On December 21, 2017, the Inter-American Commission on Human Rights (IACHR) released a report after an in loco visit to Guatemala, calling on the State of Guatemala to integrate into the community the people with disabilities detained at the Hospital Nacional de Salud Mental (Federico Mora) in Guatemala City, Guatemala.[1] The Federico Mora patients are the beneficiaries of precautionary measures granted by the IACHR. It is the first time that the IACHR, in the context of precautionary measures, has acknowledged that in order to protect the right to life and to personal integrity of persons with disabilities who have been institutionalized, persons with disabilities must be reintegrated to the community. The right to community integration is enshrined in international law through Article 19 of the Convention on the Rights of Persons with Disabilities (CRPD), which has been ratified by Guatemala.[2] Federico Mora has been branded as the “world’s most dangerous hospital” in a documentary released in 2014 by BBC.[3] The documentary describes Disability Rights International’s (DRI) efforts to bring international attention to the horrific abuses happening inside this institution. DRI first visited Federico Mora in 2011 and found some of the worst conditions and abuses it had seen in psychiatric institutions around the world,[4] including rampant sexual abuse, physical abuse, inhuman and degrading conditions, medical negligence, and use of prolonged restraints and isolation rooms.[5] In DRI’s first fact-finding visits, DRI found minors detained in the institution together with adults, which can be dangerous for the minors. One teenager was locked in an isolation room in order to “protect him” from being raped if he was let out.[6] A psychiatric resident reported to DRI that he witnessed at least one rape every single day. Patients were left to languish on the floors and corridors of the institution, most of them severely overmedicated. Patients were also routinely put in isolation rooms in prolonged restraints as a form of punishment, a very painful practice that has been equated to a form of torture.[7] All of these practices observed and reported about the conduct at Federico Mora constitute inhuman and degrading treatment that may arise to the level of torture.[8] Given the extreme conditions at the facility, DRI filed a petition for precautionary measures to the IACHR in October 2012, in favor of the 334 people with disabilities detained in Federico Mora.[9] Precautionary measures are urgent actions that the IACHR requests a State to take in order to prevent “irreparable harm” to a person or a group of people,[10] in “serious and urgent cases.”[11] The requirement of seriousness and urgency to adopt precautionary measures presumes the existence of an imminent danger that could result in irreparable harm to the fundamental rights of persons.[12] In DRI’s view, the conditions and abuses documented put the fundamental rights of each and every person detained in the facility at imminent risk, particularly their right to life and to personal integrity. In its precautionary measures petition, DRI requested that the IACHR to, among other things, urge Guatemala to make immediate plans “for the transfer of patients to other safe locations in the community where they can receive the care, support, and safe living conditions they need.”[13] On November 2012, the IACHR granted precautionary measures in favor of the patients detained at Federico Mora and called on the State to take urgent actions to prevent further abuses, improve medical care, separate children from the rest of the population, and restrict the use of isolation rooms to international standards.[14] However, the IACHR did not initially order the release and community reintegration of the patients as part of the precautionary measures.[15 In August 2017, almost 5 years after granting the original precautionary measure, the IACHR found that the actions carried out by the State to implement the precautionary measures had not been “adequate to protect their lives and integrity.”[16] From 2012 to 2017 the State of Guatemala has invested over USD $7 million in the hospital to physically renovate it.[17] Despite this, the IACHR regretted that “the measures adopted have not been focused on the creation of community-based services.”[18] This was particularly worrisome “considering that most of them continue living at the institution because no support is available to them in the community.”[19] A study carried out in 2013 by a DRI mental health expert in collaboration with Federico Mora medical professionals and social workers that was submitted to the IACHR found that 75% of the patients in the Federico Mora institution could leave immediately and be easily reintegrated to the community if they had the necessary support.[20] According to staff, the patients did not need to be at the hospital due to psychiatric reasons, but remained there because they have nowhere else to go.[21] The patients at Federico Mora have nowhere else to go because the State has failed to create community services and supports for them, including access to housing in a community setting, mental health services in outpatient facilities, rehabilitation, and job training.[22] Failure to create community services is in violation of Article 19 of the CRPD, which guarantees the right of persons with disabilities to live in the community with equal opportunities to others, and enshrines the obligations of State Parties to create the necessary services to make this possible.[23] This failure on the side of the State has also resulted in a violation of the right to personal liberty and personal integrity, recognized in Articles 14 and 17 of the CRPD respectively, for people with disabilities detained in Federico Mora. If there were adequate support in the community, they would not remain in the institution and would not continue to suffer violations to their rights. It is therefore crucial that the IACHR is calling on the State to create community services:

“Because of the lack of community-based options for the patients of the Federico Mora Hospital to receive the necessary services and treatment outside the institution, the IACHR recommends that the State guarantee community living for these persons, by creating and establishing community-based services. For this purpose, the Commission urges the State to adopt, among other ones, the following measures: a) expeditiously define a strategy for the de-institutionalization of persons with disabilities, with a timeline, sufficient resources and specific evaluation measures; b) ensure the participation of persons with disabilities, directly and through the organizations representing them, in the design and implementation of said strategy, and c) allocate sufficient resources for the development of support services.”[24]

Recognizing that in the context of a precautionary measure, in order to fully guarantee the fundamental rights of persons with disabilities who are detained in institutions, the State must create community services and fully reintegrate them into society. This is a very important step towards advancing the rights of people with disabilities in the region. It is no longer enough to improve conditions inside an institution, but rather States must take action to deinstitutionalize and reintegrate the people to the community in order to truly protect their most basic rights to dignity and life. In this recognition, there is an underlying acknowledgement that institutions are inherently dangerous and, as long as a person with a disability is detained in an institution, his or her fundamental rights remain at risk. This acknowledgment is not new to the IACHR as the Commission has already recognized the inherent dangers of institutions for children stemming from the way they operate. According to a report by the United Nations Children’s Fund (UNICEF) and the IACHR titled “The right of girls and boys to a family. Alternative care. Ending institutionalization in the Americas”:

“Violence in institutions is the result of a number of factors associated with the normal operation of these institutions, such as the precariousness in sanitary and security conditions of the facilities, overcrowding, insufficient staff to provide adequate care to the children, social isolation and limited access to services, the implementation of disciplinary or control measures that involve violence, the use of force or treatments that, themselves, constitute a form of violence, such as unnecessary psychiatric medications, among others.”[25]

All of these factors are present in many institutions for adults with disabilities, including Federico Mora. Since Guatemala invested millions of dollars renovating the facility, DRI has continued to monitor the conditions in the institution and, for the treatment and experience of the patients remains virtually unchanged. People with disabilities are still languishing on the floors of the facility, the patients are still overmedicated, still suffer physical abuse from staff, and, most importantly, are still segregated from society. The IACHR 2017 report continued to advocate for the rights of persons with disabilities to live fully integrated in the community, recognized by Article 19 of the CRPD, and for the deinstitutionalization of children and adults in Guatemala and in the region. While Article 19 of the CRPD does not make specific reference to deinstitutionalization, its provisions indicate that it is required. The requirement that State parties ensure that persons with disabilities have access to community services that support their social inclusion and “prevent isolation or segregation from the community”[26] is incompatible with persons continuing to be placed in institutions.[27] The Committee on the Rights of Persons with Disabilities (CRPD Committee) has repeatedly expressed “its concern about the institutionalization of persons with disabilities and the lack of support services in the community,”[28] and it has recommended implementing support services and effective deinstitutionalization strategies in consultation with organizations of persons with disabilities.[29] In addition, it has called for the allocation of more financial resources to ensure sufficient community-based services.[30] DRI has also filed a case before the Inter-American Human Rights System (IAHRS) on behalf of the people with disabilities detained at Federico Mora.[31] If it reaches the Inter-American Court on Human Rights (Inter-American Court), it would be the first case on the right to community integration in the region. The American Convention on Human Rights (ACHR) does not recognize the right to community integration per se; however, the Convention must be interpreted in light of international standards, including the CRPD.[32] Article 24 of the ACHR enshrines the right to no discrimination. DRI’s position is that segregation through institutionalization is one of the most severe forms of discrimination. The Federico Mora case serves as an opportunity for the State of Guatemala to guarantee the rights of persons with disabilities detained in institutions by starting a long overdue deinstitutionalization and reintegration process in the country. This case is part of a broader effort of DRI in the region towards full recognition of the right of children and adults with disabilities to live in the community, through the use of the IAHRS.[33] For the IAHRS, this case continues to represent an opportunity to recognize the right of all people with disabilities to live in the community, with equal opportunities to others, in accordance with Article 19 of the CRPD. The IACHR is already taking steps in this direction. Last year, in another historic move, the IACHR finally created a Disability Unit, recognizing the increasing importance of disability rights in the region and the need to oversee, protect and guarantee the rights of this, until now, neglected population. [1] Inter-American Commission on Human Rights, “Situation of Human Rights in Guatemala” (December 31, 2017), available at http://www.oas.org/en/iachr/reports/pdfs/Guatemala2017-en.pdf. [2] United Nations Convention on the Rights of Persons with Disabilities (CRPD), Article 19, available at http://www.un.org/disabilities/documents/convention/convoptprot-e.pdf. [3] BBC, “Inside the ‘world’s most dangerous’ hospital,” (December 2014), available at http://www.bbc.com/news/magazine-30293880. [4] Disability Rights International has worked in over 40 countries for the past 25 years, see www.driadvocacy.org. [5] Disability Rights International, “Application for precautionary measures in favor of the 334 people with mental disabilities interned in the Federico Mora Hospital, in Guatemala, Guatemala” (October 2012), p. 2, available at https://www.driadvocacy.org/wp-content/uploads/DRI-Guatemala-Precautionary-Measures-FINAL.pdf. [6] Id. [7] ONU, “Report from the Special Rapporteur on Torture and other Cruel, Inhuman and Degrading Treatment, A/HRC/22/53 (Feb. 1, 2013), Juan E. Méndez, para. 63. [8] Eric Rosenthal, Laurie Ahern, “When Treatment is Torture: Protecting People with Disabilities Detained in Institutions.” Human Rights Brief 19, no. 2 (2012): 13-17. [9] Disability Rights International supra nota 6. [10] Organization of American States, “Mandate and Functions of the Commission,” available at http://www.oas.org/en/iachr/mandate/functions.asp. [11] See Rules of Procedure of the Inter-American Commission on Human Rights, art. 25 (approved by the Commission at its 137th regular period of sessions, held from October 28 to November 13, 2009, and modified on September 2, 2011). [12] See IACHR, Second Report on the Situation of Human Rights Defenders in the Americas, § 432 (Dec. 31, 2011), available at http://www.oas.org/en/iachr/defenders/docs/pdf/defenders2011.pdf. [13] Disability Rights International, supra note 6, p. 40. [14] Inter-American Commission on Human Rights, “PM-370-12 Patients at the Federico Mora Hospital, Guatemala,” available at http://www.oas.org/en/iachr/decisions/precautionary.asp. [15] Id. [16] Inter-American Commission on Human Rights, “Situation of Human Rights in Guatemala” (December 31, 2017), available at http://www.oas.org/en/iachr/reports/pdfs/Guatemala2017-en.pdf para. 467. [17] Id. para. 460. [18] Id. para. 467. [19] Id. para. 468. [20] Id. [21] Disability Rights International, “Application for precautionary measures in favor of the 334 people with mental disabilities interned in the Federico Mora Hospital, in Guatemala, Guatemala” (October 2012), available at https://www.driadvocacy.org/wp-content/uploads/DRI-Guatemala-Precautionary-Measures-FINAL.pdf. [22] Harvard University, “Health and Human Rights Resource Guide: Introduction to Disability and Human Rights” available at https://www.hhrguide.org/2014/03/21/disability-and-human-rights/. [23] Convention on the Rights of Persons with Disabilities, Article 19. [24] Inter-American Commission on Human Rights, “Situation of Human Rights in Guatemala” (December 31, 2017), available at http://www.oas.org/en/iachr/reports/pdfs/Guatemala2017-en.pdf para. 469. [25] UNICEF, IACHR, OAS, The Right of Girls and Boys to a Family. Alternative Care. Ending Institutionalization in the Americas, OEA/Ser.L/V/II. Doc 54/1 (2013), para. 11. [26] Convention on the Rights of Persons with Disabilities, Article 19. [27] Parker C, A Community for All: Implementing Article 19 – A Guide for Monitoring the Implementation of Article 19 of the Convention on the Rights of Disabilities (Open Society Foundations, Dec 2011), available at http://www.opensocietyfoundations.org/sites/default/files/community-for-all-guide-20111202.pdf. [28] CRPD/C/ESP/CO/1, paras. 35-36; CRPD/C/CHN/CO/1, para. 26; CRPD/C/ARG/CO/1, para. 24; CRPD/C/PRY/CO/1, para. 36; CRPD/C/AUT/CO/1, para. 30; CRPD/C/SWE/CO/1, para. 36; CRPD/C/CRI/CO/1, para. 30; CRPD/C/AZE/CO/1, para. 29; CRPD/C/ECU/CO/1, para. 29; CRPD/C/MEX/CO/1, para. 30. [29] Ibid. [30] CRPD/C/CHN/CO/1, para. 26; CRPD/C/AUT/CO/1, para. 31; CRPD/C/SWE/CO/1, para. 36. [31] Disability Rights International, “DRI files international case to protect children and adults detained in Guatemala’s dangerous Federico Mora institution” (October 29, 2014) available at https://www.driadvocacy.org/dri-files-international-case-to-protect-children-and-adults-detained-in-guatemalas-dangerous-federico-mora-institution. [32] American Convention on Human Rights, Article 29. [33] DRI has another case in Guatemala, “Hogar Seguro Virgen de la Asuncion” on children detained in an abusive institution, and one in Mexico, “Casa Esperanza” on adults with disabilities abused in a private institution that received government funding.