Section 10 - Protection from torture and cruel, inhuman or degrading treatment

A person must not be—   

(a) subjected to torture;or   

(b) treated or punished in a cruel, inhuman or degrading way; or  

(c) subjected to medical or scientific experimentation or treatment without his or her full, free and informed consent

 

 

The prohibition on torture and inhuman and degrading treatment is primarily a negative obligation, that is, it requires public officials to refrain from torture. It does, however, include some positive elements that require governments to take steps to prevent the occurrence of torture and inhuman and degrading treatment, and to make appropriate inquiries into claims that it has occurred. Some suggestions as to the types of steps that need to be taken to fulfil the positive obligation are outlined below in the section on Measures to Improve Compliance.


What is torture?

At the international level, torture is defined in the Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (the Torture Convention) in the following terms:


‘…the term “torture” means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.’


As this definition makes clear, for an act to amount to torture, not only must there be a certain severity in pain and suffering; the treatment must also be intentionally inflicted for a prohibited purpose such as to obtain a confession, and must be inflicted ‘by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity’ to amount to torture.66


The purpose requirement is interpreted broadly – under most circumstances a public authority will be prohibited from inflicting severe pain or suffering on people. The few exceptions to this rule will generally involve the administration of medical or emergency treatment (for example, administering a very painful medical procedure or rescue carried out in difficult and dangerous circumstances, in which the pain is inflicted for the benefit of the person on whom it is inflicted). When the patient is capable of giving consent, the rules relevant to consent (see What is full, free and informed consent'? in this section) also apply to such treatment.

Importantly, the assessment of whether an act amounts to torture is relative, and depends on factors including the duration of the treatment, its physical or mental effects, and the age, sex, vulnerability and state of health of the victim.67


In international jurisprudence, any evidence obtained through torture has been held to be inadmissible in court, even if that evidence was obtained in another jurisdiction without the complicity of the local government authorities.68


What is the difference between torture and ‘cruel, inhuman or degrading treatment’?


In international human rights law there is a difference between conduct amounting to torture and conduct amounting to ‘cruel, inhuman or degrading treatment’.69


Although any form of ‘cruel, inhuman or degrading treatment’ will violate s. 10, the special stigma of torture attaches only to deliberate ill treatment causing very serious physical or mental pain or suffering. In other words, the threshold of severity for torture is extremely high.70 Conduct not meeting this threshold may, however, amount to ‘cruel, inhuman or degrading treatment’ and breach human rights.


In international human rights law, both types of conduct are absolute prohibitions. This means that they must not occur even in times of public emergency.

What is cruel, inhuman or degrading treatment or punishment?


No specific definitions of ‘cruel, inhuman or degrading’ treatment or punishment are present in either the ICCPR or the Torture Convention. However, the following principles have been established through international jurisprudence regarding the scope of this prohibition:

  • This prohibition is directed at less severe forms of ill treatment than acts amounting to torture.
     
  • Degrading treatment is treatment that humiliates or debases a person. In other words, it is treatment that shows a lack of respect for a person, or diminishes a person’s dignity and causes feelings of fear, anguish or inferiority capable of breaking a person’s moral and physical resistance.
     
  • Ill treatment may involve both physical and mental pain or suffering, however there is no specific requirement that severe pain be inflicted.71
     
  • It is not necessary for the harm to be intentionally inflicted.
     
  • To be within the scope of the prohibition, the harm must be carried out by a public official or other person acting in an official capacity; however, the purpose for which it was carried out is immaterial.


The assessment of whether an act amounts to ‘cruel, inhuman or degrading treatment’ or punishment is relative. The leading case from the EctHR is Ireland v. UK, in which the Court held:


‘ … ill treatment must attain a minimum level of severity if it is to fall within the scope of [the right]. The assessment of this minimum is, in the nature of things, relative; it depends on all the circumstances of the case, such as the duration of the treatment, its physical or mental effects and, in some cases, the sex, age, and state of health of the victim.’ 72


International courts have adopted a low threshold
for the necessary minimum in the case of individuals who are assaulted while in detention.


Examples of ‘cruel, inhuman or degrading treatment’ may include:
 

  • acts carried out pursuant to a disproportionate exercise of powers by police, inspectors or authorised officers, such as an unnecessary and unjustified physical assault;
     
  • inhuman detention conditions (such as prolonged indefinite detention that causes mental illness73);
     
  • a penalty (normally criminal, but potentially extending also to regulatory offences) that is arbitrary, excessive or inhuman; and
     
  • corporal punishment.


Punishment


Section 10 also prohibits ‘cruel, inhuman or degrading’ punishment.


A form of punishment will generally breach this provision if it entails a degree of humiliation and debasement that attains a particular level above any usual level of humiliation involved in punishment.


Once again the assessment is relative and depends on all the circumstances of the case. In particular, it depends on the nature and context of the punishment itself and the manner and method of its execution.

Medical and scientific treatment and experimentation


The Charter prohibits medical and scientific experimentation and treatment without consent. This means that patients who are competent to give consent must be allowed to refuse medical treatment or refuse to participate in a medical experiment. Medical treatment should not be given unless consent is obtained. This requirement broadly reflects the current legal position in Victoria, where the duty to treat a patient does not extend to patients who refuse treatment.74


The meaning of consent is discussed immediately below. It must be ‘full, free and informed’. It must allow the patient to withdraw during the course of the experiment or treatment. This is discussed immediately below.


What is ‘full, free and informed consent’?


Section 10 imposes a requirement that any consent to medical or scientific experimentation or treatment must be full, free and informed.


Under international human rights law, the requirement for consent is usually expressed as needing to be ‘free’. For example, Article 7 of the ICCPR requires that a person must not be subjected to medical or scientific experimentation ‘without his free consent’. In respect of experimentation, the UN Human Rights Committee has observed that vulnerable persons, such as prisoners and persons in detention, should not be subject to any medical or scientific experimentation that may be detrimental to their health, as such persons may not be capable of giving valid consent.75

The Charter however requires that consent by ‘full, free and informed’. The requirements for ‘full’ and ‘informed’ consent were inserted into the Charter to reflect the present requirements for consent outlined in section 5(1) of the Medical Treatment Act 1988 (Vic.).


The Charter requirements mean that consent must be voluntary and the person concerned must have been given sufficient information for an informed decision to be made. This would include information such as the nature of the person’s condition and the treatment options available, including explanations of possible risks, side-effects and benefits of the treatment.


In certain circumstances, patients will be unable to consent. For example, a person who is rendered unconscious in a car accident may need urgent medical attention and will not be able to consent to medical treatment. Undertaking emergency medical treatment in such circumstances is not a breach of the Charter.


If you are vetting legislation or developing a policy or program that provides for medical or scientific treatment to be administered without consent, you will need to review it against s. 7 of the Charter. You should consult Part 2 of these Charter Guidelines for more guidance on s. 7.

 

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66 Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, opened for signature 10 December 1984, 1465 UNTS 85, (entered into force 26 June 1987) article 1.

67 Ibid.
68 A (FC) and others (FC) (Appellants) v. Secretary of State for the Home Department (Respondent) [2005] 2 AC

68; A and others (Appellants) (FC) and others v. Secretary of State for the Home Department (Respondent), [2005] UKHL 71.


69 Note though that within some jurisprudence, acts that were in the past characterised as cruel, inhuman or degrading treatment have been reclassified as torture. See for example A and others (Appellants) (FC) and others v. Secretary of State for the Home Department (Respondent), [2005] UKHL 71 [53].

 

70 See for example the decision of the European Court of Human Rights in Ireland v. United Kingdom (1978) 25 Eur Court HR (ser A); (1979–80) 2 EHRR 25.

71 Report of the Special Rapporteur on the question of Torture to the Commission on Human Rights, UN Doc E/CN.4/2006/6 (23 December 2005) [35].


72 Ireland v. United Kingdom (1978) 25 Eur Court HR (ser A) [162]; (1979–80) 2 EHRR 25 [162].

73 C v. Australia, Human Rights Committee, Communication No. 900/1999, UN Doc. CCPR/C/76/D/900/1999 (13 November 2002).

74 Medical Treatment Act 1988; Re BWV; Ex parte Gardner (2003) 7 VR 487.


75 United Nations Human Rights Committee, General Comment 20, Article 7 (Forty-fourth session, 1992), Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, UN Doc. HRI\GEN\1\Rev.1 at 30 (1994), [7].