Guachalá Chimbo v. Ecuador

In July, the Inter-American Court of Human Rights released its Guachalá Chimbo & Others v. Ecuador decision, its first involving the psychiatric hospitalization of a person with disability since 2006. Remarkably, 2006 saw both the Court decide Ximenes Lopes v. Brazil and also the United Nations General Assembly adopt the Convention on the Rights of Persons with Disabilities (CRPD). Although Ximenes Lopes was handed down before the CRPD, in some ways that decision felt much older than the United Nations’ most rapidly negotiated human rights treaty. Indeed, the Ximenes Lopes Court leaned on the United Nations’ 1991 Principles for the Protection of Persons with Mental Illness and the Improvement of Mental Health Care to discern the international legal protections owed persons with psychosocial disabilities. While these principles expressly allowed for certain practices customary in mental health contexts, such as involuntary hospital admissions and substitute decision-making on the basis of disability, the CRPD repudiated them.

Thus, Guachalá Chimbo presented the Court an important post-CRPD opportunity to modernize its disability rights jurisprudence. The Guachalá Chimbo Court made good use of this opportunity to grapple with the CRPD with regard to informed consent in health care contexts. However, the Court likely missed the forest for the trees by failing to address how segregated mental health services create the conditions for abuse and ill-treatment it had recognized in Ximenes Lopes.

The Court fiercely defended the right of persons with disabilities to receive treatment on the basis of informed consent, finding that the hospital staff failed to make sufficient efforts to obtain Guachalá Chimbo’s consent to admission and impermissibly relied on his mother’s consent. Even though Guachalá Chimbo was experiencing epileptic seizures every half hour leading up to his admission to the psychiatric hospital, the Court dismissed the State’s claim of an emergency exception to its duty to obtain patients’ informed consent. Instead, the Court held that States’ duty to obtain informed consent nevertheless applies in crisis situations. Citing the CRPD Committee’s General Comment No. 1 and the 2018 annual report of the UN Special Rapporteur on the Rights of Persons with Disabilities, the Court elaborated that if “after significant efforts” it is not possible to discern an individual’s will and preferences, then States must determine what the individual would have wished, instead of simply relying on another’s consent, what the CRPD Committee has styled a “best interpretation of will and preferences.”

While the Guachalá Chimbo Court helpfully reinforced the CRPD’s application to individual instances of coercive care, it declined to address the underlying systemic issues throughout the region that cause mental health care to be concentrated in restrictive, segregated settings. An amicus curiae brief submitted by ESCR-net, in which HPOD participated, urged the Court to recognize that institutionalized care discriminates against persons with disabilities and to direct States to adopt affirmative measures to ensure that persons with disabilities can receive services in community-based settings. The amici argued, “in practice, segregated facilities isolate persons with disabilities from their natural settings, put their human rights at risk, and frequently are the most restrictive measure available.” The amici noted the “qualitatively different treatment” that persons with disabilities receive in segregated settings, reminding the Court of its findings in Ximenes Lopes that persons with disabilities who are forced to seek mental health treatment in segregated settings paradoxically become “more susceptible to abuse when they are admitted.” Unfortunately, the Guachalá Chimbo Court’s informed consent protections alone will likely be insufficient to correct the “intrinsic imbalance in power between hospitalized patients and the persons having authority over them” the Court had observed in Ximenes Lopes.

Hezzy Smith, Esq. is Director of Advocacy Initiatives at the Harvard Law School Project on Disability.