Aged Care and the Convention Against Torture: ‘It Was Like Guantanamo Bay’

Guest post by Claire Loughnan and Steven Caruana. Steven Caruana is the Specialist Advisor – Immigration and OPCAT for the Australian Human Rights Commission. Steven has monitoring and policy expertise across multiple sectors including mental health, corrections, disability, aged care, and immigration detention. Claire Loughnan is a Senior Lecturer in Criminology in the School of Social and Political Sciences at the University of Melbourne. Her research expertise is on border control and border punishment, and on the modes, practices and experiences of confinement in places of ‘care’ and control, ranging from detention and prisons, to places usually associated with ‘care’. 

This is the fourth of five posts that summarise individual chapters from A Research Agenda for a Human Rights-Centred Criminology, edited by Leanne Weber and Marinella Marmo and published in the series Palgrave Critical Studies in Human Rights and Criminology. You can read the introduction here.

A comparison between immigration detention and aged care might seem unlikely. However, the opening sentence of the title of this blog – drawn from a statement by a family member of an aged care resident in Australia’s Oakden Aged Care Facility regarding evidence of abuse there  - points to some disturbing parallels across diverse places of confinement, whether purposed for care or punishment. In this blog post, we explore the need for stronger monitoring for human rights compliance in residential aged care facilities as one step towards the protection of human dignity, and the prevention of abuse in such institutional settings.  

The description above echoes those made of Australia’s immigration detention system. Such comparisons  between places of care and those of punishment have also made been elsewhere. Both examples point to the limited access to basic human rights protections in sites that are arguably situated along a continuum of violence.  Despite a focus in this blog series on the erosion of rights at the border, the indistinction between such sites affirms Agamben’s claim that the ‘normal’ order of things shows how the inside and outside ‘secretly institute each other’. Whether situated within spaces of exception or not, these parallels – marked by segregation, control and neglect - illustrate the convergence of the normalisation of the exception, within the ‘normal’ legal order.

Accordingly, while there is long-standing evidence of physical and sexual abuse, medical neglect and exposure to oppressive and inhumane conditions in offshore and onshore refugee processing sites, both in Australia and beyond. Mistreatment and institutional violence in Residential Aged Care Facilities is also clear.  Evidence presented to Australia’s Royal Commission into Aged Care Quality and Safety , amounted to an unequivocal breach of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment of Punishment (hereafter referred to as ‘the Convention’). External, independent monitoring  is especially important given that such sites are often hidden from public view: how can rights be protected when oversight is so limited, and when those confined often lack a voice?

The imperative for such a preventive approach to human rights breaches in RACFs is potentially enabled through the monitoring processes under the Optional Protocol to the Convention against Torture (OPCAT). The OPCAT treaty establishes a two-tiered system of international and national visits to places where people are deprived of their liberty. States parties to the OPCAT are obliged to establish one or several independent National Preventive Mechanisms (NPMs) with the power to undertake regular unannounced visits to all places of detention, conduct private interviews with all detainees, and make recommendations to relevant authorities with the aim of preventing torture and improving detention conditions. OPCAT also enables periodic visits from the Subcommittee of Prevention of Torture (SPT).

The Independent Expert on the Enjoyment of all Human Rights by Older Persons has reported that ‘older persons are exposed to heightened risks of violence, abuse and neglect when they are forcibly placed and deprived of their liberty’. The limited mobility of many residents in RACFs combined with the high usage of restrictive practices means that many residents are effectively detained in what might be appropriately described as 'civil detention'– irrespective of whether they are in a locked unit – and at high risk of torture or cruel, inhuman or degrading treatment. Social care settings are therefore an obvious place of detention  to be monitored under the OPCAT; proactive OPCAT monitoring provides the best guarantee that residents will be treated with humanity and dignity.

What does this mean for criminology? In focusing on human rights as a way to  counter institutional violence, we draw on a long history of criminological engagement with state harms. As we reflect in our recent publication, Criminologists have a responsibility towards those who endure state and institutional violence, and whose human rights are routinely breached.

Advocating for a robust monitoring system under the OPCAT potentially offers much stronger guarantees than inquiries and commissions which tend to be retrospective, despite the recommendations that they might propose. The OPCAT monitoring system has been described by the Special Rapporteur on Torture  as ‘one of the most important shields we have against the abhorrent practice of torture and other ill-treatment’. Yet we end with a caution: while human rights are often turned to as a source of hope to counter institutional violence, the state also has the power to deny them.  A research agenda for a human-rights based criminology must thus also ‘engage robustly with those who are directly impacted by living in closed sites, including aged and disability care, as well as with the limits of law and of human rights, and with how such limits manifest within carceral and confined sites.’ This is especially important for those who are made vulnerable by the  conditions in which they are confined.  It is clear that the capacity to enjoy human rights depends on much more than the willingness of those in power to enforce appropriate laws that deliver human rights: it is also dependent on public and civil support. For human rights to make a difference, a culture of respect and relationality is required that is too often  directly undermined in places of confinement and control, whether in aged care, or in immigration detention.

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