Summary

In this report, the Special Rapporteur reviews disability-specific forms of detention, their underlying causes and adverse consequences, and proposes alternative rights-based models. The report contains recommendations to assist States to develop and implement reforms to end deprivation of liberty based on disability. These include the abolition of laws and regulations allowing for deprivation of liberty on the basis of disability, the implementation of deinstitutionalization policies, and the conduct of awareness-raising campaigns.

A wide-spread problem, with grave consequences

The deprivation of liberty on the basis of disability is a human rights violation on a massive global scale. As this report illustrates, it is not a “necessary evil” but a consequence of the failure of States to ensure their obligations towards persons with disabilities.

Persons with disabilities are overrepresented in mainstream detention settings, such as prisons and immigration detention centres. While an estimated 15 per cent of the global population are persons with disabilities, they represent, in many countries, as much as half of the prison population.

Persons with disabilities also face other forms of deprivation of liberty that are disability-specific. The most common include involuntary hospitalization in mental health facilities, placement in institutions, internment in forensic psychiatric wards, forced treatment in “prayer camps” and home confinement. All these forms share common characteristics and justifications that stem from the medical model of disability, which suggests the need for “specialized care” in specialized institutions, rather than in the community. The reality is that people in these situations and settings become extremely vulnerable to sexual and physical violence, sterilization, human trafficking, and many other forms of torture and abuse.

Children with disabilities are particularly at risk of institutionalization. Millions are confined to isolation in institutions, segregated from their families and communities. They are routinely locked, forced to take medication and often exposed to torture, abuse and neglect. The detrimental effects of institutionalization on their development, even when placed in small residential homes or “family-like” institutions, have been vastly demonstrated.

Without legal avenues to challenge their situation, persons with disabilities deprived of their liberty become invisible and forgotten by the wider community. Indeed, due to the mistaken belief that those practices are well intentioned and beneficial, their situation and well-being is hardly monitored by national preventive mechanisms or human rights institutions.

Causes: misperceptions and access to services

While people commonly believe that reasons behind the deprivation of liberty are related to a person’s impairment, the underlying causes are largely social. Stigma and misconceptions often lie at the root of the various forms of deprivation. The need for “specialized care”, which can only be provided in institutions is most common, but cultural or religious beliefs can also play an important role. Persons with disabilities may be accused of being possessed by evil spirits, or being “impaired” as a result of sin or witchcraft, making families feel ashamed, and prompting social rejection and segregation. In some cases, impairments are believed to be contagious, prompting their confinement away from the rest of the community.

In many countries, health and social care professionals encourage parents to place their children with disabilities in institutions under the wrong assumption that they will receive better care than at home. This enables a system of essential services that are removed from the community: Families send their children with disabilities to special boarding schools or vocational centres because there is no other way available to ensure their education. Similarly, many persons with disabilities are placed into residential institutions as a way to access social protection benefits.

In their most pernicious forms, misperceptions about persons with intellectual or psychosocial disabilities characterize them as dangerous and prone to violence. This is a worrisome trend, which translates into legislation that criminalises atypical behaviours like yelling or self-injury, as well as public displays of poverty--lack of maintenance of properties, or homelessness. In some cases, situations of non-compliant behaviour by persons with autism, deaf, or with epilepsy have been considered as threatening by enforcement officials, leading to violence and prosecution.

Solutions to prevent the deprivation of liberty of persons with disabilities

Deprivation of liberty is a product of the accumulated structural discrimination experienced by persons with disabilities, which can be traced to States’ inaction in implementing their fundamental rights. In the absence of legal capacity or access to justice, and without appropriate support or livelihoods, persons with disabilities are sent to institutions and mental health facilities as if there were no other option.

Ending the deprivation of liberty on the basis of impairment requires a series of commitments by States and all stakeholders, including:

• Law reform: repeal all legislation that allows the deprivation of liberty on the basis of actual or perceived impairment, and the criminalisation of homelessness or disability;
• Deinstitutionalization: Such process should consider a moratorium on new admissions and include psychiatric institutions. States must take immediate action to end deprivation of liberty within private and/or faith-based institutions, such as orphanages, small group homes, rehabilitation centres and prayer camps, and end home confinement and shackling;
• End coercion in mental health: States should invest in community-based responses, including peer-led services, and support services for persons experiencing crises.
• Access to justice: persons with disabilities who have experienced arbitrary deprivation of liberty, exploitation, violence or abuses should be able to access adequate redress and reparations, and the restitution of their liberty;
• Community-based support: education, health care, employment, housing and other community services must be inclusive of and accessible for persons with disabilities. Persons with disabilities should be able to choose where and with whom to live, and not be forced into a particular living arrangement;
• Ensure participation and adequate resources: persons with disabilities and their organizations must participate in the planning, implementation and monitoring of programmes, services and legislative changes, and be provided with adequate resources for their success.

Expert consultation

On 7 September 2015, the Special Rapporteur on the rights of persons with disabilities, Catalina Devandas Aguilar, and the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health, Dainius Puras, convened an Expert meeting on the deprivation of liberty of persons with disabilities on the basis of disability.

The purpose of the meeting was to:

• Provide a platform to exchange views, share experiences and discuss challenges related to the obligation to abolish disability-specific forms of deprivation of liberty, including in the context of forced institutionalization in psychiatric and non-psychiatric settings, their impact on the right to health, and the interconnection with the enjoyment of other human rights such as the rights to legal capacity, to be free from arbitrary and unlawful detention and from torture and other ill-treatment, to live independently and be included in the community, and to social protection;
• Identify concrete solutions to implement alternatives to disability-specific forms of deprivation of liberty that respect an individual’s human dignity, will and preferences (e.g., legislative, judicial, and administrative measures to release individuals from detention and forced treatment, to immediately stop these practices at a systemic level, and to implement de-institutionalization and community-based services).

Participants included 23 international experts, including international judges and lawyers, healthcare professionals, former/current Special Procedures mandate-holders, members of Treaty Body committees, representatives of organizations of persons with disabilities, civil society, and other practitioners, with experience in the areas of deprivation of liberty, mental health and the rights of persons with disabilities. The findings of the meeting contributed to inform the Special Rapporteur's report on the same issue.