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Mechanical Restraint in Psychiatric Healthcare Facilities

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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 per- spective. The purpose of this thesis has been to investigate under which circum- stances 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 prac- tice 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 treat- ment or punishment according to the UNCAT, ICCPR and ECHR. 3 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 5 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 ..................................
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