31
Convention. For this purpose there are hospitals run by the State which coexist with private hospitals.
The State cannot completely absolve itself of its responsibility by delegating its obligations in this
sphere to private bodies or individuals. [...] The Court finds that, similarly, in the present case the
State remained under a duty to exercise supervision and control over private psychiatric institutions.
Such institutions, […] need not only a license, but also competent supervision on a regular basis of
whether the confinement and medical treatment is justified.”33
103. The Inter-American Court considers that any person who is in a vulnerable
condition is entitled to special protection, which must be provided by the States if
they are to comply with their general duties to respect and guarantee human rights.
The Court reaffirms that not only should the States refrain from violating such rights,
but also adopt positive measures, to be determined according to the specific needs of
protection of the legal person, either because of his personal condition or the specific
situation he is in,34 such as his disabilities.
104. In this regard, the States should take into consideration that the groups of
persons who live in adverse conditions and have few resources, such as those who
live in extreme poverty, children and teenagers who are at risk, and indigenous
communities, are at a higher risk to suffer from mental disabilities, as was the case
of Mr. Damião Ximenes-Lopes. The link between the disability, on the one hand, and
poverty and social exclusion, on the other, is direct and significant. In view of the
foregoing, among the positive measures to be adopted by the States are those which
are necessary to prevent all types of disabilities which may be prevented, and to give
the persons with mental disabilities the preferential treatment which is most suitable
to their condition.35
105. Persons with disabilities are often discriminated by reason of their condition,
whereby the States must take legislative, social, educational, occupational, and any
other type of action as may be necessary as to prevent all types of discrimination
associated with mental disabilities, and to promote the full integration of such
persons in society.36
106. Regarding the safeguard of life and personal integrity, it is necessary to
consider that the persons with disabilities, who live in psychiatric institutions or are
undergoing treatment therein, are particularly vulnerable to torture and other types
of cruel, inhuman or degrading treatment. The vulnerability inherent to people with
mental disabilities is compounded by the high degree of intimacy which is typical of
the treatment of psychiatric illnesses, which makes these persons more susceptible
to mistreatment when they are hospitalized (infra para. 129).
107. In the context of health care institutions, whether they are public or private
centers, the staff in charge of the care of patients exercise a strong control or
33
Cf. European Court of Human Rights, Case of Storck v. Germany, Application No. 61603/00,
judgment of June 16, 2005, p. 103.
34
Cf. Case of Baldeón-García, supra note 4, para. 81; Case of the Sawhoyamaxa Indigenous
Community, supra note 4, para. 154; and Case of Pueblo Bello Massacre, supra note 25, para. 111.
35
Cf. Inter-American Convention on the Elimination of All Forms of Discrimination against Persons
with Disabilities, approved in Guatemala City, Guatemala, on June 7, 1999, Article III (2); and Committee
on Economic, Social, and Cultural Rights, General Comment No. 5, “Persons with Disabilities.” UN
Document E/1995/22 (1994), para. 9.
36
Inter-American Convention on the Elimination of All Forms of Discrimination against Persons with
Disabilities, supra note 35, Preamble and Article III (1).