Monday, 16 December 2019

UWA PPI Director Shamit Saggar examines the suitability of complaints-based monitoring mechanisms for the successful detection and, importantly, prevention of instances of torture and ill-treatment. He suggests that there are unique characteristics to the phenomenon of torture that need to be taken into account in the design of a preventative mechanism.

Australia is in the process of implementing the Optional Protocol to the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (OPCAT), which it ratified in 2017. The most pressing aspect of this is the development of an independent monitoring system. That system will have to access all relevant places where harm may be taking place, such as detention facilities (prisons, immigration, psychiatric, etc.) and settings we don’t instinctively think of, such as care homes for the elderly (the Australian Royal Commission in this area reinforces the need now to look more laterally in where and how the Convention may apply).

The form of monitoring is meant to be preventative, hence the establishment of a National Preventive Mechanism (NPM). Behind this sit periodic visits and inspections to be carried out with minimal notice by the UN’s Subcommittee on the Prevention of Torture (SPT). There is a lot of coordination that will need to take place in Australia’s efforts to get ‘OPCAT-ready’, not least in determining which array of national and state level bodies should be assigned the responsibility of being part of the NPM. The task of detecting and combatting torture and other types of ill-treatment is heavily dependent on civil society organisations. It is a point emphasised by the SPT, and Steven Caruana’s blog in this series sets out a compelling case for why partnership is vital for the task of the NPM, citing the case of Hungary as best practice.

One point is widely shared by all the players – namely, that there is little support for relying on a traditional complaints-based approach to the challenge. There are lots of reasons but the most compelling must be that in many of these settings there is no reason to believe that those suffering harm are able to make a complaint to begin with. Even the most modern and accessible system of lodging complaints would have to ask whether the likely respondents could be confident of putting forward their story. The enormous stress involved in being an immigration detainee might easily get in the way. Suffering neglect in a shabbily run care home would likely be an insurmountable barrier.

All of this means that the NPM has to take its own view on where and when harm is most concentrated, and then organise its own resources to reflect that assessment. By analogy, in many regulatory fields, independent watchdogs often make boasts about their risk-based credentials. In other words, they are signalling that they do not believe that the harms they are set up to address are evenly or randomly distributed, and that they look beyond each complaint that is made to them or to a redress body. Having investigated each complaint on its own merits, they ask whether there any wider implications that arise. In other words, they are interested in the subtle characteristics of where and when the potential for harm is most likely to crystallise. This involves joining the dots from past complaints records, profiling the institutions and places where people are vulnerable, and relying on third party tip-offs.

The care home industry is one example of this and closer scrutiny begins to reveal that particular providers that operate in this space, such as those that are unprofitable and keen to shave costs blindly, create the most difficulties. Equally, some residents in these homes are located much further away from their loved ones than others, so that personal observations and concerns based on residents’ own ingrained characters get missed. In addition, the employment practices of some homes that have high staff turnovers may also be cause for concern. All of these factors, and many more, can be put together to create a picture that can be used to monitor, inspect and probe further. This then delivers a watch-list based on ongoing intelligence about any new concerns. Further, evidence from near-misses (inspections that have uncovered tell-tale lead indicators of deteriorating conditions for residents) helps to fill in the gaps. Whistle-blowing is another vital tool in the armoury.

(We should not under-estimate how difficult it can be to collect robust evidence relating to torture or abuse. By its very nature, enormous gaps in knowledge remain which defy even the more modern detection techniques.)

If this is an attractive way for the NPM to develop, it is only fair to point out that a traditional complaint-based system will (and I would argue, should) wither in due course. This could be seen as bad news for an individual who has suffered harm and now seeks a remedy because it will all depend on whether the NPM recognises this individual case as located within an environment of high risk. At the very least, if it does not, then the case will be investigated more slowly than others. Risk-based ways of working mean that resources are allocated to align with risks.

But it is important to consider inspections in the context of the totality of preventative arrangements. Therefore, when individual complaints or cases that constitute prima facie complaints arise, what should an NPM do? The answer is not to investigate these directly but to refer these for investigation to an adequate body, such as the Ombudsman or the police – a point underlined by Manfred Nowak, based on his considerable experience as former UN Special Rapporteur on Torture and as independent expert leading the UN Global Study on Children Deprived of Liberty. The focus for the inspectors is on systemic risks, so that they can give a proper judgement about preventing torture and abuse.

There is another challenge to consider. This is the extent to which torture, abuse, cruelty and other forms of degradation are seen as normal in certain contexts. Whether we like to admit it or not, there are settings in which these harms persist precisely because no-one raises an eyebrow. The ‘blind-eye’ syndrome means that outrages are justified and normalised. The NPM therefore has an educative and promotional agenda that will find smart ways to influence ‘fence-sitters’ (people with concerns but who are unsure how to react) to speak up. This means penetrating the circle of tacit peer-backing that often sits at the heart of abuse.

Acting to prevent any kind of detriment brings us to tricky and sometimes unpopular choices. We can be purely reactive, wait for harm to occur and then prompt victims to come forward and presumably, offer some form of redress. In the case of torture and abuse, this does not look remotely credible. So we must approach things differently: make the best of limited resources and gather evidence to inform where the biggest risks exist and identify who is most vulnerable.


UWA Public Policy Institute