A person must not be—subjected to medical or scientific experimentation or treatment without his or her full, free and informed consent.

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CHARTER OF HUMAN RIGHTS AND RESPONSIBILITIES ACT 2006 - SECT 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.

Cruel, inhuman or degrading treatment or punishment

Scope of the right

  1. Section 10(b) is based on art 7 of the ICCPR (Charter of Human Rights and Responsibilities Bill 2006 Explanatory Memorandum, 10; see also European Convention on Human Rights, art 3).
  2. Neither the Charter nor the ICCPR define ‘cruel, inhuman or degrading treatment or punishment’.
  3. ‘Treatment’ has a wide meaning, including ‘behaving or dealing with someone in a certain way, giving medical care or attention or applying a process or substance to someone’. It ‘picks up a broad range of governmental and other action and decision-making towards people, consistently with the fundamental purpose of the right’ (Kracke v Mental Health Review Board (2009) 29 VAR 1; [2009] VCAT 646 [557]).
  4. The Convention against Torture also prohibits cruel, inhuman or degrading treatment or punishment. Since the Explanatory Memorandum for the Charter refers to this convention in assisting with the meaning of ‘torture’, it may also be useful in understanding the meaning of ‘cruel, inhuman or degrading treatment or punishment’, although it does not define that phrase. Under the Convention against Torture, acts which do not amount to torture under the definition in art 1 can amount to cruel, inhuman or degrading treatment or punishment if inflicted by or with the consent or acquiescence of a public official or a person acting in an official capacity (art 16(1)).
  5. Therefore, it is suggested that 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. As with the right against torture, the relevant test for a public official in this context will correlate to the test for a public authority under the Charter.
  6. With respect to punishment, Bell J has suggested that the prohibition under s 10(b) applies directly to courts through s 6(2)(b), even when they are acting judicially and therefore are not public authorities. The punishment aspect of the rights applies to courts because it relates specifically to what courts do in sentencing proceedings (Kracke v Mental Health Review Board (2009) 29 VAR 1; [2009] VCAT 646 [253]). For more information on s 6(2)(b), see 2.5. Direct application of Charter rights to courts.
  7. Similar acts may amount to torture or to cruel, inhuman or degrading treatment or punishment, depending on the circumstances. For example, if a police officer has beaten a detainee with a truncheon for the purpose of extracting a confession, that must be considered torture if it inflicts severe pain or suffering. However, the beating with a truncheon of a detainee walking to or from a cell might amount to cruel, inhuman or degrading treatment (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) [38]).
  8. In order for conduct to amount to cruel, inhuman or degrading treatment or punishment, it need not involve physical pain and can include acts that cause both physical and mental suffering. Treatment or punishment that humiliates or debases a person, causes fear, anguish or a sense of inferiority, or is capable of possibly breaking moral or physical resistance or driving a person to act against their will or conscience, can be cruel, inhuman or degrading (Kracke v Mental Health Review Board (2009) 29 VAR 1; [2009] VCAT 646 [561]; Certain Children by their Litigation Guardian Sister Marie Brigid Arthur v Minister for Families and Children [2016] VSC 796 [160] (‘Certain Children (No 1)’); Certain Children v Minister for Families and Children & Ors (No 2) [2017] VSC 251 [250] (‘Certain Children (No 2)’); see also Keenan v United Kingdom (2001) 33 EHRR 38 [109]; Pretty v United Kingdom (2002) 35 EHRR 1 [52]; Taunoa v Attorney-General (2007) 9 HRNZ 104).
  9. Although it need not be as severe as torture, the standard of ill-treatment in question must reach a minimum level of severity or intensity before it can amount to cruel, inhuman or degrading treatment (Kracke v Mental Health Review Board (2009) 29 VAR 1; [2009] VCAT 646 [559] – [560], [574]; Certain Children (No 2) [2017] VSC 251 [250]).
  10. Assessment of this minimum threshold will depend on all circumstances of the case, including the duration of the treatment, its physical or mental impact, and the sex, age, and state of health of the alleged victim. Where the alleged victim is a child, that fact will be significant (Certain Children (No 1) [2016] VSC 796 [160]-[161]; Certain Children (No 2) [2017] VSC 251 [250]).
  11. Section 10(b) appears to have an internal limitation, as the minimum threshold of severity involves considering all the circumstances. The right will not be engaged unless the use of force is grossly disproportionate to the purpose it seeks to achieve and results in pain and suffering which reaches that minimum threshold of severity (see, eg, Certain Children (No 2) [2017] VSC 251 [250]).
  12. Most instances of s 10(b) engagement will involve deliberate infliction of severe suffering or intentionally harming, humiliating or debasing the victim. The purpose of the relevant conduct is a factor to be taken into account in assessing whether s 10(b) has been breached. However, the absence of deliberate infliction of suffering, harm, humiliation or debasement does not conclusively rule out a breach of the right (Certain Children (No 2) [2017] VSC 251 [250]).
  13. The following examples of cruel, inhuman or degrading treatment are taken from Victorian cases:
    • Mr Davies, a Disability Development and Support Officer employed by the Department of Human Services, dragged CJ, a disabled person in his care, approximately 1.5 metres across a carpeted hallway and in so doing, caused bruising and grazing on his buttocks. Mr Davies’ conduct amounted to cruel, inhuman and degrading treatment (Davies v State of Victoria [2012] VSC 343 [56]).
    • In Bare v IBAC, Bare alleged that a police officer had pushed him against a car in which he had been travelling, handcuffed him and kicked his legs out from under him, causing him to fall to the ground. Bare alleged that as he lay on the ground, the officer pushed his head repeatedly into the gutter using Bare’s hair, chipping his teeth and cutting his jaw in the process. The officer allegedly sprayed Bare with capsicum spray and verbally abused him, including with racial slurs. A second officer allegedly kicked him in the ribs while he was on the ground and handcuffed. Both officers allegedly took Bare to a nearby house where they held his head under water for a long period, telling him to wash his eyes or he would go blind. Bare was taken to a police station, where he was allegedly denied medical assistance for the injuries he had sustained. Although the police conduct was not directly in question in the case, it was acknowledged that, if true, the allegations amounted to a breach of Bare’s Charter rights, including the prohibition against cruel, inhuman and degrading treatment under s 10(b) (Bare v IBAC (2015) 48 VR 129; [2015] VSCA 197 [222] (Warren CJ), [293] (Tate JA), [464], [538], [559] (Santamaria JA)).
    • Certain Children (No 1) concerned the detention of children in the Grevillia Unit of Barwon Prison following its purported establishment as a youth justice remand centre. Garde J found the following conditions, as applying to young people, collectively amounted to cruel, inhuman or degrading treatment: very long periods of solitary confinement in cells formerly used for adult prisoners; uncertainty as to the length of lockdowns; fear and threats by staff; the use of control dogs, including German Shepherds; the use of handcuffs when moving the children to an outdoor area; the noise of loud banging or screaming; the failure to advise the children of their rights or the centre’s rules; the general lack of space and amenities; the limited opportunity for education; and the absence of family visits or religious advisor access (Certain Children (No 1) [2016] VSC 796 [169]; contra Certain Children (No 2) [2017] VSC 251 [241], [256] – [258]).
    • In Certain Children (No 2), authorising the use of OC spray and extendable batons in a youth justice and remand centre was held to engage s 10(b) as the use of these weapons may constitute cruel or inhuman treatment if grossly disproprtionate to the purpose achieved and if the use results in pain or suffering that meets a certain threshold (Certain Children (No 2) [2017] VSC 251 [275]). However, in this case the court considered that these elements had not been made out; therefore, the right in s 10(b) was not limited.

    No procedural right to an independent investigation of a potential s 10 breach

  14. In Bare v IBAC, the applicant argued that the prohibition of cruel, inhuman or degrading treatment or punishment under s 10(b) included an implied procedural right to have credible allegations of such treatment or punishment independently investigated. The Court of Appeal rejected the argument, finding that no such implied right was included in the scope of s 10(b) (Bare v IBAC (2015) 48 VR 129; [2015] VSCA 197 [186]–[215] (Warren CJ) [398]–[458] (Tate JA), [640]–[666] (Santamaria JA)).
  15. The argument was based on jurisprudence relating to the rights contained in the ICCPR and European Convention of Human Rights, and on United Kingdom jurisprudence under the Human Rights Act 1998 (UK). The Court of Appeal found that the right to an effective investigation into an allegation of torture or inhuman or degrading treatment in the relevant international and foreign jurisprudence relied on provisions that have no equivalent in the Charter. These provisions included art 2 of the ICCPR, which obliges States to investigate ICCPR rights breaches, and arts 1 and 3 of the European Convention of Human Rights, which impose obligations on member States to secure the convention rights and giving a right to an effective remedy for their breach respectively (Bare v IBAC (2015) 48 VR 129; [2015] VSCA 197 [186]–[215] (Warren CJ) [398]–[458] (Tate JA), [640]–[666] (Santamaria JA)).

    Reasonable and justified limits under s 7(2)

  16. Under the ICCPR, the prohibition on cruel, inhuman or degrading treatment is an absolute right and the ICCPR contains no general limitations provision. However, the definition of the right includes an element of proportionality:

    [S]ince the enforcement of the law against suspected criminals, rioters or terrorists may legitimately require the use of force, and even of lethal weapons, by the police and other security forces, only if such use of force is disproportionate in relation to the purpose to be achieved and results in pain or suffering meeting a certain threshold, will it amount to cruel or inhuman treatment or punishment. Whether the use of force is to be qualified as lawful … or excessive depends on the proportionality of the force applied in a particular situation. Disproportionate or excessive exercise of police powers amounts to [cruel, inhuman and degrading treatment] and is always prohibited (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) [38]).

  17. Charter rights should be given a broad meaning, and are then each subject to reasonable and justified limits under s 7(2). Under the Charter, the question of proportionality falls within the s 7(2) analysis, rather than when defining the scope of the right (Bare v IBAC (2015) 48 VR 129; [2015] VSCA 197 [160] (Warren CJ), citing Re Application under the Major Crimes (Investigative Powers) Act (2009) 24 VR 415; [2009] VSC 381).
  18. In Certain Children v Minister for Families and Children & Ors (No 2), authorising officers to carry OC spray and extendable batons in an environment that enclosed children imposed a justifiable limit on the rights in ss 17(2) and 22(1) of the Charter; however, the court held there was no limitation of the right in s 10(b). This was because the use of those weapons would only occur as a proportionate response to a safety threat to a person, having regard to their age, and the weapons could not be used to inflict bodily injury or intense physical or mental suffering (Certain Children v Minister for Families and Children & Ors (No 2) [2017] VSC 251 [430], [488])
  19. On the other hand, conduct that limits the right disproportionately in the circumstances, for example, where police use excessive or unnecessary force, may be considered a limitation of the right that could not be justified under s 7(2).
  20. Generally, when a person is under the control of the public authority in question, and therefore powerless against them, the proportionality test in respect of cruel, inhuman or degrading treatment is less likely to be satisfied (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) [40]).

Medical or scientific experimentation or treatment

Scope of the right

  1. Section 10(c) prohibits ‘medical or scientific experimentation or treatment’ of a person without their ‘full, free and informed consent’.
  2. Article 7 of the ICCPR requires that a person must not be subjected to medical or scientific experimentation ‘without his free consent’. The European Convention on Human Rights contains no equivalent of s 10(c).
  3. Section 10(c) goes further than the ICCPR and prohibits treatment without consent as well as experimentation. Although the prohibition against medical treatment without consent is not explicit in the ICCPR, or in the European Convention on Human Rights, it has been considered under the rights relating to inhuman or degrading treatment, liberty and security (Kracke v Mental Health Review Board (2009) 29 VAR 1; [2009] VCAT 646 [548]). The ACT and New Zealand human rights legislation, like the Charter, explicitly prohibit medical treatment without consent.
  4. The meaning of the word ‘treatment’ is broad.
  5. Imposing a condition of bail requiring the accused to obtain medical treatment potentially engages this right (Woods v DPP (2014) 238 A Crim R 84; [2014] VSC 1 [15], [68]–[70]).
  6. A ‘Smoke Free Policy’ implemented by a hospital, and applying to its involuntary patients so that they were effectively forced to reduce or end their consumption of cigarettes, did not engage s 10(c) as it was not a ‘medical procedure based on medical knowledge’. Generally ‘policies introduced for the purpose of improving the health of a group of persons would not fall within the definition of a "medical procedure"’. In comparison, medical treatment would ordinarily include some positive intervention under the supervision of a medical practitioner (De Bruyn v Victorian Institute of Forensic Mental Health (2016) 48 VR 647; [2016] VSC 111 [158]-[167]).
  7. Section 10(c) goes further than requiring consent to be ‘free’. Instead, it requires consent to be ‘full, free and informed’. The ‘full, free and informed’ requirement reflects the Victorian law on consent in the medical context, as contained in s 5(1) of the Medical Treatment Act 1988 (Kracke v Mental Health Review Board (2009) 29 VAR 1; [2009] VCAT 646 [545]; Charter of Human Rights and Responsibilities Bill 2006 Explanatory Memorandum, 11). Under that section, treatment may be refused if the following conditions, among others, are satisfied:

    (b) that the patient's decision is made voluntarily and without inducement or compulsion; and

    (c) that the patient has been informed about the nature of his or her condition to an extent which is reasonably sufficient to enable the patient to make a decision about whether or not to refuse medical treatment generally or of a particular kind (as the case requires) for that condition and that the patient has appeared to understand that information; and

    (d) that the patient is of sound mind and has attained the age of 18 years

  8. The United Nations Human Rights Committee has stated that people who may not be capable of giving valid consent, such as those in detention or otherwise vulnerable, should not be subjected to any medical or scientific experimentation that may be harmful to their health (United Nations Human Rights Committee, General Comment No. 20, Article 7, Forty-fourth session (30 September 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]).

    Cruel, inhuman or degrading treatment?

  9. In the international jurisprudence, extreme treatments of mentally ill patients may amount to cruel, inhuman and degrading treatment and therefore breach s 10(b) of the Charter as well as s 10(c).
  10. This might be the case where the treatment in question reaches the minimal level of severity to engage s 10(b), the cruel, inhuman or degrading treatment aspect of the right, and is not medically necessary and in conformity to accepted standards of medical science (Herczegfalvy v Austria(1993) 15 EHRR 437; see also Kracke v Mental Health Review Board (2009) 29 VAR 1; [2009] VCAT 646 [562]–[563]).
  11. On the other hand, for example, force feeding a mentally ill prisoner who strongly resisted, but who was in danger of dying of starvation, did not amount to cruel, inhuman or degrading treatment under article 3 of the European Convention on Human Rights (Ciorap v Moldova [2007] ECHR 502, Application No. 12066/02; see also Kracke v Mental Health Review Board (2009) 29 VAR 1; [2009] VCAT 646 [562]–[563]).

    Reasonable and justified limits under s 7(2)

  12. Victorian law provides for medical treatment without consent in situations where:
    • Consent is provided by another person, such as a doctor or a parent or guardian, in an emergency or where a person is incapable of giving consent;
    • The procedure is permitted without consent under Divisions 3 – 6 of Part 4A of the Guardianship and Administration Act 1986; or
    • Treatment is given on an involuntary basis under the Mental Health Act 2014.
  13. The Charter does not have any effect on the validity of these laws, should they be incompatible with Charter rights (s 32(3)). However, these limits on s 10(c) may be reasonable and justified under s 7(2) (Charter of Human Rights and Responsibilities Bill 2006 Explanatory Memorandum, 11).
  14. For example, the limits on the prohibition against medical treatment without consent imposed by involuntary treatment orders and community treatment orders under the Mental Health Act 1986may be reasonable and justified under s 7(2), as long as there is compliance with the safeguards in the Act.1 These safeguards include strict criteria for the imposition of such orders, inherent requirements of proportionality of treatment in relation to medical need, and a number of appeal and review processes (see, eg, Kracke v Mental Health Review Board (2009) 29 VAR 1; [2009] VCAT 646 [741], [775]–[784]; MH10 v Mental Health Review Board [2009] VCAT 1919 [19]–[21]).
  15. Similarly, the limitation of s 10(c) imposed by the appointment of a guardian of a person with a disability under s 22 the Guardianship and Administration Act 1986, or the making of a Supervised Treatment Order in respect of a person with an intellectual disability under s 193 the Disability Act 2006, may be justified under s 7(2) (RB [2010] VCAT 532 [451]; AC [2009] VCAT 1186 [118], [146]; see also Re Beth (2013) 42 VR 124; [2013] VSC 189 [201]).
  16. The Guardianship and Administration Act 1986 also sets out a detailed process to be followed when carrying out a medical research procedure on a person with a disability who is incapable of giving consent. Among other safeguards, the Act requires the best interests of the patient to be taken into account (see Division 6 ‘Medical research procedures’). As with other statutory limitations on the s 10(c) right, the inclusion of a number of safeguards in the legislation may assist in justifying the limitation on the right.
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