Published January 23, 2014
Tara J. Melish saw the problems firsthand, and even though she had worked on similar cases, she says what she found last summer when she visited Guatemala’s national psychiatric hospital as part of an international fact-finding team was disturbing.
“There are extreme abuses,” says Melish, associate professor of law who directs the Buffalo Human Rights Center in the UB Law School. “It’s an institution of violence and abuse, and absolute dehumanizing segregation.”
The levels of violence are multiple. For one thing, she says, the hospital sits alongside a prison and, contrary to international legal standards, “forensic detainees” — persons with mental illness who have committed serious crimes — are housed in the same population with people who have committed no crimes. The result is a huge cadre of prison guards and soldiers stationed on a 24-hour basis along the perimeter of the institution. They have been accused of raping female detainees, engaging in systematic threats and assault, and even conducting sex trafficking.
At the same time, Melish adds, “sanitary and living conditions within the hospital are abysmal, HIV is believed to be widespread and basic protocols regarding the use of physical restraints, isolation cells, improper medicalization and the separation of children are not being followed.”
A disturbing number of deaths consequently have been recorded among the hospital population. This dehumanizing situation is compounded by the fact, says Melish, that once individuals are admitted into the institution, they “lose their legal capacity to assert their rights.” As a result, “once you get into the hospital, it is almost impossible to get out.” Many of those in the hospital should not be there at all, a fact on which even the hospital staff agree.
To challenge these gross abuses, the human rights group Disability Rights International (DRI) — for which Melish serves as legal adviser — and its local partner, the Human Rights Office of the Archdiocese of Guatemala (ODHAG), brought a “precautionary measures” petition to the Inter-American Commission on Human Rights (IACHR). Such petitions aim to prevent “grave, urgent and irreparable harm” from occurring to the protected rights of individuals under regional human rights treaties.
The petition was swiftly granted. The resulting international order requested Guatemala to adopt all necessary measures to guarantee the life and personal integrity of the people in the hospital, specifying a list of specific measures relating to use of restraints, armed guards, separation, medicalization and immediate preventative measures to ensure that patients — especially women and children — were not the object of physical, psychological and sexual violence. “Most instrumentally,” Melish hastens to add, the order required that the government and petitioners present an agreed plan and timeline for the implementation of the precautionary measures.
It was in compliance with this request that officials of the Guatemalan government, DRI and ODHAG signed an historic accord on Oct. 30 in Washington, D.C., following an intense, daylong negotiation and working meeting before the IACHR, in which Melish participated. The accord, once approved by the attorney general, commits the government to a set of immediate action steps designed to significantly reduce the hospital population, establish pilot programs for community-based supported residential care, acute psychiatric care and free mental health care in the community, as well as ensure safe physical conditions, health care and adequate nutrition.
It likewise provides for immediate judicial review of detention orders, a one-year deadline for the presentation of new legislation on the rights of persons with disabilities and the establishment of an extensive, new monitoring framework to prevent the continuation of abuses.
“The accord,” says Melish, “is a significant step forward in Guatemala’s acceptance of the obligations it has undertaken under multiple human rights treaties, including the UN Convention on the Rights of Persons with Disabilities,” which it ratified in 2009. “It is an important beginning in the much needed, and much delayed, process of ensuring that persons with disabilities are not warehoused in abuse-ridden institutions, but rather can enjoy their right to live in the community with dignity and with choices equal to others.”