COMMITTEE ON THE RIGHTS OF PERSONS WITH DISABILITIES

8th PERIOD OF SESSIONS/ EVALUATION OF ARGENTINA

EXECUTIVE SUMMARY

STATUS OF DISABILITY IN ARGENTINA – 2008/2012

Article 4: General Obligations[1]

As regards progress in regulations from 2008 to date, although there have been certain isolated steps forward and proposals for advancement by the Argentine State, the harmonization of laws is yet to be achieved. Moreover, no Global Strategy or Action Plan for disability has been implemented either locally or nationally. Regarding the Disability Certificate, although steps have been taken towards streamlining evaluation criteria (in favor of the ICF[2], closer to the social model), some jurisdictions are not even exhibiting any willingness to adopt it. In addition, there are very few evaluating boards in some provinces, resulting in limited access to basic services. There is a critical need to carry out nationwide dissemination campaigns on the benefits of the Unique Disability Certificate and how to access it.

Regarding basic disability services, Law N° 24.901 enacted in 1996 (which is not applied in 4 jurisdictions because they have yet to adhere to it) has created the Unique Basic Services System for PWD, which covers various aspects of life but still relies on medical criteria to enforce non-medical rights (such as education) whether the person uses union healthcare or private healthcare services.[3]

Article 6: Women with Disability[4]

Women with disability do not enjoy equal employment opportunities, their salaries are usually lower, and proportionately the number of women with disability who reach management positions is much smaller. In addition, there are obstacles for access to health services both due to unavailability of accessible devices and technologies (such as gynecological gurneys) and due to a lack of information in accessible formats in sexual and reproductive healthcare programs. Moreover, the Argentine State has not included the perspective of women with disability in its public policies relating to the prevention of human trafficking and violence against women. Social participation and the involvement of a professional team to develop and implement this type of program are of utmost importance.

Article 8: Awareness -Raising[5]

Although there are a few budding campaigns or plans for campaigns taking into account PWD as a target population for certain general public policies and/or designed to raise awareness about the rights of PWD, there has been no progress in campaigns promoting a non-stereotypical view of persons with disability. The media and every public instance are a platform for cultural references to PWD, deeply rooted in outdated welfare models and models which deny any capacity or even humanity, exemplified by an incident in 2010 where a court in the Province of Neuquén equated PWD to animals[6]. For this reason, there is a critical need for the State to promote media campaigns with impact at several levels including public officers, media, and families, among others.

Article 9: Accessibility[7]

Although there is an extensive development of laws on disability which may be considered legally comprehensive, there is a void regarding evaluation, monitoring, and accountability. In addition, there is a lack of coordination between the national, provincial and municipal levels, creating barriers for the creation of accessibility. And, when accessibility is indeed present, in some cases it is not what persons with disability actually need. PWD are hardly ever consulted.

Most school buildings are inaccessible, excluding persons with disability from the education system, and there are still no plans for the implementation of adjustments for physical accessibility, and accessibility to transport, communications, and work environments.

Article 12: Equal Recognition Before the Law[8]

The Current Regulatory Regime is in Violation of the CRPD

The Argentine Civil Code (hereinafter “CC”), which regulates the exercise of legal capacity of all persons, establishes a substitution of the will of persons with psychosocial or intellectual disabilities by a guardianship who is appointed by a judge through a judicial determination of insanity.[9] Thus, the Code stipulates that prior verification and determination by a competent court, “persons with dementia resulting from mental disease who are incapable of exercising control over themselves or managing their estates shall be legally disqualified” (CC, Arts. 140 and 141).[10] As a result, the person is appointed a guardian, who takes the place of the legally disqualified person in the exercise of his/her rights.[11]

For its part, National Mental Health Law No. 26,657 (hereinafter “NMHL”) incorporated article 152 ter to the CC, which restricts the discretionary powers of the courts to limit legal capacity; as courts are required to specify which functions and actions are encompassed in the disqualification so as to have the lowest possible impact on the personal will of the individual.[12] Although such advances are positive, they are inconsistent with the CRPD.

The inconsistency between the national legal system and the international obligations of the state has been acknowledged by the Argentine government in its report submitted to the CRPD Committee. In that regard, Argentina mentioned the hierarchical status of the CRPD and the need to adapt the CC to the convention.

A New Civil Code in Question

Congress is currently debating a new bill for reforming, updating, and unifying the Civil and Commercial Code. The bill contains advancements in the issues of legal capacity and includes the possibility of establishing support systems for exercising legal capacity. However we are concerned that it maintains full disqualification in some cases and gives the courts absolute discretion as to which regime applies to each case.[13]

Article 13: Access to Justice[14]

Lack of Specific Actions

Despite the ability to resort to judicial or administrative powers in equal conditions as everyone else, there are no specific or simplified legal actions available to persons with disabilities for reporting cases of disability-based discrimination, including remedies when denied reasonable claims. This specific type of discrimination is not contemplated in any norms. In its response to the list of issues, the Argentine state addressed this problem by citing the CRPD[15], which is insufficient for meeting the state’s positive obligations (that include sanctioning specific laws, per art. 4.1.a of the CRPD).

Access to Justice and Legal Capacity

Both procedural as well as practical regulations in the legal system perceive people with intellectual or psychosocial disabilities as “objects of protection” instead of subjects of law. This means that their will remains unheard in most court cases and, as a result, they are often subjected to serious violations of their rights and these violations are not investigated. The logical result of these restrictions to the exercise of legal capacity is inequality in accessing justice and the violation of procedural guarantees in cases that involve this collective group, regardless of whether or not there is a formal court decision declaring their legal disqualification.[16] Although the Argentine State has reported the creation of the National Program of Assistance for Persons with Disabilities in Their Relations with the Administration of Justice (ADAJUS),[17] for the purpose of complying with the obligation to ensure effective access to justice for PWDs,[18] we have no knowledge of any actions within the framework of the tasks assigned to the program or its territorial scope.

Another important obstacle is lack of technical advocacy of persons deprived of their liberty at psychiatric institutions. In this respect, the National Mental Health Act establishes in article 22 the right to technical advocacy in the framework of involuntary hospitalization, aimed at allowing the voices of persons with psychosocial or intellectual disabilities, who are deprived of their liberty at psychiatric institutions, to be heard and for their rights to be defended. To date, the only known government entity to implement this norm is the Argentine National Public Defender's Office in the jurisdiction of the City of Buenos Aires.[19]

Judicial Response: Hospitalized Persons without Access to Justice and Uninvestigated Deaths

The structural crisis that characterizes the administrative justice system's inability to provide effective legal protection to a group that has suffered historical segregation and silencing naturally results in nonexistent or ineffective investigation in cases of torture and violent deaths at psychiatric hospitals. Over the last few months, several deaths occurred throughout José T. Borda Neuropsychiatric Hospital, in the City of Buenos Aires, which were never duly investigated. In most of these deaths, government response has been to shut down the wards where they occurred and to neglect any form of investigation that could shed light on the facts and lead to the ultimate sanction of their perpetrators, while revealing how patients with complex diagnoses are treated.[20]

Article 14: Liberty and Security of the person[21]

Institutionalization in “Homes”

Law No. 24,901 and Decree No. 762/97, stipulating the creation of the Single System of Basic Services for Persons with Disabilities, and Decree No. 1193/98 (Regulating the), create the necessary legal and institutional structure for its implementation. Resolution No. 705/00 of the Argentine National Ministry of Health gave effectiveness to the Basic Framework for the Organization and Operation of Basic Care Facilities of the Single System of Basic Services which governs the organization and operation of facilities and care services for PWDs,[22] which was later modified through resolution No. 1328/06 of that same Ministry.[23] Section 4, paragraph c) of Resolution No. 1328 defines aid services as any service aimed at covering the essential basic needs of PWDs, such as housing, feeding, and specialized care. The norm refers to “small homes,” “residencies,” and “homes” to exemplify these services. In actuality, these are all lock-up places where PWDs (mainly persons with intellectual disabilities, although sometimes including persons with sensory or physical disabilities) [24] are unable to make free decisions, as they lack effective access to alternatives that would allow them to exercise their right to an independent lifestyle and to be part of the community (Art. 19).

Government Response to Persons with Psychosocial Disabilities: Segregation in Psychiatric Hospitals [25]

The NMHL establishes a minimum level of fundamental rights for persons with psychosocial and intellectual disabilities, in accordance with the standards contained in the CRPD, thus obligating the Argentine state to aim mental healthcare services toward the community and to work together with other sectors to ensure housing, labor inclusion, and inclusive education, as necessary alternatives that can help to overcome hospitalizations at psychiatric institutions.[26]

Nearly two years after the sanction of the National Mental Health Act, this law has yet to be regulated and there are serious difficulties facing its enforcement. The government's response to persons with psychosocial and intellectual disabilities still consists of long-term hospitalization at psychiatric hospitals and lack of necessary mechanisms for monitoring confinement, current levels of abuse and abandonment require immediate action by the Reviewing Body stipulated in the NMHL, for which regulation is paramount. Argentina's current community-based mental health services are insufficient and incipient, and thus inconsistent with applicable human rights. The budget allotted to mental health has traditionally been restricted to psychiatric asylums, which currently house approximately 25,000 people.[27] We have no knowledge of a national plan for transferring resources from psychiatric asylums to community-based mental health services. We also have no knowledge of sustainable plans for inter-sectoral work between different healthcare, labor, housing, and education organizations for creating inclusion-based alternatives for persons with psychosocial disabilities, as per the stipulations of article 19 of the CRPD.

General Context Surrounding Deprivation of Liberty of Persons with Psychosocial Disabilities in Neuropsychiatric Penitentiary Units

The Argentine National Criminal Code (hereinafter “NCC”) stipulates that in cases in which a person is legally disqualified, but in the opinion of the court meets “dangerousness” criteria, he/she may be deprived of his/her liberty and the measure can only cease if the potential “danger” disappears.[28] In addition, the confinement conditions that characterize psychiatric prisons that house this part of the penitentiary population and the absence of adequate inter-disciplinary care the meets the person's needs pose an increased risk to the mental health of patients. In most cases, the broadness of this criminal norm enables such measures –mainly deprivation of liberty– that are based on a prognosis of future danger for undetermined periods of time, thus violating the legality principle stipulated in constitutional norms.[29] In many cases, as a result of this vagueness and broadness, persons are deprived of their liberty through the above described security measures for periods of time that exceed the maximum sentence stipulated by law for their criminal conduct.[30]

On May 7 of this year, Presidential Decree No. 678/2012 established the creation of a Commission for the Development of the Reform Bill for Updating and Integrating the NCC which constituted an opportunity for discussing the normative appropriateness of the charge of disqualification under the standards of the CRPD, with a cross-cutting view of Art. 12.

In actuality, most PSDs who have had problems with the law are detained in “special” Units of the Penitentiary Service, where individuals undergoing psychiatric treatment are specifically held. In this framework, PSDs in the criminal system are subject to a dual coercive logic: an asylum within a jail.

In the scope of the Federal Penitentiary Service the Argentine Inter-Ministerial Mental Health Program (PRISMA) was created, which establishes mechanisms for evaluation (or admittance), treatment, and social inclusion (or discharge). Although this is a superior model in terms of the protection of rights of persons with intellectual or psychosocial disabilities, the situation of those who are not admitted into PRISMA is alarming, as they are still subjected to the coercive logic of the criminal system. On the other hand, the confinement conditions and treatment of women are diametrically worse than those of men. In provincial jurisdictions, psychiatric units are dramatically different than those in the federal system. Thus, for example, maximum security neuropsychiatric units in the township of Melchor Romero (La Plata, Province of Buenos Aires) are overcrowded and, mainly, with legally disqualified individuals who should be dealt with under the civil sphere. In addition to being victims of abuse and living under unsafe and unsanitary conditions, the only treatment they receive is pharmaceutical therapy which is generally administered as a means of control.

Article 15: Freedom from torture or cruel, inhumane or degrading treatment or Punishments[31]