Case Study 1: Women in a public mental health institution

This is an example of a situation that could be considered under either the inquiry or communications procedures set forth in the OP-CEDAW.

In June 2001, in a country called Amazonia, a large public mental health institution with 580 patients, male and female, conducted an internal review. The review revealed that: i) Ninety per cent of female patients tended to remain in the institution on a long-term basis, compared with 56 per cent of men; and ii) In the last two years, 10 female patients who had been institutionalised for more than four years had been pregnant. According to the records, in the previous two years the institution had approved 12 abortions and arranged for the legal adoption of 7 babies. In light of these findings, the mental health institution undertook a study to identify the profile of the female patients who were “at risk” of pregnancy. According to the study, women who would never recover to the point of having a regular life constituted a “high-risk” group. After various meetings, the Board of Directors of the mental institution made a policy decision. From December 2001 onwards, all female patients between 18 and 45 years of age who fitted the “high-risk” profile, would be sterilised. In January 2002, in conjunction with a public hospital, 101 women from the mental institution underwent sterilisation procedures. At this point, the Amazonian press began to focus on the issue. It tried to obtain the reaction of family members of these women, but most refused to comment. Yet, some felt that the action benefited the women. In June 2002, two lawyers filed a petition under public interest litigation. The main argument they used was that the policy decision on the mandatory sterilisation of “high risk” patients discriminated against this group of women on the basis of sex. Further, supporting documents showed that most of the women who had been pregnant between 2000 and 2001 indicated that they had not consented to sex, and that the mental institution took no steps to investigate or address the matter. The petition sought various remedies for human rights violations on behalf of the victims. The lawyers relied on the constitution, the CEDAW Convention, laws and jurisprudence in their arguments. In June 2003, the Supreme Court, the final point of call, dismissed the petition saying that the mental health institution’s actions were justified and that the institution had not discriminated on the basis of sex or violated any fundamental rights of the women patients. As of July 2004, a total of 150 women patients had undergone sterilisation. At this point, an Amazonian women’s NGO decided to bring this situation to the attention of the CEDAW Committee by using one of the OP-CEDAW procedures. Amazonia has ratified both the CEDAW Convention and its Optional Protocol ( 1 April 2001). In addition, it has not reserved any articles of the CEDAW Convention nor opted out of the Inquiry Procedure established by the OP-CEDAW .

Although there are a number of violations involved in this case, in the interest of brevity our analysis will focus on issues relating to the sterilisation that took place in January 2002. Here some useful questions to explore include:

1. What principles and provisions of the CEDAW Convention have been violated? Details

2. How would the Communications Procedure apply to this case? Details

3. How would the Inquiry Procedure apply to this case? Details

 

1. What principles and provisions of the CEDAW Convention have been violated?

In terms of issues relating to the sterilisations that took place in January 2002, at minimum, the principles and rights provided under the following provisions of the CEDAW Convention and further developed in CEDAW General Recommendations were violated:

• CEDAW Convention Article 1
• CEDAW Convention Article 2 (a), (b), (c)
• CEDAW Convention Article 12(1)
• CEDAW General Recommendation 19 at paragraph 22
• CEDAW General Recommendation 24 at paragraphs 25, 31(a), (d), (e)

The following illustrates how the principles of the CEDAW Convention were violated:

• The mental institution discriminated against female patients who had been considered to be at “high-risk” of pregnancy. According to the principle of non-discrimination established by CEDAW Article 1, this is a case of sex-based discrimination because:
  • Only women patients were affected by the policy decision which aimed to prevent pregnancies of a specific group institutionalised mental patients;
  • The distinctions that resulted from the profiling of “high-risk” women patients had the effect of nullifying their right to be consulted before being sterilised and limited their right to be protected from sexual abuse while being in the institution;
  • The human rights of all women patients should be recognised and respected regardless of their health condition or disability status.
    
    
• The State can be held accountable for violations of women’s human rights by the mental health institution. Since the violations were committed by a public institution, in accordance with Article 1 of the CEDAW Convention, the State can be held accountable. Moreover, according to Article 2(b) and 2(c), the State must respect the rights of women by refraining from engaging in any act or practice of discrimination against women and ensure that all public institutions, including the mental health institutions, shall act in conformity with this obligation. In this case the State didn’t respect the rights of women patients.

The State must protect the rights of women patients. In this case, the State should have taken all appropriate measures to eliminate discrimination against women by the Board of Directors, the rest of the staff of the mental health institution, and the acts by the doctors of the public hospital in which the sterilisations were made.

In addition, some of the General Recommendations of the CEDAW Committee could also be used in this case:

General Recommendation 19
Paragraph 22 reads: “Compulsory sterilization or abortion adversely affects women's physical and mental health, and infringes the right of women to decide on the number and spacing of their children.”

General Recommendation 24
Paragraph 25 reads: “Women with disabilities, of all ages, often have difficulty with physical access to health services. Women with mental disabilities are particularly vulnerable, while there is limited understanding, in general, of the broad range of risks to mental health to which women are disproportionately susceptible as a result of gender discrimination, violence, poverty, armed conflict, dislocation and other forms of social deprivation. States parties should take appropriate measures to ensure that health services are sensitive to the needs of women with disabilities and are respectful of their human rights and dignity.”

Further, paragraph 31 also says, “States parties should also, in particular:

(a) Place a gender perspective at the center of all policies and programmes affecting women’s health and should involve women in the planning, implementation and monitoring of such policies and programmes and in the provision of health services to women;

(d) Monitor the provision of health services to women by public, non-governmental and private organizations, to ensure equal access and quality of care;

(e) Require all health services to be consistent with the human rights of women, including the rights to autonomy, privacy, confidentiality, informed consent and choice;”

2. How would the Communications Procedure apply to this case?

Amazonia was a State party to the OP-CEDAW before the sterilisations took place. Therefore, it would be possible to bring a complaint on behalf of the affected women under the Communications Procedure.

Stage 1: Assessing the possibility of bringing forward an individual complaint under the Communications Procedure. More

Stage 2: Submission of complaint to the CEDAW Committee and initial review. More

Stage 3: Consideration of the case. More

Stage 4: Recommendations and follow-up. More

 

STAGE 1: Assessing the possibility of bringing forward an individual complaint under the Communications Procedure

• Can a victim or victims be identified?
  In this case, action can be brought on behalf of the women patients subjected to sterilisation as a group of individual victims. Each one of the victims can be properly identified.
  
• Does the NGO have standing to bring the claim?
  In most cases, an NGO bringing the claim on behalf of the group of women must have proof of having consent of the women. If obtaining their consent is not possible, such as in this situation, the NGO must prove why this is the case (i.e. the women’s mental illnesses are such that they do not have legal capacity).
  
• Are the authors and victims of the communication within the jurisdiction of the State party?
  Yes, the victims are Amazonian or were within the jurisdiction of the Amazonian state at the time the violation took place. In addition, the mental health institution and the government hospital are state services and the officials working within them act as agents or servants of the state. The NGO bringing forth the case also is a national NGO from Amazonia.
  
• Was the Optional Protocol in force at the time the violation occurred or is it a continuing violation?
  Yes, the OP-CEDAW was in force at the time the violation occurred, and this violation is continuing.

• Have all domestic remedies been exhausted or are domestic remedies unavailable or insufficient?
  Yes, all domestic remedies have been exhausted. The Supreme Court, the highest domestic court in Amazonia, dismissed the petition. There are no remaining options for a domestic remedy available.

• Has the claim been considered by another international mechanism?
  No, after the exhaustion of domestic remedies, the NGO decided to take the case directly to the CEDAW Committee for consideration.

• Is the communication substantiated? Well-founded?
  Section 4 of the Sample Complaints Form issued by the CEDAW Committee asks for the provision of detailed information to substantiate the claim. In this case, the kind information that could be used to substantiate the alleged violations that relate to the unlawful sterilisation of the women could potentially include:
  • The names of the women who were operated on;
  • The women’s records from the institution;
  • The review report of the institution;
  • The minutes of the meeting in which the decision on sterilisation was taken;
  • The copy of the decision;
  • Correspondence between the institution and the government hospital;
  • Hospital and institutional records of the sterilisations including the dates on which they took place;
  • Media reports;
  • Testimonies of the victims as to their level of awareness of what happened to them;
  • Testimonies, where possible from family members;
  • Testimonies from others involved, doctors and staff from the institution, surgeons, doctors and staff from the hospital;
  • Documentary evidence (photographs, video evidence etc);
  • Information on the NGO bringing the complaint; mandate, status, representatives.
  • Fact finding reports from the NGO submitting the communication;
  • A copy of the Supreme Court’s decision.
    
• Does the communication constitute an abuse of the right to petition?
  No, the claim has not been previously considered by the CEDAW Committee; it is not being lodged with the intent of harassing or defaming the State party or an individual; and nor, for example, will it be submitted with defamatory or insulting language.

STAGE 2: Submission of the complaint to the CEDAW Committee and initial review

Since the communication in this case meets the admissibility criteria, after the complaint is reviewed by the CEDAW Committee and declared admissible, it will be forwarded to Amazonia for consideration and comment. If the NGO has requested interim measures and the Committee deems these necessary, this request will also be transmitted to the Amazonian government. In this case, appropriate requests for interim measures might include ensuring that no other woman in the institution is sterilised, ensuring that the facility is overseen, and making provisions for the security of the victims and/or the author.

The Amazonian government should respond within 6 months with:

• Information about interim measures (if appropriate)
• Information about remedies at the national level (including for example, the Court order indicating that the actions were aimed at protecting the women)
• Legal and factual arguments addressing the claim and, if necessary, its admissibility. This information will essentially constitute the State’s defense.

STAGE 3: Consideration of the case

The CEDAW Committee will consider the communication in light of all the evidence. The admissibility of the communication will be reconsidered in light of the information provided by the States party, by the author and with regard to the relevant national or international law.

STAGE 4: Recommendations and follow up

After a period of in-depth review of the complaint, the CEDAW Committee will issue its views as to whether or not a violation has taken place. If the Committee determines there has been a violation, recommendations in this case might include:

• Reparations to be made to the victims;
• Instructions for a holistic policy on mental health to be drafted and adopted by Amazonia;
• Adoption of regulations for all mental health institutions in Amazonia and the development of a detailed action plan for monitoring their implementation;
• Inclusion of specific information regarding the status of women in mental health institutions to be submitted to the CEDAW Committee within a designated timeframe or in the Amazonian State party report;
• The formulation an action plan to address the specific issue of women’s rights violations in mental health institutions or women’s human rights generally, including training for judges and medical health professionals to ensure that neither the violation nor Amazonia’s failure to respect, protect and fulfill will be repeated.

3. How would the Inquiry Procedure apply to this case?

Amazonia has not exercised its option under Article 10 of the OP-CEDAW to opt-out of the Inquiry Procedure. Therefore in this case, the Inquiry Procedure would be an option that could also be considered. It could be argued that the violations that have resulted from the forced sterilisation of 150 women patients in the mental institution are both grave and systematic. These are precisely the kinds of violations that the Inquiry Procedure under the OP-CEDAW seeks to address. If the Amazonian women’s NGO is interested in submitting information to the CEDAW Committee under the Inquiry Procedure, it would have to undertake the following steps:

Stage 1: Submission of information on grave and/or systematic violations of the CEDAW Convention to the Committee. More

Stage 2: The CEDAW Committee invites the State party to submit information. More

Stage 3: The inquiry. More

Stage 4: Findings and recommendations by the CEDAW Committee are transmitted to Amazonia. More

STAGE 1: Submission of information on grave and/or systematic violations of the CEDAW Convention to the Committee

The information submitted must be “reliable”. Thus, the NGO should submit information on the facts in way that is:

• Well substantiated
• Specific
• Supported by corroborative evidence
• Objective, independent and non-partisan.

A clear statement explaining the grave and systematic nature of the violations should be made. In this case, the sterilisations are grave because the effects are irreversible and represent violations of the women’s rights to physical integrity, life, health, sexual and reproductive health, etc. The systematic nature of the violations lies in the pattern in which the sterilisations have been and are being conducted.

In a similar way to the “well substantiated” requirement of the communications procedure, the information submitted should be as exhaustive as possible. In this case it could be supported by:

• The resolution of the public mental health institution;
• The minutes of the meetings of the public mental health institution;
• The judgment from the Supreme Court;
• The names of all the women who were operated on;
• The women’s records from the institution;
• The review report of the institution to enact the policy;
• The minutes of the meeting in which the initial decision on sterilisation was taken;
• A copy of the decision;
• Correspondence between the institution and the government hospital;
• Hospital and institutional records of the sterilisations including the dates when they took place;
• Media reports;
• Testimonies of the victims as to their level of awareness of what happened to them;
• Testimonies, where possible from family members;
• Testimonies from others involved: doctors and staff from the institution, surgeons, doctors and staff from the hospital.
• Documentary evidence (photographs, video recordings, etc.)
• Information on the NGO bringing the complaint; mandate, status, representatives.
• Fact-finding reports from the NGO submitting the communication.

Essentially the information provided to the CEDAW Committee need not prove the violation(s) alleged. The Committee will designate several of its own members to conduct the inquiry and identify violations of women’s human rights. That said, the information received should “indicat[e] grave or systematic violations by a State Party of rights set forth in the Convention” (Article 8). Therefore a complete submission might include the articles or provisions of the CEDAW Convention that the sender has identified as being violated. In this case, some of these articles include:

• CEDAW Convention Article 1
• CEDAW Convention Article 2 (a), (b), (c)
• CEDAW Convention Article 12(1)
• CEDAW General Recommendation 19 at paragraph 22
• CEDAW General Recommendation 24 at paragraphs 25, 31(a), (d), (e).

The CEDAW Committee may also receive additional information from other sources such as other international or national NGOs, independent experts such as UN special rapporteurs, other UN bodies, humanitarian agencies, etc. In all cases the confidentiality of the sender is maintained.

After consideration of the information, the Committee must make a decision on whether or not the matter in question should continue to be investigated under the Inquiry Procedure.

STAGE 2: Committee invites the State party to submit information

After analysis of the information indicating grave or systematic violations by Amazonia, “the Committee shall invite that State Party to cooperate in the examination of the information and to this end to submit observations with regard to the information concerned” (Article 8).

While there is no obligation on the Amazonian government to cooperate in the inquiry or respond to the information in the hands of the CEDAW Committee, Amazonia’s input is requested and it is considered desirable that they respond. Additionally, the CEDAW Committee may, if it thinks appropriate, seek information from other individuals, governmental or non-governmental organisations, UN rapporteurs, etc.

If the CEDAW Committee deems interim measures appropriate, this request will also be transmitted to the Amazonian government. In this case, appropriate requests for interim measures might include ensuring that no other women in the institutions are sterilised or making provisions for the security of the victims.

In light of all the information accumulated, and having regard to the thresholds of grave and systematic violations, the CEDAW Committee may then designate one or more of its members to conduct an inquiry into the allegations.

STAGE 3: The inquiry

While the member(s) of the CEDAW Committee entrusted with conducting the inquiry have a relatively wide scope for discretion, it is likely that they will desire to visit Amazonia and investigate onsite, the facts set-out in the submission. To visit, however, the permission of the Amazonian government must be obtained. The consent of Amazonia at all stages is a prerequisite.

Assuming the Amazonian government consents to the visit, it is likely that in the course of the inquiry, the CEDAW Committee members would:

• Visit the mental health institution concerned;
• Meet with the women who have been or are due to be sterilised;
• Examine the medical reports of the institution and government hospital;
• Meet with doctors;
• Receive testimonies from patients, doctors, staff at the institution and the hospital, family members of the victims, the NGOs concerned, etc;
• Examine all relevant documentation; and
• Interview all relevant people (e.g. lawyers in the domestic case, government officials, etc.).

All these people should be assured of their right to testify, and the State should undertake to ensure that individuals are not subjected to any ill-treatment or intimidation as a result of their participation in the inquiry. All stages in the process are to be conducted confidentially by the CEDAW Committee members.

On completion of their mission, the CEDAW Committee delegation will submit a report of their findings to the full CEDAW Committee.

STAGE 4: Findings and recommendations by the CEDAW Committee are transmitted to Amazonia

Taking into account all available information including but not limited to:

• The report of the delegation of the Committee
• The evidence submitted by the NGO
• Information from other sources
• Analyses of relevant national and international laws
• The steps taken by the States party

the CEDAW Committee will arrive at a conclusion and issue its findings and recommendations to the Amazonian government. The confidentiality of the process is still respected at this stage. Amazonia has 6 months in which to respond.

Recommendations in this scenario might include:

• The review of the Amazonian legal and judicial infrastructure to ensure its compliance with the CEDAW Convention.
• The establishment of an independent investigation team comprising judges, lawyers and medical doctors to efficiently examine the status of women in mental health institutions, to investigate all allegations ill treatment and discrimination, and to bring those who have acted illegally expeditiously before the courts. This independent team should have access to all the mental health institutions and the ability to review records, files and policies. They should also be empowered to make recommendations to the authorities concerned to ensure adequate safeguards for women in mental health institutions.
• The review and, where necessary, the amendment of laws relating to the regulation of the health sector and private health institutions in particular.
• Compensation for the victims of the violations and recommendations for their future medical care.

After the six months have passed (and whether or not Amazonia has responded) the Committee can make public the information and request that the Amazonian government submit information on the measures it has taken to address the violations. Further at this stage, NGOs, on request or voluntarily, can submit information on the Amazonian compliance with the recommendations of the Committee.

The follow-up to the inquiry, will as usual, be strengthened by an active civil society campaign to publicise the recommendations and ensure their application. See also OP-CEDAW remedies.