews with persons with and without psychosocial disabilities who have experience of being mechanically restrained. Healthcare professionals from different fields that have worked with mechanical restraints in different ways have also been interviewed. Eighteen in-depth interviews have been conducted online, following structured interview protocols, with people from Sweden and Spain, in which twelve are from Sweden and six from Spain. Healthcare professionals include doctors, psychiatrists, psychologists, nurses and assistant nurses. The

4 In Swedish ”bältesläggning” and in Spanish ”contención mecánica”. 5 Kleineman, Jan, Juridisk metodlära (red. M. Nääv & M. Zamboni), 2nd edition, Lund, 2018, p. 21. 6 Nilsson, Anna, Compulsory Mental Health Interventions and the CRPD: minding equality, Hart Studies in Law and Health, 2021, p. 8.

distribution of persons with personal experience of being restrained and healthcare professionals is equal with nine in each category. All interviewees have been promised anonymity for their participation in this study to ensure confiden- tiality. Anonymized interview reports have been composed that I have access to. In order to make the thesis more reader-friendly, interviewees have been given pseudonyms. The testimonies refer to events taken place within the past years from 2021 if not otherwise specified. Thus, these are not events that happened decenniums ago but very much occur as this thesis is being written. All testimonies have not been cited, nonetheless, all persons’ contribution with their stories have been highly valuable in the writing of this thesis in order to confirm and bring forth the reality to what has been written academically and to give rise to the voices of people. I embrace PhD Clinical Psychology researcher Jasna Russo’s view on survivor-controlled research.7 The main idea of this research is that first-person experience is considered as a legitimate and true source of evidence. It differs from user involvement research in the sense that survivor-controlled research is done by persons with personal and direct knowledge of the topic, whereas the former is looked upon more as an additional component to extend academic and clinical research.8 Survivor-controlled research is a methodology that traces back in time and still is emerging. Not only Russo is an advocate for this methodology but also for example NIHR postdoctoral Angela Sweeney, with a PhD in Medical Sociology.9 My own personal experiences of being mechanically restrained multiple times mainly took place in Sweden, as well as in Spain. I will make use of my own experiences in this thesis as I believe it to be crucial that people with firsthand experience are active in the research of those topics. I believe it is a patriarchal idea that this would constitute subjective research as it is possible to do research and remain objective if one adheres to scientific methods. This is something Donna Haraway, professor in history, specifically addresses. Haraway refers to “situated knowledge” as a feminist understanding of research in which our positional perspectives provide particular knowledge of the subject. Feminist objectivity does not split object and subject. Objectivity does not equal partial, non-personal perspectives.10

1.4 Material Article 38(1) of the Statute of the International Court of Justice (ICJ) lists the sources of international law. These are international conventions, international custom, general principles of law and, as a subsidiary mean, “judicial decisions

7 Eg. Russo, Jasna, Survivor-Controlled Research: A New Foundation for Thinking About Psychiatry and Mental Health, Forum: Qualitative Social Research, Vol. 13, No. 1, Art. 8, January 2012. 8 Russo, Jasna, pp. 3-4. 9 Eg. Sweeney, Angela, Why Mad Studies Needs Survivor Research and Survivor Research Needs Mad Studies, A Global Journal of Social Work Analysis, Research, Polity, and Practice, vol. 5, no. 3, 2016. 10 Haraway, Donna, Situated Knowledges: The Science Question in Feminism and the Privilege of Partial Per- spective, Feminist Studies, vol. 14, no. 3, 1988, pp. 581–583.

and teaching of the most highly qualified publicists”. The key conventions for the purpose of this thesis are the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (UNCAT), the International Covenant on Civil and Political Rights (ICCPR), the Convention on the Rights of Persons with Disabilities (CRPD), the International Covenant on Economic, Social and Cultural Rights (ICESCR) and the European Convention of Human Rights (ECHR). Case law from the European Court of Human Rights (ECtHR) is crucial due to the focus on Europe. Since there are few provisions in conventions on mechanical restraints, custom, principles, decisions, reports and statements by UN bodies are important sources. Since the use of mechanical restraint also is an issue of psychiatry, research in this field has been consulted when necessary to explain and discuss certain practices, effects and statistics.

1.5 Delimitation The international framework on torture and other cruel, inhuman or degrading treatment or punishment is discussed as a whole, although there is a specific regional focus on Europe. Hence the case law addressed are from countries in Eu- rope. This focus is explained by my personal experiences from this region. There are different forms of mechanical restraint as explained in Section 2.1, however, when using “mechanical restraint” in this thesis I refer to mechanical restraint by bed through belt fixation if not otherwise specified.

1.6 Outline In Chapter 2, an introduction of the use and different types of restraints is given to ensure that the reader understands what they are and imply in the specific healthcare context. Aside from the theoretical explanation, documented experiences, including from interviews conducted for this thesis, of some people who have been exposed to mechanical restraints are presented. In Chapter 3, the different international human rights and the regional European frameworks, including case law, on torture and other ill-treatment are presented to map out the current legal regulations on the area. In Chapter 4, the concept of disability and the CRPD are discussed as the impact of disability on the legality of the use of mechanical restraint is one of the central purposes of this thesis. In Chapter 5, the right to health is discussed in order to understand which positive rights might justify the use of restraints. An intersectional approach is applied in the sense that the implications of gender, migration status and race are discussed since disability is not the only factor that affects the frequency of restraints. In Chapter 6, the lawfulness of the use of mechanical restraints are discussed in connection to each convention that has been presented in the previous chapters. In Chapter 7, conclusions are made to attempt to answer the purpose and research questions of this thesis.

1.7 Terminology and language It is important to recognize the power of words and be sensitive to the meaning of different words in different languages. A word that is considered appropriate in one language might translate to something that is considered inappropriate in another. Additionally, in the field of law, medicine and psychology, the same word might have different meanings. Since English, Swedish and Spanish sources have been used in this project and interviews been conducted in these three languages, some linguistic clarifications should be made. Therefore, some words will be explained below and the reasons why I have decided to use them. In the earlier drafts, persons that have been subject to mechanical restraint, involuntary treatment or other coercive measures were referred to as “(ex)users and survivors of psychiatry”. I found this notion the most inclusive when talking about the context of psychiatric healthcare facilities. In my opinion, using words such as “patient” or “client” when speaking about potential human rights violations does feel inherently wrong as one cannot consent to torture or other ill- treatment. However, in the process of writing this thesis, the notion of “(ex)users and survivors of psychiatry” has been perceived by some as taking a subjective stand, or even misleading, since far from everyone who have been in contact with psychiatric facilities have been subject to coercive measures. Therefore, I use “persons that have been subject to mechanical restraint”. Rather than using the word “disability”, many people prefer to use the word “functional diversity” in English instead, referring to it as less stigmatizing. In Swedish, it is commonly considered more politically and socially correct to use the word “funktionsvariation” than “funktionsnedsättning”. For the same reason, “diversidad funcional” instead of “discapacidad” is often used in Spanish. In law, “disability”/ “funktionsnedsättning”/ “discapacidad” is still used, including by the UN, and for this reason I will use the word “disability”. When referring to “disability”, it is understood as something external, more specifically barriers that society creates that hinder full participation in society from a normative perspective. See further explanation in Section 4.2 Defining disability.

2 Physical restraints in healthcare facilities

2.1 Types of restraints Restraints are not exclusively used in psychiatry, but when referring to restraints in a psychiatric context, coercion and limitation of freedom of movement are implied. Different varieties and types of restraints exist. Physical restraints can be divided into two categories: manual and mechanical restraint. Manual restraint aims to immobilize or reduce the person’s ability to move freely, for instance by holding the person. Mechanical restraint is the direct and adjacent application of mechanical devices that are not easily removed and aims to control, prevent or limit the ability to move. Physical restraint by bed through belt fixation with straps around the ankles, wrist and waist (so-called five-point restraint) is an example of this. Manual and mechanical restraint are often used in combination as the former often is applied in order to perform the latter. Generally, manual restraint is limited to a few minutes, whereas mechanical restraint lasts for hours.11 Physical–psychological restraint is another restraint which takes the form of com- mand, psychological pressure or intimidation by staff towards a patient in order to force the patient to do or abstain from doing something. Chemical restraint is the use of chemical substances, such as antipsychotic and sedative drugs, that does not serve to treat illnesses, but instead to intentionally restrict or impair executive functions, behavior or movements. Chemical restraint is often com- bined with physical restraint. Additional types of restraints are environmental and psychological restraint. In environmental restraint, the patient’s free access to all parts of their environment is restricted. Psychological restraint includes withholding of privileges, restriction of participation in activities and strategies that are consequence-driven.12

2.2 Reasons behind the use of physical restraints Individual reasons for the use of physical restraints can be divided into treatment- oriented reasons and patient-oriented reasons. Treatment-oriented reasons aim to facilitate treatment and prevent the disruption of it. Common reasons include the hindrance of removal of nasogastric feeding tubes and intravascular lines as well as interference with sutures and wounds. The rationale behind physical

11 Negroni, A.A., On the concept of restraint in psychiatry, European Journal of Psychiatry, vol. 31, issue 3, 2017, pp. 100–101. 12 Negroni, pp. 101–102.

restraint is most often patient-oriented, which can further be divided into five sub-groups: support, wandering, behavior control, safety and agitation. Support is applied in order to maintain or assist the position of a patient. Restraint due to wandering refers to the prevention of climbing from beds, chairs and other forms of wandering. Behavior control is usually applicable on patients with confusion or altered mental status. Reasons of safety mainly relates to the prevention of injury and falls, which can be due to for example imparity or self-transfer that is inappropriate. Safety reasons can also include preventing patients from self-harming or obtaining dangerous items. Agitation refers to situations in which the person is at risk of harming oneself or others, whether it include violence or not.13 Physical restraint is also reported to be used for the benefit of the healthcare workers or organization. Insufficient or shortage of staff are not seldom reasons that provoke physical restraint as it can be seen as a way to compensate for other, more time-consuming ways to deal with someone in a difficult situation. It has also been reported that nurses use physical restraint as a way to punish patients as well as demonstrating consequences for non-compliance.14 All healthcare professionals interviewed agreed that it felt terrible and as a failure to have to restrain someone, but that they felt like they sometimes had no other choice and could justify it for the sake of saving the person’s life. Everyone agreed that it should only be done as a matter of last resort and that preventative measures, such as talking to the person, offer sedative medication, use calming rooms, create safe environments and simply get to know the individual better would most likely reduce the number of mechanical restraints. These measures need to be apt to persons with psychosocial disabilities to not be discriminatory. Furthermore, healthcare professionals testified that at some hospitals or clinics it was much more common to use mechanical restraint than at other, depending on the overall attitude and culture regarding mechanical restraint in the facilities. All healthcare professionals, in both Sweden and Spain, interviewed agreed that the lack of staff and persons with adequate training were huge factors to why mechanical restraints were applied more frequently in some contexts.

2.3 Lack of adequate data on the use of restraints What is considered a restraint, which types and how often they are used as well as the legal framework vary substantially between countries even within Europe.15 What is considered as a more intrusive restraint in one country might be considered as less intrusive in another. There is little data on the use of restraints and the data that exists is hard to draw conclusions from. The ways to collect data vary substantially and a great amount of underreporting can be assumed. Distri- bution of people, including both the number studied and varieties in mental and

13 Evans, David, & FitzGerald, Mary, Reasons for physically restraining patients and residents: a systematic review and content analysis, International journal of nursing studies, vol. 39, 2002, pp. 738-739. 14 Evans & FitzGerald, pp. 736-737. 15 Negroni, p. 99.

physical medical conditions, is often inconsistent. The organization of healthcare systems might also affect the outcome in the sense that countries that present lower levels of restraints in psychiatric hospitals might perform more restraints than suggested, but in other institutions such as residential homes. If data only cover adult psychiatric hospitals although a significant number of restraints occur in children and adolescent psychiatric hospitals, it will also advert the statistics.16 Data on the effects of restraints is limited. In one study in adult psychiatry on the consequences of restraint and seclusion, 25 to 47 % of the persons subject to it were found to have post-traumatic stress disorder (PTSD) as a consequence of it. Compared to forced medication, seclusion was indicated as more acceptable and restraint less acceptable.17 The lack of adequate data, both relating to frequency, duration and type as well as its effects, should be looked upon with great concern. Statistics on health and other indicators are important to measure pro- gress, identify potential violations and expose inequalities and discrimination that otherwise goes undetectable.18 The Committee on Economic, Social and Cultural Rights (CESCR) recommends States to include disaggregated data on health according to sex.19 Gendered data on the use of restraints and disaggregation on the basis of disability is limited. The lack of data on the effects of restraints make proportionality assessments more difficult, if not impossible.

2.4 Recommendations and principles The United Nations Principles for the Protection of Persons with Mental Illness and for the Improvement of Mental Health Care (A/RES/46/119, 17 December 1991) sets out guiding principles for involuntary treatment. According to Princi- ple 9(1), the least restrictive or intrusive treatment should be applied. Measures like physical restraint may only be applied when there is no other available mean to prevent imminent or immediate harm to the person or others and it must be done in accordance with procedures of the mental health facility that officially have been approved, according to Principle 11(11). According to the same principle, the person should be “kept under human conditions and be under the care and close and regular supervision of qualified members of the staff” and the physical restraint must cease as soon as it is no longer strictly necessary for the given purpose.

16 Eg. Steinert, Tilman, Lepping, Peter, Bernhardsgrütter, Renate, Conca, Andreas, Hatling, Trond, Janssen, Wim, Keski-Valkama, Alice, Mayoral, Fermin & Whittington, Richard, Incidence of Seclusion and Restraint in Psychiatric Hospitals: A Literature Review and Survey of International Trends, Social Psychi- atry and Psychiatric Epidemiology, vol. 45, no. 9, 2010, pp. 889–97, Al-Maraira, A. Obay & Hayaj- neh, A. Ferial, Use of Restraint and Seclusion in Psychiatric Settings, Journal of Psychosocial Nursing, vol. 57, no. 4, 2019, p. 36 and SVT Nyheter, Hundratals bältesläggningar försvinner i statistiken, 11 May 2018, “https://www.svt.se/nyheter/granskning/ug/stort-morkertal-kring-ingrepp-i-tvangsvarden”, retrieved: 20 April 2021. 17 Chieze, Marie, Hurst, Samia, Kaiser, Stefan & Sentissi, Othman, Effects of Seclusion and Restraint in Adult Psychiatry: A Systematic Review, Frontiers in psychiatry, vol. 10, art. 491, 16 July 2019, p. 1. 18 Saul, Ben, Kinley, David, & Mowbray, Jacqueline, The International Covenant on Economic, Social and Cultural Right – commentary, cases and materials, Oxford Public International Law, 2014, pp. 1051-1052. 19 Saul, Kinley & Mowbray, p. 987.

Article 27(1) of the Council of Europe’s Recommendation No. Rec(2004)10 of the Committee of Ministers to Member States concerning the protection of the human rights and dignity of persons with mental disorders and its Explana- tory Memorandum reaffirms the principle of least restrictive mean and proportionality, with the purpose to prevent imminent harm to the person or others. Medical supervision must always be conducted, and documentation of the restraint must be appropriate according to Article 27(2).

2.5 Impacts on persons with experience of restraints In a study carried out by the European Agency for Fundamental Rights on involuntary placement and involuntary treatment, 115 persons with mental health conditions in nine different European Union (EU) Member States, including Sweden, were interviewed on their personal experiences.20 All participants that had experienced restraint described it as unforgettable, traumatic and sometimes causing physical injury”.21 In extreme cases, mechanical restraint can be lethal. In Sweden in 2017, a 34 year old man died after being mechanically restrained for 42 hours at a psychiatric unit.22 The same year in Spain, a 26 year old woman died after being mechanically restrained for 75 hours at a psychiatric hospital.23 Other studies have also shown negative effects on the use of restraints. It is often viewed by the person subject to it as traumatic, bullying, stigmatizing, punitive and triggering of previous trauma. However, another study showed that some people perceived restraint as a helpful tool. A lot of studies indicate that many people subject to restraint did not understand the reason to why they had been restrained and as a consequence perceived it as punitive.24 In the interviews I have conducted, it has been confirmed by both people with personal experience and healthcare professionals in Sweden and Spain that it is common to develop mild to more severe symptoms of PTSD as a result of mechanical restraint. In the following section I will address some findings from the interviews.

2.5.1 Restraint as a matter of routine Some people seem to get restrained once or twice, whereas some have lost count on the number of times they have been restrained but estimate that it has

20 European Union Agency for Fundamental Rights (FRA), Involuntary placement and involuntary treatment of persons with mental health problems, Luxembourg, Publication Office of the European Union, 2012, p. 41. 21 FRA, p. 47. 22 Nordén, Ida & Engholm, Anna, Daniel blev tvångsinlagd och fastspänd – dog efter 42 timmar i bältessäng, SVT Nyheter, 13 March 2019, “https://www.svt.se/nyheter/granskning/ug/daniel-dog-efter-att- ha-legat-baltad-42-timmar”, retrieved: 6 April 2021. 23 López Trujillo, Noemí, Andreas murió de meningitis tras 75 horas atada en la unidad psiquiátrica del Hospital Central de Asturias, El País, 19 April 2019, “https://elpais.com/sociedad/2019/04/18/actualidad/1555612101_291957.html”, retrieved: 6 April 2021. 24 Al-Maraira & Hayajneh, pp. 34–37.

happened hundreds of times and in Sweden, often multiple times a day. Many explained that they believe that mechanical restraints have been applied before trying other less restrictive means and that they had to remain restrained longer than necessary. The main reasons for the application of mechanical restraints was to prevent self-harm and to administer force-feeding or other life-sustaining treatment such as intravenous drip. Although most understood why they were restrained, everyone thought that it could be avoided by preventive measures and that it often was not absolutely necessary. Three people in Sweden described that they felt like mechanical restraint was applied as a matter of routine. One woman, Linda, explained that she was brought to the psychiatric emergency room by the police in handcuffs after her neighbors had called the police since she was screaming and was desperate for help that she did not receive despite asking for it. Once arrived at the emergency room, Linda was immediately restrained, which she believes was due to her ar- riving with the police. Another woman, Alexandra, who had psychosocial disabilities said that she had been restrained many times as a consequence of just walking back and forth in the hospital corridor, listening to music with head- phones on, without being aggressive and had no medical condition that should preventing her from being allowed to walk. She was told that the reason as to why she was restrained was due to her “disturbing other people at the ward”. Another woman, Isabel, felt like mechanical restraint was applied as a preventative measure. Isabel suffered from anorexia and she was restrained in order to administer tube feeding for each mealtime without given the opportunity to vol- untarily accept nutrition. There was no discussion on whether restraints would be applied or not. A resident physician in psychiatry, Laura, in Sweden also described a situation in which a psychiatrist ordered mechanical restraint every day for a month to facilitate intravenous fluid therapy to a person who refused to drink. She believed that this was done as a matter of routine and was convinced that the person would have started to drink if a glass of water had been placed at the doorstep to the person’s room. Nevertheless, there are also examples when mechanical restraint indeed is used as a matter of last resort. A nurse in Sweden, Emilia, working at a children’s psychiatry clinic described that if tube feeding is necessary to save life, the person is always given several opportunities to eat or drink nutritional drinks first. A plan is made to try to avoid tube feeding. If it still does not work, the person is always offered to get tubed without being mechanically restrained. However, if that is not possible, mechanical restraint is applied.

2.5.2 Treatment during the restraint The treatment and attitude during mechanical restraint seem to be highly depend- ent on the members of staff and unit, for example, whether one is offered a blanket, food or water. Alexandra explained that the person watching her when she was restrained at a medical emergency department, which she was because she had resisted an intravenous antidote to an overdose, was not from the psychiatric department but instead a security guard with no experience on mental

health. He had simply told her to “shut up”. None from the psychiatric unit had evaluated her and she was restrained for a persisting twelve hours, although she had fallen asleep and become calm. The medical staff referred to the fact the only the members of staff at the psychiatric unit had the tools to loosen the straps and that she had to wait until they arrived. After the intravenous drip had finished, it took 30 minutes until she was released. Another woman, Isabel had also experienced many times of restraints and was once restrained during a period of 12 to 14 hours. She could not remember if any doctor checked on her. Feelings of being degraded were often described. Isabel particularly described situations of using a bedpan, having a catheter inserted and her pants pulled down when being forcibly injected with medication while male staff were present in the room as humiliating. She also described feelings of distress the times she had been transported in the bed with restraints from the emergency room or another unit to the radiology department. Although a blanket was placed over her, she said that anyone could tell that she was restrained. She was afraid that she would encounter someone she knew in the corridor of the entrance to the hospital. Additionally, Isabel had experienced dissociation, symptoms causing her to not understand where she was or what was happening. When she had asked about this, members of staff had laughed or made fun of her. When she had confronted staff when they had spoken about her in a degrading manner or laughed because someone had made a mistake when restraining her, she had gotten the response that “we should also be allowed to have fun at work”. Moreover, she feels like they believe that she can control her behavior since she often has been told to “think about the staff”, “it is a pity for them to have to do this”, “give me a break”, “you have to stop, it is your fault that you get restrained” and “you know what you have done”. Isabel said that she had received visits from her parents while being restrained and described that she felt ashamed and worried about the feelings of her parents seeing her in that position. No one had asked her if it was okay to let her parents visit under these circumstances.

2.5.3 Feelings after being restrained In one way or another it is apparent by looking at previous research and the findings from the interviews conducted that being subject to mechanical restraint often affect people in a negative way. Some people got PTSD as a consequence, although it often was caused by additional traumatizing experiences in the past. Common symptoms include dissociation, flashbacks and, in the context of traumas from health care, avoidance to seek health care. One woman in Sweden, Paula, with PTSD, caused by traumas experienced in healthcare settings, described that she is constantly worried about dissociating, having flashbacks or nightmares, which exhaust her as memories always are on top of her mind. She even has issues to watch the television or movies, as there often might be some character that is held against their will. It has also affected her in the way that she is scared about getting in contact with psychiatric clinics and that she would never set foot on a psychiatric emergency department. She is even scared to seek somatic care due to the fear of being sent to a psychiatric clinic. She also has

struggled to stay inpatient at eating disorder clinics as it triggers PTSD-symptoms when others start to scream or get restrained and tube-fed. Isabel who has psychosocial disabilities described similar symptoms such as flashbacks, nightmares, dissociation and avoidance to seek health care. For a period of time, she was unable to use the seatbelt as it triggered traumas of being restrained. Another woman in Sweden, Linda, with psychosocial disabilities had lived in an abusive relationship for years where she had been raped. Because of this, she had been in contact with a women’s shelter and she described that all the emotional work she had done was as blown away when she got mechanically restrained as it re-traumatized her. Alexandra who had been in and out of psychiatric units in Sweden for about fifteen years and lost count on the number of times she had been mechanically restrained described a somewhat different experience of the use of restraint. She said that “somehow you get used to it; you lay there for 30 to 60 minutes, then you get released and go out and smoke and it is nothing more than that”. Alexandra said that “sometimes it is not as horrible as people make it up to be and that it even can be helpful to calm oneself and that it can give some relief that one will not be able to hurt oneself”. By my own situated knowledge, this is something that I have also heard from other persons. However, it should be noted that Alexandra highlighted that “at some places, it is always like hell to get restrained though”.

2.5.4 Perception on the presence of male staff All women interviewed addressed the situation of male staff being present while mechanically restraining them. Many had requested female staff as they felt unsafe with male staff due to experiences of sexual offences both inside and outside of psychiatric facilities. This was often not respected and dismissed as shortage of staff, although sometimes accommodated. There are many reasons for why the request for female staff should be respected. Victims of sexual assault might feel unsafe as the absolute majority of sexual perpetrators are men. Alexandra said that she had been raped twice by a member of staff while mechanically restrained and sexually exploited for a longer period of time by the same person. During an interview with Laura, a resident physician in psychiatry in Sweden, it was revealed that she was aware of multiple cases of healthcare professionals who had sexually abused people they treated. This concerned cases where an assistant nurse had groped several patients multiple times, both while mechanically restrained and not. These following statements are outside the scope of this thesis, but due to the severity of the testimony I have decided to include the following to shine light on the extra vulnerable position persons at psychiatric facilities are in, the power dynamic between them and members of staff and the possible abuse of power that this can cumulate into. Laura was namely also aware of a member of staff who had recorded a “porn video” with a patient and another who had gone to a patient’s home during her medical leave and raped her. An- other member of staff had sexually exploited a patient at an inpatient unit, which was described as “if they were engaging in a relationship”. She was also aware of a chief physician who had sexually harassed patients and prescribed non-

therapeutic narcotic drugs. Another chief physician, who still is practicing medicine, invited patients to his house and forced them to perform sexual favors in exchange for prescribing narcotic drugs. Laura also spoke about a case where another psychiatrist raped a patient at his private clinic and this case went to court, but he is now practicing medicine again.

2.5.5 Complaint, report and redress Striking from the interviews is that everyone interviewed who had experienced mechanical restraint to the question of what redress would mean to them, an- swered that it would be to receive appropriate health care, tell their story and that others would not be subject to the same maltreatment that they had been. None addressed criminal liability in relation to the mechanical restraint. From a feminist perspective this is important and shows that the law is not apt to this. Thus, what is perceived as justice in international human rights law is often based on a patriarchal perspective as focused on punishment, although this is not most priori- tized by the persons who participated in the interviews. Most people said that filing a complaint would be too difficult emotionally and that they believed that it anyway would not lead to any justice and therefore abstained from it. One person, Alexandra, who had been raped during two episodes of mechanical restraint, did however actually proceed with filing a police report for rape. Charges were pressed and the case went to court, but the lack of evidence led to a verdict of not guilty. The only consequences for the alleged perpetrator were that he was not allowed to continue to work at the unit and that if he wanted to work within the field of psychiatry, he was only allowed to work with elderlies. This decision is very much based on an obsolete idea that rape is about lust and not the exercise of power; as if the elderly people would be safe because they would be perceived as unattractive, not provoking him to rape them. Another thing that came up during the interview that was striking is that Isa- bel, who had psychosocial disabilities and suffered from anorexia, had been reported to the police. She had accidently hit a nurse during an episode of self- harm, caused by severe anxiety related to her anorexia and body image, when she hit herself and banged her head into the wall and the nurse tried to stop her. She had tried to ask for help before hurting herself, but she did not receive adequate support. Isabel was suspected of violence against a public servant (Chapter 17, Section 1, paragraph 1 of the Swedish Penal Code) but the prosecutor finally decided to withdraw the charges. One idea of redress that would involve economic compensation and still keep the feminist perspective in mind is the use of economic compensation to people so that they can seek appropriate private treatment. Since a consequence of being mechanically restrained seems to be a mistrust in the system due to trauma, it should not be unfamiliar that people seek other ways than the public healthcare system to heal their traumas. Since this very much is a matter of economic privilege, economic compensation could reduce the barriers to get redress in the form of receiving proper health care.

3 Torture and other ill-treatment

3.1 International and regional sources of law International and regional human rights treaties include regulations that prohibit torture and other ill-treatment. The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (UNCAT) specifically addresses it, whereas other conventions and declarations contain specific articles. These are Article 7 of the International Covenant on Civil and Political Rights (ICCPR), Article 15 of the Convention on the Rights of Persons with Disabilities (CRPD), Article 3 of the European Convention on Human Rights (ECHR), Ar- ticle 5 of the African Charter on Human and Peoples’ Rights (ACHPR), Article 5 of the American Convention on Human Rights (ACHR) and Article 5 in the Universal Declaration on Human Rights (UDHR).25 In addition to the treaty-based right to be free from torture and other ill-treatment, it is also protected under customary international law and there is no room for derogability.26 The two factors that distinguish customary international law is the extensive and virtually uniform and consistent state practice in combination with the belief of the States that it is mandatory by law, so-called opinio juris.27 Prohibition of torture and other ill-treatment is also a norm of jus cogens.28 The threshold for being considered jus cogens is higher than for customary international law since consent from the international community of States as a whole is required. Jus cogens norms are binding upon all States, independently of whether they expressively have consented to them or not. They are also non- derogable, meaning that States cannot derogate from them with reference to other international treaties, customs or even customary norms that do not have equal power.29

3.1.1 The International Covenant on Civil and Political Rights The ICCPR was the first core international human rights treaty, adopted in 1966 and entered into force in 1976, to prohibit torture and other cruel, inhuman or degrading treatment. There is no definition of torture in the ICCPR, nor of

25 Rodley, Nigel, Integrity of the person, Moeckli, Daniel, Shah, Sangeeta & Sivakumaran, Sandesh (Eds.), International Human Rights Law, 3rd edition, Oxford University Press, 2018, pp. 166–167. 26 Rodley, pp. 167–168. 27 Chinkin, Christine, Sources, Moeckli, Daniel, Shah, Sangeeta & Sivakumaran, Sandesh (Eds.), International Human Rights Law, 3rd edition, Oxford University Press, 2018, pp. 70–71. 28 Rodley, p. 168. 29 Chinkin, p. 73.

“other cruel, inhuman or degrading treatment”, nonetheless, it protects both mental and physical integrity and the dignity of individuals.30 Article 7 reads: “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimen- tation”. The treaty body of the ICCPR, the Human Rights Committee (HRC), has not considered it necessary to list the acts prohibited. Neither has it considered it necessary to make a sharp distinction between torture and the other forms of ill- treatment. The distinction rather depends on the treatment in question, taking into account its nature, purpose and severity.31 Moreover, aspects such as the health, sex and age of the victim may, in addition to circumstances such as duration and physical or mental effects, impact the classification and gravity of the treatment.32 There is no requirement according to the ICCPR of the involvement of a State official in order to qualify as torture or ill-treatment, which is the case for the UNCAT. The State is rather responsible to make sure that there is a legal framework and other measures in practice that serve as a protection against acts under Article 7, independently of whether it has been inflicted by a person who acts in or outside of their official capacity or in private capacity.33

3.1.2 The European Convention of Human Rights “No one shall be subjected to torture or to inhuman or degrading treatment or punishment”, according to Article 3 of the ECHR. There is no definition in the Convention, but the European Court of Human Rights (ECtHR) and its predecessor, the Eu- ropean Commission of Human Rights, have delivered guiding jurisprudence. In the Greek Case34, distinctions were made between torture and inhuman and degrading treatment. It was proclaimed that there is a spectrum in which some abuses are more severe than other. By this reasoning, torture is considered inhuman and degrading treatment, and subsequently is inhuman treatment or punishment also considered as degrading. Torture was considered to have a special form of stigma attached to it connected to what purpose it was committed for, which necessarily did not depend on the severity or nature of the act. In the case of Ireland v. UK35, the severity of the suffering and pain was instead made into the decisive factor of whether an act constituted torture or not rather than the purpose.36 Article 1(2) of the UN Declaration against Torture (UNDAT), which

30 Association for the Prevention of Torture (APT) and the Center for Justice and International Law (CEJIL), Torture in International Law – A guide to jurisprudence, SRO-Kundig, Geneva, 2008, pp. 6–7. 31 CCPR General Comment No. 20: Article 7 (Prohibition of Torture, or Other Cruel, Inhuman or Degrading Treatment or Punishment), A/44/40 (10 March 1992), para. 4. 32 Vuolanne v. Finland, HRC Communication No. 265/1987, 2 May 1989, para 9.2. 33 CCPR General Comment No. 20: Article 7 (Prohibition of Torture, or Other Cruel, Inhuman or Degrading Treatment or Punishment), A/44/40 (10 March 1992), para. 2. 34 The Greek Case, nos. 3321/67, 3322/67, 3323/67 and 3344/67, 1969 Yearbook of the European Convention on Human Rights, No. 12, p. 186. 35 Ireland v. UK, no. 5310/71, judgement of 13 December 1977, ECHR. 36 APT and CEJIL, pp. 56–57.

states that torture is an aggravated and deliberate form of cruel, inhuman or degrading treatment or punishment, was invoked in Ireland v. UK, and was probably the reason to why there was a shift away from the purposive element. In UN- CAT, there is no such requirement even though Article 16(1) UNCAT does include the phrasing “other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture”, but this should not be interpreted as a sliding scale.37 In 1999, Selmouni v. France38 marked a change as the purposive element of torture was reemphasized. Although there was still a requirement of a certain level of seriousness of suffering or pain, there was no longer a severity requirement. Torture did no longer have to be more than severe. The Court stated that the ECHR is a living document that evolves as democratic society evolves, hence lowering the threshold for the required suffering or pain over time as human rights standards increase.39 The ECtHR’s first reference to the definition of torture in the UNCAT was made in Selmouni. The Court has been reluctant to make a list of acts that per se is considered torture as there is a need for flexibility.40 In the Greek Case, inhuman treatment was defined as “at least such treatment as deliberately causes severe suffering, mental or physical, which in the particular situation is unjustifiable”. Inhuman treatment can also be understood in relation to torture and degrading treatment in the sense that it surpasses the severity level of degrading treatment without being sufficiently severe to amount to torture, or that it lacks the purposive element of torture.41 The Commission also held that some form of gross humiliation must be present in degrading treatment. In Ireland v. UK, it was further stated that a minimum level of severity must be reached. In East African Asians v. UK42, an additional requirement was set out, namely that the dignity of a person somehow must be interfered with in order to be considered degrading. In Tyrer v. UK43 it was confirmed that a particular level of humiliation must be reached, not only related to the conviction itself, but also to the execution of the punishment, in which all circumstances of the case have to be considered with particular emphasis on the context and nature of the punishment as well as the execution’s method and manner. Both a subjective and objective element must be considered. The subjective element refers to the victim’s perception; even if the intention was not to humiliate, degrading treatment could have prevailed.44 Concerning the objective element, the Court stated in Campbell and Cosans v. UK45 that a minimum level of severity of the humiliation or debasement must have taken place in the eyes of the victim or others. A sufficiently real and immediate threat of torture, or any other acts in Article 3, may be considered at least inhuman treatment.46

37 Rodley, pp. 169–170. 38 Selmouni v. France, no. 25803/94, 28 July 1999, ECHR. 39 Rodley, pp. 170. 40 APT and CEJIL, pp. 59–60. 41 APT and CEJIL, p. 59. 42 East African Asians v. UK, nos. 4403/70, judgement of 14 December 1973, ECHR. 43 Tyrer v. UK, no. 5856/72, judgement of 25 April 1978, ECHR. 44 Eg, Yankov v. Bulgaria, no. 39084/97, judgement of 11 December 2003, ECHR. 45 Campbell and Cosans v. UK, no. 13590/88, judgement of 25 March 1992, ECHR. 46 APT and CEJIL, p. 60.

3.1.3 The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment As a response to the atrocities committed during World War II, international human rights law was further developed. Despite declarations in the UDHR that torture and cruel, inhuman or degrading treatment of punishment were prohibited, it continued to be utilized systematically in parts of the world. Especially when the widespread practice of torture in Chile, committed by the military junta under Pinochet, became widely known, international pressure to denounce torture increased. The UNCAT was adopted in 1984 and entered into force in 1987 and the Optional Protocol entered into force in 2006.47 Since the ICCPR and regional treaties already recognized torture and cruel, inhuman or degrading treatment or punishment as absolutely prohibited, the drafters did not restate these principles in the UNCAT. The purpose was rather to make the fight against torture and other ill-treatment more efficient. Three main focuses were outlined. Firstly, the principle of universal jurisdiction in combination with domestic criminal law should enforce repressions against perpetrators of torture. Secondly, victims of torture should be recognized and have the right to remedies and adequate reparations. Thirdly, State parties have extensive obligations to prevent torture and cruel, inhuman or degrading treatment or punishment. The UNCAT is the first international framework to include a definition of torture.48 The four elements are severe pain or suffering, intent, specific purpose and involvement, or acquiescence, of a State official. Article 1.1 reads: For the purposes of this Convention, the term "torture" means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.

3.2 Distinction between torture and other ill-treatment While the UNCAT provides a definition of torture, there is no definition for acts of cruel, inhuman or degrading treatment or punishment. The Committee Against Torture (CAT), treaty body of the UNCAT, has recognized the com- plexity in making such distinctions.49 According to the UN Special Rapporteur on Torture, it is possible to differentiate between these though by looking at the purpose of the conduct as well as the victim’s position of powerlessness. The

47 Nowak, Manfred, Birk, Moritz, & Monina, Giuliana, The United Nations Convention Against Torture and its Optional Protocol: a commentary, 2nd edition, Ser. Oxford Commentaries on International Law, Oxford University Press USA, 19 December 2019, pp. 2–5. 48 Nowak, Birk & Monina, pp. 6–7. 49 APT and CEJIL, p. 11.

inflicted suffering or intensity of pain should be avoided as decisive criteria.50 If the act does not amount to torture due to falling short of any of the elements as defined in Article 1 UNCAT, it might instead amount to cruel, inhuman or degrading treatment or punishment, prohibited under Article 16. A unifying aspect of torture and the other forms of ill-treatment according to the UNCAT is the requirement of involvement of a public official or someone that acts in official capacity. Acquiescence of States, such as not responding adequately or failing to take measures to prevent private actors from the conduct, also fulfill the requirement of a public official involvement.51 Some differences between the forms of ill-treatment are that in order for a conduct to amount to torture, it need to be inflicted intentionally and reach a certain level of severity when it comes to suffering or pain, as well as serving a certain purpose. By intentional, both acts and omissions are covered, even those due to recklessness but not negligence. A subjective element is present in the assessment of the severity of the mental or physical pain, meaning that actions against victims that are particularly sensitive can amount to torture even though it would not otherwise be classified as such if this sensitivity was not present, given that the perpetrator is aware of it. The element of purpose is exemplified in Article 1 UNCAT; however, it is not in any way an exhaustive list. The purpose required is not limited to what traditionally was thought of, but there should be some connection with the State’s or its organs’ interests or policies. The connection might take the form of acquiescence by the State if, in addition to purely sadistic behaviors, a public official exercise an additional element such as intimidation or punishment. Threat- ing someone with torture might in itself be considered psychological torture as mental torture is covered by the definition of torture.52 Neither the CAT nor the HRC have made a distinction between torture and other ill-treatment.53 However, regional bodies have drawn a distinction. It can be questioned whether it is necessary to make a distinction between torture and other ill-treatment. First of all, it is difficult to estimate the suffering or intent inflicted. Secondly, from a victim-based perspective, what difference will it make? The person will still have been subject to the same act or omission, regardless of how it is later defined. On the other hand, the special stigma attached to torture should not be underestimated. If a State is accused of torture, it is often more harmful to their reputation than to be accused of other cruel, inhuman or degrading treatment or punishment.54

50 Commission on Human Rights, Civil and Political Rights, including the question of torture and detention, Torture and other cruel, inhuman or degrading treatment, Report of the Special Rap- porteur on the question of torture, Manfred Nowak, 23 December 2005, UN Doc. E/CN.4/2006/6, para. 39. 51 Joseph, Sarah & Castan, Melissa, The International Covenant on Civil and Political Right – cases, materials and commentary, 3rd edition, Oxford Public International Law, 2013, p. 220. 52 APT and CEJIL, pp. 12–13. 53 Eg. APT and CEJIL, pp. 12–13 and CCPR General Comment No. 20: Article 7 (Prohibition of Torture, or Other Cruel, Inhuman or Degrading Treatment or Punishment), A/44/40 (10 March 1992), para. 4. 54 Joseph & Castan, p. 217.

3.3 Torture and other ill-treatment in healthcare settings When coercive treatment takes the form of prolonged restraint, the Special Rap- porteur on torture and other cruel, inhuman or degrading treatment or punishment stated in 2008 that there can be no therapeutic justification for this when used in institutions on people with disabilities and that it can amount to torture and ill-treatment.55 Even shorter periods of restraint on people with mental disabilities may constitute torture and ill-treatment. The Special Rapporteur called for an absolute ban on measures, in all environments of deprivation of liberty, that are non-consensual and coercive, which include restraint of persons with intellectual or psychological disabilities in psychiatric institutions.56 Statements by the Special Rapporteurs are non-binding, but they are useful in order to detect developments in human rights law as reported by highly qualified jurists.57 In 2013, the Special Rapporteur published a report on torture and other ill- treatment in healthcare settings. The Rapporteur highlighted the particular context of the closed environments and how abuses often go undetected or are defended by medical necessity or efficiency aspects. Traditionally, the prohibition of torture has been applied to situations of punishment, interrogation or intimidation of detainees, but the international community has lately embraced the idea that torture and other ill-treatment might also occur in other contexts, such as healthcare settings. A paradigm shift can be seen by looking at case law from the ECtHR and the Inter-American Court of Human Rights as both have concluded that the concept of torture changes as societies develop.58

3.4 Case law on mechanical restraint from the ECtHR The European Court of Human Rights has in several rulings considered the lawfulness of mechanical restraints. There has been quite a success on procedural issues, whereas the facts have been more difficult to evaluate. In Wiktorko v. Po- land, the Court reiterated that it must apply particular thorough scrutiny when it comes to alleged violations of Article 3. Nevertheless, the Court reiterated that it must be careful when assessing the facts, keeping in mind its subsidiary nature.59

55 United Nations General Assembly, Torture and other cruel, inhuman or degrading treatment or punishment, Note by the Secretary-General, 28 July 2008, A/63/175, para. 55–56. 56 Human Rights Council, Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, Juan E. Méndez, 1 February 2013, UN Doc. A/HRC/22/53, para. 63. 57 Chinkin, Christine, Sources, Moeckli, Daniel, Shah, Sangeeta & Sivakumaran, Sandesh (Eds.), International Human Rights Law, 3rd edition, Oxford University Press, 2018, p. 78. 58 UN Doc. A/HRC/22/53 (1 February 2013), para. 11–15. 59 Wiktorko v. Poland, Application no. 14612/02, judgement of 31 March 2009, ECHR, para. 48.

3.4.1 Herczegfalvy v. Austria (1992) In Herczegfalvy v. Austria (1992), the applicant served a prison sentence for assaults. As further prosecutions were brought against him during his detention, it was ruled that he should remain detained due to fear of continued criminal behavior.60 The applicant was transferred to a forensic mental treatment institution in 1978 and later to a special prison. A psychiatrist diagnosed him with paranoia queru- lans; a mental illness that meant that he could not be held responsible for his acts since he was incapable of understanding his unlawful acts.61 In 1979, he was sent to a psychiatric hospital to receive urgent treatment as he had begun a hunger strike.62 Upon the arrival to the hospital, a doctor ordered force feeding. Since he refused all treatment, the doctor held that it was necessary to restrain him to a security bed with straps. On the 30 January 1980, he was again in need of treatment. He acted aggressively towards staff, got handcuffed and a belt was placed around his ankles. On 14 February, the restraints were removed. Throughout these two weeks he had also been forcibly administered food and neuroleptics.63 The applicant claimed that there had been a violation of Article 3 ECHR. The Government claimed that the measures were necessary due to his resistance of essential treatment and aggressiveness. The ECtHR stressed that the circumstances in which someone is confined to a psychiatric hospital demand increased vigilance due to the special situation of powerlessness and inferiority. The Court recognized the competence of medical authorities to administer coercive measures, given that it is therapeutic and in line with recognized rules of medical science, in cases when it is necessary for mental and physical health and the person is incapable of deciding for themselves. This was introduced as the doctrine of medical necessity. In principle, the Court stated that measures of therapeutic necessity that follow established principles of medicine cannot be deemed degrading or inhuman. The Court found that the prevailing medical principles at that time justified the treatment but raised concerns about the use of handcuffs and security bed and its duration. No violation of Article 3 ECHR was found.64

3.4.2 Case of Wiktorko v. Poland (2009) In Wiktorko v. Poland (2009), the applicant was brought to a sobering-up center in 1999 by a taxi driver after having refused to pay the bill. She was forcibly detained and refused to undergo a breathalyzer test. She maintained that she had only had two beers, whereas the Government submitted that she was in a state of “average intoxication”. The applicant had forcibly been stripped naked by one female and two male members of staff and put into a disposable gown.65 Subse- quently she was tied to a bed and restrained by belts for approximately ten hours.

60 Herczegfalvy v. Austria, no. 10533/83, judgement of 24 September 1992, ECHR, para. 9–11. 61 Herczegfalvy v. Austria, para. 12–13. 62 Herczegfalvy v. Austria, para. 17. 63 Herczegfalvy v. Austria, para. 25–28. 64 Herczegfalvy v. Austria, para. 79–84. 65 Wiktorko v. Poland, no. 14612/02, judgement of 31 March 2009, ECHR, para. 6–9.

The Government claimed that restraints were applied since she had kicked the door, screamed and woken up other patients.66 The applicant filed a complaint about inhuman and degrading treatment. The Government claimed that the measures had been strictly necessary and referred to a medical certificate, arguing that the injuries she had might have been caused by the applicant herself.67 The ECtHR reaffirmed that ill-treatment must reach a minimum level of severity in order to fall under Article 3 ECHR. The severity assessment depends on all circumstances of the case. Factors that should be taken into account include for instance mental and physical effects, duration of the treatment as well as, in some cases, the victim’s age, gender and state of health. The Court reiterated that hours of premediated treatment at stretch, that cause actual bodily injury or intense mental or physical suffering, has been considered as inhuman treatment. Equally has treatment that causes feelings of anguish, fear and inferiority, capable of humiliating and debasing the victim, been deemed as degrading treatment.68 The Court noted that the minor injuries documented in the medical certificate might have arose from physical force and not only by the applicant’s own actions. The main concern of the Court was not the precise degree of physical coercion, but rather the mechanical restraint in conjugation with the forced undressing.69 The Court referred to its previous case Valasinaš v. Lithuania where a strip search carried out on a man in the presence of a female prison officer had been found as degrading treatment. The Court held that the same considerations should apply in the present case and stated that it was even more alarming that the undressing had been in the presence of three staff where two of them were men.70 The Court was even more concerned about the ten-hour long belt restraint. Whether or not she had been in “an average state of intoxication”, the duration of the restraint was of great concern. The Government must justify the use of restraints and its duration by showing the necessity of such immobilization. The Court found that the prolonged immobilization must have caused such physical discomfort and great distress that the suffering amounted to degrading treatment according to Article 3 and that the Government had not justified the duration.71

3.4.3 Case of Bureš v. the Czech Republic (2012) Bureš v. the Czech Republic (2012) concerned a case where a man with a psychosocial disability had left his apartment in 2007 only wearing a sweater. He did not realize this as he was intoxicated by medication and was stopped by the police and taken to a psychiatric hospital and then a sobering-up center. He remained calm during the transport and medical examinations. No injuries were found at the examination at the hospital, neither at the sobering-up center. The applicant was transferred to an Intensive Psychiatric Care Unit and upon his arrival, visible abrasions

66 Wiktorko v. Poland, para. 11–12. 67 Wiktorko v. Poland, para. 40–43. 68 Wiktorko v. Poland, para. 44–45. 69 Wiktorko v. Poland, para. 50. 70 Wiktorko v. Poland, para. 53–54. 71 Wiktorko v. Poland, para. 55–56.

were found on his ankles, wrists and neck. Five days later, a neurologist examined him and concluded that the use of straps had caused severe and medium paresis.72 The applicant made a complaint of ill-treatment under Article 3 ECHR.73 He maintained that he had been restrained to a bed with leather straps around his knees, ankles and wrists at 8.10 p.m. and remained there until 6.30 a.m. the next day. The Government claimed that he was restrained during three different periods, from 8.10 p.m. to 10 p.m., 4.30 a.m. to 5 a.m. and 6.30 to 7.15 a.m.74 The Government argued that it could not be held responsible for the medical staff’s actions since they were not State agents and that the restraint had been necessary to protect the applicant as there had not been any less restrictive measures.75 Regarding the duration in time, the ECtHR decided to proceed with the examination on the merits following the Government’s version.76 As to the issue of accountability, the Court stated that the Government was responsible since the medical staff, irrespectively of whether they were State agents or not, performed governmental authority of detention. Concerning the injuries, the Court held that the State had a negative obligation regarding the use of straps since the case was not a matter of medical negligence or voluntary medical treatment with negative effects. The lack of intention regarding the medical treatment’s negative consequences was not decisive but rather the actual use of restraint as the present case had more of a character of detention, which always impose negative obligations.77 When assessing the severity level, the ECtHR reaffirmed previous case law and added that the purpose of the treatment, alongside with the motivation and intention behind it, as well as the context of it, for instance an environment of heightened tension and emotions, should be taken into account. The Court reiterated that persons with a mental illness are in a special situation of vulnerability, which calls for special consideration. The Court stated that physical force in principle diminishes human dignity and violates Article 3 if the conduct is not strictly necessary and that the burden of proof lies on the Government.78 The Court noted that the applicant was in a position of particular vulnerability and that he was restrained immediately upon arrival. The Government claimed that the first interval of restraint was due to restlessness, the second due to an attack on a nurse, and the third due to destructive behavior. The Court held that the great distress and physical suffering was incompatible with Article 3 and proceeded to examine whether the interference was justified.79 The Court stated that the staff should have known that the applicant suffered from a mental illness by taking part of his medical records, which was critical since it affects which medical norms become applicable when using restraints on people with mental disabilities. Physical restraints can only be used as a matter of last resort in order to

72 Bureš v. the Czech Republic, no. 37679/08, judgement of 18 October 2012, ECHR, para. 6–10. 73 Bureš v. the Czech Republic, para. 58. 74 Bureš v. the Czech Republic, para. 14. 75 Bureš v. the Czech Republic, para. 64–67. 76 Bureš v. the Czech Republic, para. 71–72. 77 Bureš v. the Czech Republic, para. 77–79. 78 Bureš v. the Czech Republic, para. 84–86. 79 Bureš v. the Czech Republic, para. 88–91.

prevent imminent or immediate harm to the patient or others when no other means are available and if it is proportionate to its aim. Strapping a person to a bed for almost two hours due to mere restlessness was found unjustifiable.80 Regarding the second episode of restraint, the Court acknowledged that attacks on staff can justify restraints, but that the Government had not proved that it was applied as a matter of preventing further attacks, nor that any other less restrictive means had been tried. The Court found that the restraints had been used as a punishment. As to the third episode, attention was drawn to the lack of evidence. What had been reported though was that the applicant had begun to defend himself when he had been unstrapped and then re-strapped. The Court stated that the fact that someone resists the application of restraints cannot justify its use.81 Every restraint must further be recorded properly as well as close supervision carried out. The Court concluded that this had not been observed and that it partly explained the long-lasting negative health effects.82 The Court found a breach of Article 3 in the form of inhuman and degrading treatment.83

3.4.4 Case of M.S. v. Croatia (No. 2) (2015) The applicant in the case of M.S v. Croatia (No. 2) was admitted to a psychiatric hospital pursuant to an appointment in 2012 with her family doctor regarding severe back pain. The doctor referred her to the emergency room where a neurologist made a diagnosis of back pain and also claimed that she gave disproportionate and incoherent information and referred her to a psychiatrist. The psychiatrist stated that the applicant made fanciful allegations of doctors persecuting her. The applicant was involuntarily admitted to a psychiatric hospital and diagnosed with acute psychotic disorder, systemic delusional disorder and delusional dysmorphic disorder.84 Once admitted, the applicant had been restrained to a bed with four belts in a position that caused additional pain from 8.50 p.m. until around 12 noon the next day.85 The applicant made a complaint that she had been subject to ill-treatment at the psychiatric hospital contrary to Article 3 ECHR.86 The applicant stated that she had been physically restrained for no reason and that the reason behind her agitation was the circumstances under which she had been admitted. The Government claimed that she had posed a danger to herself and others and refused treatment.87 The Court reiterated previous case law, stressing that physical force only can be used if strictly necessary.88 The Court was primarily concerned with the duration, especially considering her physical health issues. The negligence when she had complained about pain, dismissed as

80 Bureš v. the Czech Republic, para. 94–97. 81 Bureš v. the Czech Republic, para. 98–99. 82 Bureš v. the Czech Republic, para. 102–103. 83 Bureš v. the Czech Republic, para. 106. 84 M.S. v. Croatia (No. 2), no. 75450/12, judgement of 19 February 2015, ECHR, para. 10–14. 85 M.S. v. Croatia (No. 2), para. 16–18. 86 M.S. v. Croatia (No. 2), para. 62. 87 M.S. v. Croatia (No. 2), para. 88–90. 88 M.S. v. Croatia (No. 2), para. 94–97.

uncooperativeness was deemed alarming. Since physical restraint is typically experienced as traumatic, humiliating, disappointing and give rise to memories impossible to erase and risk of physical injury, the prolonged restraint must have caused such physical suffering and distresses that is contrary to Article 3 ECHR.89 The Court agreed that the medical standards allow physical restraint when no other means can be applied successfully to calm an agitated person that is in risk of hurting themselves or others. However, standards on non-consensual and coercive measures when applied on persons with psychological or intellectual disabilities have developed so that it can only be used as a matter of last resort and when it is the only available mean to prevent imminent or immediate harm on the person or others. Necessity and proportionality must be demonstrated as well as safeguards from abuse and procedural protection. The Court concluded that the medical records lacked evidence for the Government’s submissions, neither did they include any evidence of any alternative method tried. Even if she gave information on her health issues incoherently, the Court stated that this it in itself could not justify coercive measures. Circumstances pointed towards the applicant being physically restrained as a consequence to her refusal of admission.90 The Court found a violation of Article 3, in the form of inhuman and degrading treatment, as the Government had not shown the necessity nor proportionality of the application of the restraints for fifteen hours.91

3.4.5 Case of Aggerholm v. Denmark (2020) In the case of Aggerholm v. Denmark, a man suffering from paranoid schizophrenia was in 2005 sentenced to committal to a psychiatric hospital. In 2012, he was moved to a closed ward, the applicant was restrained to a bed with a belt and ankle and wrists straps from 8 February 2013 at 1.15 p.m. to 9 February at 12.05 p.m.92 The applicant submitted a complaint of a violation of Article 3. He maintained that no testimonies or medical records supported that he had posed an imminent danger that would justify the restraint. He also claimed that restraints were applied without trying any less intrusive means, such as sedative medication or personal shielding.93 The Government argued that the immobilization was based on a medical assessment where it had been concluded that he posed a danger to people in his surroundings and that less restrictive measures had failed. Due to the pent-up anger, latent aggression, threat-making and paranoia, in the light of the fact that he had made serious threats against the chief physician the evening before, the chief physician ordered restraint.94 He was restrained at 1.15 p.m. on 8 February, a decision to lift the restraint was taken 10.30 a.m. on 9 February and he was released at 12.05 p.m. One of the foot straps had also been released at 6.55 p.m. and he was also released in order

89 M.S. v. Croatia (No. 2), para. 99–102. 90 M.S. v. Croatia (No. 2), para. 104–109. 91 M.S. v. Croatia (No. 2), para. 110–112. 92 Aggerholm v. Denmark, no. 45439/18, judgement of 15 September 2020, ECHR, para. 3–7. 93 Aggerholm v. Denmark, para. 67–69. 94 Aggerholm v. Denmark, para. 75–76.

to be able to take care of his personal hygiene and visit the toilet. Thus, the restraint lasted for almost 23 hours.95 The Court stated that it was not up to the Court to speculate on the behavior of the applicant that had led up to the restraint, nor whether sedatives or personal shielding had been attempted. The Court held that it was shown that the immobilization was used as a matter of last resort and that restraint by belt was the only available mean in order to avert imminent or immediate harm to others, hence it had been necessary.96 The Court continued to examine whether it had been strictly necessary, which includes an assessment of the duration. The ECtHR had never dealt with such a long immobilization by belt before.97 The Court found that the present case differed from previous cases. In Bureš v. the Czech Republic, the applicant was fragile, slight built and suffered from a mental illness. The reason why he had been restrained was due to unreported alleged restlessness and aggressiveness and he had suffered bilateral paresis as a consequence. In M.S v. Croatia (No. 2), the duration in time was the main concern. Different though was that the applicant in this case was not detained due to a criminal conviction but instead involuntary admitted to a psychiatric clinic and also had physical health issues. The documentation of records also pointed towards her aggressive behavior having arose after the application of restraint and that she had not tried to attack anyone. Concluding on the comparisons, the EC- tHR stated that the time someone is strapped to a bed per se cannot be decisive on whether a violation of Article 3 has occurred. The continuation and duration must be assessed in relation to whether it is the only available mean in order to prevent imminent or immediate harm to others or the person themselves.98 The ECtHR assessed the duration in context to the four checks that was made on the applicant by a doctor. At the check at 10.46 p.m., the doctor claimed that he should remain immobilized due to instinctive anger and potential dangerous- ness to others. The ECtHR held that “potential” danger is not sufficient. The third check by a doctor was not carried out until almost 12 hours later. According to the records the applicant had slept throughout the night. When the doctor assessed him at 10.30, it was decided that it was safe to release him, but he was not released until 12.05 when the chief physician had been consulted. Thus, he remained restrained for one hour and 35 minutes without any explanation. The ECtHR concluded that, particularly pertaining to the records stating that he had been calm during the night and that there had been a delay in releasing him, the almost 23 hours long restraint had not been strictly necessary. A violation of Article 3 ECHR in terms of inhuman and degrading treatment was declared.99

95 Aggerholm v. Denmark, para. 86. 96 Aggerholm v. Denmark, para. 97–98. 97 Aggerholm v. Denmark, para. 102–103. 98 Aggerholm v. Denmark, para. 104–105. 99 Aggerholm v. Denmark, para. 110–115.

4 Convention on the Rights of Persons with Disabilities

4.1 The emergence of the CRPD The Convention on the Rights of Persons with Disabilities (CRPD) and its Op- tional Protocol (OP) was adopted by the UN General Assembly (UNGA) in 2006 and entered into force in May 2008.100 The CRPD is the first international treaty of legally binding character on the specific area of disability rights. There is a discussion on whether the CRPD created new rights or codified already existing rights. Some scholars argue that new rights have been created, such as the right of awareness raising and to have research conducted in order to get adequate data. The position of the United Nations (UN) is that the Convention only reaffirmed existing rights. Ultimately, the CRPD is based on the principle of non- discrimination, meaning that discrimination on the basis of disability is prohibited and that people with disabilities have the same rights and responsibilities as fellow citizens without disabilities.101 Article 2 of the CRPD reads: “Discrimination on the basis of disability” means any distinction, exclusion or restriction on the basis of disability which has the purpose or effect of impairing or nullifying the recognition, enjoyment or exercise, on an equal basis with others, of all human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field. There is a conflict between the majority of State parties and the CRPD Commit- tee regarding compulsory psychiatric interventions. Most States argue that they in some situations are necessary and lawful, given that they are coupled with legal safeguards.102 The Committee holds that forced mental health treatment of persons with cognitive disabilities is an ongoing violation, highlighting the trauma and deep pain people that have been subjected to it express and lack of data on its efficiency. According to the Committee, only with the free and informed consent should decisions intervening with mental or physical integrity be lawful.103

100 Mladenov, Teodor, The UN Convention on the Rights of Persons with Disabilities and Its Interpreta- tion, ALTER - European Journal of Disability Research, vol. 7, no. 1, 2013, p. 72. 101 Lang, Raymond, Kett, Maria, Groce, Nora & Trani, Jean-Francois, Implementing the United Nations Convention on the Rights of Persons with Disabilities: Principles, Implications, Practice and Limitations, ALTER, European Journal of Disability Research, vol. 5, no. 3, 2011, pp. 208–210. 102 Nilsson, Anna, Compulsory Mental Health Interventions and the CRPD: minding equality, Hart Studies in Law and Health, 2021, p. 3. 103 Committee on the Rights of Persons with Disabilities, General Comment No. 1 (2014), Article 12: Equal recognition before the law, CRPD/C/GC/1 (19 May 2014), para. 41–42.

4.2 Defining disability The CRPD does not explicitly define the concept of disability although Article 1 states that “Persons with disabilities include those who have long-term physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others”. The so-called social model of understanding disability as barriers created by society is embraced by the UN.104 The idea is that the vulnerability that might come with a disability does not stem from the person; it is the lack of support, access and information that intensifies the vulnerability.105 What is a disability in one particular society might not constitute a disability in another context since the barrier there might be non- existing.106 Disabilities are in other words context-oriented and external. The CRPD could be argued to contradict itself by violating its own provision on the right to equal recognition before the law (Article 12) as the phrasing “long- term mental impairments” rules out certain mental illnesses that cannot be classified as long-term. As a consequence, some people are deprived of the legal protection of the CRPD.107 At the same time, the word “include” indicates that the description of disability in Article 1 is non-exhaustive. It is somewhat unclear where the line is drawn between various mental illnesses and what ‘impairment’ and ‘long-term’ include. Not all people with diagnosed mental illnesses might have a disability that amounts to a mental impairment. People who experience intensive but shorter periods of undiagnosed mental distress might be considered as having a mental impairment but not long-term.108 Persons with psychosocial disabilities are included in the concept of mental disability. The CRPD does not mention psychosocial disability but refer to it as mental disability. UN bodies are now using ‘psychosocial’ as preferred by most people self-identifying with it.109

4.3 Connection to the ECHR and unsound mind Although the CRPD is the most comprehensive rights framework for persons with disabilities, the importance of the ECHR should not be undermined. Com- pared to the mechanism of individual complaint to the CRPD Committee, rulings from the ECtHR are legally binding. Moreover, Article 5(1)(e) ECHR on lawful detention of people refers to “a person of unsound mind”, which might include persons that do not qualify as a person with a disability according to the

104 Mannan, Hasheem, MacLachlan, Malcolm & McVeigh, Joanne, Core Concepts of Human Rights and Inclusion of Vulnerable Groups in the United Nations Convention on the Rights of Persons with Disabilities, ALTER, European Journal of Disability Research, vol. 6, no. 3, 2012, p. 161. 105 Lang, Kett, Groce & Trani, pp. 208–209. 106 Mladenov, p. 74. 107 Ramos Pozón, Sergio, The Convention on the Rights of Persons with Disabilities and Mental Health Law: A Critical Review, ALTER - European Journal of Disability Research, vol. 10, no. 4, 2016, p. 304. 108 Szmukler, George, Daw, Rowena & Callard, Felicity, Mental health law and the UN Convention on the rights of persons with disabilities, International Journal of Law and Psychiatry, vol. 37, 2014, pp. 245– 246. 109 Nilsson, pp. 8–9.

CRPD and therefore are not able to enjoy the protection of the CRPD. Since the notion ‘a person of unsound mind’ is wider and even less defined than disability, there is a risk that State parties arbitrarily deprive persons of their liberty without justifiable reasons. Article 5 ECHR is not directly applicable on involuntary treatment, but on the involuntary placement. Involuntary treatment should instead be assessed under Article 3 (prohibition of torture) or Article 8 (right to respect for private and family life).110 Even if Article 5 does not become applicable directly based on the placement decision, it is of significance as mechanical restraints often occur while detained in psychiatric facilities. Also, Article 2 (the right to life) does not include a right to die.111 In Haas v. Switzerland112 it was found to obligate the State to prevent someone from committing suicide, if the decision had not been taken freely and with full understanding.113 The ECHR should be interpreted in the light of the CRPD. Difficulties arise since the CRPD calls for full abolishment of laws permitting involuntary psychiatric detention of people with disabilities and instead focus on deinstitutionalization, while the ECHR explicitly allows that ‘persons of unsound mind’ get deprived of their liberty. Not all people who are considered to be of ‘unsound mind’ have a disability, but they might, whereby the differences in the approach of the CRPD and ECHR raise some issues. It is difficult to argue that jus cogens would require the ECtHR to disregard Article 5(1)(e) ECHR if the CRPD also is applicable since the endorsement of the CRPD Committee regarding the abolishment of laws that allow involuntary psychiatric placement is not jus cogens. There is no unanimous position of the UN bodies on whether there is an obligation to ban the compulsory placement in therapeutic institutions of persons with mental disorders. The Subcommittee on Prevention of Torture and the Human Rights Committee have both recognized that deprivation of liberty is acceptable when used as a measure of last resort. It is possible that the ECtHR try to minimize discrepancies between the conventions. Indeed, the CRPD has an influence on the ECHR as the ECtHR is obligated to consider principles and rules of international law in the presence of contracting parties (Demir and Baykara v. Turkey114).115 The ECtHR does not consider limitation of capacity of someone with a mental disability as discriminatory and accepts greater restrictions of fundamental rights, given that it is proportionate. Nonetheless, the two conventions could co- exist as the aim of deinstitutionalization in line with the CRPD could be pursued while at the same time protecting people unable to care for their own life by not only turning to involuntary hospitalization, but also non-coercive measures.116

110 Szwed, Marcin, The notion of ‘a person of unsound mind’ under the Article 5 § 1(e) of the European Con- vention on Human Rights, Netherlands Quarterly of Human Rights, vol. 38(4), 2020, pp. 284–288. 111 Pretty v. UK, no. 2346/02, judgement of 29 April 2002, ECHR, para. 39–41. 112 Haas v. Switzerland, no. 31322/07, judgement of 20 January 2011, ECHR. 113 Szwed, p. 298. 114 Demir and Baykara v. Turkey, no. 34503/97, 12 November 2008, ECHR. 115 Szwed, pp. 286–287. 116 Szwed, pp. 298–300.

4.4 Positive and negative rights The CRPD includes both positive and negative rights. Whereas positive rights are those that provide a right to be subjected to an action; negative rights impose a duty of non-interference. These might sometimes collide. For instance, limiting a person’s autonomy by coercively using mechanical restraints is an act that contradict the negative right to not have someone refrain with one’s individual autonomy, which is a general principle of the CRPD stated in Article 3(a) as well as the protection of the integrity of the person as set out in Article 17. At the same time, it might serve the purpose of protecting positive rights, such as the right to life (Article 10) and the right to health (Article 25), when the person lacks capacity to act in their own best interest. However, the balancing of these rights is not expressed in the CRPD. Although it by nature might be impossible to state such a balance in every possible scenario, the Convention is silent about proportionality when weighing rights against each other.117 For instance, whether the rejec- tion of treatment interventions supersedes State’s possibility to intervene is unclear. On the one hand, Article 12(4) guarantees the equal recognition before the law, namely that the free will of the persons with disabilities should be respected on equal terms as the will of people who do not have a disability. Article 25(d) states that health professionals should treat people without disabilities based on free and informed consent. On the other hand, Article 17 states that “every person with disabilities has a right to respect for his or her physical and mental integrity on an equal basis with others”. Even though the purpose behind Article 17 seems to be to limit or prohibit the use of coercive measures, the majority of States have declared that involuntary treatment is permitted if used as a matter of last resort and in accordance with medical science and accompanied with legal safeguards. As the CRPD is silent on the interpretation of the term integrity, guidance is sought in general human rights framework which asserts the right to decide over one’s body and mind, as a matter of autonomy, as well as it connects to dignity in the sense that one has the right to be free from inhuman and degrading treatment.118 Informed consent and shared-decision making should always be aimed for. This does not equal an obligation to always follow clearly expressed preferences since doing so could result in serious consequences such as putting the safety of the person or others at serious risk. Neglecting the need to take safety measurements for a person who is in danger of hurting themselves would violate positive rights of the person and also possibly expose a third party to danger if the person poses a risk to others.119 The right to health is also set out in the International Covenant on Economic, Social and Cultural Rights (ICESCR), which will be discussed in the following chapter.

117 Ramos Pozón, pp. 304–305. 118 Nilsson, pp. 24–26 119 Dawson, John, A Realistic Approach to Assessing Mental Health Laws' Compliance with the UNCRPD, International Journal of Law and Psychiatry, vol. 40, 2015, p. 74.

5 Intersectionality and the right to health

5.1 The International Covenant on Economic, Social and Cultural Rights The International Covenant on Economic, Social and Cultural Rights (ICESCR) was adopted in 1966 and entered into force in 1976. One particular character of the Convention is the call for progressive realization. Article 2(1) states that State parties should take steps towards the full realization of the rights in the Conven- tion with regards to its maximum available resources. This way, it is recognized that all States do not have equal opportunity to reach a certain level of standard within a given time as reality is that some countries are less economically developed than other. However, progressive realization is not absolute. There are some immediate obligations, so-called minimum core obligations, that are inde- pendent of the available resources. State parties have a duty to prioritize these minimum core obligations, such as essential primary health care. Nonetheless, since this must be read in the light of Article 2(1) and the reality of different available resources, a State will not be held accountable if it fails to reach these minimum cover obligations if it can demonstrate that it has exhausted every possible effort to make use of the available resources at its disposition in order to reach the minimum obligation but nevertheless fails to, despite careful prioritizations. There is a strong presumption against the permissibility of retrogressive measures, meaning that once an obligation has been fulfilled, back-wards steps are not allowed.120 An issue with economic, social and cultural rights is the question on enforce- ability. Ultimately, it depends on the State’s resources and prioritizations. There is also only so much a State can do. When it comes to the right to health as ensured under article 12(1) ICESCR, certain aspects are outside the scope of the State’s ability to act, such as risky behaviors and genetics. There is no right to be healthy, but rather a “right to the enjoyment of the highest attainable standard of health, both physically and mentally”, which is what is implied when referring to the “right to health”. Environmental, social and individual factors are taken into account when assessing the potential highest attainable standard. The right entails an obligation for States to ensure adequate healthcare and fulfilment of the social

120 CESCR, General Comment No. 3: The Nature of States Parties’ Obligations (Art. 2, Para. 1, of the Covenant), E/1991/23 (14 December 1990), para. 9–10.

aspects of health as well as other underlying preconditions for health.121 Addi- tionally, it has been specified by the Committee on Economic, Social and Cultural Rights (CESCR) that State obligations and elements related to the right to health include availability, accessibility, acceptability and quality. Availability focuses on the existence of functioning public health and healthcare facilities, services and goods and programs. These available services, goods and programs need to be accessible to everyone, meaning that they need to be non-discriminatory, physically accessible, affordable and accessible from an informational perspective. The acceptability dimension refers to respect of medical ethics and their cultural appro- priateness, which include but is not limited to gender sensitive policies and respect for minorities. The facilities, services and goods must furthermore reach a certain level of quality from a scientific and medical perspective, which requires that personnel are medically skilled and hospital equipment is appropriate.122 Ar- ticle 12 must be read in light of Article 2(2) which denounces discrimination. While sex is explicitly stated, the list is non-exhaustive as it refers to “or other status”, which could include disability.

5.2 Gender mainstreaming The Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) was adopted in 1979 and entered into force in 1981. Article 1 of the Convention defines the term “discrimination against women” as: […] any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespec- tive of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field. The definition recognizes the prohibition of both direct and indirect discrimination and promotes a substantive understanding of equality; that is equal opportunities and equitable outcomes.123 Article 12(1) CEDAW specifically addresses discrimination in health care and oblige States to ensure equal access between men and women124 to health care services and eliminate any discrimination. While gender mainstreaming is the strategy for making concerns relating to women and men an integral dimension of each program, policy or action taken at all levels and in all areas, gender equality is the long-term goal of it. Thus, gender mainstreaming adopts approaches that are more specific in terms of the strategy taken in order to transform discriminatory institutions. The concept of gender

121 Eide, Asbjørn, Adequate standard of living, Moeckli, Daniel, Shah, Sangeeta & Sivakumaran, Sandesh (Eds.), International Human Rights Law, 3rd edition, Oxford University Press, 2018, pp. 195– 196. 122 CESCR General Comment No. 14: The Right to the Highest Attainable Standard of Health (Art. 12), E/C.12/2000/4 (11 August 2000), para. 12. 123 Otto, Dianne, Women’s rights, Moeckli, Daniel, Shah, Sangeeta & Sivakumaran, Sandesh (Eds.), International Human Rights Law, 3rd edition, Oxford University Press, 2018, pp. 315-316. 124 Note that the CEDAW has a binary perspective, hence the phrasing “men and women”, which I do not agree with as I believe there are more than two genders.

mainstreaming resulted in the Beijing Declaration and Platform for Action.125 It was adopted in 1995 at the Beijing World Conference on Women and elicited human rights treaty bodies to commit to gender mainstreaming, resulting in four treaty bodies adopting General Comments on this matter. One of these was Gen- eral Comment 2 by the UN Committee Against Torture adopted in 2008.126 Gen- der is recognized as a key risk factor for being subject to torture, especially when intersecting with other characteristics or statuses such as age, race and immigrant status. State parties must ensure that disability and health status do not adversely affect the rights and obligations that the UNCAT serves to protect. As part of the obligation of taking effective measures against torture and other ill-treatment, States are requested to include disaggregated data by gender, age and other key factors in their reports to the Committee so that the Committee is able to identify discriminatory treatment.127 The lack of data on the use of mechanical restraints disaggregated by gender is something that could be questioned with this in mind. The Special Rapporteur on Torture and other cruel, inhuman or degrading treatment or punishment has recognized the particular vulnerability of girls and women with a disability of facing multiple forms of discrimination and particular risk of abuse in healthcare settings. Girls with a perceived or actual disability may experience that guardians or healthcare professionals do not give due weight to their voice, despite their older age or maturity, which should be assured when the child is capable of expressing their own views freely according to Article 12 in the Convention on the Rights of the Child (CRC).128

5.3 Migration status and race Migration status has been shown to affect the risk of being restrained. A study in Spain disclosed that in the group of immigrants, 81.3 % experienced mechanical restraints compared to 31.3 % of Spanish-born nationals.129 A study conducted in Norway demonstrated that the incidence rate of restraint and seclusion among immigrants was 21.6 % compared to that of 12.9 % among non-immigrants.130 Possible reason for this disproportionate use of restraints on immigrants include language barriers and communication problems between the person and staff. Within the group of immigrants, those who were forced to migrate are more

125 UN Women, Gender Mainstreaming, “https://www.unwomen.org/en/how-we-work/un-system- coordination/gender-mainstreaming”, retrieved: 23 February 2021. 126 Otto, pp. 321-323. 127 CAT General Comment No. 2: Implementation of Article 2 by States Parties, CAT/C/GC/2 (24 January 2008), para. 21–23. 128 Human Rights Council, Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, Juan E. Méndez, 1 February 2013, UN Doc. A/HRC/22/53, para. 80. 129 Alda Díez, M., Garcia Campayo, J. & Sobradiel, N., Diferencias en el manejo diagnóstico y terapeútico de los pacientes psiquiatricos hospitalizados inmigrantes y españoles: un estudio controlado, Actas Españolas De Psiquiatría, vol. 38, no. 5, 2010, p. 264. 130 Al-Maraira, A. Obay & Hayajneh, A. Ferial, Use of Restraint and Seclusion in Psychiatric Settings, Journal of Psychosocial Nursing, vol. 57, no. 4, 2019, pp. 34–35.

often suffering from posttraumatic stress disorder (PTSD) than those who have not been forced to migrate, as a consequence of the distressing events connected to the migration. Some symptoms of PTSD such as fear and agitation might impact healthcare professionals’ perception of the persons behavior as harmful in the sense that they believe restraints are necessary. Stress factors may also result in aggressive behavior.131 Other factors that might explain the higher risk of restraint for immigrants are economic, cultural and language barriers to access mental healthcare that may prolong the duration of untreated illnesses, which could lead to increased severity and reactions. Even if economic and language barriers are reduced, undocumented immigrants may fear that authorities will discover them, which could cause them to not seek help. Racism, discrimination and prejudice also affect the measures applied.132 In one of the interviews, Laura, a resident physician in psychiatry in Sweden, testified about non-white people being subject to mechanical restraint at a disproportionately higher rate. Alt- hough she believed that the decision to restrain the person most often had been correct, she questioned the situation leading up to the restraint as a matter of systemic racism. She speculated about this and that it was both due to non-white persons having less trust in the healthcare professionals, which is understandable due to the systemic racism in healthcare systems as in any other part of society, and that the healthcare professionals had a racist bias which led them to treat non-white people differently.

131 Al-Maraira & Hayajneh, p. 37. 132 Alda Díez, M., Garcia Campayo, J. & Sobradiel, N, p. 263.

6 Lawfulness of the use of mechanical restraint

6.1 Assessing lawfulness, remedies and State obligations When assessing the compliance of mechanical restraint in regard to international human rights, different criteria and indicators apply depending on the convention, treaty body or court. Since the prohibition of torture and other ill-treatment is a matter of international customary law and jus cogens, the main practical differences could be argued to be under which treaty’s regime someone may claim that their right has been violated, available remedies and State obligations. According to Article 14 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (UNCAT), there is a duty to fairly and adequately compensate victims of torture and provide for as full reha- bilitation as possible. The duty to compensate also applies to victims of cruel and inhuman treatment, that is breaches of Article 16, thus, not only victims of torture (Hajrizi Dzemajl et al v. Yugoslavia133).134 The UNCAT has a treaty body called the Committee against Torture (CAT) that is open for individual complaints, however, the findings of the CAT are not binding.135 It is also possible to submit individual complaints to the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. There is no requirement of exhausting national remedies for this, which is the case for other mechanisms of United Nations (UN) bodies monitoring human rights treaties.136 The Interna- tional Covenant on Civil and Political Rights (ICCPR) also has a treaty body open for individual complaints, but neither their findings are binding.137 According to the ICCPR, there is a duty to, in an appropriate way, punish perpetrators of torture or cruel, inhuman, or degrading treatment. Moreover, there is an analogous duty of the UNCAT to compensate for breaches of Article 7 ICCPR.138 Accord- ing to the Convention on the Rights of Persons with Disabilities (CRPD), there is an obligation to collect data and statistics (Article 31). The CRPD’s Optional Protocol allows for complaints by individual or groups to the CRPD Committee

133 Hajrizi Dzemajl et al. v. Yugoslavia, CAT/C/29/D/161/2000, UN Committee Against Torture (CAT), 2 December 2002. 134 Joseph, Sarah & Castan, Melissa, The International Covenant on Civil and Political Right – cases, materials and commentary, 3rd edition, Oxford Public International Law, 2013, p. 297. 135 Connors, Jane, United Nations, Moeckli, Daniel, Shah, Sangeeta & Sivakumaran, Sandesh (Eds.), International Human Rights Law, 3rd edition, Oxford University Press, 2018, p. 399. 136 Office of the High Commissioner, Special Rapporteur on Torture and Other Cruel, Inhuman or Degrad- ing Treatment or Punishment, United Nations, “https://www.ohchr.org/en/issues/torture/srtorture/pages/srtortureindex.aspx”, retrieved: 6 April 2021. 137 Connors, p. 399. 138 Joseph & Castan, p. 297.

(Article 1), but these are also non-binding. Judgement by the European Court of Human Rights (ECtHR) are unique in the sense that they are binding according to Article 46 the European Convention on Human Rights (ECHR). According to Article 13 ECHR, those who have been subjected to violations of rights in the Convention have a right to an effective remedy. Primarily, this manifests by mon- etary compensation. Whether a conduct qualifies as torture or other ill-treatment may vary between conventions. In the following I will assess each convention separately.

6.2 UNCAT The most striking difference between the UNCAT and the ICCPR and ECHR on the matter of torture is the lack of definition in the latter two. The UNCAT is much narrower in its scope and the threshold for what is considered torture and other cruel, inhuman or degrading treatment or punishment might be higher by looking at the definition, but also by taking into account under which circumstances the UNCAT was created. Aside from the negative obligation of States to refrain from torture and other cruel, inhuman or degrading treatment or punishment, State obligations under UNCAT are mainly focused on the duty to crimi- nalize and effectively investigate acts of torture. As a matter of universal jurisdiction, this applies regardless of the nationality of the perpetrator and in which jurisdiction the torture was committed.139 Nonetheless, the conventions are in- terconnected, and the different UN bodies and regional courts often make reference to each other as well as there is an aim to streamline the conventions. The Vice-President of the Subcommittee on Prevention of Torture and other Cruel, Inhuman or Degrading Treatment or Punishment has also stated that in theory there is no higher threshold when assessing acts or omissions under UNCAT, but that it is true that different UN treaty bodies have different interpretations.140 The human rights protected under the UNCAT is the physical and mental integrity of persons (Article 1.1). Since the prohibition is a matter of international customary law and jus cogens, there is no lawful limitations of the prohibition.141 In the following, an assessment will be conducted based on the four elements of torture according to UNCAT’s definition, that is, “an act inflicting severe pain or suffering, whether physical or mental; the element of intent; the specific purpose; and the involvement of a State official, at least by acquiescence”142.

139 Rodley, Nigel, Integrity of the person, Moeckli, Daniel, Shah, Sangeeta & Sivakumaran, Sandesh (Eds.), International Human Rights Law, 3rd edition, Oxford University Press, 2018, pp. 173–174. 140 Question asked by me to Carmen Comas-Mata Mira, Vice-President of the Subcommittee on Prevention of Torture and other Cruel, Inhuman or Degrading Treatment or Punishment at Webi- nario Sesión 10ª on the 14 April 2021, organized by Fundación CERMI Mujeres in collaboration with the Ministerio de Derechos Sociales y agenda 2030, Gobierno de España. 141 Rodley, pp. 167–168. 142 Human Rights Council, Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, Manfred Nowak, 5 February 2010, UN Doc. A/HRC/13/39/Add.5, para. 30.

6.2.1 Severe physical or mental suffering It is clear that the use of mechanical restraint can cause severe physical or mental suffering and/ or pain. In extreme cases, it can even cause death. Some people do not experience mental or physical suffering though, or at least not to the extent that it reaches the required level as set out in the UNCAT. This criterion, as any other, need to be assessed according to the circumstances of the case. As mental suffering is included in the provision of torture and other ill-treatment, threatening someone with mechanical restraint might amount to torture or at least inhuman treatment. During the interviews I have conducted, Alexandra and Isabel witnessed about the bed with belt fixation having remained in their room for periods ranging from a few hours up to two weeks. Neither is it un- common to be forced to stay in the bed with the belts still attached to the bed, although not applied on the person. This could be considered as indirect threats. Furthermore, it is evident that being subject to sexual assault, including rape, during mechanical restraint amount to severe suffering. The severe post-traumatic stress disorder (PTSD) symptoms that people have testified regarding also indicate that mechanical restraint amounts to such mental suffering.

6.2.2 Intent Intent calls for special attention in healthcare settings since it could be implied under certain circumstances. If the conduct is deemed negligent but not indented, it is ill-treatment rather than torture. Discrimination on the basis of disability constitutes such an indication that implies intent, although it can be hard to identify as it is often disguised as benefiting the person or being in their “best interest” and therefore well-intended.143 Infliction of severe pain or suffering “for any reason based on discrimination” is recognized as torture if it is intentional (Article 1 UNCAT). The close connection between discrimination and torture has been highlighted by the CAT and Amnesty International.144 The majority of people interviewed had an autism spectrum disorder (ASD) or/ and had attention deficit hyperactivity disorder (ADHD), PTSD, anxiety and depression. Everyone said, especially in concern to ASD, that there was an immense lack of knowledge and that little to nothing changed after they had been diagnosed. The health care given was simply not adjusted to persons with psychosocial disabilities. People interviewed described that situations that escalated and lead up to restraint was often due to bad structure and planning, or situations changing that were difficult to deal with and understand or too many impressions at the same time. One person, Paula, described it as like her brain shuts down and that it is then is too late to try other preventative measures. The planning and structure at psychiatric facilities seldom seem to take these issues into account.

143 Human Rights Council, Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, Juan E. Méndez, 1 February 2013, UN Doc. A/HRC/22/53, para. 20. 144 Amnesty International, Combating torture and other ill-treatment: a manual for action, 2016, p. 46.

It could be questioned if discrimination on other grounds also would imply that the requirement of intent is fulfilled. Race and migration status are two factors that have been shown to impact the incidence rate of restraints. Regarding gender, there is no unanimous data on the impact of it. While most studies show that men are more often restrained and that the restraint lasts longer, there is also a study that shows no differences in frequency nor duration between men and women.145 From the interviews I have conducted, it has not been possible to draw any conclusion on the differences, both because the majority of the persons interviewed with personal experience have been women and the healthcare professionals mostly have worked with women. However, a tendency seems to be that even if men get restrained more often, the different reasons as to why men are restrained vary quite a bit to that of women. Men seem to get restrained because they actually risk harming others and act aggressively, whereas women primarily are restrained because they are at risk of harming themselves. One nurse, Sofia, with 45 years of experience working in the Swedish psychiatric healthcare system said that the space for women to “act out” is much narrower. Testimonies of restraint being applied as a matter of routine support this view of implied intent.

6.2.3 Specific purpose Article 1 UNCAT states several examples of specific purposes. This is not an exhaustive list, but the purpose must have something in common with the mentioned. The ECtHR has stated that the intent or purposive element in Article 3 ECHR is sufficed when the result of the action or omission manifests as degrading, humiliating or punishing for the victim, even if this was not the intent of the perpetrator.146 Punishment could for instance include cases such as when mechanical restraint is used on someone who is perceived to act in a provocative way, or when the immediate danger is over but restraints still are applied as a way to demonstrate consequences of certain behaviors. Healthcare professionals both from Sweden and Spain during the interviews stated that staff at certain clinics and of the older generation sometimes are more keen to use restraint; believing that it could be used as a way to “teach” the person that they should not act in the same way again or having a punitive perspective on its use. Three of the interviewees who were healthcare professionals also highlighted the situation in which they believed that it is more common among staff working within psychiatry than somatic care to almost wanting to use restraints as a way to exercise power. People in psychiatric facilities might be less likely to complain or, if they complain, get believed. About half of the interviewees testified that a certain culture of dehumanization exists where staff get so used to situations of high stress and environments where people hurt themselves that this somehow becomes normal. This kind of attitude seems to diminish as time

145 Al-Maraira, A. Obay & Hayajneh, A. Ferial, Use of Restraint and Seclusion in Psychiatric Settings, Journal of Psychosocial Nursing, vol. 57, no. 4, 2019, pp. 34–35. 146 UN Doc. A/HRC/22/53 (1 February 2013), para. 18–21.

pass and that it does not necessarily have anything to do with the law but rather a change in generation and different attitude at different clinics. Relating to both intent and specific purpose, the doctrine of medical necessity plays a crucial role as lack of therapeutic purpose when performing non-consensual, referring to the lack of informed and free consent, medical treatment might amount to torture or ill-treatment if it is of irreversible and intrusive character. Especially in cases of marginalized groups, for example women, girls and non- binary people with disabilities, this becomes critical. If the treatment is based on discriminatory grounds, the forced psychiatric intervention cannot be justified by the doctrine of medical necessity nor “good intentions”. Involuntary psychiatric intervention committed against someone who has a psychosocial disability, given that it is of discriminatory nature based on the disability, fulfills both the requirement of intent and purpose pursuant to Article 1 UNCAT.147

6.2.4 Involvement or acquiescence of a State official The criterion of involvement of a State official does not only include public officials, but also doctors and other healthcare professionals. The circumstance that a healthcare facility is private does not exclude State responsibility since States have a due diligence responsibility to prevent, investigate, prosecute and punish violations conducted by private actors or non-State officials.148 The Committee on the Elimination of Discrimination against Women confirmed in its communication da Silva Pimentel v Brazil that actions taken by private institutions, which medical services have been outsourced to them by the State, directly fall under the State’s responsibility.149 By the interviews conducted, it is clear that with the exception of psychiatrists and staff working at one children’s psychiatry clinic and one forensic psychiatric hospital, other healthcare professionals at other facilities had received little to no education on the use of mechanical restraints. In psychiatrists’ training, education in health law is included. At the two clinics referred to above, the staff had to participate in a workshop on the ethics and legality of the use of mechanical restraint. At these two units, the staff themselves also got to experience what it is like to be put into a bed with restraints. The other people interviewed had only got a brief explanation on how to use the straps to restrain someone and it had not been included in their studies at university or training at work on the use and effects of restraints. The knowledge they had, they had to acquire themselves.

6.3 ICCPR The ICCPR prohibits torture and cruel, inhuman or degrading treatment or punishment. The specific prohibition is set out in Article 7 ICCPR. The human rights

147 UN Doc. A/HRC/22/53 (1 February 2013), para. 32. 148 UN Doc. A/HRC/22/53 (1 February 2013), para. 23–24. 149 da Silva Pimentel v. Brazil, no. 17/2008, CEDAW/C/49/D/17/2008, 10 August 2011, para. 7.5.

protected and mostly relevant on this matter include the protection of life (Article 6), freedom (Article 9) and integrity (Article 10). Neither Article 6 nor 7 of the ICCPR can be derogated from (Article 4.2), neither can any derogation be based solely on discriminatory grounds (Article 4.1). If mechanical restraint amounts to torture or other ill-treatment, the practice is prohibited under all circumstances. The use of mechanical restraint requires careful examination in each and every case since it, depending on the circumstances, might or might not amount to torture or other ill-treatment. Therefore, lawful limitations criteria must be assessed against the right to freedom and integrity. This is done by looking at whether it is prescribed by law, pursues a legitimate aim and is necessary in a democratic society.150 Sometimes UN bodies speak about reasonableness in terms of proportionality. It is unclear whether it is to be understood as a criterion, part or in addition to the reasonableness considerations taken in the necessity-criterion, or if it is a tool when reasoning about the reasonableness of restrictions.151 I will consider proportionality as a criterion per se.

6.3.1 Prescribed by law and legitimate aim The criterion that mechanical restraint has to be prescribed by law does not mean that common law systems are disqualified, these are very much included. The meaning of the criterion is that it should be a provision adopted democratically or by historical heritage. This ensures the foreseeability principle in law.152 Typically, the aim of laws that allow compulsory mental health interventions, such as mechanical restraints by bed through belt fixation can be categorized into three: prevention of harm to the health of the person, prevention of harm to the life of the person, and prevention of violence against others.153 The threshold for what is considered a legitimate aim is relatively low and for sure do the protection of health and life and protection from violence qualify as legitimate.154

6.3.2 Necessary in a democratic society Interference with a person’s integrity in the form of mechanical restraints must be necessary in a democratic society. This means that the measure truly is connected with the aim; that is to protect the health and life of persons and prevent violence against others. The reference to democratic society can be seen as rec- ognizing that an assessment against legitimate social priorities have to be carried out. There must be a clear contribution of the measure.155 The use of mechanical restraint needs to be suitable objectively. Looking at the protection of health and

150 Mégret, Frédéric, Nature of obligations, Moeckli, Daniel, Shah, Sangeeta & Sivakumaran, San- desh (Eds.), International Human Rights Law, 3rd edition, Oxford University Press, 2018, p. 100. 151 Nilsson, Anna, Compulsory Mental Health Interventions and the CRPD: minding equality, Hart Studies in Law and Health, 2021, p. 42. 152 Mégret, pp. 101–102. 153 Nilsson, p. 49. 154 Mégret, p. 101. 155 Mégret, pp. 101–102.

life of the person, mechanical restraint is in the short term, except for exceptional cases such as death, a measure that fulfills this as immobilization highly reduces the risk of harm. The immobilization also clearly reduces the risk of violence against others, although the process of mechanically restraining someone might involve a risk of violence for the people directly involved. One nurse in Sweden, Martin, who was interviewed witnessed about himself being scratched and bitten by persons admitted and co-workers who had been scratched in the face and another one who had been strangled and fainted. If mechanical restraint is used in accordance with standards in human rights law to avoid the immediate and imminent harm, the necessity requirement is fulfilled. Regarding the category of the protection of others, it is obvious that mechanical restraint in healthcare facilities protects the people outside the hospital. The bias of healthcare professionals cannot be ignored as it contributes to arbi- trary or even discriminatory outcomes. Lower levels of education and experience as well as less knowledge on the ethical aspect of restraints and alternatives to it, such as training in de-escalation techniques and environmental manipulation, are associated with higher incidents of restraints.156 Male physicians are also more likely to order restraint.157 In other words, one must take systemic factors into account when assessing the lawfulness of mechanical restraint instead of just fo- cusing on the person subject to it. Less restrictive measures could most likely have been used if the attitude and experience among members of staff were different. Allocation of public resources is also of great importance. One example that is often brought to attention is the case of Iceland, where mechanical restraint and seclusion are completely prohibited.158 At first glance this might be viewed as progressive. From a feminist perspective, many girls and women have testified that physical restraint such as holding, which still is legal, feels worse and trigger previous traumas associated to rape and sexual abuse. Another alternative to mechanical restraint is the use of calming rooms. Some describe this as helpful; an environment to calm down and not being able to hurt oneself. One important factor on whether it is seen as helpful or not is whether staff are present, for example in the room or by a window with direct possibility of communication. Some namely explained that the feeling of being left alone or even “forgotten” made it worse. Isabel said that she probably would not experience any difference to the feelings when being mechanically restrained as the issue was not the restraints in itself but rather the feeling of being humiliated. Since many healthcare professionals testified about using mechanical restraints in situations of chaos, for example at emergency rooms where multiple

156 Al-Maraira & Hayajneh, pp. 35–36. 157 Sandhu, Satinderpal K., Mion, Lorraine C., Halim Khan, Rabia, Ludwick, Ruth, Claridge, Jeffrey, Pile, James C., Harrington, Michael, Winchell, Janice & Dietrich, Mary S., Likelihood of Ordering Physical Restraints: Influence of Physician Characteristics, Journal of the American Geriatrics Society, vol. 58, no. 7, 2010, pp. 1275–1277. 158 Steinert, Tilman, Lepping, Peter, Bernhardsgrütter, Renate, Conca, Andreas, Hatling, Trond, Janssen, Wim, Keski-Valkama, Alice, Mayoral, Fermin & Whittington, Richard, Incidence of Seclusion and Restraint in Psychiatric Hospitals: A Literature Review and Survey of International Trends, Social Psychi- atry and Psychiatric Epidemiology, vol. 45, no. 9, 2010, p. 895.

patients require urgent attention and there are serious risks of self-harm or flight, lack of resources, such as enough and adequate staff, can hardly justify this. It is understandable from the psychiatrist’s perspective since they might feel that if they do not act, persons might hurt or kill themselves, which would not only be an immense tragedy, but also mean that they might lose their job, get charged or lose their license to practice medicine. In medicine, one also need to consider the risk of not intervening; in some situations, it might be a violation of a person’s positive rights to health and life. Nonetheless, from a human rights perspective, the lack of resources mentioned above can hardly justify non-strictly necessary use of mechanical restraint since it should be considered a minimum core obligation to ensure the right to appropriate healthcare.

6.3.3 Proportionality Mechanical restraint is a huge infringement on personal integrity and freedom. Looking at short-term risks, it might very well be argued that it is proportionate to restrain someone in order to protect their health or life or that of someone else. Long-term consequences should also be considered though. Is the use of mechanical restraint something that tends to repeat itself? Is there a higher risk of mechanical restraints being applied again if already applied once? In the interviews I have conducted, nurses Emilia and Martin addressed that there is a group of people that “trigger” mechanical restraint as a way of self- harm or that they feel like it is a relief that someone else takes over control in the sense that it is impossible for them then to hurt themselves. Some also view it as a “success” to be restrained, especially in cases of people suffering from eating disorders that get tube-fed during restraint, as it is seen as a proof of being “sick enough”. If one truly wants to limit mechanical restraints, research must be carried on why some people get subject to this hundreds of times and others only occasionally. If it is only a limited group of people that for some reason, intentionally or unintentionally, “triggers” mechanical restraints, it might be necessary to keep mechanical restraint as an alternative. If it is more common, one might consider the alterative to remove this as an alternative as people likely would accept non-coercive measures if they did not feel like they would have to prove something. When looking at this, it is important that data is disaggregated on the basis of sex and disability in order to detect any discrepancies that eventually could lead to discrimination. An ethical issue with conducting research of the consequences of not using restraint is that we do not know what people would have done if it did not exist as an alternative. Taking into account the above said about the group of people “triggering restraint”, it can be assumed that a lot of people would have accepted non-coercive life-sustaining treatment, for example eat instead of getting tub-fed or accept intravenous antidotes without being restrained. At the same time, it is likely that some people would not do this as their illness might be so severe, or that the mental health condition is not of self-harm character, for instance disorders like schizophrenia and psychosis, that this is not applicable. Not intervening in life-threatening cases would be a violation of the right to life and health, considering that there is no right to die.

On the topic of long-term effects, the trauma often associated with being mechanically restrained must be kept in mind and further researched on the effects of people’s life. If the mechanical restraint prevents suicide or serious harm, it must be considered necessary. There is no data on mechanical restraint and the ratio in which it has protected health and life though. Maybe more people live an unhealthy life or commit suicide due to the trauma, compared to the ratio of persons which health and life are protected by the use of mechanical restraint?

6.4 ECHR Article 3 ECHR prohibits torture or inhuman or degrading treatment or punishment. The article is not subject to any limitations. As previously stated, it cannot be assumed that mechanical restraint amounts to this conduct and the same conditions on whether such immobilization is lawful according to the ICCPR subsequently applies in the case of the ECHR. Now, there is one crucial difference, the ECtHR applies a so-called margin of appreciation. This has been explicitly rejected by the Human Rights Committee (HRC). If mechanical restraint is considered unlawful according to the ICCPR, this might mean that it could be lawful according to the ECHR with reference to the margin of appreciation since it leaves a greater scope for the Member State to decide on the matter in accordance with their particular view.159 Therefore, I will not discuss the tripartite test (or “four-part test” if adding proportionality) in this section as the same acts are prohibited in principle. As limitations based on discriminatory grounds also are prohibited according to the ECHR (Article 14), neither this will be discussed.

6.4.1 Margin of appreciation The margin of appreciation stems from the ECtHR and is used on a regular basis by the Court as a way to give discretion to States in order to accommodate to the different situations of States when it comes to for example constitutional values, legal tradition and historical development. It is also applied as the Court believes that the domestic authorities have best first-hand knowledge on facts and values relating to the specific cases. This discretion also gives room for a pluralistic democratic society where different norms are allowed.160 The idea is that each State’s specific legal, cultural and political values are respected, while still ensuring some minimum rights. Another argument is that the somewhat uncertainness on how to interpretate international human rights should also restrict the influence of the international community’s perception. However, it should be noted that the use of the margin of appreciation has been highly criticized, especially by UN bodies such as the HRC. In principle, it is a stand against cultural relativism in international human rights law as the margin of appreciation is believed to have a

159 Mégret, pp. 102–103. 160 Nilsson, p. 87.

negative impact on the universality of human rights. It can namely be used as a justification to maintain discriminatory or outdated laws, policies and practices.161 It is hard to see how the margin of appreciation would change any outcome on the classification of mechanical restraint since there is quite a consensus on the importance to protect health and life. It is unlikely that the differences of the value attached to life, for instance manifested in countries allowing euthanasia or not, would have an impact since suffering from a psychiatric disorder often is not accepted as a ground to receive euthanasia.162 Also, the so-called medical necessity seems to be viewed upon similarly across States.

6.4.2 Summary of case law from the ECtHR Looking at case law on Article 3 ECHR, the prohibition of torture or other inhuman or degrading treatment or punishment can be summarized as that it is the purposive element of torture that is decisive for its classification, although there still is a requirement of a certain level of seriousness of suffering or pain, but it does not have to be considered severe. Regarding inhuman treatment, it surpasses the severity level of degrading treatment but not that of torture, or that the purposive element is not fulfilled. Concerning degrading treatment, some kind of gross humiliation must have taken place, a minimum level of severity must have been reached and the dignity of a person must have been interfered with and humiliation or debasement, either in the eyes of the victim or others, must have taken place. Sufficiently real and immediate threats of torture or other inhuman or degrading treatment or punishment might be considered at least as inhuman treatment. To have a bed with straps placed in someone’s room for a longer period of time or make someone stay or sleep in the bed although not restrained could maybe be considered as such underlying threats. In case law on mechanical restraints, some conclusions can be drawn. Before going into details, it should be noted that the ECtHR seldom makes a distinction between inhuman and degrading treatment or punishment, and that it has not (yet) held that any case of mechanical restraint has amounted to torture. The circumstances of someone being admitted to a psychiatric hospital and suffering from a mental illness, especially if coupled with a physical health issue, call for special vigilance due to the special power dimension. If the doctrine of medical necessity is followed, measures of therapeutic necessity cannot in principle be deemed inhuman or degrading if established principles of medicine are followed. However, the mechanical restraint must be strictly necessary, and it can only be used as a matter of last resort when there are no less restrictive measures in order to prevent immediate or imminent harm to the person or others. It must also be proportionate to the aim. Potential danger or that someone resist the application

161 Mégret, pp. 102–103. 162 Evenblij, Kirsten, Pasman, H. Roeline W., Pronk, Rosalie & Onwuteaka-Philipsen, Bregje D., Euthanasia and physician-assisted suicide in patients suffering from psychiatric disorders: a cross-sectional study exploring the experiences of Dutch psychiatrists, BMC Psychiatry 19:74, 2019, p. 2.

of restraints cannot justify its use. When a decision is made to lift the restraint, one hour and 35 minutes is too long time to wait until it is actually executed. When conducting the severity assessment of mechanical restraints, all circumstances of the case should be taken into account. These include the physical and mental effects, duration, contexts such as heightened emotions and tension, and in some cases the victim’s age, gender and state of health. The motivation, intention and purpose should also be considered. The time per se in which someone is mechanically restrained is not decisive on whether it has been a violation of Article 3, however, the Court has considered 15 respectively 23 hours alarming. The burden of proof lies on the Government, which must show that the use of mechanical restraint was strictly necessary, including its duration in time, and proportionality. The Government cannot avoid responsibility by delegating the providence of health care to private actors. The situation of involuntary psychiatric treatment also imposes negative obligations on States in the sense that they should refrain from using mechanical restraints, if not in accordance with above mentioned requirements, as it is not a question of voluntary treatment or medical negligence. The negative obligation means that it is irrelevant whether the negative consequences of the use of mechanical restraints were indented or not. The Government also needs to demonstrate safeguards from abuse and procedural protection; hence, close supervision must be carried out and restraints must properly be recorded. Furthermore, in Wiktorko v. Poland, the undressing of a women in the presence of two male staff was considered alarming by the ECtHR. Maybe this could be applied to the situation in which male staff participate in mechanical restraints when forced injections are administered, which in principle always is the case, by pulling the persons’ pants down and giving an injection in the glute muscle.

6.5 CRPD If legal regimes include a criterion of disability, thus are non-generic laws, States need to justify this by showing that it serves a legitimate aim, contributes to this aim, and the reasonability behind it. Otherwise, they are directly discriminatory on the basis of disability as they do not fulfill the requirement of objectivity and reasonableness.163 The criteria for lawful distinctions are similar to those of the tripartite- or four-part test. Firstly, a legitimate aim must motivate the coercive measure. Secondly, the measure must be suitable in the sense that it contributes to its legitimate aim. Thirdly, to achieve the aim, the measure cannot be more intrusive than what it necessary. Fourthly, which is a requirement specific on the issue of disability-discrimination according to the CRPD, State parties must show that non-generic laws in domestic health systems that allow intervention against people with psychosocial disabilities have a means-end relevance. It is unclear to what degree this justification must be proven, but some kind of proportionality assessment need to be carried out. In the case that one of the four criterion falls

163 Nilsson, pp. 64–65.

short, it is deemed non-proportional. If fulfilled, a proportionality assessment in the strict sense must be carried out. If the system is directly discriminatory, a consistency requirement is applied.164

6.5.1 Legitimate aim The first criterion is compatible with the CRPD if it is line with the Convention’s provisions and object and purpose behind it. Although the mean of some coercive measures may collide with the general principle in Article 3(a) to respect autonomous choices, the aims are still legitimate if they serve to protect the life (Article 10) and health (Article 25) of the person. Article 10 of the Convention have even been interpreted by the CRPD Committee as entailing an obligation for States to prevent suicide.165 In relation to the safety of others, Article 16 en- shrines the right of freedom from exploitation, violence and abuse. The obligation entails an obligation to protect people with disabilities from harm of other people, with or without disabilities, equally as there is an obligation to protect people without a disability from harm of people with disabilities. According to Article 4(1)(d) and (e) this applies to both State- and non-State actors. The three categories outlined above are compatible with the CRPD.166 The requirement of a legitimate aim for the use of mechanical restraint is satisfied as public safety and protection of health and life are considered as such.

6.5.2 Suitable Turning to the second criterion; suitability, a real contribution must be demonstrated for it to be fulfilled. The State cannot rely on evidently false data, however, uncertain data is acceptable if there is an absence of clear data. This implies that a certain level of quality of the provided healthcare must be ensured.167 Lucas, one assistant nurse in Sweden, during an interview described a situation in which a person with an intellectual disability had been mechanically restrained for more or less a week as he became very aggressive and self-destructive when they had tried to release him. They had no experience of intellectual disabilities as the unit where persons with intellectual disabilities previously had been treated had been closed. Eventually, after trying different approaches, they managed to find ways to control the situation and prevent self-harm behavior without using mechanical restraint, however, seclusion was still applied. Later they found that music and printed pictures of specific motives calmed him although he still was agitated, not because he was angry but because it was more of obsessive-compulsive character. He remained secluded until he eventually was placed at a unit suitable to his needs. The application of mechanical restraint due to the lack of

164 Nilsson, pp. 144–148. 165 Eg. Concluding Observations on the Initial Report of Sweden: Committee on the Rights of Persons with Disabilities, 12 May 2014, UN Doc. CRPD/C/SWE/CO/1, para 29–30. 166 Nilsson, pp. 49–50. 167 Nilsson, p. 144.

knowledge on how to deal with persons with intellectual disabilities like in the present case is clearly not a suitable measure, which is also shown by the fact that they eventually found different ways to deal with the situation after learning more. The placement in itself at a unit not specialized in intellectual disabilities can be questioned as a violation of human rights.

6.5.3 Necessary The third criterion of necessity should be assessed by taking into account all alternatives, whether pre-existing inside or outside the country, that are based on evidence. Another way to describe this criterion is “the least restrictive means”.168 This is not unconditional though as third-parties’ legitimate interest and other rights protected by the CRPD cannot be completely set aside. Public resources must for instance be taken into account.169 This could be argued to connect to the “progressive rights” of the ICESR. In other words, the cost of modifying the regime should also be considered. It differs from the proportionality assessment though as the mean at least should be equally efficient, even if there is not necessarily a requirement of being the most efficient. One example often brought up as a less intrusive measure is physical restraint in the form of holding. From a disability perspective it is important to take into account that many people on the autism spectrum do not like to be touched. Most people on the autism spectrum, among others Paula, during the interviews actually said that holding, especially if done my male staff, was worse than mechanical restraint. Not only because of the issue of being touched, but also because at least with mechanical restraint, it is done following a protocol, whereas holding can pertain for a long period of time without any safeguards taken. Most of the healthcare professionals that were interviewed had the perception that it was more common for people with psychosocial disabilities, especially persons who had an autism spectrum disorder, to get mechanically restrained than those without. The suggested reason for this was that they did not have strategies to deal with others than neurotypical persons, which created situations that easily escalated to the point that they felt like it was necessary to use mechanical restraints. Other explanations included that persons on the autism spectrum might have difficulties with changes and need more time to process things, which might be hard to find time to in acute situations. Difficulties to express oneself might also create misunderstandings that lead to coercive measures. One nurse, Emilia, thought that flash cards and written information might be helpful in addition to more training among staff about disabilities. States referring to lack of knowledge on how to treat persons with psychosocial disabilities indicates that other less intrusive means are not applied. This should not be viewed as a lack of information, but rather lack of effort to take in and apply that knowledge.

168 Nilsson, p. 144. 169 Nilsson, p. 76.

6.5.4 Means-end relevance The fourth criterion of means-end relevance is applicable on States with non- generic laws as they must justify the specific targeting of people with psychosocial disabilities by referring to empirical data. Prejudice and other unsupported beliefs do not suffice the requirement of evidence-based data.170 In regard to the protection of health of the person, State parties must explain why it is necessary to single out people with disabilities. State parties must equally explain why people with psychosocial disabilities should be a group that can be subject to more interventions in order to protect life compared to people that very well also might be at risk of committing suicide, however, due to other factors such as chronic pain, lack of close relationships or financial difficulties. One justification for the differing regime could be that when it concerns psychosocial conditions, the person’s view on life can manifest in suicidal ideation without being the genuine will of the person. In this sense, the State does not override this person’s autonomous decision, quite the opposite; treating the condition that creates symptoms of suicidal ideation. Another argument is that people with psychosocial disabilities are over-represented in committed suicides.171 In high-income Western countries, 90 % of the people that commit suicide have a psychosocial condition, and the remaining 10 % have symptoms of/ or related to depression. In low- and middle-income countries, where the number of suicides is about three times higher than in high-income Western countries, the percentage of people with a diagnosed psychosocial condition who commit suicide is lower, around 60 % in some State parties to the CRPD. This data might be misleading though since both over- and under-reporting may play a significant role as well as the discretion between people with actual psychosocial disorders, however, undiagnosed. Data of good quality might be lacking as well as social and religious stigmas of suicide, or even criminalization, might lead to suicide being categorized as an accident or crime in statistics. Similarly, a tendency in the West to psychiatrize conditions of mental distress as mental illnesses such as depression might also explain the higher percentage. Psychiatrization is less present in other parts of the world than the West where suicide more often is explained as consequences of financial problems, unemployment, substance abuse, alcoholism and interpersonal conflicts.172 This says nothing about the particular use of mechanical restraints and whether it serves to protect lives, however, since it often but not always takes place in psychiatric facilities it might give some indication. Moreover, since prevention in the long term requires other measures, it might be questionable whether this can serve as an objective criterion. Although some factors have been associated with an elevated the risk of suicide – such as suffering from depression or a severe somatic illness, being male, having a background of families and friends with suicidal behaviors and recent negative life experiences – it is very difficult to identify individuals who will commit suicide in the near future. Even if it is possible to identify groups of higher risk of suicide or

170 Nilsson, p. 145. 171 Nilsson, pp. 127–129. 172 Nilsson, pp. 55–57.

self-harm that leads to death, only few of them will actually commit suicide.173 If States have generic laws and refrain from acting, this will thus affect people with psychosocial disabilities disproportionally. Regarding the protection of others, States must also show that there are reasons to single out people with psychosocial conditions. This seems hard since other high-risk groups are not targeted. In fact, the correlation between psychosocial conditions and destructive acts is weaker than the link between psychosocial conditions and self-destructive acts.174 Acts of provocation might also trigger the same violent behavior of people with or without a psychosocial condition. Nonetheless, violence might also occur in the hospital environment, both di- rected towards staff and other persons admitted. From a disability-discrimination perspective, it should also be noted that serious violence is rare, hence, if admit- ting people with psychosocial conditions that are at risk of committing violent acts, a lot of these people would never actually commit such acts. Other factors serve better to predict violence, such as antisocial personality, male gender, substance abuse and history of violent behavior.175 Again, this says little about restraint, but it should be kept in mind that violence often occur in moments of high tension, such as mechanical restraint. Maybe more people, staff or other persons admitted will be harmed than what would be the case if not admitted and subjected to restraint that might provoke violent behavior?

6.5.5 Proportionality in the strict sense If the four above-mention criteria are sufficed, a proportionality test in the strict sense must be carried out in order to determine its lawfulness. First, the infringement on personal liberty and integrity must be justified by the benefits for applying the measure. Benefits must outweigh the negative consequences. Secondly, the equality-specific harms of the law and policy, such as disrespect for human dignity, must be considered.176 Moreover, a consistency requirement must be applied in order to not violate the aim of formal equality, meaning that similar treatment should apply to persons in relatively similar situations.177 Undoubtably, mechanical restraint is a huge infringement on personal liberty. The effect of the compulsory interventions needs to be taken into account. Some coercive treatment is described by patients as degrading, terrifying, traumatic, humiliating as well as both emotionally and psychically painful. However, although initially having resisted the treatment, many understood the reason for the coercive measure applied as they realized they had behaved in a self-destructive manner. Some even expressed relief that someone else had taken over the control.178 As there is a lack of data on the efficiency of mechanical restraint, one could maybe look at the effectiveness of compulsory care relating to the protection of

173 Nilsson, p. 55. 174 Nilsson, p. 130. 175 Nilsson, pp. 58–61. 176 Nilsson, pp. 145–146. 177 Nilsson, p. 148. 178 Nilsson, pp. 62–63.

health and life. This must be done with great caution since far from all people admitted involuntary experience mechanical restraint. Looking at statistics on the effects of compulsory care, there is a great variation, ranging from 39 to 81 % on whether it has been perceived as helpful or not. 6 to 33 % reported no benefits.179 Turning to the consistency requirement and comparing the fact that someone refuses treatment, the decision to respect or not respect this should in principle not be affected by the fact that someone has a psychosocial disability or not.180 This is not the case though. While for example Jehovah’s witnesses are allowed to refuse blood transfusions, people with psychosocial disabilities under compulsory care cannot refuse coercive measures as they precisely are coercive. It can be argued that the ability to make free and informed decisions of one’s treatment can be a consequence or symptom of some psychosocial conditions.181 The possibility to reject treatment is often considered by applying the so-called mental capacity test in order to distinguish between personal values/ preferences and ability to reason about alternative treatments. In order to conclude mental capacity, the person must be able to make decisions that align with their values as such, however, there is no requirement of them being reasonable. A Jehovah’s witness that refuses blood transfusion based on religious belief might seem unreasonable, however, it is in line with the person’s values as such and therefore the person is considered to have mental capacity. It has been argued that if these kinds of preferences are accepted, self-destructive preferences, which often are disqualified, should be accepted. One example that is often discussed is the case of persons suffering from anorexia, where the suggested personal preference would be to “value thinness and a wish to avoid food”.182 I believe this is inherently flawed and based on obsolete understandings of anorexia as a matter of “wishing to be thin”, while in fact anorexia has little to do with weight or food. An eating disorder is not a choice, it is a disease that drives persons to extremes, for example refusing to eat, due to emotional suffering. It is compulsive and the person suffering is controlled by the disorder. Therefore, it is disrespectful to people trying to recover from an eating disorder to say that it is a personal preference or choice to be ill. Nonetheless, States have to prove the decision-making ability of a person in order not to be discriminatory, an evaluation that might be flawed and something the CRPD Committee has rejected. People without psychosocial conditions might as well lack decision-making ability if they for instance have acute head injuries, later stages of dementia, or cancer patients in very bad condition.183

179 Nilsson, p. 51. 180 Nilsson, p. 148. 181 Nilsson, pp. 122–124. 182 Eg. Boyle, Sam, How should the law determine capacity to refuse treatment for anorexia?, International Journal of Law and Psychiatry, vol. 64, 2019, pp. 250-259 and Nilsson, p. 54. 183 Nilsson, pp. 124–125.

7 Conclusions

7.1 International and European human rights framework The international human rights treaties prohibiting torture and other cruel, inhuman or degrading treatment or punishment are the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (UNCAT), the International Covenant on Civil and Political Rights (ICCPR) and the Con- vention on the Rights of Persons with Disabilities (CRPD), and regionally in Eu- rope, the European Convention on Human Rights (ECHR). Torture or other ill- treatment is also prohibited according to customary international law and jus cogens. In principle, there should be no differences in how torture and other ill- treatment are interpreted by each treaty body or court, however, it is apparent that this is the case. The threshold for what is considered torture, and maybe also other ill-treatment, according to the UNCAT seems to be higher than that of the ICCPR and ECHR. The UNCAT is the only convention defining torture. The criteria of intent and specific purpose make the assessment stricter in a sense. It is true that according to case law by the European Court of Human Rights (EC- tHR), there is a purposive element of torture which is decisive in its classification. No such criteria are set out in the ICCPR. Perhaps it is then the criterion of intent that makes the threshold higher for what is considered as torture under the UN- CAT. It is empirically true that few people would mechanically restrain someone for the purpose of torturing someone. The intent is rather to facilitate perceived or actual medical necessity. However, since discrimination under some circumstances could imply intent, it is possible that the criterion could be fulfilled in relation to certain groups of people, especially persons with psychosocial disabilities as health care systems often are not apt to persons with disabilities. This criterion also connects to the necessity criterion in the ICCPR, ECHR and CRPD as it seems like mechanical restraint take place without being strictly necessary, or in other words, assumed to be necessary – fulfilling the intent criterion due to implied intent because of discrimination – in the case of persons with psychosocial disabilities. I do not rule out that it can also be implied in other circumstances, especially gender, for instance due to the lesser tolerance of women or girls acting out, and also immigration status and racism. Thus, my conclusion is that mechanical restraint by bed through belt fixation very well could amount to torture under certain circumstances (and this is important since I do not believe it is per se) under the UNCAT, and if not torture, definitely other cruel, inhuman or degrading treatment or punishment, if the intent requirement is not fulfilled. If it would be recognized as to amount to torture, States would have an immense pressure from the international community to change

their practices. For States like for instance Sweden and Spain, it would be very damageable for their reputation to be accused of torture. It should also be noted that mechanical restraint not necessarily should be viewed as one single episode that is either lawful or unlawful. It might be the case that the application of restraints was lawful, however, that it gradually became unlawful due to for example its duration or disregard of security mechanisms, or even different forms of abuse during the restraint. Under the ICCPR and the ECHR I believe that it is likely that mechanical restraint under some circumstances could amount to torture to a higher extent than under the UNCAT as the threshold seems lower. The ECtHR has not yet considered any of the cases of mechanical restraint it has dealt with as torture. Although these cases have involved longer periods of restraints and physical and mental harm, there are most likely many cases which never have come to the Court’s review that could amount to it. Especially cases of sexual assaults and when mechanical restraints have been applied more or less as a matter of routine without taking a stand on whether it is strictly necessary. Probably the lack of knowledge, or unwillingness to educate and adopt adequate methods for persons with disabilities, have created situations of mechanical restraint that not necessarily would have arisen if appropriate treatment was accommodated. States have the responsibility to ensure that healthcare facilities, private or not, are suitable. In the cases of sexual assaults, I believe that the severe suffering has not yet been disclosed in front of the Court precisely due to the nature of these assault, that is the power dimension and abuse of persons in closed environments confined at psychiatric facilities. It is likely that people subject to this do not have the energy it takes to require justice due to other distressing events in their life, or in the cases when people actually denounce this, does not get believed because of their status as a person with a psychosocial disability. Expanding on the issues of restraints per se, it might be important to not demonize the mechanical restraints themselves but rather how and why they are used, the same way as it is not the knife that hurts the patient but the way the surgeon uses it. It should be recalled that some people find mechanical restraints useful, however, this is seldom addressed as it is stigmatized as people seem to think that they are alone in feeling this way. Although it might sometimes partly be driven as a way of self-harm, it should not be ruled out that it actually is helpful in a therapeutic way for some as it can save life and improve health.

7.2 Lack of research, data and people willing to speak The lack of research and data on the efficiency and effects of mechanical restraint makes any necessity and especially proportionality assessment very difficult. From a discrimination perspective, the intent criterion is also difficult to assess since there is a lack of disaggregated data into different groups of people. Perhaps the lack of data could be seen as more information in itself in the same way the unwillingness of healthcare professionals to speak on this issue indeed is information. People might be afraid to face the fact that their common practices may

amount to international human rights violations. Indeed, in the process of find- ing people to interview, it was revealed by a contact who tried to facilitate interviews, that some did not want to participate precisely because they were afraid that their practices would be revealed; probably knowing themselves that it was unethical. Of course, they may also have decided to not participate for other personal reasons. The perspective of people interviewed with personal experiences of being restrained might also be limited in the sense that what is reflected leaves out the perspectives of those who either are feeling so heavily traumatized that they are unable to speak about it, or those who do not feel like it impacted them that much and therefore felt like their participation of sharing their experiences would be redundant. Due to the limit of this thesis in terms of time and scope, it has not been possible to reach out to as many people as I would have liked to, which of course limit the different perspectives presented. This field on the use of mechanical restraint and its connection to international human rights call for further research as there currently is not much written about it, especially not from the perspective of persons with personal experiences and with disabilities. Other regional frameworks than the European must be looked into and it would be interesting to see how the intent criterion that is based on discrimination is to be interpreted and what evidence and criteria that should apply to this. The intent criterion is namely what seems to make the threshold to consider mechanical restraint as torture rather than other cruel, inhuman or degrading treatment or punishment higher as well as the variation in classification according to the UNCAT, the ICCPR and the ECHR. It is also clear that safeguards must be developed to ensure the rights of persons subject to mechanical restraint, especially girls and women with disabilities and immigration status. In many ways, prisoners seem to have more safeguards than persons in the mental healthcare facilities. The silencing of voices of people with own experiences, through deeming them subjective and therefore unreliable, is alarming. Equally is the system that sometimes punishes the persons subject to mechanical restraint by initiating police investigations against them for accidental actions while resisting restraints. Last but not least, I believe that it is crucial to look into whether a complete ban on the use of mechanical restraint on children should be implemented. In summary, the use of mechanical restraint cannot only be looked upon from a medical perspective, a more comprehensive human rights perspective is clearly needed.

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