OPCAT: How an international treaty regarding torture is relevant to the Australian mental health system

The United Nations Subcommittee on the Prevention of Torture visits signatory nations to the Optional Protocol to the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (OPCAT). Its role is to monitor and support signatory nations in implementing and complying with the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (CAT). In October 2022, the United Nations Subcommittee on the Prevention of Torture visited Australia but was barred from visiting mental health wards in Queensland and all detention facilities in New South Wales leading to the termination of its visit. This breach of Australia's obligations under the OPCAT presents a significant setback for the rights of people with mental illness and other involuntarily detained populations. This piece sets out to demonstrate the relevance of OPCAT to the mental health system in Australia. Individuals who are detained for compulsory treatment in locked facilities such as acute psychiatric inpatient wards and forensic mental health facilities are deprived of their liberty, often out of public view. Thus, it highlights the ethical and professional obligations of all mental health professionals, especially psychiatrists, to safeguard the human rights of individuals being detained in mental health facilities as enshrined in Australia's international legal obligations under the OPCAT. Adhering to these obligations diminishes the risk of future human rights violations of people with mental illness.

Psychiatry and the UN Convention Against Torture

OBJECTIVE

To expand on psychiatry's duties under the United Nations (UN) Convention Against Torture.

CONCLUSIONS

As it is currently practised in Australia, psychiatry is in breach of a number of major international conventions. Full compliance with treaty obligations will entail substantial changes in current practice.

The preventive approach: OPCAT and the prevention of violence and abuse of persons with mental disabilities by monitoring places of detention

Adopted in December 2002, the United Nations Optional Protocol to the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment establishes a system of regular visits undertaken by independent international and national bodies to places where people are deprived of their liberty, in order to prevent torture and other cruel, inhuman or degrading treatment or punishment. The article explores how this collaboration between national and international bodies, with independent mandates to carry out such unannounced visits, represents an important effort in the process of protecting persons with mental disabilities who are detained and who are particularly exposed to exploitation and other forms of serious human rights violations, contrary to Article 16 of the Convention on the Rights of Persons with Disabilities.

Preventing violence, exploitation and abuse of persons with mental disabilities: Exploring the monitoring implications of Article 16 of the United Nations Convention on the Rights of Persons with Disabilities

Article 16 of the United Nations Convention on the Rights of Persons with Disabilities includes the right to be free from all forms of violence, exploitation and abuse. In pursuance of this aim, Article 16 (3) imposes an obligation on States Parties to 'ensure that all facilities and programmes designed to serve persons with disabilities are effectively monitored by independent authorities'. Effective independent monitoring is viewed as a key mechanism to help safeguard people from violence, exploitation and abuse. This is highly pertinent in the wake of the highly publicized abuse of patients in care homes and hospitals in England in the last few years. This article examines the monitoring requirements of Article 16 and, by drawing on the author's research into the Care Quality Commission (the national health and social care regulator and mental health monitor) in England, assesses the extent to which independent inspection of hospitals and care homes can play a part in realizing Article 16(3) to prevent violence, abuse and exploitation of persons with mental disabilities. The potential scope and reach of Article 16 is extremely wide: this brings with it great potential but, at the same time, significant challenges for achieving effecting monitoring. Some of these challenges are explored and the paper concludes with some consideration of how monitors/inspectors, such as the Care Quality Commission in England, can strengthen their protection for people with mental disabilities, in line with the ethos and aspirations of the CRPD.

PERSPECTIVES ON MONITORING MENTAL HEALTH LEGISLATION IN ENGLAND: A VIEW FROM THE FRONT LINE

This article discusses the findings of an exploratory study involving semi-structured interviews with a sample of Mental Health Act (MHA) Commissioners. MHA Commissioners are employed by the Care Quality Commission (CQC) in England to monitor patients who are deprived of their liberty under the Mental Health Act 1983 (as amended by the Mental Health Act 2007). The study was designed to examine the impact of the transfer of responsibility of mental health detention monitoring in April 2009 from the Mental Health Act Commission to the CQC. The interviews were devised around the United Nations Optional Protocol to the Convention Against Torture (OPCAT) framework, which provides a useful benchmark for effective monitoring of deprivations of liberty to national inspection bodies (known as National Preventive Mechanisms), such as the CQC. Article 18 of the OPCAT advises a regular system of preventive visits by independent expert monitors, as well focussing on the promotion and protection of human rights. There is paucity of data on the work of MHA Commissioners in England to date and the author was unable to locate any previous studies on the subject. This study is timely and important as the CQC has been heavily criticised following the abuses uncovered at Winterbourne View care home and in the wake of the Mid Staffordshire Inquiry. Consequently, in 2012, the CQC undertook a major strategic review. The findings of this study suggest that, whilst there is some evidence of compliance, the CQC still has some way to go to effectively fulfil its monitoring duties in line with the provisions of the OPCAT.