What are external experts and why do NPMs work with them?
An external expert is an individual who is recruited by the NPM to support specific NPM activities and who is neither staff nor a member of the NPM. External experts are most often recruited to support the NPM in conducting visits to places of deprivation of liberty, although some also contribute to other NPM functions (e.g. legal advice). This definition does not include the modality by which an ombuds institution has concluded a formal agreement with civil society organisations to fulfil its NPM mandate (Ombuds plus model), as per an official act or decision upon (or following) designation of this institution as NPM.
NPMs’ broad mandate under the OPCAT requires a diversity of expertise to effectively monitor the specificities of different detention settings, understand and address the causes of the problems faced by persons deprived of their liberty, including those belonging to groups in situation of vulnerability. Achieving multi-disciplinarity within the NPM is, however, a challenge, in particular for smaller NPMs who do not have sufficient internal human resources but sometimes also for well-resourced NPMs. To respond to this challenge and fulfil their broad OPCAT mandate, NPMs may need to call on experts with varied sets of skills. Such expertise can include specific professional or technical skills (in fields as diverse as law, medicine, psychiatry, psychology, sociology, anthropology, nutrition or architecture), specific experience on certain types of places or knowledge on particular groups in situation of vulnerability that will enhance the visiting team’s capacity to better understand the needs of those groups (e.g. women, LGBTI persons, children, persons with disabilities).
Another form of expertise integrated by some NPMs is the personal “lived experience” (or “experts by experience”, for example former users of psychiatric services). The presence of these experts is valuable in that their lived experience sheds a different light on the aspects to be considered when monitoring and places the visiting team in a better position to build trust with the persons deprived of liberty that it may interact with during visits.
Which requirements should external experts meet?
The OPCAT (article 18) requirements of independence, capabilities and professional knowledge for NPM staff and members should equally apply to external experts who will officially represent the NPM. NPMs should be aware that conflicts of interest may arise when external experts exercise other functions outside their NPM work that can interfere with their duties as NPM experts. Such conflicts of interest can manifest themselves in different ways, for example when a medical doctor is reluctant to question the practices of his/her peers during a visit or when an expert (lawyer, NGO expert) has access to confidential information during an NPM visit that could also be of use for his/her activities outside the NPM. The NPM should ensure that all external experts are bound by and respect the confidentiality of the information gathered during NPM visits. If an external expert regularly conducts visits to or provides services in places of detention outside the NPM, it should be aware that their presence in the NPM visiting team could create confusions with regard to their role and lead to questioning of the NPM working methods and future findings by the detention authorities, due to the perceived lack of independence of this expert.
When working for the NPM, the role of external experts should prevail over their main profession or function exercised outside the NPM. It is therefore essential to make clear in the experts’ contracts (and/or in a code of conduct applicable to those working for the NPM), that they must prioritise the NPM’s interest when acting on its behalf and that they do not act in their individual capacity, nor do they represent the other organisation/institution they work for outside the NPM.
What is the status of external experts (rights and obligations)?
External experts are neither NPM members nor NPM staff. This external status means that they do not have the same level of responsibilities and, in particular, that they should not conduct visits on their own (i.e. without the presence of an NPM staff or member). During visits, external experts should, however, be considered on an equal footing with NPM members and staff and be formally accredited beforehand with the authorities to ensure their access to the places being visited.
Newly recruited experts should, despite their external status, receive an initial training that includes an introduction to the NPM mandate and internal regulations, and how these apply to external experts. This initial training should ensure a common understanding of the NPM mandate and therefore a coherent approach in external experts’ contribution to the NPM work. In addition to this initial training, it is important that external experts be also involved in continuous trainings offered to NPM staff and members so that they are up-to-date on developments that are relevant when monitoring with the NPM.
External experts should, in addition, be entitled to privileges and immunities in the course of their NPM duties, both during and after their collaboration with the NPM, as required under OPCAT article 35 for NPM members. Those include, in particular, immunity from personal arrest, detention and seizure of personal baggage as well as immunity from seizure or surveillance of papers and documents. These immunities should be specified in experts’ contracts with the NPM, in order to avoid confusions as to when these privileges and immunities apply and to ensure that external experts do not misuse their NPM status. It should be clear that experts enjoy NPM-related immunities and privileges only when acting on behalf of the NPM and not when performing other functions.
Finally, NPM external experts also have obligations that should be specified from the recruitment stage and spelled out in their contract. These include maintaining confidentiality of all information accessed while working for the NPM - the information that must remain privileged - and in particular the fact that, as specified in the OPCAT (article 21.2), personal data cannot be published or used without the consent of the person concerned.
What is the role of external experts?
In practice, most NPMs recruit external experts to participate in visits to places of deprivation of liberty, one of the central components of NPM mandates, during which they may be given specific tasks based on their field of expertise and competences. Their role shall, however, go beyond the participation in the visit itself. To ensure a common and coherent approach within the visiting team, external experts should always be integrated in the preparation of the visit. This will also allow the NPM to benefit from external experts’ knowledge from the initial stages of visit planning (e.g. in identifying issues to be examined and relevant sources of information on specific aspects to be looked at during the visit). Experts should therefore be informed from the early stage of recruitment that their responsibilities will include an active involvement and participation in preparatory meetings, which require investing time prior to visits.
After the visits, external experts should also be able to contribute to internal debriefings and to the drafting of the visit report. Experts can be asked to draft some relevant sections of the report, to send written inputs based on their observations during the visits and/or to review and comment on the different versions of the report. Whatever the modality chosen for the drafting process itself, external experts should have the opportunity to comment on the draft report of a visit they participated in.
What are the different modalities of working with external experts?
Different modalities exist with regard to how NPMs select and work with external experts. Independently of how experts are being recruited, it is important that the NPM establishes and publishes clear rules for their remuneration. Experience shows that, to guarantee adequate participation of external experts, it is recommended to remunerate them for the tasks they undertake (visit, report writing, participation in meetings) and at the very least reimburse them for the expenses related to their NPM work (including travel, accommodation and food).
Below is a broad categorisation of some of the existing modalities of NPMs’ work with external experts:
- A pool of individual experts, usually contracted following a public call, and available, as part of the pool, to perform different NPM functions during a specific time period.
- Individual experts recruited on an ad hoc basis to accompany visits (outside of any official pool).
- Individual experts recruited as per an agreement between the NPM and an association or organisation (e.g. professional association, NGO, etc.) but who will be working in their individual capacity
In all instances and whatever the modality of recruitment, it is important for the NPM to ensure proper induction/training of all external experts, adequate participation prior to and after the visits, as well as formal accreditation beforehand with the authorities to ensure external experts’ access to the places of detention.