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Torture in Healthcare Settings: Reflections on the Special Rapporteur on Torture’S 2013 Thematic Report TORTURE in HEALTHCARE SETTINGS

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Torture in Healthcare Settings: Reflections on the Special Rapporteur on Torture’S 2013 Thematic Report TORTURE in HEALTHCARE SETTINGS Torture in Healthcare Settings: Reflections on the Special Rapporteur on Torture’s 2013 Thematic Report TORTURE IN HEALTHCARE SETTINGS: IN HEALTHCARE TORTURE Reflections on the Special Rapporteur on Torture’s 2013 Thematic Report Torture’s Reflections on the Special Rapporteur CENTER FOR HUMAN RIGHTS & HUMANITARIAN LAW Anti-Torture Initiative Torture in Healthcare Settings: Reflections on the Special Rapporteur on Torture’s 2013 Thematic Report CENTER FOR HUMAN RIGHTS & HUMANITARIAN LAW Anti-Torture Initiative ii TORTURE IN HEALTHCARE SETTINGS: Reflections on the Special Rapporteur on Torture’s 2013 Thematic Report Table of Contents vii Acknowledgments ix About the Center for Human Rights & Humanitarian Law and the Anti-Torture Initiative xi About the Mandate of the UN Special Rapporteur on Torture xiii Foreword: Hadar Harris xv Introduction: Juan E. Méndez 1 I. The Prohibition of Torture and the Right to Health: An Overview 3 A Contribution by the Special Rapporteur on the Right to Health: Right to Health and Freedom from Torture and Ill-Treatment in Health Care Settings Anand Grover & Jamshid Gaziyev 19 The Problem of Torture in Health Care Tamar Ezer, Jonathan Cohen, Ryan Quinn 43 The U.N. Committee Against Torture and the Eradication of Torture in Health Care Settings Claudio Grossman 49 II. Abusive Practices in Health Care Settings and International Human Rights Law: Reflections 51 Torture or Ill-Treatment in Reproductive Health Care: A Form of Gender Discrimination Luisa Cabal & Amanda McRae 65 Poor Access to Comprehensive Prenatal Care, Including Opiate Substitution Treatment: A Form of Ill-Treatment for Women with Drug Dependence During Pregnancy Mikhail Golichenko & Sandra Ka Hon Chu 73 Consent Signed with Invisible Ink: Sterilization of Trans* People and Legal Gender Recognition Micah Grzywnowicz 83 When Healing and Comforting Hands Turn Hostile and Harmful: Homophobia and Transphobia in Health Care Centers Rafael Mazin 91 Medical Treatment of People with Intersex Conditions as Torture and Cruel, Inhuman, or Degrading Treatment or Punishment Anne Tamar-Mattis iii iv TORTURE IN HEALTHCARE SETTINGS: Reflections on the Special Rapporteur on Torture’s 2013 Thematic Report 105 Torturous “Treatment?” Assessing Government and Donor Responsibilities for Abuses in Drug Detention Centers from a Human Rights Perspective Rebecca Schleifer & Richard Elliott 123 Privatizing Cruelty—Torture, Inhumane and Degrading Treatment in Non-Governmental Drug Rehabilitation Centers Roxanne Saucier & Daniel Wolfe 133 Denial of Pain Treatment and the Prohibition Against Torture and Ill-Treatment Diederik Lohman & Tamar Ezer 141 Joint Statement from the American Psychiatric Association and the World Psychiatric Association in Response to the Report of the Special Rapporteur 151 Response by the Special Rapporteur to the Joint Statement by the American Psychiatric Association and the World Psychiatric Association 155 An International Comparison of Mechanisms in Mental Health Monitoring Judy Laing & Rachel Murray 169 Implementing a Paradigm Shift: Implementing the Convention on the Rights of Persons with Disabilities in the Context of Mental Disability Law Peter Bartlett 181 Compliance is Unreasonable: The Human Rights Implications of Compliance-Based Behavioral Interventions under the Convention Against Torture and the Convention on the Rights of Persons with Disabilities Lydia Brown 195 “You That Hide Behind Walls:” The Relationship Between the Convention on the Rights of Persons with Disabilities and the Convention Against Torture and the Treatment of Institutionalized Forensic Patients Professor Michael L. Perlin & Meredith R. Schriver 219 On Torture, Ill-Treatment and People with Psychosocial and Intellectual Disabilities: Some Thoughts About the Report of the Special Rapporteur Robert Dinerstein 227 A Response to the Report by Juan E. Méndez, Special Rapporteur on Torture, Dealing with Torture in the Context of Health Care, as it Pertains to Nonconsensual Psychiatric Interventions Tina Minkowitz 247 The Role of Global Psychiatry in Advancing Human Rights Oliver Lewis v 263 Torture in Health Care Settings: Urgent Issues and Challenging Questions Yuval Ginbar & James Welsh 277 Legal Capacity, Informed Consent, and Stigmatized Identities: Reform and Remedy Efforts in Central and Eastern Europe Claude Cahn 291 Torture and Ill-Treatment Against African Persons with Psychosocial Disabilities In and Out of Health Care Settings Shuaib Chalklen, Hisayo Katsui, Masa Anisic 299 Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment on Torture in Healthcare Settings Juan E. Méndez vi TORTURE IN HEALTHCARE SETTINGS: Reflections on the Special Rapporteur on Torture’s 2013 Thematic Report Acknowledgments This publication was made possible by a grant from Open Society Foundations (OSF), to whom we express our deep appreciation for their generous support. Many people have been involved in bringing this volume to fruition over the past months. We are grateful to the more than 30 article authors who contributed their perspectives and expertise to expand upon the SRT’s report. Their deep commitment to alleviating suffering for those in health care settings (in various dimensions) is inspiring and their important perspectives have enriched the ongoing debates outlined in this work. In addition, we would like to thank Shushan Khachyan for her work on the first phase of this publication, as well as her vital research and support for the drafting of the original SRT report. Special thanks to the skilled editing team, who reviewed all or part of the text at various stages. This includes Naida Henao, Brittany West, Jennifer Ponard, Helen Parks, Paul Jurado, Andrew Crow, Melissa del Aguila, and Lauren Bartlett. Special thanks go to Andra Nicolescu for her excel- lent work in helping editing, organizing and overseeing the publication. We would also like to thank Bill Novak and HBP Printing for overseeing the layout and design of the publication, as well as Aurora Carmichael and Diana Dority of the WCL Office of Grants and Programs, Khalid Khalid, Cathy Prather and Michael Scher of the WCL Finance Department, and Irina Komives of the AU Office of Sponsored Programs for their ongoing support and assistance. And finally, the Center owes a deep debt of gratitude to Maria Noel Leoni Zardo, Coordinator of the Center’s Anti-Torture Initiative, for her close stewardship of this volume, including her review of the articles, coordination of the editing team, close communication with authors and interactions with the publishers. Without her tireless efforts, this volume could not have been completed. Disclaimer The ideas, opinions and conclusions expressed in this volume are those of the authors only, and do not necessarily represent the views of the American University Washington College of Law Center for Human Rights & Humanitarian Law, the United Nations, the UN Special Rapporteurship on Torture or the Open Society Foundations. This publication is intended to generate a broad discussion on the matter of abusive practices in health care settings. For that reason, it may be freely reviewed, abstracted, reproduced and trans- lated, in part or in whole, but it is not for sale or for use in conjunction with commercial purposes. Any changes to the text of this publication must be approved by the Anti-Torture Initiative (ATI) of the Center for Human Rights & Humanitarian Law of American University Washington College of Law. If any section is reproduced, due credit must be given to the Center for Human Rights & Humanitarian Law Anti-Torture Initiative and to this publication. vii viii TORTURE IN HEALTHCARE SETTINGS: Reflections on the Special Rapporteur on Torture’s 2013 Thematic Report About the Center for Human Rights & Humanitarian Law and the Anti-Torture Initiative Established in 1990, the Center for Human Rights & Humanitarian Law explores emerging intersections in the law and seeks to create new tools and strategies for the creative advancement of international human rights norms through work with students, academics and practitioners. The Center runs a variety of projects, conferences and workshops on issues ranging from combating torture, enhancing the human rights of persons with disability, promoting human rights in the US, building capacity and strategies for human rights education, seeking solutions to promote human rights in business and more. The Center seeks to enhance the understanding and implementation of human rights and humanitarian law globally. The Center’s Anti-Torture Initiative (ATI) was created in 2012 to expand the strategies used by the United Nations Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment (SRT) in furtherance of its mandate; to support, monitor, and assess implementation of the SRT’s recommendations; and to provide a multi-dynamic model for effective thematic and country-specific follow-up. The ATI employs diverse methodology and best-practices to develop comprehensive thematic and country-specific follow up initiatives, with the aim of facilitating the domestic implementation of the SRT’s recommendations, and helping to promote the complete elimination of torture. The ATI is an independent project but works closely with the SRT and the UN Office of the High Commissioner for Human Rights, as well as with civil society organizations and government representatives in selected countries to engage with the SRT in follow-up activ- ities, and to
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