As the COVID-19 pandemic continues to rage around the world, evidence is emerging that measures taken by states are resulting in severe consequences for persons with disabilities. From brutal enforcement of lockdown orders through to the denial of basic and emergency health treatment, persons with disabilities are at risk of experiencing severe pain and suffering with life-changing consequences.
Despite the international emergency caused by the pandemic, all persons with disabilities have a right to protection from acts which constitute torture or ill-treatment under international law. The prohibition on torture is a non-derogable right set out under Article 1 of the United Nations Convention against Torture. Even during states of emergency, states cannot justify practices which give rise to torture or ill-treatment, and must take steps to prevent such acts and provide comprehensive redress to victims.
Starting in October 2020, Validity organised a series of six specialist webinars for lawyers, legal practitioners and other interested stakeholders on legal approaches to tackling specific forms of torture and ill-treatment which have emerged in the context of the pandemic. Each webinar was focused on providing a space for analysing specific practices which have occurred and exploring how lawyers can use the prohibition on torture to achieve legal redress.
In December 2020, Validity published an anthology of papers coming out of the discussions. It is hoped that this will serve as a valuable resource to lawyers and other advocates who wish to use the anti-torture framework for persons with disabilities in the context of the pandemic, and to stimulate debate on the need for greater preventive action on the part of states.
The webinars (full recordings now available below!):
- Police brutality against persons with disabilities across the globe during the pandemic
- Challenging discriminatory denial of emergency healthcare and triage policies
- Challenging the legality of restrictive measures implemented by states
- Persons with disabilities in closed settings
- Legal strategies to pursue emergency deinstitutionalisation during the pandemic
- Essential services and psychosocial disabilities: Achieving redress for victims of torture during a pandemic
Police brutality against persons with disabilities during the pandemic
This webinar focused on the topic of torture arising from police brutality against persons with disabilities in the context of COVID-19. As Governments enacted new and wide–ranging emergency powers to enforce health regulations, the enforcement of such measures have given rise to increased incidences of abuse at the hands of the police and security forces. These emergency powers included the introduction of new laws criminalising non-compliance with health-related measures. This raised rule of law concerns about abuse of power and use of excessive force by the police. Research of the COVID-19 Disability Rights Monitor has revealed that police and security officials have resulted in serious violations including abuse, torture and deaths of persons with disabilities.
In some African countries, police brutality is widespread. Human Rights Watch reports that at least six people died from police violence during the first 10 days of Kenya’s dusk-to-dawn curfew, imposed on March 27, 2020 to contain the spread of Covid-19. Similarly, just two weeks after the imposition of lockdown, security forces enforcing it killed 18 Nigerians, while COVID-19 killed 12 persons within the same period. Interestingly, these statistics are not explicit on whether the victims of police brutality are people with or without disabilities. Nonetheless, research has indicated that people with disabilities have been disproportionately affected with the lockdown rules implemented in the different parts of the world. Participating legal professionals, advocates and broader audience had the opportunity to discuss, alongside speakers, possible solutions and remedies to improve the situation of persons with disabilities and challenge extended and disproportional use of police powers arising from Emergency Acts adopted during the COVID-19 pandemic.
- David Kabanda is a social rights lawyer with a special interest in social justice in the areas of health, and food systems. He is a founder and currently the Executive Director at Center for Food and Adequate Living Rights (CEFROHT).
- Melanie Kawano-Chiu is the Evaluation & Learning Manager for the Disability Rights Fund and the Disability Rights Advocacy Fund.
- Kassim Lawal is a visually impaired legal practitioner resident in Abuja, Nigeria. He is a member of the Nigerian Bar Association, Association of Lawyers with Disabilities in Nigeria (ALDIN) and the Nigeria Association of the Blind (NAB).
- Purwanti Sipora is the Advocacy and Network Coordinator at Center for Inclusion and Disability Advocacy Movement (SIGAB).
Watch the webinar here:
Challenging discriminatory denial of emergency healthcare and triage policies
Evidence is emerging that persons with disabilities have been denied access to healthcare on an equal basis with other citizens during the pandemic. Many persons with disabilities had no access to medication including essential, life-saving medications, and medication for psychosocial disabilities.
Professor Wayne Martin talked about Discrimination, Triage and Denial-of-Treatment: Lessons from COVID-19 in the UK. Triage is the medical screening of patients to determine their priority for treatment. When demand for medical services swamps supply, triage becomes a public policy imperative. Historically, approaches to triage have varied. There are grounds for concern that the currently dominant approach to pandemic triage may constitute discrimination on the basis of disability, contravening Convention on the Rights of Persons with Disabilities Article 5. In this presentation Professor Martin reviewed triage practices in the early stages of the COVID-19 pandemic in the UK, with particular attention to the use of a “Frailty Index” in allocating patients to services. He argued that the use of the frailty index in the context of the so-called COVID-19 Decision Support Tool constituted a violation of CRPD Article 5. He reviewed and evaluated three strategies for avoiding disability-based discrimination in triage practices.
The presentation of Professors Amita Dhanda and Gábor Gombos focused on Make the last first: In Triage Policies and to Prevent Denial of Emergency Health Care Services. Reports from both the developed and developing countries show that persons with disabilities, and seniors, are amongst the most neglected. The situation cannot be corrected by an equitable triage policy. Any system of classification or prioritisation causes the most disadvantaged to lose out. Inspired by Tobin Sieber’s argument of perceiving fragility as most representative of the human, they advocate for making the last first.
- Wayne Martin is Professor of Philosophy at the University of Essex, where he is a member of the Essex Human Rights Centre and Director of the Essex Autonomy Project.
- Amita Dhanda is Professor of Law at National Academy of Legal Studies and Research, Hyderabad. She also heads the Centre for Disability Studies at the University.
- Gábor Gombos is a world-renowned independent disability rights defender. He chaired the European Network of (ex-)Users and Survivors of Psychiatry and co-chaired the World Network of Users and Survivors of Psychiatry.
Watch the webinar here:
Challenging the legality of restrictive measures implemented by states
This webinar aimed to explore torture and abuse that persons with disabilities suffer due to the application of restrictive measures that are not adapted to their situation. The discussion also looked at specific problems, including the failure to implement national restrictions in compliance with relevant international, European and domestic legal standards.
The discussion, in addition to sharing common experiences, focused on legal analysis of state-imposed restrictive measures that can severely impact persons with disabilities and result in torture and other ill-treatment. The discussions on the legality of measures undertaken by public authorities covered both the form and the content of these measures.
Concerning the form, panelists addressed the validity of justifications which are invoked to justify the imposition of restrictive regulatory measures, including severe restrictions of freedom of movement, and the implications on the right to life, health and freedom from torture and ill-treatment. Panelists also discussed the role of restrictive public measures in encouraging or implicitly allowing violent and inhuman behaviour and abuse of vulnerable populations, thus resulting in violations of Article 1 of the Convention against Torture. The webinar concluded with an evaluation of the gaps in the previous and current COVID-19 response, mainly the legal and social gaps and whether sufficient safeguards have been adopted by states to prevent acts of torture and ill-treatment.
- Dmitri Bartenev is an attorney who works on strategic cases on anti-discrimination, mental disability, LGBT rights and freedom of speech. He is also an associate professor of international law at St Petersburg State University, Russia.
- Jukka Kumpuvuori is a lawyer and the Executive Director of Kumpuvuori Ltd Law Firm, which specialised in disability rights in Finland. He has been involved in the Finnish disability rights movement for 20 years.
- Martin Wathika is a Kenya registered nurse with specialization in Mental Health/Psychiatric Nursing and Emergency Nursing. He is currently the Lead Nurse and Project Officer of Kamili Organisation, the only NGO in Kenya delivering community mental health services.
Watch the webinar here:
Persons with disabilities in closed settings
COVID-19 had a disproportionate impact persons with disabilities who live in residential institutions, including in psychiatric hospitals, social care institutions (orphanages, day-care centers, rehabilitation centers), and institutions or homes for older persons, resulting in high rates of infection and death. Institutionalised persons with disabilities face heightened risk of contracting COVID-19 due the inherently dangerous and congregate nature of such facilities, as well as the presence of underlying health conditions, difficulty in enforcing social distancing amongst residents and staff, and abandonment by staff. Persons with disabilities living in institutions also face greater risks of human rights violations such as neglect, restraint, isolation and violence in the context of emergency measures related to the pandemic. The main of objective of this webinar was to discuss how placement in institutions, as well as restrictions on leaving and entering, constitute forms of deprivation of liberty, and have given rise to torture and ill-treatment in a number of countries.
- Dina Poursanidou has a background in psychology and education and has been a University-based social science researcher since 2000. She is also a member of the UK-based National Survivor User Network (NSUN) and its Survivor Researcher Network (SRN) Working Group.
- Eric Rosenthal, JD, LL.D (hon.), is Founder and Executive Director of Disability Rights International (DRI). Since establishing DRI in 1993, Rosenthal has trained human rights and disability activists and provided assistance to governments and international development organizations worldwide.
- Priscila Rodríguez Benavides (LLM) is Associate Director in DRI’s Washington DC office. Prior to this position, she was Director of DRI’s Mexico and Central America regional office (2016-2017) and Director of the Women’s Rights Initiative for the Americas (2012-2017).
Watch the webinar here:
Legal strategies to pursue emergency deinstitutionalisation during the pandemic
In the times of the pandemic, institutions became death-traps. It became evident soon after the beginning of this crisis that the majority of COVID-related deaths occur in these congregate living facilities. Protecting the life of the residents would, therefore warrant their immediate discharge into the community with appropriate supports and services. But most Governments chose a different path: imposing further isolation on the residents of institutions by completely shutting their doors. This is not only a bad strategy for preventing the spread of the disease, but in some situations, it may also amount to torture or serve to enable it.
In this webinar, we proposed that the obligation to protect life and prevent the torture of persons with disabilities during the pandemic implies the obligation to speedily discharge persons with disabilities into the community with appropriate supports. We discussed the concept of emergency deinstitutionalization and why an under what circumstances it may be a good solution for persons in institutions in the current pandemic. Then we also outlined legal arguments and strategies to advocate for this solution.
- Facundo Chávez Penillas is the Human Rights and Disability Advisor of the Office of the United Nations High Commissioner for Human Rights, based in Geneva, since 2013.
- Janos Fiala Butora is a Lecturer in International Disability Law at the Centre for Disability Law and Policy, National University of Ireland Galway, and a human rights attorney with extensive experience representing victims before international human rights bodies.
- George Nikolaidis’ work focuses on violence, child abuse and neglect, public health sciences and epidemiology. Since September 2005, he is Research Director of the Department of Mental Health & Social Welfare, at the Institute of Child Health in Greece. ú
Watch the webinar here:
Essential services and psychosocial disabilities – Achieving redress for victims of torture during a pandemic
Internationally, people with psychosocial disabilities face stigma, isolation, and social exclusion. Exploitation, violence and abuse remain common, and in many jurisdictions people with psychosocial disabilities are denied their autonomy, subjected to forced treatment and interventions and, in the absence of community-based services, can be forced towards unregulated traditional healers. Practices such as chaining, beatings and cutting continue to be reported in non-conventional settings, whereas practices such as tying, and seclusion are often used in psychiatric facilities.
Persons with disabilities have been disproportionately affected both by the virus itself as well as severe restrictions on personal liberty, denial of access to food, social services and housing. In particular, persons with disabilities have been locked into institutions, including during outbreaks of the virus in such settings; there are widespread reports of discriminatory denial of emergency medical care through the adoption of triage procedures; there are numerous allegations of persons with disabilities facing brutality at the hands of police and security forces; and many countries have also seen a complete breakdown in the provision of community-based services and social protection systems. The denial of these essential services have lead to human rights violations which amount to torture and/or ill-treatment.
Lawyers have a crucial role in identifying victims of such abuses and framing these as human rights violations. International law, including the UN Convention on the Rights of Persons with Disabilities and the UN Convention against Torture, set out clear obligations on government to protect people with mental disabilities against torture and other forms of ill-treatment. It also requires redress to be provided to victims.
This webinar was hosted by persons with lived experiences to create awareness on the need for essential services during a pandemic to protect persons with psychosocial disabilities from torture and/or ill-treatment. Participants developed an understanding of how the human rights framework applies to victims of torture with psychosocial disabilities, and will have a unique opportunity to consider the role of strategic litigation and advocacy in promoting systemic changes to law, policy and practice even beyond the pandemic.
- Lisbet Brizuela is Mexican human rights activist with training in special education of children with intellectual disabilities. She is the Director of Disability Rights International’s Mexico and Central America regional office based in Mexico City.
- Ieva Leimane-Veldmeijere is the Executive Director for ZELDA, an organization based in Riga, Latvia. The mission of the Resource Centre for people with mental disability “Zelda” is to promote de-institutionalisation and development of community based mental health care services for people with mental disabilities through research, monitoring of observance of human rights, legal advocacy and activities of informing and educating the public.
- Thandiwe Mkandawire is a Clinical Social Worker and currently working as the Executive Director for Mental Health Users and Carers Association (MeHUCA), a volunteer-based, patient advocacy organisation for persons with disabilities in Malawi.
- Chidi Oguamanam is a professor in the Faculty of Law at the University of Ottawa. He leads and is associated with many research consortia, including the ABS Canada project and the Open African Innovation Research Partnership network (Open AIR).
Watch the webinar here: