Submission to UN Committee on Rights of Persons with Disabilities in Indonesia

Human Rights Watch welcomes the opportunity to provide input to the Committee on the Rights of Persons with Disabilities (the “Committee”) ahead of its upcoming review of Indonesia. This submission highlights areas of concern that Human Rights Watch hopes will inform the Committee’s consideration of the Indonesian government’s compliance with its obligations under the Convention on the Rights of Persons with Disabilities (CRPD).

This submission draws primarily on Human Rights Watch’s research on the situation of people with disabilities in home as well as faith-healing centers, residential care institutions, and psychiatric hospitals across Indonesia from 2014-2020. It proposes issues and questions that Committee members may wish to raise with the government of Indonesia.

Human Rights Watch is an independent, international human rights organization that monitors, reports, and conducts advocacy on human rights in more than 90 countries globally. In 2013, Human Rights Watch became the world’s first international human rights organization to create a dedicated team to investigate and expose abuses against people with disabilities around the world, and advocate for change to improve their lives. Partnering with people with disabilities and their organizations across the globe, we work to ensure that the voices of people with disabilities are heard, in line with the disability movement’s motto “Nothing About Us, Without Us.”

Executive Summary

In 2016, Human Rights Watch published a report, “Living in Hell: Abuses against People with Psychosocial Disabilities in Indonesia,” examining how people with psychosocial disabilities (mental health conditions) in Indonesia are subjected to pasung, the practice of shackling by families in their own homes or in overcrowded and unsanitary institutions, against their will, due to widespread stigma and a lack of community-based support, including mental health services.[1] Based on research across the Indonesian islands of Java and Sumatra, Human Rights Watch documented 175 cases of persons with psychosocial disabilities in pasung (shackles) or who were recently rescued from pasung. Human Rights Watch also obtained information about another 200 cases of pasung documented in recent years. It is estimated that at least 57,000 people with real or perceived psychosocial disabilities have been in pasung at least once in their lives. Although the government of Indonesia banned pasung in 1977, families and traditional and religious healers continue to shackle people with psychosocial disabilities.

In 2018, Human Rights Watch published a follow-up report, “Indonesia: Shackling Reduced, But Persists,” documenting the important steps taken by the Indonesian government to end the practice of shackling people with mental health conditions. Human Rights Watch found that the number of people with psychosocial disabilities who are shackled or locked up in confined spaces dropped from nearly 18,800, the last reported figure, to about 12,800 in July 2018, according to Indonesian government data.[2] The change resulted in part from community outreach to over 16.2 million households. Despite this progress, Human Rights Watch found that people with psychosocial disabilities continue to be detained arbitrarily in faith healing centers, social care institutions, and mental hospitals.

In October 2020, Human Rights Watch published a report, “Living in Chains: Shackling of People with Psychosocial Disabilities Worldwide,” documenting the practice of shackling worldwide. In Indonesia, according to government data, approximately 15,000 people with mental health conditions are still living in chains as of November 2019.[3]

Right to Equality and Non-Discrimination (art. 5)

The 1945 Constitution of Indonesia guarantees fundamental rights to all its citizens. Although the constitution does not explicitly refer to persons with disabilities, it lays the foundation for other disability-rights laws and provides the legal basis against discrimination.[4]

Law No. 4 of 1997 elaborates on the rights of persons with disabilities. The focus of the law is on ensuring equal rights and opportunities for persons with disabilities in all aspects of life, including in the fields of education and employment.[5] However, the law also perpetuates stigma and marginalizing persons with disabilities as it defines them as “abnormal” and as “people with physical and/or mental deficiencies so that they can’t ordinarily do their social function.”[6]

In July 2014, the Indonesian parliament passed the Mental Health Act (MHA) to address the country’s dire mental healthcare situation.[7] The law puts the onus on the government to provide access to mental health services from the local level to the national level. The MHA aims to do this by integrating basic mental health into general health services, building human resource capacity, making affordable drugs available, and-most importantly-providing accessible community-based services.[8] The MHA also emphasizes the need for the government to set standards for care and monitor the licensing of mental health facilities.[9] Furthermore, the law includes provisions for raising awareness and reducing stigma and bias against persons with psychosocial disabilities, including encouraging the mass media to project a positive image of persons with mental health conditions.[10]

The MHA attempts to take a rights-based approach and makes explicit patients’ rights, including the right to “honest and complete information on a person’s mental health data,” and to protection from neglect, violence, and exploitation.[11] Most importantly, for the thousands of Indonesians with psychosocial disabilities who spend their lives shackled instead of receiving community-based mental health care, the law provides accountability for abuses, including pasung.[12]

But the MHA contains some problematic provisions. At the outset, it continues to be based on a medical model of disability that is contrary to the principles of the CRPD. Moreover, the law adopts a pejorative view of persons with psychosocial disabilities as people who have “obstacles in carrying out functions as a human being” and may be subjected to “coercive” rehabilitation so they conform to the social environment.[13] The law further allows persons with psychosocial disabilities to be stripped of their legal capacity, including their right to make their own medical decisions.[14] Under the MHA, a psychiatrist can declare a person with a psychosocial disability to be “incompetent” without any judicial review, thereby authorizing a family member or guardian to take medical decisions on their behalf.[15] The MHA further allows medical personnel to subject a person to forced treatment if they “may endanger” themselves or others.[16] Both of these provisions could lead to abusive treatment. Informed consent is a bedrock principle of medical ethics and international human rights law, and forcing people to take medicine or undergo treatment without their knowledge or consent, except when the patient’s life is in imminent danger, violates their rights.[17] The same rule should be applied regardless of whether the person has a disability.[18]

While Indonesia has taken some steps to protect the rights of people with disabilities, further progress is needed to ensure non-discrimination and the equal protection of the law.[19]

Human Rights Watch encourages the Committee to ask the government of Indonesia:

• What concrete steps has the government taken to amend or repeal all domestic legislation that is contrary to the CRPD to ensure that persons with disabilities are guaranteed legal capacity, equal recognition before the law, supported decision-making as opposed to guardianship (plenary and limited), freedom from discrimination, and protection from involuntary detention and treatment?

Human Rights Watch asks the Committee to consider including the following recommendations in its concluding observations on Indonesia:

• Amend the Mental Health Act so as to:
  • Recognize the legal capacity of all persons with disabilities on an equal basis with others and the right to exercise it. Remove clauses that allow for plenary or limited guardianship. Instead, provide accommodations and access to support where necessary to exercise legal capacity.
  • Ban all forms of involuntary treatment, including electroconvulsive therapy (ECT), without the person’s free and informed consent. Explicitly prohibit the use of seclusion and prolonged restraint.
  • Define exceptional circumstances in which a patient may be considered temporarily unable to give free and informed consent and, in such circumstances, immediate medical treatment may be administered as it would be to any other patient without a disability incapable of consenting to treatment at that moment, provided that the treatment is strictly necessary to address a life-threatening condition or a condition of similar gravity.
  • Require admission to public or private mental health institutions to be voluntary, based on free and informed consent of the person concerned.
  • Require that any detention on a non-voluntary basis be possible only following a determination by an independent judicial authority, meeting due process, that is based on behavior that poses imminent actual harm to self or others and not on the basis of the existence of a disability; on an equal basis with others; limited to short periods of time as specified by law, and subject to continual full judicial review.
  • Remove clauses that allow for mandatory mental health evaluations.
  • Mandate a shift from institutional care to providing access to voluntary community-based mental health and other support services for persons with psychosocial disabilities and their families where necessary.
• Further train and sensitize government health workers, mental health professionals, and staff in faith-based and traditional healing centers to the rights and needs of people with psychosocial disabilities.
• Conduct rights-based public information campaigns, especially among alternative mental health service providers and the broader community to raise awareness and empower people with psychosocial disabilities, in partnership with people with psychosocial disabilities, faith leaders, and media.

Shackling of Persons with Psychosocial Disabilities (arts. 5, 14, 15, 16, 19, 25, 28)

In Indonesia, due to prevalent stigma and inadequate support and mental health services, people with psychosocial disabilities can be shackled. In Indonesia, the practice of shackling is known as pasung.

Pasung literally means “tie” or “bind” in Indonesian and is a form of restraint traditionally used in Indonesia, in the absence of access to mental healthcare and other support services, to confine persons with perceived or actual psychosocial disabilities within the home or just outside.[20] It consists of chaining people or locking them in a room, shed, cage, or animal shelter (including chicken coops, pig pens, or goat sheds) for periods of time ranging from a couple of hours or days to years. The nature of shackling means that people live in very restrictive conditions that reduce their ability to stand or move at all.

Shackling affects a person’s mental as well as physical health. A person who is shackled can be affected by post-traumatic stress, malnutrition, infections, nerve damage, muscular atrophy, and cardio-vascular problems.[21] Human Rights Watch found that those in chains had no movement beyond the length of the chains-usually about two meters: they had to bathe, defecate, urinate, and sleep on the spot where they were chained.[22]

Pasung can also be a temporary measure that is used to restrain a person with a psychosocial disability for shorter periods of time while the family goes out to work or when the person is having a crisis. Pasung is typically practiced by families who believe that the relative with the psychosocial disability is possessed by evil spirits, or are worried that the person might hurt themselves or others, or might run away. It is also used in traditional or religious healing centers in Indonesia as a form of restraint, punishment, or “treatment.” In the case of private institutions and healing centers, the management may have an incentive to detain people as they are paid by the family. In many countries, including Indonesia, it is a profitable business.

The Indonesian government officially banned pasung under law in 1977. However, the practice remains to this day. It is estimated that 57,000 people with psychosocial disabilities in Indonesia have been shackled at least once in their lives with approximately 15,000 still living in chains as of November 2019.[23] In many countries, Covid-19 has disrupted basic services, leading to people being shackled for the very first time or returning to life in chains after having been released.

While the government has taken important steps to end shackling, the practice remains to this day. According to Indonesia’s 2018 Basic Health Survey (Riskesdas), 14 percent of people with “serious” mental health conditions have been shackled at least once in their lives and about 30 percent of them have been shackled within three months of the survey.[24]

The UN Special Rapporteur on torture explicitly noted that shackling “unequivocally amount[s] to torture even if committed by non-State actors under conditions in which the State knows or ought to know about them.”[25] In her 2019 report, the UN Special Rapporteur on the rights of persons with disabilities stressed that “States must protect persons with disabilities against home-based deprivation of liberty, including home confinement, shackling and pasung.”[26]

Human Rights Watch encourages the Committee to ask the government of Indonesia:

• What steps has the government taken to enforce the ban on the practice of shackling of people with psychosocial disabilities?
• What steps has the government taken to develop adequate, quality, and voluntary community-based support and mental health services?
• What official data is available on the number of people who are or have been subjected to shackling in Indonesia?
• Have the number of people in pasung increased during the Covid-19 pandemic?

Human Rights Watch asks the Committee to consider including these recommendations in its concluding observations on Indonesia:

• Implement the existing ban on shackling.
• Develop a time-bound plan to shift progressively to voluntary community-based mental health support, and independent living services.
• Ensure that people who have been released from state and private institutions have access to psychosocial support and social services. Children should have access to child psychologists and specialist support services.
• Progressively develop voluntary and accessible community-based mental health support services, in consultation with people with psychosocial disabilities and with the support of international donors and partners. This should include development of psychosocial support services and integration of mental health services in the primary healthcare system.
• Create and carry out a deinstitutionalization policy and a time-bound action plan, based on the values of equality, independence, and inclusion for people with disabilities.
• Undertake community support programs and independent and supported living arrangements for people with psychosocial disabilities, particularly those who have been freed from shackling.
• Improve quantitative and qualitative data collection at the local and national levels on the current number of people shackled, the reasons families continue to practice shackling, and the support or services they would need to discontinue the practice.

I. Women with Disabilities (art. 6)

Women and girls face multiple and compounding forms of disadvantage, discrimination, and abuse due to their disability as well as gender. They are at risk of unique forms of neglect and abuse.

Human Rights Watch documented sexual abuse of women and girls with disabilities by staff in social care institutions and faith-healing centers. Many of these institutions are not set up to protect women and girls despite their vulnerability to sexual abuse. In about half of the institutions and healing centers visited by Human Rights Watch, male staff would enter and exit women’s wards or sections at will or were responsible for the women’s section, including at night.[27] In several healing centers visited by Human Rights Watch, men and women were chained next to each other, again making women more vulnerable to sexual abuse. “When I take a shower, the men, the staff watch me,” said Tasya, a woman with a psychosocial disability living in a healing center in Brebes.[28] “One male staff member touched my vagina this morning. He was doing it just for fun.”[29] Human Rights Watch found no evidence of staff being reprimanded or facing legal action for physical or sexual violence.[30] Those who experience sexual violence encounter many barriers to reporting the abuse safely and confidentially, and are unlikely to access time-sensitive health care, for example to prevent sexually transmitted infections or pregnancy or to access support services.[31]

Human Rights Watch also documented evidence of staff giving women contraception without their knowledge (and so inherently without their consent) in three institutions.[32]

For example, staff members at Panti Social Bina Laras Dharma Guna, a government-run social care institution home to about 125 people with psychosocial disabilities in Bengkulu, explained that they administered contraceptive injections to female residents every three months.[33] Although the male and female dormitories were separated, staff feared that the women would get pregnant because they interact with male residents during the day.[34]

When asked, staff members give residents a basic explanation of what the injection is for but say it is an injection of vitamins if they sense the female resident will resist or refuse. While some female residents who were previously on contraception agree to receive it, others are forcibly administered the contraceptive injection.[35]

Human Rights Watch encourages the Committee to ask the government of Indonesia:

• What concrete measures has the government taken to raise awareness about the rights of persons with disabilities and reduce stigma against women and girls with disabilities?
• What concrete measures has the government taken to monitor institutions of women and girls with psychosocial disabilities?
• How many women and girls with psychosocial disabilities are arbitrarily detained in faith-healing centers, government and private residential care institutions as well as psychiatric hospitals?
• What programs, if any, are available for women and girls with disabilities to obtain information about sexual violence, how to report it, and support services available to them?
• What concrete steps has the government taken to adopt a twin-track approach to including women and girls with disabilities in national legislation, including dedicating specific provisions to their protection and well-being as well as including them in general provisions?

Human Rights Watch asks the Committee to consider including the following recommendations in its concluding observations on Indonesia:

• Collect disaggregated data on women and girls with psychosocial disabilities in institutions across Indonesia.
• Prohibit the administration of contraception without the consent of the individual.
• Earmark financial and other forms of assistance towards support and community-based mental health services. Ensure these programs are gender-sensitive.
• Provide gender and disability-sensitive training to the local police to sensitize them on interacting with persons with disabilities, particularly women and girls with psychosocial disabilities.
• Ensure provision of comprehensive and non-discriminatory health services to women and girls with psychosocial disabilities who have experienced sexual violence.

II. Children with Disabilities (art. 7)

Human Rights Watch documented that children with psychosocial disabilities were subjected to forced medication. As described further below, children with psychosocial disabilities also faced prolonged seclusion and involuntary electroshock therapy (ECT).

In 13 of the 16 institutions that Human Rights Watch visited, people with psychosocial disabilities, including children, were routinely forced to take medication or subjected to alternative “treatments” such as concoctions of “magical” herbs, vigorous massages by traditional healers, Quranic recitation in the person’s ear, and baths.[36] Staff in these institutions admitted that they hold people down to put the pills in their mouth or force-feed them food or drinks laced with medicines.[37] In a number of social care institutions and faith healing centers, there is no separation between adults and children.

Human Rights Watch found that forced seclusion is practiced on a routine basis in the psychiatric hospitals, government-run social care institutions, and one private institution that Human Rights Watch visited.[38] Human Rights Watch documented 22 cases of forced seclusion for durations ranging from a few hours to over a month.[39] In three of the psychiatric hospitals Human Rights Watch visited, newly admitted patients are put in seclusion for observation before psychiatrists diagnose them and assign them to wards.[40] Forced seclusion is also used as a means to calm people down when they are distressed, including for children. Children have separate isolation rooms, located within the children’s ward.[41]

Human Rights Watch encourages the Committee to ask the government of Indonesia:

• How many children with psychosocial disabilities are currently arbitrarily detained in faith-healing centers, government-run as well as private residential care institutions and psychiatric hospitals across Indonesia?
• What concrete steps has the government taken to ban all forms of involuntary treatment, including ECT, without the person’s free and informed consent?
• What concrete steps has the government taken to ensure children are separated from unrelated adults?

Human Rights Watch asks the Committee to consider including the following recommendations in its concluding observations on Indonesia:

• Collect disaggregated data on children with psychosocial disabilities in institutions across Indonesia.
• Ensure regular and periodic monitoring of conditions in residential care institutions where children with psychosocial disabilities are detained.
• Explicitly prohibit the use of seclusion and prolonged restraint, including for children.

III. Right to Liberty and Security of the Person (art. 14)

Human Rights Watch documented many cases of arbitrary detention of persons with disabilities in Indonesia. Human Rights Watch found 65 cases of people arbitrarily detained in mental hospitals, social care institutions, and other NGO-run or traditional or religious centers, and none of those people said they were there voluntarily.[42]

Human Rights Watch encourages the Committee to ask the government of Indonesia:

• What efforts has the government made to ensure the free and informed consent of people held in psychiatric hospitals, social care institutions and faith-healing centers?
• What is the government doing to end arbitrary detention in psychiatric hospitals, social care institutions and faith-healing centers?
• What steps has the government taken to ensure timely discharge of people with psychosocial disabilities from the psychiatric hospital, including cases in the forensic ward and children’s ward?

Human Rights Watch asks the Committee to consider including the following recommendations in its concluding observations on Indonesia:

• Recognize the legal capacity of all persons with disabilities on an equal basis with others and the right to exercise it. Remove clauses that allow for plenary or limited guardianship. Instead provide accommodations and access to support where necessary to exercise legal capacity.

IV. Freedom from Torture or Cruel, Inhuman or Degrading Treatment or Punishment (art. 15)

According to the UN Special Rapporteur on torture, forced psychiatric intervention on the grounds of disability alone is a form of torture and ill-treatment.[43]

Human Rights Watch has documented the use of involuntary forms of treatment, including physical restraints, prolonged seclusion, and involuntary electroshock therapy (ECT), all of which can constitute torture on the basis of disability.

1. Prolonged Seclusion

People with psychosocial disabilities face a range of abuses in community settings as well as in institutions, including prolonged detention, unsanitary conditions, neglect, involuntary treatment, and violence.

In all the social care institutions Human Rights Watch visited, staff and residents explained that persons with psychosocial disabilities are put in forced seclusion as a form of punishment or to discipline them.[44] For example, residents can be put in seclusion if they do not follow orders, try to escape, fight, or engage in any form of sexual activity.[45] In social care institutions, there is no separation between adults and children in seclusion rooms. In one social care institution, if no seclusion rooms are free, two people, including a child and an adult, can be put in the same seclusion room with limited or no oversight.[46]

All six hospitals Human Rights Watch visited used physical restraints as a means to contain or calm down persons with psychosocial disabilities, including children, during a crisis, a fight, or if they resisted while being injected with medication.[47]

2. Use of Physical Restraints

Physical restraints ranged from strips of cloth, cloth jackets, or sponge padded restraints.[48] They were used either on the hand or feet, or both, and tied to the bed to immobilize the person.[49] The duration of restraint varied from 10 minutes to a week.[50] In some cases, persons with psychosocial disabilities were released to go to the bathroom or eat.[51] If the psychiatrist determined that the person had not calmed down enough, then they were obliged to go to the toilet in the bed or in a diaper and spoon-fed their meals.[52]

The UN Special Rapporteur on torture has stated that, “there can be no therapeutic justification for the prolonged use of restraints, which may amount to torture or ill-treatment”[53] and has noted that restraint of an individual with psychosocial disabilities for even a short period of time may constitute torture and ill-treatment.[54]

3. Involuntary Administration of ECT

In Indonesia, ECT is usually prescribed as a last resort for patients who are unresponsive to oral medication and who have suicidal tendencies, severe depression, tendency, catatonia, bipolar disorder, or acute psychosis.[55] Prior to ECT administration, patients’ fitness for anesthesia is checked and they are made to fast overnight.[56] ECT was administered in four out of the six mental hospitals that Human Rights Watch visited. In Bengkulu Mental Hospital, ECT is administered in its “modified” form (that is, with anesthesia, muscle relaxants, and oxygen), but in Grogol, Bogor, and Lawang Mental Hospitals ECT is administered “unmodified” (without anesthesia, muscle relaxants, and oxygen).[57] In Grogol Mental Hospital, ECT is also administered to children.[58]

Former UN Special Rapporteur on torture, Manfred Nowak, has noted that unmodified ECT is an unacceptable medical practice that may constitute torture or ill-treatment, as it may cause adverse effects such as cognitive deficits and loss of memory.[59]

The World Health Organization Resource Book on mental health, human rights and legislation states that ECT should only be administered in its modified form (with anesthesia and muscle relaxants) and with informed consent. In addition, there are “no indications for the use of ECT on minors [defined as anyone below 18], and hence this should be prohibited through legislation.”[60]

Human Rights Watch encourages the Committee to ask the government of Indonesia:

• What concrete steps has the government taken to ban all forms of involuntary treatment, including ECT, without the person’s free and informed consent?

Human Rights Watch asks the Committee to consider including the following recommendations in its concluding observations on Indonesia:

• Ban all forms of involuntary treatment, including ECT, without the person’s free and informed consent and in all circumstances involving children.
• Explicitly prohibit the use of seclusion and prolonged restraint. Define exceptional circumstances in which a patient may be considered temporarily unable to give free and informed consent and, in such circumstances, immediate medical treatment may be administered as it would be to any other patient without a disability incapable of consenting to treatment at that moment, provided that the treatment is strictly necessary to address a life-threatening condition or a condition of similar gravity.