Aged care, detention and OPCAT

ABSTRACTCivil society advocacy was an important factor contributing to Australia’s ratification of the Optional Protocol to the Convention Against Torture (OPCAT). OPCAT requires States to establish a domestic detention monitoring framework and receive occasional visits from a United Nations (UN) subcommittee, with the aim of preventing ill treatment in closed environments. But what role can and should civil society play post ratification? Civil society has significant experience and expertise working in closed environments. This includes through work providing support, services and programmes for persons deprived of their liberty, and advocating for rights protection or seeking remedies or redress for rights violations. In particular, civil society can bring expertise about vulnerable groups and their experiences in detention, which can enhance the capacity of National Preventive Mechanisms (NPMs) to prevent ill treatment. With 88 OPCAT State Parties at the time of writing, there are many international examples of civil society participation in the OPCAT framework, including civil society’s direct involvement in the NPM. To realise OPCAT’s full potential, Australian Federal and State/Territory governments and potential NPMs must recognise civil society as an essential stakeholder. Civil society must also seize the opportunity that OPCAT presents to actively engage in OPCAT implementation.

ABSTRACTNew Zealand was an early adopter of the Optional Protocol to the Convention Against Torture (OPCAT) and its unique preventive approach. It is now over 10 years since New Zealand established its multi-body National Preventive Mechanism (NPM) to fulfil its obligations under the OPCAT. This paper provides a critical analysis of the extent to which New Zealand’s NPM has improved the protection of human rights of those deprived of their liberty. The paper unpacks domestic legal and policy settings and assesses them against New Zealand’s binding international obligations. In particular it considers the extent to which New Zealand’s NPM has influenced change in the legislative framework, conditions in places where people are deprived of their liberty, restrictive practices, and the treatment of vulnerable populations deprived of their liberty. It further considers current limitations on the OPCAT mandate and how this impacts on New Zealand fulfilling its binding international human rights obligations. The paper identifies both good practice and lessons learned for States who are considering ratifying OPCAT, or who are in the process of establishing NPMs.

According to the Optional Protocol to the Convention against Torture (OPCAT), national preventive mechanisms (NPMs) are required to conduct regular visits to detention centres and provide recommendations to authorities for preventing torture. Following its ratification of OPCAT, Nigeria established its NPM, known as the National Committee Against Torture (NCAT), in 2009 and enacted the Anti-Torture Act of 2017, which prohibits the use of torture in Nigeria without any exceptions. To comply with OPCAT requirements and create an effective NPM, Nigeria dissolved the 2009 NCAT and inaugurated a new NCAT in 2022. In 2024, the National Human Rights Commission (NHRC) was designated as the NPM, with a specialised department tasked with preventing torture. This raises an important question: If the previous two NCATs as an NPM could not comply with OPCAT requirements, how could we be sure that the NHRC, with its specialised department, will effectively prevent torture as prescribed by OPCAT? To address this question, this article investigates the previous NCATs’ compliance with OPCAT requirements. It then analyses the NHRC as the newly designated NPM and interrogates its ability to meet OPCAT standards. The article concludes that several factors, such as the lack of adequate legal documentation establishing the 2009 and 2022 NCATs, insufficient resources, lack of functional independence, and limited funding, played a role in non-compliance. However, the NHRC already has an established structure and the capability to investigate human rights violations, albeit not with a preventive focus. Therefore, while the designation of the NHRC as the NPM through the 2024 order, along with its specialised department, meets specific standards, the clarity regarding the structure, funding, and unannounced visitation of this specialised department remains uncertain.

The UK government ratified the United Nations Optional Protocol to the Convention Against Torture (OPCAT) in 2003. The OPCAT expressly requires that each state signatory should designate a National Preventive Mechanism (NPM). NPMs are national bodies that have the mandate to conduct regular visits to places of detention as well as make recommendations to the state to improve the situation of the persons deprived of their liberty. This article examines the international and national mechanisms for monitoring those deprived of their liberty in social care and psychiatric institutions, with particular reference to the current practice of the Care Quality Commission (CQC) monitoring body in England. The article examines the role of the UN Subcommittee on the Prevention of Torture (SPT) in monitoring at an international level and analyses the key elements for an effective national monitoring body (NPM) in this context, drawing on OPCAT, the recommendations of the SPT and the experience of the CQC and its predecessor, the Mental Health Act Commission. The article maintains that there is a need to safeguard procedural standards, such as a regular system of unannounced visits, operational and financial independence from the state, and a blend of appropriate expertise of visiting teams, including service user involvement. The article concludes that there is potential for the UN SPT and the Convention on the Rights of Persons with Disabilities (CRPD) Committee to develop guidance for monitoring bodies on implementing substantive standards, to ensure that the rights of patients detained in such settings are adequately protected and promoted.

Since the UN Optional Protocol to the Convention against Torture (OPCAT) came into force in 2006, the institutional landscape governing monitoring in European prisons has become increasingly complex. Already subject to regular monitoring visits by the European Committee for the Prevention of Torture (CPT), the majority of Council of Europe Member States are now also States Parties to the OPCAT. Accordingly, these States Parties may be subject to periodic visits by both the CPT and the UN Subcommittee for the Prevention of Torture (SPT). Under OPCAT, States Parties must also designate or establish their own independent National Preventive Mechanisms (NPMs), which undertake regular visits to all places of detention across the state. The result is that prisons in the majority of Council of Europe States now receive three levels of external scrutiny. The present chapter provides the background context, explaining the ECPT (European Convention for the Prevention of Torture) and OPCAT frameworks before exploring in greater detail the practical implications of this more complex area and in particular the relationships between the different monitoring bodies.

This chapter assesses implementation of the United Nations Optional Protocol to the Convention against Torture (OPCAT), and National Preventive Mechanism (NPM) designation processes and outcomes specifically, in Latin America. It shows that NPM designation processes have varied considerably in the region between countries depending on two sets of factors: (i) the degree of official and institutional resistance to designation of effective monitoring; and (ii) pre-existing capacity on the part of domestic structures tasked with monitoring duties. The empirical analysis of four country case studies (Argentina, Costa Rica, Peru and Mexico) demonstrate that even in situations of high levels of state resistance high-capacity candidate agencies can have a powerful, even decisive, impact. Interestingly, strong capacity can co-exist with resistance and can mitigate the pernicious effects of resistance to designation of potentially effective NPMs. These findings are important for any assessment of the potential of NPMs and monitoring of detention facilities more generally. Not only do they highlight key factors that shape domestic processes of treaty implementation during the post-ratification phase, but they also put the spotlight on the central political and institutional conditions that determine the effectiveness of monitoring institutions to protect the rights of persons deprived of liberty.

Standards for the protection of people deprived of liberty have been developed over the last 60 years, but have evolved and progressed steadily since the adoption of the UN Convention Against Torture in 1984. Although the revision in 2015 of the UN SMR for the Treatment of Prisoners targeted only certain key areas of the rules, there was a significant progression in universal protections surrounding healthcare, vulnerable groups, discipline, the investigation of deaths and torture, and access to legal representation, among other areas. It is now an established practice that the prevention of torture and other forms of cruel, inhumane or degrading treatment (CIDT) or punishment goes well beyond the consideration of individual complaints of physical or psychological ill-treatment. Places of detention in each state should be governed by national laws, regulations, and standards of practice. The Optional Protocol to the Convention against Torture (OPCAT) established both international and national monitoring mechanisms for the prevention of torture.

This project, that is funded by the Open Society Insitute (OSI), focuses on the treatment and possible abuse of vulnerable persons in healthcare settings. Background and description of the project The Optional Protocol to the Convention Against Torture (OPCAT, 2006) requires that States Parties establish one or more independent national preventive mechanisms (NPMs) that will conduct visits to places were persons are deprived of their liberty. NPMs must be in a position to visit both traditional and less traditional places of detention. As a result such visits may also concern (private) hospitals, psychiatric and other health care institutions, and facilities in which persons are deprived of their liberty. NPMs may as such also visit a wide range of healthcare institutions and pay attention of the issue of ‘torture in healthcare settings’. The Netherlands, which ratified the OPCAT on 28 September 2010, has designated six existing national inspectorate bodies, including a body on youth care and a body on healthcare. These bodies are coordinated by the Inspectorate for Justice and Security. Given the recent designation of these bodies, no information has been made available publicly on the functioning of these bodies in light of their duties under OPCAT. It is therefore necessary to research whether the designated bodies in the Netherlands meet the expectations imposed upon them by the OPCAT. In our project we aim to list the challenges and analyze actual and potential weaknesses in the Dutch health system when it comes to the prevention of torture and other types of cruel, inhuman, or degrading treatment or punishment in healthcare settings. Against this background we will scrutinize the functioning of the NPMs in the Netherlands and suggest improvements to overcome the weaknesses and gaps in the functioning of the Dutch NPMs with respect to their work in non-traditional places of detention related to healthcare. After finalizing our analysis of the Netherlands, we aim to compare this situation with that of surrounding countries (the United Kingdom, Germany, Denmark and Spain).

The genesis of the National Preventive Mechanism is examined in the article. The fact that the chosen model of “Ombudsman +” involves a combination of the Ombudsman’s Institute, along with representatives of non-governmental organizations and members of the public is found out. The implementation of the Ombudsman + model envisages that not only the Ombudsman himself will be involved in the process of monitoring the human rights observance in places of detention, but also members of the public who will be able to visit places of detention after receiving certain rights from the Ombudsman and check human rights there and then report to the central office, in order to fix the problems or provide recommendations to local (or central) executive bodies for improving the situation. Emphasis is placed on the fact that the establishment of the National Preventive Mechanism should in no way duplicate the functions of bodies such as the Prosecutor’s Office or the National Police. Proposed changes will help to improve the proper implementation of the National Preventive Mechanism: improvements of the legislation governing the activities of places of detention; changes in the standards of providing certain social services (applies to social places of detention); creation of bodies to monitor compliance with standards in places of detention; creation of new monitoring mechanisms to monitor compliance with standards during the stay of people in places of detention; changes in the attitude of society towards people who find themselves in places of detention and promoting the policy of “openness” of such institutions, etc. Key words: Commissioner for Human Rights of the Verkhovna Rada, National Preventive Mechanism; rights and legitimate interests; convicts; prisoners; “Ombudsman +”.

The problem of the use of torture and violence by employees of places of detention against persons who are there has been relevant in Russia for more than a decade. The purpose of the work is to substantiate the need to create legal conditions for increasing the level of legality in the activities of administrations of places of detention and the effectiveness of protecting human rights and freedoms in such places. There are few scientific works on this problem in Russia. The research methodology is based on general scientific and special methods of scientific knowledge, including dialectical, logical, systemic, formal legal and statistical. It is concluded that an increase in the level of legality in the activities of administrations of places of detention is possible as a result of the signing and ratification by the Russian Federation of the Optional Protocol to the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, which provides for the creation on the basis of the principles enshrined in it a new unified preventive system for monitoring the observance of human rights in places of detention — the National Preventive Mechanism (NPM). The scientific and practical significance of the study lies in proposing a conceptual change in the existing system of state and public control over the observance of law in places of detention in Russia.

ABSTRACTHM Chief Inspector of Prisons for England and Wales is mandated under domestic law to visit and report on prison conditions and the treatment of prisoners. The Inspectorate's detailed monitoring work provides valuable and authoritative insights into individual prison establishments as well as the overall conditions in prisons and the treatment of prisoners in England and Wales. In spite of this, the implementation of HMIP's recommendations remains low. Furthermore its ability to make recommendations on wider regulatory and policy matters to government departments and relevant authorities remains limited in the absence of a more robust statutory framework. The article argues that HMIP's ability to influence prison reform could be bolstered by making fully operational its mandate under the Optional Protocol to the Convention against Torture (OPCAT) as well as by strengthening the collective UK National Preventive Mechanism (NPM).

The paper discusses the issue of national preventive mechanisms established by states in the performance of duties imposed by the Optional Protocol to the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, adopted by the United Nations. The purpose of the study is to present specific challenges related to the establishment and functioning of institutions responsible for monitoring places of detention at the national level. These challenges stem from the unique nature of the two-pillar system of prevention established by the OPCAT, and the dualism of national preventive mechanisms, which are rooted in both international and domestic law. The author’s research is based on an analysis of four significant aspects: the wide margin of appreciation granted to states in establishing national preventive mechanisms, the obligation to guarantee the independence of mechanisms, granting access to all places of detention, and cooperation with the Subcommittee on Prevention. The study includes examples of established national preventive mechanisms and an analysis of the first general comment to OPCAT, adopted in 2024.

Australia has recently ratified the Optional Protocol to the Convention against Torture (OPCAT) in order to improve the oversight of Australia’s prisons and detention centres, following major human rights violations exposed in them in 2016. Ratification offers an opportunity to appraise the effectiveness of monitoring and oversight in Australia, and the limitations of human rights protections in the Australian context. Australia’s prisons and youth detention centres are to be monitored by a network of independent inspecting bodies, which are likely to include existing Ombudsman and human rights bodies. The Office of the Commonwealth Ombudsman has the task of coordinating the new inspection bodies. This article reviews the existing protections of rights in Australia and considers the implications of ratification of OPCAT. The article concludes that implementation will require consideration of the effectiveness of the current bodies monitoring prisons and youth detention and their capacity to take on the role of preventing human rights violations, including their independence from government, as the states and territories decide on the establishment of their National Preventive Mechanisms. Implementation will also require an understanding of Australia’s historical ambivalence towards international human rights engagement and the impact of its federated system.

This study examines the ideological impact of international prison inspectorates on national correctional systems, concentrating on how these bodies influence the balance between rehabilitative and retributive penological philosophies. While their primary mandate is to monitor prison conditions and prevent ill-treatment, inspectorates such as the European Committee for the Prevention of Torture (CPT), the Optional Protocol to the Convention Against Torture (OPCAT) National Preventive Mechanisms (NPMs), and the International Committee of the Red Cross (ICRC) subtly shape penal ideologies through their engagement and recommendations. The research sets out three objectives: to identify the penological philosophies promoted by selected international inspectorates, to analyse their rhetorical and strategic approaches in influencing prison systems, and to assess the tangible impact of these efforts on national policies and prison practices. A qualitative, comparative case study method is used, incorporating content analysis of inspectorate reports and communications, national legislation, and interviews with key stakeholders. Preliminary findings reveal a consistent promotion of rehabilitative and human rights-based approaches by these bodies. The CPT emphasizes normalization and reintegration, OPCAT NPMs focus increasingly on conditions supporting rehabilitation, and the ICRC advocates humane treatment, which underpins rehabilitative ideals. Impacts include legislative reforms, the introduction of rehabilitation programs, and shifts in official discourse. However, these changes vary across countries and are often limited by political, economic, and cultural barriers. The study concludes that international inspectorates, though often operating subtly, contribute significantly to shifting correctional ideologies toward more balanced, rehabilitative models. It adds to penological scholarship by illuminating the mechanisms through which global oversight fosters internal penal reform.

This article discusses the findings of an exploratory study involving semi-structured interviews with a sample of Mental Health Act (MHA) Commissioners. MHA Commissioners are employed by the Care Quality Commission (CQC) in England to monitor patients who are deprived of their liberty under the Mental Health Act 1983 (as amended by the Mental Health Act 2007). The study was designed to examine the impact of the transfer of responsibility of mental health detention monitoring in April 2009 from the Mental Health Act Commission to the CQC. The interviews were devised around the United Nations Optional Protocol to the Convention Against Torture (OPCAT) framework, which provides a useful benchmark for effective monitoring of deprivations of liberty to national inspection bodies (known as National Preventive Mechanisms), such as the CQC. Article 18 of the OPCAT advises a regular system of preventive visits by independent expert monitors, as well focussing on the promotion and protection of human rights. There is paucity of data on the work of MHA Commissioners in England to date and the author was unable to locate any previous studies on the subject. This study is timely and important as the CQC has been heavily criticised following the abuses uncovered at Winterbourne View care home and in the wake of the Mid Staffordshire Inquiry. Consequently, in 2012, the CQC undertook a major strategic review. The findings of this study suggest that, whilst there is some evidence of compliance, the CQC still has some way to go to effectively fulfil its monitoring duties in line with the provisions of the OPCAT.