Strategic litigation to enforce the right
of persons with disabilities to live
independently and be included in the
community:
The case study of Paraguay
DRAFT
November 2, 2009
Alison A. Hillman de Velásquez
Director, Americas Programs
and
Eric Rosenthal,
Executive Director
M ENTAL D ISABILITY R IGHTS I NTERNATIONAL
1156 15 TH S T , NW, S UITE 1001
W ASHINGTON , DC 20005
(202) 296-6551
ahillman@mdri.org
TABLE OF CONTENTS
Executive Summary ........................................................................................................... i
I.
Introduction .............................................................................................................. 1
II. Background of advocacy in Paraguay ................................................................... 3
III. Remedies sought ....................................................................................................... 6
IV. How to get there from here: Litigation strategies to obtain these remedies...... 9
A. Rights violations we would allege under the American Convention and the
Paraguayan Constitution ................................................................................... 11
B. Collective petition vs. Individual petitions ....................................................... 23
C. Assuming a collective petition, what type of action to file?
Comparing Amparo vs. Habeas......................................................................... 24
D. Requirements for filing a case on behalf of persons detained in the NeuroPsychiatric Hospital: Obtaining power of attorney ........................................ 26
V. Conclusion .............................................................................................................. 26
Executive Summary
This memo explores possible litigation strategies for effectively enforcing the right of
persons with disabilities to live independently and be included in the community, as set forth
in article 19 of the UN Convention on the Rights of Persons with Disabilities (CRPD),
through use of the inter-American human rights system. The memo posits that the
interpretation of the American Convention on Human Rights in light of the specialized
protections established in the CRPD and other international standards pertaining to persons
with disabilities would likely result in the effective enforcement of article 19.
To illustrate this argument, the memo presents the specific case study of Paraguay, where,
since 2003, Mental Disability Rights International (MDRI) and the Center for Justice and
International Law (CEJIL) have worked through the Inter-American Commission on Human
Rights (the Commission) to end egregious, life-threatening abuses in the country’s state-run
psychiatric hospital and to engage government authorities to implement mental health reform.
This advocacy has achieved several important advances in rights protections and the
community reintegration of persons formerly detained at the psychiatric hospital.
Specifically, two boys—who MDRI had found locked in tiny isolation cells, naked, and
forced to urinate and defecate in the very space where they slept and ate—have been
reintegrated into the community. Hygienic conditions in the psychiatric institution have
vastly improved, the hospital census has declined by approximately 33%, and the State has
increased the budget for community mental health more than six fold, opened five homes in
the community to house 39 former long-term hospital residents, and undertaken labor force
reintegration initiatives. These advances are in no doubt due to the State’s fear of litigation,
MDRI’s continual monitoring of the implementation of reforms, and the leadership of
sympathetic state authorities.
While these are important advances, MDRI recognizes that they have been achieved through
the efforts of a handful of committed individuals and not because of a state policy of
community reintegration or rights enforcement. Many of the initiatives (homes in the
community, labor force reintegration programs) are funded by international cooperation, and
the State has not allocated government resources to ensure the longevity of these programs.
Given this, MDRI has been considering litigation in the inter-American human rights system
as a means of guaranteeing the right of persons with disabilities in Paraguay to community
integration. The memo posits that challenging the institutionalization of persons detained in
the psychiatric institution on right to life, antidiscrimination, arbitrary detention and
inhumane treatment claims would likely result in the effective enforcement of CRPD article
19. Ultimately, the aim of this memo is to serve as a starting point for discussion on litigation
strategies to enforce and advance the right of persons with disabilities to live independently
and be included in the community using the inter-American human rights system. As such,
the memo includes a series of questions for reflection that we hope will prompt dialogue for
our conversation on November 13.
As this memo is being finalized, MDRI and CEJIL are entering negotiations with the
Paraguayan State that may commit the government to implement the rights protections and
reforms we would seek through contentious litigation. It remains to be seen whether the State
would dedicate the necessary resources to comply with its commitments under a potential
agreement, or if continued litigation through the inter-American system will be necessary to
achieve full rights enforcement.
i
I.
Introduction
This memo explores litigation strategies to enforce and advance the right of persons with
disabilities to live independently and be included in the community through use of the interAmerican human rights system, and to advance the interpretation of rights guaranteed in the
American Convention on Human Rights (American Convention)1 as they apply to persons
with disabilities.2 The memo examines the specific case study of Paraguay, where, for the
past six years, Mental Disability Rights International (MDRI) and the Center for Justice and
International Law (CEJIL) have worked through the Inter-American Commission on Human
Rights (Inter-American Commission or Commission) to end egregious, life-threatening
abuses in the country’s state-run psychiatric institution and push the Paraguayan government
to implement mental health reform.3 These abuses included the detention of two teenaged
boys diagnosed with autism, who were locked in tiny isolation cells, naked, and without
access to bathrooms, and atrocious conditions and treatment for the other 458 people detained
in the institution.
To address these abuses, MDRI and CEJIL presented a petition for immediate intervention,
known as a precautionary measures petition,4 to the Inter-American Commission. Within
days, the Commission granted the precautionary measures, requesting that the Paraguayan
government take all necessary measures to ensure the physical, mental and moral integrity of
the persons detained in the Hospital. Since this historic decision,5 MDRI’s and CEJIL’s
interventions through the Commission have achieved several significant advances, including
improving the once life-threatening conditions of detention, addressing some of the more
1
American Convention on Human Rights, Nov. 22, 1969, 1144 U.N.T.S. 123, O.A.S.T.S. No. 36, at 1,
OEA/Ser.L/V/II.23 doc. Rev. 2, 9 I.L.M. 673 (1970) [hereinafter American Convention]. The American
Convention on Human Rights is the human rights treaty that established the Inter-American Court of
Human Rights (the Court), the human rights enforcement mechanism in the Western hemisphere. The interAmerican human rights system is comprised of two principle bodies: the Inter-American Court and the
Inter-American Commission on Human Rights. Petitions alleging human rights violations must first be
presented to the Commission, and must allege abuses of the American Convention committed by States
Parties. (To date, twenty-five American states have ratified the Convention and are bound by the rights and
duties established therein.) The Commission reviews submitted petitions and determines whether or not
they present prima facie violations of rights protected in the Convention, if so, then the Commission may
open a case. Once a case is opened, the Commission works with petitioners and the State to arrive at a
friendly settlement. If a settlement is not possible, the Commission shall refer the case to the Court.
2
It is important to note that the Inter-American Court of Human Rights only has jurisdiction to determine
violations under the American Convention, although the Court has used other human rights treaties to
interpret articles of the Convention as they apply to particular populations. Examples of how the
Commission and the Court have used other international standards to interpret the rights established in the
American Convention as they apply to specific groups are discussed in § IV. of this memo.
3
There is one state-run psychiatric institution in the country, located in Asunción, Paraguay’s capital city.
4
Precautionary measures are an instrument within the inter-American human rights system that allows the
Commission to quickly address compelling human rights violations. Article 25.1 of the Commission’s
Procedural Rules states that the Commission may issue precautionary measures: “In serious and urgent
cases, and whenever necessary according to the information available . . . to prevent irreparable harm to
persons.” (IACHR, Procedural Rules, Art. 25.1).
5
The granting of this precautionary measures petition marked the first time that the Commission had
addressed the issue of ongoing human rights abuses against persons detained in a psychiatric institution.
1
egregious human rights violations perpetrated against persons detained in the institution, and
placing mental health squarely on the government’s agenda. Yet while the State has made
significant progress toward addressing abuses in the institution, there has been less progress
in implementing larger-scale reforms that would tackle the underlying issues that lead to
psychiatric institutionalization.
At this juncture, MDRI is considering presenting a petition to open a contentious case before
the Inter-American Commission to achieve the effective enforcement of the right to live
independently and be included in the community, as established in article 19 of the UN
Convention on the Rights of Persons with Disabilities (CRPD).6 As detailed below, in
February 2005, MDRI and CEJIL signed a groundbreaking accord with the Paraguayan
government under which the State committed to progressively deinstitutionalize by gradually
downsizing the hospital’s inpatient population, strengthening and expanding communitybased mental health services, and approving a law to protect the rights of persons with mental
disabilities,7 by February 2010. The deadline for the implementation of this accord is fast
approaching. While State authorities have professed commitment to comply with the terms of
the accord, the allocation of resources does not reflect this commitment.8 Furthermore, in the
past two years, local allies have informed MDRI of a series of egregious abuses occurring in
the Hospital—including unexplained deaths, deaths due to apparent medical negligence and
6
Convention on the Rights of Persons with Disabilities, Dec. 13, 2006, G.A. Res. 61/106, U.N. Doc.
A/RES/61/106, entered into force May 3, 2008 [hereinafter CRPD]. Paraguay ratified the CRPD on Sept. 3,
2008. Article 19 of the CRPD on “Living independently and being included in the community” provides:
States Parties to this Convention recognize the equal right of all persons with disabilities to live in
the community, with choices equal to others, and shall take effective and appropriate measures to
facilitate full enjoyment by persons with disabilities of this right and their full inclusion and
participation in the community, including by ensuring that:
(a) Persons with disabilities have the opportunity to choose their place of residence and where and
with whom they live on an equal basis with others and are not obliged to live in a particular living
arrangement;
(b) Persons with disabilities have access to a range of in-home, residential and other community
support services, including personal assistance necessary to support living and inclusion in the
community, and to prevent isolation or segregation from the community;
(c) Community services and facilities for the general population are available on an equal basis to
persons with disabilities and are responsive to their needs.
In this paper the phrase “persons with mental disabilities” refers to: individuals with psychosocial
disabilities; individuals with intellectual or developmental disabilities; individuals with no disability who
may be subject to discrimination based upon the perception that they have a mental illness or disability; and
those who may be subject to discrimination based upon a record or prior history of mental disability.
7
In the preliminary budget for 2010, allocations for mental health attention comprise 1.9% of the country’s
budget for health. (The World Health Organization recommends that 10% of a country’s health budget be
dedicated to mental health attention.) Of this, less than 18% is allocated toward community mental health
services, 78% to the Neuro-Psychiatric Hospital and approximately 9% to an initiative to open psychiatric
beds in a general hospital. In 2008, mental health provided 40,000 mental health consultations to
approximately 10,800 persons. (Interview with Dr. Mirta Mendoza, Director of Mental Health of the
Ministry of Health, Sept. 17, 2009.) In 2008, the Neuro-Psychiatric Hospital provided 18,600
consultations—including ambulatory attention, emergencies, and each psychiatry, psychology and general
medical consultations made to inpatients—to 4,562 persons. (Information provided by Dr. Nestor Girala,
Director of the Neuro-Psychiatric Hospital of Paraguay on Sept. 30 2009.)
8
2
staff neglect, reports of sexual abuse, and acts of serious physical violence—for which State
authorities have conducted inadequate investigations or no investigations at all.
In presenting a case, we would argue that the detention of persons with mental disabilities in
Paraguay’s Neuro-Psychiatric Hospital constitutes discrimination, that most persons are
detained arbitrarily, and that the conditions of detention and treatment in the institution
violates the right to life and constitutes inhuman and degrading treatment.
II.
Background of advocacy in Paraguay
On December 12, 2003, MDRI and CEJIL presented a precautionary measures petition9 to
the Inter-American Commission to address human rights violations that constituted grave
danger of irreparable harm to the lives and physical, mental and moral integrity of persons
detained in Paraguay’s Neuro-Psychiatric Hospital. Our petition highlighted abuses against
two boys with diagnoses of autism—Julio, age 17, and Jorge, age 18—who MDRI
investigators10 found locked in tiny isolation cells, naked, without access to bathrooms,
forced to urinate and defecate in the very space where they slept and ate. Julio and Jorge had
been detained in these conditions, 23 hours a day, for the previous four years. Our petition
also exposed atrocious conditions and treatment for the other 458 people detained in the
institution, which included: unhygienic conditions, open sewage, rotting garbage, broken
glass, and excrement and urine on sidewalks, patios, and in wards; severe overcrowding;
shortages of food and medicines; lack of timely medical attention; detention of children sideby-side with adults; negligent medical record keeping; no discharge plans; absence of
rehabilitation services; and lack of adequate community-based mental health services. Given
these findings, we alleged violations of the rights to life, humane treatment, liberty, freedom
from arbitrary or prolonged detention, equality before the law, a fair trial and due process
guarantees, and the rights of the child of the American Convention.11
On December 17, 2003, the Commission issued precautionary measures requesting that the
Paraguayan government take all necessary measures to ensure the physical, mental and moral
integrity of the persons detained in the Neuro-Psychiatric Hospital, with special attention to
the situation of women and children. As a result, the Paraguayan president pledged resources
to end abuses in the institution and changed the hospital’s administration. In July 2004, the
Commission reissued precautionary measures after we presented additional evidence that the
Paraguayan government had not taken sufficient steps to address the conditions and treatment
that threatened the safety of the persons detained in the institution.
In preparing these precautionary measures petitions—which have a limited scope as they are
only intended to address extremely grave and urgent situations where steps are needed to
9
For explanation of precautionary measures, see supra note 4.
The team of investigators included Alison A. Hillman, Director of MDRI’s Americas Programs;
developmental disability experts John J. McGee, PhD, and Gerald Provencal, MSW; documentary
photographer Eugene Richards, Many Voices, Inc.; and Alicia Yamin, Joseph H. Flom Global Health and
Human Rights Fellow, Harvard Law School.
10
11
These rights are protected pursuant to articles 1.1 (freedom from discrimination), 4 (right to life), 5 (right
to humane treatment), 7 (right to personal liberty), 19 (rights of the child), and 24 (right to equal protection)
of the American Convention. Paraguay ratified the American Convention on August 24, 1989, and accepted
the jurisdiction of the Inter-American Court of Human Rights on March 26, 1993.
3
avoid “irreparable harm”—MDRI acted with full knowledge that, while halting the most lifethreatening abuses at the institution was necessary in the immediate term, the conditions of
detention and treatment provided in the institution demanded more far-reaching reform that
would, as a core principle, respect and enforce the rights of persons with disabilities in accord
with the protections established in the American Convention. Thus, beginning in 2004,
MDRI and CEJIL have engaged in a series of strategic litigation conversations to explore
presenting a case to the Commission that would achieve such reform,12 a step which would
require that all judicial remedies on a local level be exhausted. Accordingly, we decided that
filing a case in Paraguayan courts was necessary and beneficial because of: (1) the
possibility of obtaining a favorable judgment at the country level, which could produce
effective enforcement by appropriate authorities and/or could be used by the institution’s
director and other national and international groups to pressure for effective enforcement
toward resolving the fundamental human rights issues at the Neuro-Psychiatric Hospital and
in the Paraguayan mental health system more generally; and (2) its compliance with the
requirement of exhausting domestic remedies, thereby permitting the presentation of a
contentious case before the Commission. Based upon our experience with the precautionary
measures, these initial conversations contemplated that if we were not satisfied with the local
outcome we would file a collective case, which would enable us to address the wide range of
abuses we encountered at the Neuro-Psychiatric Hospital in a single petition and pressure for
systemic reforms.
In response to the precautionary measures issued by the Commission, in 2004, the
government focused on addressing the life-threatening conditions in the institution and made
improvements in the hygienic conditions, replacing the sewer system and refurbishing many
of the hospital’s wards. Yet little attention was paid to resolving the severe overcrowding,
lack of rehabilitation and dearth of community-based mental health services. In February
2005, in an attempt to encourage the government to engage in far-reaching mental health
reform, MDRI and CEJIL signed an accord with the Paraguayan government, in which the
State committed to undertake progressive deinstitutionalization. Under this agreement, the
government pledged to gradually downsize the hospital’s inpatient population, strengthen and
expand community-based mental health systems and supports, open group homes in the
community, and adopt legislation that would further protect the rights of users of mental
health services by February 2010. The quid pro quo for this agreement was that petitioners
would request that the Commission review its precautionary measures decision once the State
had drafted a plan to transform the country’s mental health services.
By June 2007, the government had succeeded in decreasing the hospital’s inpatient
population by nearly 25% and had opened two group homes in the community for eighteen of
the hospital’s long-term residents. The budget for community mental health had been
increased six fold, although it remained a fraction of the Neuro-Psychiatric Hospital’s
budget.13 Given what we interpreted as the government’s good faith efforts to transform
12
These strategic litigation conversations have included Eric Rosenthal and Alison A. Hillman of MDRI;
Viviana Krsticevic, Sergio Fuenzalida, Maria Clara Galvis, Tara Melish, Sean O’Brien, Tatiana Rincon,
and Liliana Tojo of CEJIL; Clarence Sundram, Special Master, United States District Court, and Elizabeth
Jones, United States District Court Monitor; Ira Burnim of the Bazelon Center for Mental Health Law; and
Orlando Castillo, MDRI’s legal consultant in Paraguay.
13
Mental health services in Paraguay are delivered by the Neuro-Psychiatric Hospital and the Direction of
Mental Health, both under the Ministry of Health and Social Wellbeing. Historically, the Direction of
4
Paraguay’s mental health services, petitioners decided not to move forward with taking a case
to the Commission at that time.
In October 2007, however, MDRI received reports of a case of sexual abuse in the hospital,
allegedly perpetrated by a staff member. The hospital administration had received the
complaint the previous July and had taken no action to report the complaint to the proper
authorities. MDRI informed an ally at the Human Rights Ombudsman’s Office of this
situation, along with other instances of abuse that had come to our attention, and only after
direct pressure from this attorney did the hospital director report the incident to the
prosecutor’s office on October 23, 2007, three months after she was informed of the
complaint. Petitioners wrote a letter informing the Commission of these events and asking the
government to investigate.
In mid-December 2007, MDRI received alarming reports of a series of incidents that had
occurred in the Neuro-Psychiatric Hospital over the course of the previous two weeks:
corpses of two patients were found in the field behind the hospital, and in the Men’s Acute
Ward, one patient had castrated another. Based on these reports, petitioners requested that the
Commission grant additional precautionary measures. Simultaneously, we began discussing
plans to present a collective case or individual cases to the Commission to address theses
abuses and the urgent need for mental health reform. In July 2008, the Commission issued
new precautionary measures following additional deaths, this time due to apparent medical
negligence and staff neglect, additional reports of sexual abuse and more acts of serious
physical violence.
In November 2008, MDRI contracted with a local attorney to investigate the status of a
number of cases that had emerged from the Neuro-Psychiatric Hospital over the course of the
previous 18 months. Currently, MDRI continues to monitor the situation in the hospital and
report to the Commission on the State’s progress in implementing the July 2008
precautionary measures decision.
The precautionary measures and the 2005 accord have been valuable political tools. Recently,
there have been advances in the mental health reform movement in Paraguay. In August
2008, a newly-elected president, Fernando Lugo, assumed office. Lugo campaigned on a
human rights platform, and his administration represents a change from the previous 60 years
of one-party rule in Paraguay. With this change in government, Dr. Nestor Girala, who has
cooperated closely with MDRI’s reform agenda over the past six years, was appointed
director of the Neuro-Psychiatric Hospital. Since his appointment, Dr. Girala has taken
additional steps toward implementing mental health reform. In the past year, with Dr.
Girala’s impetus, the government has opened three group homes, reintegrating 28 long-term
Mental Health’s primary function was policy formulation, and was not charged with delivery of
community-based mental health services. Psychiatric care was available through the Neuro-Psychiatric
Hospital, which included an ambulatory service, but there were frequent medication shortages and the
hospital dispensed medication, if at all, only to those detained on the wards; thus, if you needed medication,
you had to become an inpatient. In 2006, mental health expenditures in Paraguay represented 1% of the
country’s health budget, and 84% of the country’s mental health expenditures were directed to the NeuroPsychiatric Hospital. This began to change, when, in 2007, the government increased the Direction of
Mental Health’s budget by more than six fold: from 260,000 USD in 2006 to 1.6 million USD—this to
serve a population of 264 persons per 100,000. In 2007, the Neuro-Psychiatric Hospital’s budget was 3.6
million USD to serve a population of 53 persons per 100,000. (See WHO-AIMS report on Mental Health
System in Paraguay (2006).)
5
hospital residents into the community. The government plans to habilitate three more homes
by the end of 2009. The hospital has also begun a pilot program in labor force reintegration.
In the past six months, the hospital has rented a home in the community and transitioned the
three young men from what was know as the “Autistics Ward,” including Julio, one of the
boys named in our original complaint, into the home.
Nonetheless, despite these important advances, conditions in the Hospital continue to present
grave threats of irreparable harm to the lives of those institutionalized. In September 2009, a
young man, who had been admitted a mere 24 hours earlier, hung himself from the bars of
his isolation cell window.
Furthermore, hundreds of people continue to be detained in Paraguay’s state-run psychiatric
institution, with little hope of receiving the services and supports that would allow them to
reintegrate into the community successfully and to enjoy all rights on an equal basis with
others. Thousands more individuals do not have access to any mental health care services or
supports and are at risk of institutionalization. While we have allies who are committed to
human rights and mental health reform currently, resources have yet to follow rhetoric. A
change in administration or personnel could bring an end to current reform efforts. We have
concluded that securing a legal basis for the rights of persons with disabilities to live
independently and to be included in the community is essential to ensure that these positive
developments continue and are sustainable, and that the necessary resources are allocated for
their implementation. As such, we are discussing strategic litigation to effectively enforce
CRPD article 19.
III.
Remedies sought
In order to achieve our goal, that persons with mental disabilities may live independently and
be included in the community, we must allege violations of the American Convention that
would sustain a right to remedies that, in effect, implement CRPD article 19. To our
advantage, the inter-American system has developed significant jurisprudence allowing for a
broad gamut of reparations, including not only redress for individual or collective harm but
as a means of resolving underlying structural issues that allowed for the rights violations to
occur.14 A strategic request for reparations may lead us to an outcome that effectively
implements the right to community integration, even if not based on an express recognition
of this right. So as to craft a petition that would lead to our desired outcomes, we first set
forth the remedies that we might request toward this end, keeping in mind that we must also
address the ongoing abuses in the Neuro-Psychiatric Hospital:15
Francisco Quintana, “Reparations in the Inter-American System,” American University Law Review, Vol.
56:6 (2007), p. 1382.
14
15
Many of these remedies are based on prior internal conversations at MDRI and conversations with
CEJIL, and include requests made in precautionary measures petitions to the Commission.
6
1. Safety and protection from harm
i.
ii.
iii.
Ensure the right to life and physical, mental and moral integrity of persons
detained in the Neuro-Psychiatric Hospital;16
Continue developing programs to train medical, nursing and support staff;17
Reduce the overpopulation in the Neuro-Psychiatric Hospital by establishing a
policy to end new admissions, closing beds as persons are discharged to promote
the gradual downsizing of the Hospital.
2. Rights enforcement
i.
Apdopt a law that guarantees the rights of persons with mental disabilities by
ensuring that adequate State resources are allocated toward the transformation of
Paraguay’s mental health system in line with the country’s obligations under
international human rights law.
3. Develop community capacity
i.
ii.
iii.
iv.
v.
vi.
Develop housing alternatives for persons discharged from the Neuro-Psychiatric
Hospital that facilitate their “full inclusion and participation in the community,”
including ensuring that these alternatives respond to the desires of these persons
and that they “have the opportunity to choose their place of residence and where
and with whom they live on an equal basis with others and are not obliged to live
in a particular living arrangement”;
Implement rehabilitation programs that stimulate and ensure the full inclusion
and participation of persons discharged from the Neuro-Psychiatric Hospital;
Expand vocational and labor force reintegration programs and provide support
to persons discharged from the Neuro-Psychiatric Hospital to find employment;
Strengthen and expand community-based mental health services by gradually
shifting resources from the Neuro-Psychiatric Hospital to community-based care;
Open beds in general hospitals for mental health attention and in community
clinics;
Develop support services that permit families who have this possibility to
continue supporting their family members in the home.
4. Outside oversight mechanism
i.
Name an independent monitor with the ability to inspect the Neuro-Psychiatric
Hospital at any time, without prior notification, and with the possibility of
16
For example, this would include immediate steps to bring the use of isolation cells into compliance with
international standards, additional measures to ensure women are protected from abuse, and the adoption of
informed consent as standard practice in the hosptial.
17
In the instant case, this would include training in risk assessment and harm reduction strategies, among
others. The Court has ordered this type reparation in the past. In the case of Ximenes Lopes v. Brazil,
reparations included to “develop a program to train medical, nursing and support staff and for all those
linked with mental health attention, in particular, with regard to the principles that should regulate the
treatment of people with mental disabilities, according to international standards on the subject.” Inter-Am.
Ct. H.R., Ximenes Lopes v. Brazil. Judgment of July 4, 2006 (Ser. C) No. 149 [hereinafter Ximenes Lopes],
para. 250 [not official translation].
7
ii.
interviewing any staff, family member or person hospitalized. This monitor will
perform at least one monitoring visit per month and his or her observations will
be documented in reports that will be provided to the directorship of the Hospital,
the Ministry of Health, the Commission and petitioners, and must be made public.
The monitor will also have the capacity to investigate any reports of abuse,
deaths, or serious physical injury. The government will allocate the necessary
resources to ensure that this monitor is able to fulfill his or her duties;
Adopt a law to establish the National Preventive Mechanism as called for by the
Optional Protocol on the Convention against Torture and ensure that the
mechanism has sufficient resources and training, particularly with regard to
monitoring conditions and treatment in psychiatric hospitals, to fulfill its
mission.18
5. Participation of persons with mental disabilities
i.
ii.
iii.
Guarantee the active participation of mental health system users in the design,
development and implementation of treatment and rehabilitation services and
supports;
Guarantee opportunities so that persons with mental disabilities and their
families can participate actively in the development and implementation of
policies, programs and services that affect them;
Provide logistic and financial support to persons with mental disabilities and
their families, enabling them to advocate for their own rights.
6. Investigate abuses
i.
Investigate and sanction those responsible for abuses.
7. Additional remedies
i.
ii.
iii.
iv.
Launch a national campaign to implement a program of public education to
combat stigma and discrimination against persons with mental disabilities;
Monetary reparations for victims of abuse and their families;
Contract a special monitor to evaluate efficacy of the implementation of these
programs and initiatives and provide technical assistance to help the State
comply with these; and
Publish these results.
Query: Are we missing key issues that would help ensure the right to live independently and
be included in the community?
18
UN General Assembly, Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment
or Punishment, 10 December 1984, United Nations, Treaty Series, vol. 1465, p. 85, available at:
http://www.unhcr.org/refworld/docid/3ae6b3a94.html [hereinafter CAT] [accessed 1 November 2009].
Paraguay ratified the CAT on March 12, 1990.
8
IV.
How to get there from here: Litigation strategies to obtain these remedies
We now explore how to achieve these remedies through litigation in the inter-American
human rights system. While the inter-American treaty bodies only have jurisdiction to
determine rights violations under the American Convention, they may apply other
international human rights instruments and domestic norms either indirectly or directly to
interpret the State’s obligations under the American Convention.
Article 29(b) of the American Convention allows the application of other treaties and state
laws to interpret the rights set forth in the Convention as they apply to particular populations.
Indeed, article 29(b), which has been recognized as the “most-favorable-to-the-individual
clause,”19 states that “[n]o provision of the American Convention shall be interpreted as
restricting the enjoyment or exercise of any right or freedom recognized by virtue of the laws
of any State Party or by virtue of another convention to which one of the said states is a
party.”20 In interpreting article 29(b), the Commission has recognized its purpose is “to
prevent States Parties from relying on the American Convention as a ground for limiting
more favorable or less restrictive rights to which an individual is otherwise entitled under
either national or international law.”21 As the Commission has noted, it “is duty bound to give
legal eff[ect] to the provision(s) of that treaty with the higher standard(s) applicable to the
right(s) or freedom(s) in question.”22
Accordingly, both the Commission and the Court have applied specialized standards to
interpret articles of the American Convention as they apply to particular populations. In
the Villagrán Morales et al. Case, for instance, the Court recognized the Convention on the
Rights of the Child23 as part of a “comprehensive international corpus juris for the protection
of the child” and that it should be used to “establish the content and scope of the general
provisions established in Article 19 [Rights of the Child] of the American Convention.”24
With regard to persons with mental disabilities, in Ximenes Lopes v. Brazil, a case involving
the death of a person with a psychosocial disability in a private psychiatric hospital, the Court
recognized the Inter-American Convention on the Elimination of All Forms of
Discrimination against Persons with Disabilities25 as an instrument “to determine the State’s
19
Inter-AM. Comm. H.R., Report No. 55/97, Case 11.137, Juan Carlos Abella (Arg.), Nov. 18, 1997, in
ANNUAL REPORT OF THE INTER-AMERICAN COMMISSION ON HUMAN RIGHTS 1997, (para. 164) at 271, 309
OEA/Ser.L/V/II.98, Doc. 7 rev. (1998) [hereinafter Abella].
20
American Convention, supra note 1, art. 29 (b).
21
Abella, supra note 19, para. 165
22
Id.
23
Convention on the Rights of the Child, art. 23.1, G.A. res. 44/25, annex, 44 U.N. GAOR Supp. (No. 49),
U.N. Doc. A/44/49 (1989), entered into force Sept. 2, 1990.
Inter-Am. Ct. H.R., Villagrán Morales et al. Case (the “Street Children” Case), Judgment of Nov. 19,
1999 (Ser. C) No. 63. para. 194.
24
25
Inter-American Convention on the Elimination of all Forms of Discrimination against Persons with
Disabilities, June 7, 1999, AG/RES. 1608, entered into force Sept. 14, 2001 [hereinafter Inter-American
Convention on Disability]. Argentina ratified the Inter-American Convention on Disability on January 10,
2001.
9
obligations in relation to the American Convention.”26 The Court also stated that the
Principles for the Protection of Persons with Mental Illness and for the Improvement of
Mental Health Care (MI Principles)27 are the “most ample human rights norms relating to the
mental health treatment” and that such instruments are “particularly useful as a guide to
interpreting the rights established in human rights treaties.”28 The Court further determined
that rights established in the American Convention be interpreted in light of the Standard
Rules on the Equalization of Opportunities for Persons with Disabilities (the Standard
Rules),29 as well as the technical standards delineated in the Declaration of Caracas30 and the
Declaration of Madrid,31 recognizing that these standards are “particularly important in the
analysis and scrutiny of the conformity of Mr. Ximenes Lopes’ treatment with the
international standards on the matter.”32
The Commission and the Court may also apply international and domestic norms directly to
individual petitions in cases where the State has binding obligations under both the American
Convention and the other international or national law, both instruments are “applicable to
the object of the complaint,” and both are “reciprocally reinforcing,” i.e., one instrument
offers more general protection and the other protection that is more “specific and concrete.” 33
The norm that offers greater protection to the petitioner, usually that which is more specific,
26
Ximenes Lopes, supra note 17, para. 110 [not official translation].
27
Principles for the Protection of Persons with Mental Illness and for the Improvement of Mental Health
Care, G.A. Res. 119, U.N. GAOR, 46th Sess., No. 49, Annex, pp. 188-92, U.N. Doc. A/ 46/49 (1991)
[hereinafter MI Principles]. The United Nations General Assembly adopted the MI Principles as a guide to
interpreting human rights protections for persons with mental disabilities, which the General Assembly
regards as a particularly vulnerable group.
28
Id.
29
Standard Rules on the Equalization of Opportunities for Persons with Disabilities, G.A. Res. 96, U.N.
GAOR, 48th Sess., U.N. Doc. A/Res/48/96 (1993) [hereinafter Standard Rules].
30
Declaration of Caracas (1990), reproduced in RODRIGO JIMÉNEZ, LOS DERECHOS HUMANOS DE LAS
PERSONAS CON DISCAPACIDAD [THE HUMAN RIGHTS OF PEOPLE WITH DISABILITIES] 186 (1996) [hereinafter
Declaration of Caracas]. In 1990, the Pan American Health Organization (PAHO/WHO) convened mental
health organizations, associations, professionals and jurists to the Regional Conference on Restructuring
Psychiatric Care in Latin America, held in Caracas, Venezuela. The Declaration of Caracas was adopted in
the framework of that Conference.
31
Madrid Declaration on Ethical Standards in Psychiatric Practice, approved by the General Assembly of
the World Psychiatric Association in Madrid, Spain, on Aug. 25, 1996, latest revision Sept. 12, 2005,
available at http://www.wpanet.org/content/madrid-ethic-engish.shtml.
32
Ximenes Lopes, supra note 17, para. 111. See also Victor Rosario Congo v. Ecuador, a case involving the
death of a man with a mental disability in a prison cell, where the Commission stated,
the American Convention must be interpreted in light of the Principles for the Protection of
Persons with Mental Illness and for the Improvement of Mental Health Care. 32 These principles
were adopted by the United Nations General Assembly as a guide to interpretation in matters of
protection of the human rights of persons with mental disabilities, which this body regards as a
particularly vulnerable group.
IACHR, Case 11.427, Report 63/99, Victor Rosario Congo (Ecuador), para. 54, in ANNUAL REPORT OF THE
INTER-AMERICAN COMMISSION ON HUMAN RIGHTS 1998, OEA/Ser.L/V/II.102, doc. 6 rev. (1999)
[hereinafter Congo].
33
TARA MELISH, PROTECTING ECONOMIC, SOCIAL AND CULTURAL RIGHTS IN THE INTER-AMERICAN
HUMAN RIGHTS SYSTEM: A MANUAL ON PRESENTING CLAIMS. 2002. [hereinafter MELISH], p. 140.
10
should be applied directly.34 Furthermore, under the Paraguayan Constitution, human rights
treaties ratified by the country are incorporated into domestic law, with hierarchy below that
of the Constitution but superior to national laws.35
As such, it would follow that the Commission and Court would apply the CRPD to
provisions of the American Convention in a case dealing with the rights of persons with
mental disabilities.
A.
Rights violations we would allege under the American Convention and
the Paraguayan Constitution
Given that the Inter-American Court has used other international human rights standards to
interpret States parties’ obligations as they relate to specific populations and that the Court
may apply domestic norms directly to individual petitions, here we explore the concrete
rights violations we could allege and arguments we could make toward enforcing CRPD
article 19.
In light of our ultimate goal as the community integration of persons with mental disabilities
in Paraguay, we plan to allege a score of human rights violations demonstrating that
institutionalization in the Neuro-Psychiatric Hospital constitutes arbitrary detention and is
inherently dangerous and discriminatory. Accordingly, we will argue violations of the right to
be free from discrimination (art. 1.1), the right to life (art. 4), the right to humane treatment
(art. 5), the right to personal liberty (art. 7), the right to due process (art. 8), and the right to
equal protection (art. 24) under the American Convention.36
Query: Given the jurisprudence and current make-up of the Inter-American Court, should we
include “progressive development” claims under article 26 of the American Convention?37
34
Id.
35
Political Constitution of the Republic Paraguay, 1992, art. 141.
36
There are a slew of other rights violations we could allege under the American Convention suffered by
those detained in the Neuro-Psychiatric Hospital, including the right to juridical personality (art. 3), rights
of the child (art. 19), the right to privacy (art. 11), the rights of the family (art. 17), freedom of movement
and residence (art. 22), the right to participate in government (art. 23), the right to judicial protection (art.
25), and progressive development (art. 26). For the purposes of this memo, we will focus solely on the
rights to be free from discrimination (art. 1.1), life (art. 4), humane treatment (art. 5), personal liberty (art.
7), due process (art. 8), and equal protection (art. 24).
37
Article 26 of the American Convention on “Progressive development” states:
The States Parties undertake to adopt measures, both internally and through international
cooperation, especially those of an economic and technical nature, with a view to achieving
progressively, by legislation or other appropriate means, the full realization of the rights implicit
in the economic, social, educational, scientific, and cultural standards set forth in the Charter of
the Organization of American States as amended by the Protocol of Buenos Aires.
11
A. 1.
Freedom from discrimination, article 1(1), and right to equal protection,
article 24, of the American Convention
Articles 1(1) and 24 of the American Convention protect the rights to be free from
discrimination and to equal protection. Article 1(1) provides:
The States Parties to this Convention undertake to respect the rights and freedoms
recognized herein and to ensure to all persons subject to their jurisdiction the free and
full exercise of those rights and freedoms, without any discrimination for reasons of
race, color, sex, language, religion, political or other opinion, national or social
origin, economic status, birth, or any other social condition.38
Article 24 states:
All persons are equal before the law. Consequently, they are entitled, without
discrimination, to equal protection of the law.39
Non-discrimination is recognized as a basic tenet of international human rights instruments,
although, to date, the Court has not interpreted article 24 in its jurisprudence. The Court has
issued two advisory opinions, however, explaining the relationship between articles 1(1) and
24. In its first opinion, the Court clarified that article 1(1) prohibits discrimination with
respect to the exercise of Convention-based rights, while article 24 “prohibits all
discriminatory treatment originating in a legal prescriptive” and “extends to the domestic law
of the States Parties.”40 In its second opinion, the Court affirmed that “a State may also
violate the Convention through its failure to enact legal prescriptions to ensure equal
treatment before the law.”41
The UN Human Rights Committee has defined discrimination as “any distinction, exclusion,
restriction or preference which is based on any ground . . . and which has the purpose or
effect of nullifying or impairing the recognition, enjoyment or exercise by all persons, on
equal footing, of all rights and freedoms.”42 The UN Committee on Economic, Social, and
Cultural Rights has stated that States parties to the International Covenant on Economic
Social and Cultural Rights43 have an affirmative obligation to eliminate discrimination
38
American Convention, supra note 1, art. 1(1).
39
Id. art. 24.
40
Inter-Am. Ct. H.R., Proposed Amendments to the Naturalization Provisions of the Constitution of Costa
Rica, Advisory Opinion OC-4/84 of Jan. 19, 1984, Ser. A, No. 4 (1984), para. 54.
41
Melish, supra note 33, p. 196 discussing Inter-Am. Ct. H.R., Exceptions to the Exhaustion of Domestic
Remedies (Arts 46(1), 46(2)(a) and 46 (2)(b) of the American Convention on Human Rights), Advisory
Opinion OC-11/90 of Aug. 10, 1990, Ser. A, No. 11 (1990).
42
Nondiscrimination, General Comment No. 18, U.N. GAOR, Hum. Rts. Comm., 37th Sess., Supp. No. 40,
Annex VI, at 174, para. 7, U.N. Doc. CCPR/C/21/Rev. 1/Add. 1 (1989), U.N. Doc. A/45/40 (1990).
43
International Covenant on Economic, Social and Cultural Rights, Dec. 16, 1966, 993 U.N.T.S. 3, entered
into force Jan. 3, 1976 [hereinafter ICESCR].
12
against people with disabilities.44 General Comment 5 on Persons with Disabilities the
Committee specifies:
[I]n so far as special treatment is necessary, States parties are required to take
appropriate measures, to the maximum extent of their available resources, to enable
such persons to seek to overcome any disadvantages, in terms of the enjoyment of the
rights specified in the Covenant, flowing from their disability. 45
The Committee recommends that to protect against discrimination, States should adopt
policies and legislation that “enable persons with disabilities to live an integrated, selfdetermined and independent life.”46 Quoting the World Programme of Action concerning
Disabled Persons, General Comment 5 establishes that:
Anti-discrimination measures should be based on the principle of equal rights for
persons with disabilities and the non-disabled, which implies that the needs of each
and every individual are of equal importance, that these needs must be made the basis
for the planning of societies, and that all resources must be employed in such a way
as to ensure, for every individual, equal opportunity for participation. Disability
policies should ensure the access of [persons with disabilities] to all community
services.47
The Special Rapporteur on the Right to Health has also recognized that, “Decisions to isolate
or segregate persons with mental disabilities, including through unnecessary
institutionalization, are inherently discriminatory and contrary to the right of community
integration enshrined in international standards.”48 To avoid such discrimination, “[s]tates
should take steps to ensure a full package of community-based mental health care and
support services conducive to health, dignity, and inclusion.”49
44
Committee on Economic, Social and Cultural Rights, General Comment No. 5, Persons with disabilities,
11th Sess., Supp. No. 2, U.N. Doc E/C.12/1994/13 (1994) [hereinafter General Comment No. 5], § 3, paras.
15-18 [emphasis added].
45
Id. para. 5.
46
Id. para. 16.
47
Id. para. 17.
48
Report of the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable
standard of physical and mental health, Paul Hunt, U.N. Commission on Human Rights, 61st Sess.,
Agenda Item 10, U.N. Doc. E/CN.4/2005/51 (2005) [hereinafter Report of the Special Rapporteur], para.
54.
Id. para. 43. UN Special Rapporteur on the Right to Health, Paul Hunt, describes the “full package” of
community-based mental health services as “including medication, psychotherapy, ambulatory services,
hospital care for acute admissions, residential facilities, rehabilitation for persons with psychiatric
disabilities, programmes to maximize the independence and skills of persons with intellectual disabilities,
supported housing and employment, income support, inclusive and appropriate education for children with
intellectual disabilities, and respite care for families looking after a person with a mental disability 24 hours
a day. In this way, unnecessary institutionalization can be avoided.” Id. “Persons with intellectual
disabilities often require specialized support services which are tailored to their individual needs. This
might include habilitation, speech pathology, occupational therapy, physiotherapy, and behavioral
therapy…. Support is also essential for the families of persons with severe intellectual disabilities, given the
acute demands that care and support can place on them. For some individuals with intellectual disabilities
49
13
In the case of Ximenes Lopes, the Court affirmed that States have an obligation to ensure
effective medical attention to persons with mental disabilities, which includes access to basic
health services and the offering of mental health services in the least restrictive
environment.50
Article 19 of the CRPD protects the right of persons with disabilities to live independently
and be included in the community “with choices equal to others.”51 States parties commit to
taking “effective and appropriate measures to facilitate full enjoyment by persons with
disabilities of this right and their full inclusion and participation in the community.” 52 States
must ensure that:
(a) Persons with disabilities have the opportunity to choose their place of residence
and where and with whom they live on an equal basis with others and are not obliged
to live in a particular living arrangement;
(b) Persons with disabilities have access to a range of in-home, residential and other
community support services, including personal assistance necessary to support
living and inclusion in the community, and to prevent isolation or segregation from
the community;
(c) Community services and facilities for the general population are available on an
equal basis to persons with disabilities and are responsive to their needs. 53
Article 46 of the Paraguayan Constitution “Of All Persons being Equal” states:
All residents of the Republic are equal as far as dignity and rights are concerned. No
discrimination is permitted. The State will remove all obstacles and prevent those
factors that support or promote discrimination. Guarantees aimed at preventing unfair
inequalities will not be considered discriminatory, but egalitarian factors. 54
Additionally, under the Paraguayan Constitution, there are express antidiscrimination
protections for “Persons with Special Needs.” Article 58 states that, “[t]hese individuals are
entitled to enjoy the rights guaranteed by this Constitution to every inhabitant of the
Republic, with equal opportunities, in order to compensate their disadvantages.”55
Furthermore, the Constitution provides that, “[f]amilies, society, and the State will guarantee
health care for special persons, as well as education, recreation, and professional training so
and their families, a good environment may include access to a small, open community house with a stable
staff and specialized support services.” Id. para. 81.
50
Ximenes Lopes, supra note 17, para. 128.
51
CRPD, supra note 6, art. 19.
52
Id.
53
Id. There are other relevant standards that we could employ to bolster this argument, including the InterAmerican Disability Convention, supra note 25.
54
Political Constitution of the Republic Paraguay, 1992, art. 46.
55
Id. art. 58.
14
that they may be fully integrated into society.”56 The Constitution goes on to emphasize that,
“[t]he State will formulate a policy for the prevention, treatment, rehabilitation, and
integration into society of physically disabled and psychologically or sensorial impaired
individuals, who will be entitled to receive the specialized care they need.”57
In Paraguay, mental health services are concentrated in the Neuro-Psychiatric Hospital and
mental health attention is only available in a handful of community health clinics.58 The
country’s budget allocations for mental health reflect this reality. In the preliminary budget
for 2010, allocations for mental health attention comprise 1.9% of the country’s budget for
health,59 and the Neuro-Psychiatric Hospital’s budget is more than four times that of the
budget for community mental health, despite the fact that the Hospital serves less than half
the population served through community-based mental health services.60 In attempt to cover
the demand, there is a single mobile mental health unit that visits different provinces once per
month. Yet in September 2009, the vehicle that served as the mobile mental health unit had
broken down and the Direction of Mental Health had to borrow vehicles from wherever they
could to be able to carry out their work.61 Furthermore, there are no beds for mental health
attention in general hospitals. In 2010, Paraguay will receive a donation from an international
cooperation agency to open six to eight beds in a general hospital.62 Moreover, access to
medications is only guaranteed to persons interned in the Neuro-Psychiatric Hospital. There
are frequent shortages of psychiatric medications, and during these periods, if you need
medication, you must become an inpatient.
The attention provided in the Neuro-Psychiatric Hospital, for the vast majority of persons
detained there, constitutes sub-standard warehousing. Individuals are detained in locked cells
and crowded wards, with treatment interactions limited to the dispensing of medications. For
the vast majority of those detained at the Neuro-Psychiatric Hospital, there is no
rehabilitative attention. Persons are abandoned on the wards, where most sit or lie in total
inactivity for hours a day, day after day, week after week, year after year. Instead of
promoting independence and self-sufficiency, conditions of detention and treatment provided
at the Hospital do nothing to promote the total integration into society of the vast majority of
persons detained there, but rather actively impede this integration.
56
Id. art. 58.
57
Id. art. 58.
58
This attention is often limited to nine hours per week. Generally, psychiatrists are contracted to work
three days per week for three hours each day.
The World Health Organization recommends that 10% of a country’s health budget be dedicated to
mental health attention.
59
In the draft 2010 budget, less than 18% of Paraguay’s budget for mental health was allocated to
community mental health services and 78% went to the Neuro-Psychiatric Hospital. In 2008, communitybased mental health services provided 40,000 mental health consultations to approximately 10,800 persons.
(Interview with Dr. Mirta Mendoza, Director of Mental Health of the Ministry of Health, Sept. 17, 2009.)
In the same year, the Neuro-Psychiatric Hospital provided 18,600 consultations—including ambulatory
attention, emergencies, and each psychiatry, psychology and general medical consultations made to
inpatients—to 4,562 persons. (Information provided by Dr. Nestor Girala, Director of the NeuroPsychiatric Hospital of Paraguay on Sept. 30, 2009.)
60
61
Interview with Dr. Mirta Mendoza, Director of Mental Health of the Ministry of Health, Sept. 17, 2009
62
Id.
15
Based on interviews conducted in June and September 2009, we estimate that 40% of the
persons detained in the long-term wards at the Neuro-Psychiatric Hospital, close to 80% of
the inpatient population, have a medical discharge but cannot leave the Hospital because they
have no where else to go. Certainly, a much large proportion of the population could return to
the community if the appropriate supports and services were available.
Given that Paraguay has not taken actions to guarantee a range of community-based mental
health services and supports that would allow persons with mental disabilities to choose, on
an equal basis with others, where and with whom they wish to live, and such persons are
compelled to be institutionalized due to a lack of services and supports, we would argue that
Paraguay’s detention of persons in the Neuro-Psychiatric Hospital represents violations
articles 1.1 and 24 of the American Convention ensuring equality before the law and non
discrimination.
We would argue that the unnecessary detention of people in the Neuro-Psychiatric Hospital
due to the lack of community-based services in Paraguay improperly segregates them from
society and is thus an act of discrimination against them, establishing a direct link between
the right to protection against discrimination and the right to community integration.
Remedies for violations of these rights would include creation of community-based services
and supports, including housing alternatives, that respond to the desires of those who use
these services.
A. 2.
Right to life under article 4 of the American Convention
Article 4 of the American Convention guarantees the right to life. The Inter-American Court
has repeatedly affirmed through its jurisprudence that the right to life is a fundamental human
right and a prerequisite for the enjoyment of all other human rights. 63 As a fundamental right,
the Court has recognized that States have an obligation to guarantee the creation of
conditions so that this right is not violated, as well as a duty to adopt the necessary measures
so as to protect against any threat of the right to life, particularly on the part of State agents.64
Importantly, the Court has emphasized that States must safeguard the right to life by “not
impeding access to conditions that guarantee a dignified existence,” including “the adoption
of positive measures to prevent infringement of this right.”65
In its jurisprudence, the Inter-American Court has interpreted the right to life broadly, to
include the right to a “life plan.”66 The Court has defined “life plan” as “akin to the concept
of personal fulfillment,” based upon the options that a person may have for achieving
63
Ximenes Lopes, supra note 17, para. 124.
64
Id. para. 125. The Court has recognized that these measures include establishing a legal framework to
protect against threats of violations of the right to include establishing an effective justice system capable
of investigating, sanctioning and indemnifying any violation of life. Id.
65
Id.
The interpretation of the right to life to include a “life plan” was first established in Loayza Tomayo, the
case of a woman who was deprived of her liberty, suffered inhuman treatment and was forced into exile.
Here the Court recognized that the human rights violations she suffered impeded the development of her
life plan, as they impaired her prospects for personal development. (Case of Loayza Tamayo v. Peru,
Judgment on reparations and costs, November 27, 1998, Series C, N° 42.)
66
16
personal goals.67 The Court has identified these options as “the manifestation and guarantee
of freedom,” and has reasoned that, “[a]n individual can hardly be described as truly free if
he does not have options to pursue in life and to carry that life to its natural conclusion.”68
The Court reiterated and broadened the concept of the right to a life plan in the Villagran
Morales case involving street children killed by State agents, where it recognized,
particularly in the case of vulnerable groups, the State’s obligation to provide “access to the
conditions that guarantee a dignified existence.”69 In a subsequent case, Panchito Lopez, the
Court determined that the State had violated the rights to life and personal integrity of minors
in a detention facility where it failed to adopt measures toward guaranteeing conditions of a
dignified existence, and where there were no effective opportunities for rehabilitation or
reintegration into society.70
While we have documented a number of unexplained deaths in Paraguay’s Neuro-Psychiatric
Hospital, which we could submit as evidence of the violation of the right to life of persons
detained there, the Court’s jurisprudence interpreting the right to life in a broader sense
provides an interesting opportunity for a case involving persons detained at the institution.
Here, we could argue that all those admitted to the Neuro-Psychiatric Hospital have their life
plans interrupted, some temporarily, for most, irreparably. Persons are extracted from their
families, communities, employment and studies, causing significant disruptions and often
insurmountable obstacles in the fulfillment of their life plans. The institutional setting
impedes persons’ options to pursue their personal development. In addition, through
institutionalization, the State is actively impeding access to conditions that guarantee a
dignified existence. This is true particularly given that there are almost no rehabilitation
programs and that the dearth of community-based services and supports provides little hope
of full reintegration into society.
As detention in the Neuro-Psychiatric Hospital causes irreparable harm, or harm that cannot
be repaired without great difficulty, to the development of the life plans of those
institutionalized, and impedes their access to conditions that guarantee a dignified existence,
we would argue that Paraguay is violating the right to life of those detained in the institution.
As a remedy to the violation of the right to life, we would request the development and
funding of community-based mental health services and supports, rehabilitation programs,
and housing alternatives, among others, that would guarantee the prospects for personal
development and effective opportunities for rehabilitation and reintegration into society of
those detained in the Neuro-Psychiatric Hospital.
67
Id. para.148.
68
Id.
Inter-Am. Ct. H.R., Villagrán Morales et al. Case (the “Street Children” Case), Judgment of Nov. 19,
1999 (Ser. C) No. 63. para. 144.
69
Case of Children’s Rehabilitation v. Paraguay, Judgment of Sept. 2, 2004, Inter-Am. Ct. H.R. (Ser. C)
No. 112, [Panchito Lopez], para. 169-170.
70
17
A. 3. Right to humane treatment under article 5 linked with “progressive
development” under article 26 of the American Convention
Article 5 of the American Convention guarantees every person’s right to respect for his or her
physical, mental, and moral integrity71 and establishes that “[n]o one shall be subjected to
torture or to cruel, inhuman, or degrading punishment or treatment. All persons deprived of
their liberty shall be treated with respect for the inherent dignity of the human person.” 72
The Inter-American Court has repeatedly recognized that the prohibition of cruel, inhuman or
degrading treatment or punishment constitutes a principle of jus cogens and that the right to
human treatment may not be suspended under any circumstance.73
In its contentious jurisprudence, the Court has stated that, so as to deter any threat to the right
to life and humane treatment of users of health services, “States are responsible for the
permanent regulation and oversight of the provision of health services and the execution of
national programs relating to the achievement of quality public health services.”74 Going
further, the Court has stated that in the case of a person with a mental disability, the failure to
provide necessary health care constitutes a violation of article 5.75 Accordingly, it seems that
this may open the door to linking the right to humane treatment to rights references under
article 26 of the American Convention concerning “Progressive development,” particularly
the right to health. Article 26 of the Convention reads:
The States Parties undertake to adopt measures, both internally and through
international cooperation, especially those of an economic and technical nature, with
a view to achieving progressively, by legislation or other appropriate means, the full
realization of the rights implicit in the economic, social, educational, scientific, and
cultural standards set forth in the Charter of the Organization of American States as
amended by the Protocol of Buenos Aires.76
Additionally, the Paraguayan Constitution guarantees the right to health. Article 68
proclaims, “The State shall protect and promote health as a fundamental right of the person
and in the interest of the community.” 77
In the case of Ximenes Lopes, the Court regarded that it was necessary to take into account
the State’s special position as guarantor of rights, which it assumes with respect to persons in
its custody, and to whom the State has an affirmative obligation to provide the necessary
conditions for the development of a dignified existence.78 Here, the Court observed that, “In
relation to the safeguard of life and personal integrity, it is necessary to consider that persons
71
American Convention, supra note 1, art. 5(1).
72
Id. art. 5(2).
73
Ximenes Lopes, supra note 17, para. 126.
74
Id. para. 99 [not official translation].
75
Id. paras. 64-68.
76
American Convention, supra note 1, art. 26.
77
Political Constitution of the Republic Paraguay, 1992, art. 68.
78
Ximenes Lopes, supra note 17, para. 138.
18
with disabilities who live or are subjected to treatment in psychiatric institutions are
particularly vulnerable to torture or other forms of cruel, inhuman and degrading treatment.
In determining violations of the right to humane treatment, the Court considered the situation
of “intrinsic vulnerability” when persons with mental disabilities enter a psychiatric
institution, given the power imbalance between patients and hospital personnel.79 The Court
has observed:
In institutional settings, be they public or private, the medical personnel charged with
the care of the patients exercise a strong control or authority over persons that are
subject to their custody. This intrinsic disequilibrium of power between a person who
is hospitalized and those who have the authority is multiplied many times over in
psychiatric institutions. Torture and other forms of cruel, inhuman or degrading
treatment, when inflicted on these persons affects their physical, mental and moral
integrity, creating an affront to their dignity and gravely restricting their autonomy,
which could have as a consequence, the worsening of their illness.80
Likewise, the Court considered the State’s obligation to respect the dignity and personal
autonomy of persons with mental disabilities and its duty to provide adequate medical care.81
This obligation includes the State’s responsibility to ensure access to basic health services,
the promotion of mental health and prevention of mental illness, and the lending of services
in the least restrictive environment.82 All health treatment should have as an end the wellbeing of the patient and respect for the inherent dignity of the person, which requires that the
respect for the privacy and autonomy of persons receiving mental health services be adopted
as guiding principles.83
As the aim of health services is the improvement of the patient’s physical or mental
condition, the Court has established that the State’s obligations are “significantly increased,”
demanding “the adoption of available and necessary measures to prevent the deterioration of
the patient’s condition and optimize his health.”84 The Court has stated that the attention
which all who receive health services are entitled “reaches its maximum exigency” with
regard to persons with mental disabilities who are institutionalized, given their particular
vulnerability once they enter the institution.85
In Panchito Lopez, the Court observed that the use of isolation as a method of punishment for
minors in a detention facility is “prohibited by the American Convention.” The Court
sustained that, while petitioners did not demonstrate that all of those detained in the facility
were subjected this treatment, “the mere threat of an act prohibited by article 5 . . . when it is
79
Id. para. 129.
80
Id. para. 107 [not official translation].
81
Id. para. 128.
82
Id.
Id. para. 130. Here, the Court presents a caveat, stating that “this final principle is not absolute, as the
need of the patient may require, at times, the adoption of measures without his consent.” Id. [not official
translation].
83
84
Id. para. 139 [not official translation].
85
Id. para. 140.
19
sufficiently real and imminent, can in itself conflict with this norm.”86 As such, the Court
recognized that the State violated the right to humane treatment when it created “a climate of
permanent tension and violence” that affected the dignity of those in detention.87
While the Court has already had the opportunity to interpret American Convention article 5
in light of specialized standards for persons with mental disabilities, we would maintain that
CRPD articles 15 (freedom from torture or cruel, inhuman or degrading treatment or
punishment), 16 (freedom from exploitation, violence and abuse), and 17 (protecting the
integrity of the person) be used to interpret article 5 as it relates to persons detained in the
Neuro-Psychiatric Hospital.
As the UN Special Rapporteur on torture and other cruel, inhuman and degrading treatment
or punishment (Special Rapporteur on Torture) observed in his report focusing on torture and
disability, the UN Disability Convention complements other human rights instruments in
offering authoritative guidance as regards persons with disabilities.88 In addition to CRPD
articles 15, 16 and 17, the Special Rapporteur on Torture’s report interprets the ban on torture
and other inhuman and degrading treatment or punishment to include the general principles
established in article 3—particularly 3(a), the respect for individual autonomy of persons
with disabilities and the freedom to make their own choices—article 12, the right to equal
recognition before the law, and article 25—specifically 25(d), establishing that medical care
of persons with disabilities must be based on their free and informed consent.89 Accordingly,
the Special Rapporteur observes, “in the case of earlier non-binding standards, such as [the
MI Principles] . . . the acceptance of involuntary treatment and involuntary confinement runs
counter to the provisions of the Convention on the Rights of Persons with Disabilities.”90
Persons in the Neuro-Psychiatric Hospital are detained in locked cells and wards, in
extraordinarily restrictive environments. Almost no consideration is given to preserving and
enhancing their personal autonomy. On the contrary, they are left to languish in penitentiarylike lockdown where prison-like conditions substitute for active treatment, with the
institution offering the vast majority of persons detained there little more than sub-standard
warehousing. There are inadequate treatment plans, no discharge plans, and no rehabilitative
treatment for approximately 80% of the hospital population.91 Involuntary treatment and
involuntary hospitalization are the institution’s modus operandi. In some wards, persons are
made to stand naked in the ward patios to be hosed down en masse, evidence of the lack of
regard afforded the dignity and personal autonomy of those institutionalized.
In this environment, MDRI has documented cases of the State’s failure to provide adequate
and timely medical attention to persons detained in the Neuro-Psychiatric Hospital, resulting
86
Panchito Lopez, supra note 70, para. 167.
87
Id.
88
Report of the Special Rapporteur on torture and other cruel, inhuman and degrading treatment or
punishment, Manfred Nowak, U.N. Commission on Human Rights, 63rd Sess., Agenda Item 67(a), U.N.
Doc. A/63/175 (2008) [hereinafter Report of the Special Rapporteur].
89
Id. para. 44.
90
Id.
91
Interview with Dr. Nestor Girala, Director of the Neuro-Psychiatric Hospital, Asunción, Paraguay (Sept.
17, 2009).
20
in at least two preventable deaths in the past eighteen months. Furthermore, MDRI has
documented the prolonged use of isolation cells, including the use of isolation for purposes of
punishment and to accommodate for staffing shortages. A series of deaths, complaints of
abuse and incidents of serious physical violence in the past two years contributes to an
atmosphere of “permanent tension and violence” affecting all persons detained in the
institution.
Here, we believe that the Court’s jurisprudence on persons with psychosocial disabilities and
minors in detention could support our arguments that institutionalization in the NeuroPsychiatric Hospital constitutes inhumane treatment and violates the guarantee of
“progressive development.” By segregating persons with mental disabilities in the state-run
psychiatric institution, the State is violating its obligation to respect their dignity and
autonomy and to provide adequate medical care. In a number of cases, institutionalization has
hindered patients’ access to basic health services, resulting in preventable deaths. Despite the
State’s heightened obligations to ensure that health services are aimed at the improvement of
a person’s physical and mental health, the State has not adopted the “necessary measures to
prevent the deterioration of the patient’s condition and optimize his health.” The allocation of
State resources for mental health—with 78% of the budget going to the psychiatric
institution—hinders the State’s ability to ensure access to basic health services, the
promotion of mental health and prevention of mental illness, and the lending of services in
the least restrictive environment. Given the ongoing reports of sexual abuse, unexplained
deaths, deaths due to apparent medical negligence, suicides, and acts of serious physical
violence, the State violates the right to humane treatment of persons detained in the
institution as this institutionalization engenders “a climate of permanent tension and
violence” that affects the dignity of those in detention. As the Court has observed, the
“intrinsic disequilibrium of power” between staff and patients presents constant threats to the
personal autonomy and physical and mental integrity of those hospitalized.
Using articles 15, 16 and 17 of the CRPD to interpret American Convention article 5, we
would argue that the State is violating the right to humane treatment of persons with
disabilities detained in the Neuro-Psychiatric Hospital and that to remedy this violation, the
State must take concrete, progressive measures to ensure that mental health services respect
the dignity and autonomy of the individual and that they are provided in the least restrictive
environment.
Query: What other information or resources could we employ to argue that community
treatment is humane treatment? Any ideas for maintaining the balance between needing to
address the imminent threats to life and security of those in the hospital without the outcome
of increased spending in the hospital at the expense of appropriate community-based
services?
A. 4.
Right to personal liberty, article 7, and right to a fair trial, article 8, of
the American Convention
Articles 7 and 8 of the American Convention guarantee the right to liberty and to be free
from arbitrary detention. Article 7 of the American Convention protects the right to “personal
liberty and security” establishes: that no one shall be arbitrarily deprived of liberty (art. 7.3);
the right “to trial within a reasonable time or to be released without prejudice to the
21
continuation of the proceedings” (art. 7.5); and“[a]ny one who is deprived of his liberty shall
be entitled to recourse to a competent court. . . .” (art. 7.6).92 Article 8(1) provides:
Every person has the right to a hearing, with due guarantees and within a reasonable
time, by a competent, independent, and impartial tribunal, previously established by
law, in the substantiation of any accusation of a criminal nature made against him or
for the determination of his rights and obligations of a civil, labor, fiscal, or any other
nature.
Article 8(2) provides for the right to counsel and to an appeal.
Article 12 of the Paraguayan Constitution on “Detention and Arrest” states that:
No one will be detained or arrested without a written order issued by a competent
authority, except for those caught in flagrante delicto in relation to a crime
punishable with a prison sentence. Any arrested person has the right:
1. to be informed at the time of arrest of the reason for the arrest, and of his right to
remain silent and to be assisted by a defender of his trust. The official conducting the
arrest must produce an arrest warrant at the time of the arrest;
2. have family members or individuals designated by him immediately informed of
his arrest;
3. to have free communication except when, by way of an exception, he is ordered to
be held incommunicado by virtue of a founded decision issued by a competent
judicial authority. His incommunicado status, which in no case can exceed the
deadline established by law, will not prevent him from contacting his defense
authority;
4. to have an interpreter if necessary; and
5. to be brought before a competent judge within 24 hours of his arrest so that the
judge may take appropriate legal decisions in the case.93
CRPD article 14, addressing “Liberty and security of the person,” reads:
1. States Parties shall ensure that persons with disabilities, on an equal basis with
others:
(a)
Enjoy
the
right
to
liberty
and
security
of
person;
(b) Are not deprived of their liberty unlawfully or arbitrarily, and that any deprivation
of liberty is in conformity with the law, and that the existence of a disability shall in
no case justify a deprivation of liberty.
2. States Parties shall ensure that if persons with disabilities are deprived of their
liberty through any process, they are, on an equal basis with others, entitled to
guarantees in accordance with international human rights law and shall be treated in
American Convention, supra note 1, art. 7 Article 25 provides for an “effective recourse” for the
violation of fundamental rights.
92
93
Political Constitution of the Republic Paraguay, 1992, art. 12. Translation available at:
http://www.servat.unibe.ch/law/icl/pa00000_.html.
22
compliance with the objectives and principles of this Convention, including by
provision of reasonable accommodation.94
Using the protections established in CRPD article 14 as a guide to interpret American
Convention articles 7 and 8, persons deprived of liberty in the Neuro-Psychiatric Hospital
have the right to independent review of their institutionalization. This includes an array of
procedural protections for such a review process, including the right to representation by
counsel and the right to an appeal.
There are no due process protections in place for persons detained in the Neuro-Psychiatric
Hospital. There is no review of institutionalizations by an independent and impartial tribunal,
and as such, there is no right to an attorney, an appeal, or a review of the detention. As the
persons detained in the Neuro-Psychiatric Hospital are afforded no due process guarantees,
their institutionalization presents violations of the rights to liberty and a fair trial under the
American Convention.
B.
Collective petition vs. Individual petitions
Since the filing of the first precautionary measures petition in 2003, MDRI and CEJIL have
considered taking a collective case to enforce the rights of the class of persons detained in
Paraguay’s Neuro-Psychiatric Hospital. As the remedies we seek are about systems reform
and the enforcement of the rights of a group, a collective case in which we present a range of
abuses occurring in the Neuro-Psychiatric Hospital in a single petition may afford us the
greatest leverage in obtaining such remedies.
An advantage of bringing individual cases, on the other hand, is the possibility of enhanced
leverage to achieve results: if the State were not moving forward with its investigations on
one case, we could pressure with another. Individual cases would also allow us to narrowly
tailor our petitions to allege one or two primary rights violations, while placing them in the
context of the range of other abuses we have identified in our precautionary measures
petitions, but which we would not have to allege specifically in our cases presented in
domestic courts. Should we choose to bring a number of individual cases addressing abuses
in the Neuro-Psychiatric Hospital and provide the same contextual background for these
abuses, the Commission may decide to consolidate these cases.
Whether to take a collective case, individual cases, or a collective and several individual
cases simultaneously is an important strategic consideration requiring for further reflection.
In this memo, we explore issues surrounding presenting a collective petition.
Query: Which strategy, presenting multiple individual petitions or a collective petition,
provides us with the greatest leverage to obtain the enforcement of the right to community
integration?
94
CRPD, supra note 6, art. 14.
23
C.
Assuming a collective petition, what type of action to file?
Comparing Amparo vs. Habeas
The litigation strategy we decide on at the local level will, in large part, determine the types
of rights violations and remedies we can seek through the inter-American system. Here we
will explore the issues that arise when preparing a collective action.
Assuming we bring a collective action in the local courts, a central issue that has been
discussed is whether to file (1) an amparo action; (2) a habeas corpus petition; or (3) both.95
To begin with, we will want to define the scope of the class of individuals we will represent
to help us best achieve our desired outcomes. For the purposes of this discussion, we will
presume that representatives of our class are among the persons detained presently or over
the preceding six years in the Neuro-Psychiatric Hospital. Defining the class in this way
allows us to incorporate violations we have been documenting since 2003 in our
precautionary measures petitions, and to include persons who are not detained currently in
the hospital, either due to death or medical discharge.
C. 1.
Amparo
Under Paraguayan law, an amparo action is extremely broad and can be used to safeguard all
rights established in the Constitution and protected in international conventions ratified by
the country. An amparo may be the best choice for keeping the greatest number of options
open and for ensuring the possibility of a comprehensive judicial order addressing different
aspects of the problems at the Psychiatric Hospital. The amparo could be an important tool,
for example, with respect to protections we could achieve through a claim of violation of
article 58 of the Constitution on “The rights of Exceptional Persons,” which establishes, “the
State will guarantee health care for special persons, as well as education, recreation, and
professional training so that they may be fully integrated into society.”96 Claims of violations
of article 58, together with article 68 guaranteeing the right to health and article 46 on the
equality of persons. An amparo action may be strategically superior in terms of the
specificity and directness of the constitutional and treaty law claims that can be made
(although the same claims can be made indirectly under generic habeas).
There are several limiting factors with the presentation of an amparo action that we must
keep in mind. A requisite for the presentation of an amparo action is that the harm presented
cannot be remedied through ordinary means established in national legislation. The urgency
of the action must be pled, and that the harm or violation to the rights to personal integrity
and life are concrete and imminent, excluded are cases of arbitrary detention, for which there
is the habeas corpus. Additionally, the amparo action may not be requested when there are
cases open to remedy the same violations, as is the case in some of the violations we have
documented at the Neuro-Psychiatric Hospital. An amparo action must be presented within
60 days of the date that the affected party is aware of the act, omission or illegitimate threat.97
95
With respect to the same individuals or group of persons, the Paraguayan Constitution prohibits filing
both an amparo action and habeas corpus petitions simultaneously. This does not eliminate the possibility
of simultaneously bringing different actions on behalf of different groups of persons.
96
97
Id. art. 58.
Procedural Civil Code of Paraguay, Book IV, chapter II, title II, art. 567.
24
An amparo action may be presented by the affected person directly or in his in her name,
with a simple power of attorney signed by the person him or herself or by those who are
acting as legal representatives. In this case, it may be interesting to legitimate the amparo
action through a power of attorney signed by the persons detained in the Neuro-Psychiatric
Hospital, asserting their legal capacity by way of CRPD article 12 on the right to Equal
Recognition before the Law. Also, MDRI could present the amparo as article 568 of the
Procedural Civil Code established that “societies or associations that justify, through the
exhibition of their statutes, that their interests are for the common good.” 98
With regard to procedural considerations, the time frame for the resolution of an amparo
action is quite brief (according to the Procedural Civil Code, it appears that the action should
take no longer than a few weeks to receive a judgment). Our local consultant informs us that
it is almost certain that the judge would reject the amparo action, thus paving the way for the
presentation of a petition on the same issues to the Inter-American Commission.
C. 2.
Habeas corpus
Article 133 of the Paraguayan Constitution sets out the three distinct types of habeas actions:
preventive, restorative and generic. A preventive habeas is used in cases where a person
believes he or she faces an imminent danger of being illegally deprived of his or her freedom;
a restorative habeas is used when there is already an illegal deprivation of liberty. The
generic habeas, in contrast, is extremely broad, and can be used to “demand the correction of
circumstances that, despite not falling within the above categories, may restrict freedom or
threaten personal security. Similarly, this guarantee may also be applied to cases of physical,
psychological, or moral abuse against individuals who have been legally deprived of their
freedom.” The generic habeas also offers important strategic considerations, including: 1)
that it can be used by anyone, including those without powers of attorney,99 and 2) they are to
be “brief, summary, and free of charge” (art. 133.3).
Were we to present a restorative habeas corpus petition, which would focus on the issue of
arbitrary detention and deprivation of liberty in the Hospital, the logical remedy would be the
need for protections against involuntary commitment. The presenting of a restorative habeas
would require significant investigative legwork and the direct application of articles 7
(liberty), 8 (due process guarantees) and 24 (equal protection) of the American Convention to
persons detained in psychiatric institutions, something that has never been done in the interAmerican system.
We could request much broader remedies, however, through a generic habeas action based
upon the abuses occurring in the Hospital, without alleging arbitrary detention, as the
guarantee also applies to those “who have been legally deprived of their freedom.” One
disadvantage to filing a habeas petition is that it would preclude the direct raising of the
Id. art. 568. “Se hallan legitimados para peticionar amparo: d) las sociedades o asociaciones que, sin
investir el carácter de personas jurídicas, justificaren, mediante exhibición de sus estatutos, que no
contrarían una finalidad de bien común.”
98
The specific habeas provision states: “This guarantee can be petitioned by the affected party using
tangible means, either personally or through another person, without the need for a power of attorney…”
Political Constitution of the Republic Paraguay, 1992, art. 133.
99
25
broader issues at play with regard to the rights of persons with disabilities (such as the rights
to health, rehabilitation, community integration), which ultimately may defeat the purpose of
addressing these issues and having the American Convention interpreted in the light of the
rights guaranteed in the CRPD.
Query: What are your thoughts on how to proceed with regard to presenting an amparo or
habeas petition at the local level? Does anyone have experiences from other systems that we
could learn from?
D.
Requirements for filing a case on behalf of persons detained in the
Neuro-Psychiatric Hospital: Obtaining power of attorney
One significant challenge of bringing a case in domestic courts should we pursue an amparo
action, or should we foresee taking a collective case before the Inter-American Court, will be
obtaining power of attorney from the victims or their legally-recognized guardians. In
Panchito López, the Inter-American Court denied standing to CEJIL, which had brought the
case on behalf of “all children detained, past and present,” and required that CEJIL obtain
written powers of attorney from each individual victim or his guardian. Obtaining powers of
attorney may prove a particular challenge if persons detained in the institution have been
stripped of their rights to equal recognition before the law, in which case we would need to
locate their legal guardians.100 Yet, employing article 12 of the CRPD to endorse the legal
capacity of the those detained in the NPH, arguing that national legislation violates
Paraguay’s obligations under international human rights law, provides an interesting
opportunity for challenging Paraguay’s guardianship system.
It must be noted, however, that these exacting standing requirements are not essential for
presenting a petition to open a contentious case before the Inter-American Commission. In
contrast with cases that come before the Court, the Commission only requires a listing of the
victims’ names. Additionally, the Court will allow the Commission to represent victims
without express powers of attorney. As such, potentially, MDRI and CEJIL could argue a
case before the Court in representation of a select number of persons for whom we had
obtained written powers of attorney, while the Commission could argue in the interests of
others for whom we did not obtain express powers of attorney. Accordingly, the Court’s
standing requirements should not present an impediment to obtaining our desired outcomes.
V.
Conclusion
We have argued that it is likely that challenging the institutionalization of persons detained in
Paraguay’s psychiatric institution on antidiscrimination, arbitrary detention, right to life and
inhumane treatment claims would likely result in the effective enforcement of CRPD article
19. Some points for further reflection that we have posited throughout this memo and which
may provide ideas for further discussion on November 13 include:
 Are we missing key issues that would help ensure the right to live independently and
be included in the community?
100
For the purposes of this paper we have not included issues surrounding the implementation of the right
to equal recognition before the law under CRPD article 12.
26
 Given the jurisprudence and current make-up of the Inter-American Court, should we
include “progressive development” claims under article 26 of the American
Convention?
 Are there other rights violations should we consider focusing on?
 What other information or resources could we employ to argue that community
treatment is humane treatment?
 Any ideas for maintaining the balance between needing to address the imminent threats
to life and security of those in the hospital without the outcome of increased spending
in the hospital at the expense of appropriate community-based services?
 Which strategy, presenting multiple individual petitions or a collective petition,
provides us with the greatest leverage to obtain the enforcement of the right to
community integration?
 What are your thoughts on how to proceed with regard to presenting an amparo or
habeas petition at the local level? Does anyone have experiences from other systems
that we could learn from?
27