The OPCAT and what it can do for aged care in New Zealand

The OPCAT and what it can do for aged care in New Zealand

June 2, 2016

A growing aging population means there is increased demand for quality aged residential and community care. With those in need of that care and support often ending up in situations where they are vulnerable, Governments must ensure that they are protected and treated with dignity.

The risk of abuse and ill treatment in closed environments – in institutions or facilities where people are not free to leave of their own will – is well established.

Aged care facilities can in some circumstances be considered such environments, with individuals dependent on others for the basic necessities of life and where their freedom of choice and of movement can be limited or taken away – often due to the residents’ high care needs. 

New Zealand’s Aged care facilities are all subject to our obligations in the International Covenant on Civil and Political Rights (“ICCPR”), the Convention against Torture and other Cruel, Inhuman or Degrading Treatment (“CAT”) and the Convention on the Rights of Persons with Disabilities (“CRPD”).

These instruments encourage governments to limit to the use of deprivation of liberty and acknowledge that people deprived of their liberty are vulnerable and particularly at risk of other human rights violations. Monitoring places where this occurs is an integral part of the measures that New Zealand must take to fulfil our international human rights obligations.

While subject to various types of general monitoring, under the auspices of different government agencies, aged care facilities often lack the rigorous oversight from an OPCAT specific perspective and this remains concerning.

Current monitoring and audits of aged care facilities have been criticised for lacking independence and transparency. It has also been suggested that it is considered a box-ticking exercise for accreditation and other contractual requirements, rather than a way of ensuring standards of care are maintained and improved, and that abuse and ill-treatment is identified and mitigated over time.

The Optional Protocol to the Convention against Torture (“OPCAT”) provides a unique and robust framework for preventive monitoring of places where people are deprived of their liberty and revolves around the idea that prevention is a more effective method than dealing with human rights abuses after the fact.

OPCAT monitoring can and should complement and enhance these existing systems of oversight and audit.

The OPCAT requires that the deprivation of liberty is based on a public order, or with the State’s acquiescence or consent. For traditional places of detention this poses little issue. However, for non-traditional places of detention where people may reside on a voluntary basis, or with their family’s consent, without any official or public intervention, it is more problematic.

In many countries aged care is provided by private providers, through contractual arrangements with government. Legislation governs the standards of care and facilities are subject to audit requirements. As such, government has some regulatory control over the provision of care in these situations.

 In addition, although some residents will be privately paying for their care, many will be receiving some form of government subsidy. Aged care facilities can and should therefore form part of OPCAT monitoring framework where they do or may prevent a person from leaving at will.

More needs to be done to prevent abuse and ill treatment and to constructively work with facilities to improve conditions and care. It is time for the Government to consider the role of the OPCAT in relation to aged care facilities and other less traditional places of detention.

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