Estonian mental health law recommendations for reform Mental Disability Advocacy Center, 2007 Introduction The present recommendations are prepared by the Mental Disability Advocacy Center (MDAC) with assistance from the Estonian Patient Advocacy Association. The Mental Disability Advocacy Center advances the human rights of adults and children with actual or perceived intellectual or psycho-social disabilities. Focusing on Europe and central Asia, we use a combination of law and advocacy to promote equality and social integration. MDAC has participatory status with the Council of Europe and is a cooperating organization of the International Helsinki Federation for Human Rights. MDACs vision is for a world that values emotional, mental and learning differences, and where people respect each others autonomy and dignity. MDAC has been working on mental health and human rights issues in Estonia since 2001, and has been advocating for the government to adopt a modern law consistent with Estonias obligations under international law. To a large extent, the analysis below draws on the discussion of the roundtable organised by the Estonian Patients Advocacy Association and MDAC on 12 January 2007 in Tallinn. Both the roundtable and the present recommendations are part of a project funded by the European Commission (Directorate General Justice, Freedom and Security) and Open Society Institute-Budapest. At the roundtable Ministry of Social Affairs officials confirmed that throughout 2007 the Ministry of Social Affairs will hold a serious of public consultations on reform of mental health law and prepare a White Paper (policy recommendations) by the end of the year. MDAC hopes that the present recommendations will provide a useful roadmap for this process. They are designed to highlight human rights problems with the existing mental health legislation (primarily, the Mental Health Act) and help to bring the revised Mental Health Act in line with international human rights standards. MDAC remains available for consultation by government and non-governmental actors alike, and with its Estonian nongovernmental partners will be monitoring progress on mental health reform. MDAC looks forward to notifying its international partners on progress made by the Estonian government. Summary of MDAC recommendations Issue 1 Detention (involuntary institutionalisation) We recommend that the new mental health legislation require the adoption of a set of nation-wide professional regulations to provide psychiatrists with a framework for assessing the severity of a mental illness and dangerousness and ensure the uniformity of such assessments (recommendation 1.1) ensure that courts review the lawfulness of psychiatric detention and that procedural rights of persons whose detention is at issue are fully respected in the course of such reviews (recommendation 1.2) provide that a detained patient has the right to apply for a judicial review of their on-going involuntary placement (recommendation 1.3) strengthen legal guarantees for persons who have been deprived or restricted of legal capacity (persons under guardianship) (recommendation 1.4) ensure the establishment of community-based psychiatric services which will provide a viable alternative to institutionalisation (recommendation 1.5) streamline the existing procedures for detention ensuring, among other things, that the same guarantees apply to any form of involuntary institutionalisation (recommendation 1.6). Issue 2 Use of restraint We recommend that the new law regulate seclusion and physical and chemical restraints in more detail (recommendation 2.1) Issue 3 Treatment We recommend that the new law spell out the elements of the principle of informed consent to treatment (recommendation 3.1) extend the principle of informed consent to persons under guardianship, ensuring that as a matter of principle persons under guardianship do not receive treatment without their informed consent (recommendation 3.2) distinguish between detention and involuntary treatment, ensuring that separate guarantees apply to both (recommendation 3.3) reinforce the right to adequate mental health care (recommendation 3.4). Issue 4 Monitoring institutions The new law must ensure that effective mechanisms of monitoring and patient advocacy are in place (recommendation 4.1). Issue 5 Rights of the patient The new law must provide psychiatric patients with specific rights they enjoy while in an institution (recommendation 5.1) Issue 6 Community-based treatment We recommend that the new law provide for an enforceable right to receive treatment and support in the community (recommendation 6.1). Issue 7 Guardianship We recommend that Estonian guardianship laws be substantially revised in order to comply with international human rights law (recommendation 7.1). Explanatory note 1. Detention One of the key areas to be addressed by mental health law is detention (in literature this is also known as involuntary placement or institutionalisation, but this paper uses the term detention). Estonian law/policy-makers should bear in mind that detention constitutes an exceptionally serious interference with a persons liberty (which in turn affects many other individual rights, e.g. bodily integrity, privacy, right to correspondence, right to family, and the right to work). Consequently, the new mental health (hereinafter MH) legislation should reinforce the notion that institutionalisation is an exceptional measure which can be applied only when (1) stringent criteria related to a persons condition are met (2) no other less restrictive measure would be adequate. The standards outlined below are instrumental in ensuring that institutionalisation is indeed a measure of last resort and that persons subject to the law have effective guarantees against unjustified detention and involuntary treatment. (1.1) The new mental health legislation must require the adoption of a set of nation-wide professional regulations to provide psychiatrists with a framework for assessing the severity of a mental illness, and whether the illness presents a significant risk of serious danger to life or safety of the person or others, and ensure the uniformity of such assessments Article 5(1)(e) of the European Convention on Human Rights (ECHR) allows detention of persons of unsound mind. However, the European Court has made it clear that a mental illness alone (no matter how serious) is not a sufficient ground for detaining a person against their will. As the Court explained in the Winterwerp case, a person can be detained on grounds of mental illness only if the disorder is of a kind or degree warranting compulsory confinement. The relevant provisions of the current Estonian Mental Health Act satisfy this requirement. However, the criteria for compulsory (emergency) hospitalisation are still quite general and, therefore, allow a certain leeway in their interpretation. The terms used by the law need further clarification. How severe does a mental illness need be To what extent does ones ability to understand or control ones behaviour have to be impaired What is the threshold of dangerousness required for a person to be hospitalised The extreme intrusiveness and exceptional nature of detention imply that the criteria established by law should be interpreted by courts very narrowly and in the way that is most respectful of human rights. It is also important that these criteria are understood and applied uniformly (to avoid any arbitrariness). One way to ensure this is to adopt detailed official national guidelines which will guide psychiatrists in their assessment of the severity of mental illness and dangerousness in every individual case. It will be important for the Ministry of Social Affairs to set up data collection mechanisms so that these standards can be monitored and measured over time. The new legislation, or delegated regulations, should mandate psychiatrists to use an internationally recognised risk assessment tool (e.g. HCR-20) as the official standard tool for all psychiatrists involved in assessing a persons dangerousness for detention and involuntary treatment purposes. Apart from facilitating uniformity, such guidelines and such a tool should allow the courts to assess the quality of psychiatric opinions, as well as enable persons whose institutionalisation is at issue and their lawyers to challenge expert psychiatrists in court. One of the major faults of the existing practice of involuntary placement is the judges almost complete deference to psychiatrists which results in little more than judicial rubber stamping psychiatric opinions. (1.2) The law must ensure that courts review the lawfulness of psychiatric detention, and legislation must ensure that such courts ensure procedural rights of persons whose detention is at issue Current Estonian law is in clear breach of international law in that it does not adequately provide for judicial oversight for reviewing a persons psychiatric detention. This is required by Article 5 of the ECHR. Section 536 of the Code of Civil Procedure simply provides that before a person is placed in a closed institution, the person must be heard in person by the court and the court shall explain the course of the proceeding to him or her. The existing law does not ensure that a person whose detention and involuntary treatment are at issue receives a fair hearing. The law fails to guarantee the principle of equality of arms. Part of the well established jurisprudence of the European Court, this principle implies that each party must be afforded a reasonable opportunity to present his case including his evidence under conditions which do not place him at a substantial disadvantage vis–vis his opponent. As the European Court pointed out in the Nikolova case, the principle of equality of arms applies to Article 5 proceedings, of which psychiatric detention cases are an example. Therefore, legislation must go further than merely provide that a person must be heard when a decision is being made about their detention. It is important that such a person has a guaranteed right to actively participate in the hearing. Moreover, the law must ensure that there is a proper judicial hearing which involves a fair and comprehensive fact-finding process. To this end, the new law must guarantee that a person whose involuntary placement is at issue is properly informed about the proceedings and their nature and has access to all the evidence submitted in the case has the possibility to challenge evidence submitted to the court and give oral evidence has a lawyer who performs adequately and is paid by the state has an unrestricted right to meet and instruct their lawyer has full unrestricted access to their medical files, and so does their lawyer. Furthermore, when a person is detained in a psychiatric institution prior to a judicial decision (as a matter of emergency), Article 5(2) of the ECHR requires that such a person be informed promptly about the reasons for their hospitalisation and in the language and style that are understandable to them (e.g., if a patient has an intellectual disability, the hospital must provide this information in accessible, simplified language, similarly if the person speaks Russian, there is an obligation to provide the information in Russian). MDAC notes that there are currently no national information leaflets in any language on rights in psychiatric hospitals, and recommends to the Ministry of Social Affairs to produce such informational literature as soon as possible. (1.3) The new law must provide that a detained patient has the right to apply for a judicial review of their on-going involuntary placement. Case law of the ECtHR has laid down a strict standard that that detention be terminated if any of the criteria for the measure are no longer met. In the Winterwerp case (cited above), the Court expressly held that the validity of continued confinement depended upon the persistence of mental disorder (para. 39). Similarly, Article 24 of Council of Europe Recommendation Rec(2004)10 a modern recommendation which was adopted also by Estonian representatives at the Council of Europe requires the same. An essential guarantee to ensure that a person does not remain involuntarily institutionalised when their condition no loner warrants this measure is to provide the patient themselves with a right periodically to apply to a court for the review of their detention. It is to be noted that this right must exist even if a court reviews detention soon after the patients admission and detention. It is one of the most serious deficiencies of the current Estonian legislation that detained patients do not have this right. (1.4) The new law must strengthen legal guarantees for persons who have been deprived or restricted of legal capacity (persons under guardianship). The current legislation does not provide adequate protection for persons with limited legal capacity. One of the aspects it fails to regulate properly is psychiatric detention of such persons. The existing law does not ensure that the opinion of a person under guardianship is taken into account, requiring only the consent of their guardian. Under Estonian law, if such consent is obtained, detention is not considered as involuntary and, therefore, the judicial guarantees envisaged for compulsory confinement do not apply. The person is classed as a voluntary patient (this is absurd, considering that the person may be making it very clear that they do not want to be in hospital). The approach of ignoring peoples opinions runs counter to Recommendation Rec(2004)10 whose provisions on involuntary placement also apply to persons who do not have the capacity to consent and are objecting to the placement or treatment concerned. Therefore, the law should be modified in such a way that persons under guardianship benefit from all the guarantees established for cases of involuntary institutionalisation. The UN Convention on the Rights of Persons with Disabilities, which was adopted unanimously by the General Assembly of the United Nations in December 2006, ensures that persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life (Art. 12(2)). (1.5) The new law must ensure the establishment of community-based psychiatric services which will provide a viable alternative to institutionalisation. In line with international standards, the Estonian law requires that detention is permissible only if other forms of psychiatric care are not sufficient. Note that Principle 17 of Recommendation Rec(2004)10 provides that one of the conditions to be met for involuntary placement is that no less restrictive means of providing appropriate care are available.) However, the existing legal obligation that detention must be used only as a last resort is criteria is purely academic if such other, less restrictive, forms of care do not exist or are too scarce to accommodate everyone who could benefit from them. In reality, MDAC is aware that in many cases in Estonia detention remains the default option even for people whose needs could be satisfied if appropriate services were available in the community. Therefore, to make institutionalisation a truly exceptional measure, other less restrictive alternatives should be adequately provided. A failure to ensure community-based alternatives to institutionalisation is one of the most serious shortcomings of the existing legislation. Law reform cannot happen without significant policy initiatives and political will to change the system from institutional services to community-based services. On this issue, see also Recommendation 6.1 below. (1.6) The new mental health legislation should streamline the existing procedures for detention ensuring, among other things, that the same guarantees apply to any form of involuntary institutionalisation. The current Mental Health Act regulates only emergency involuntary placement. In addition, a person with a mental disability can be confined for a considerably longer period of time on the basis of the Social Welfare Act. It would be advisable for the Estonian legislators to streamline all the procedures for, and conditions of, detention in one legal Act. This would facilitate legal clarity and uniformity. Furthermore, it would ensure that all the rights and guarantees envisaged in the Mental Health Act apply both to emergency hospitalisation and long-term institutionalisation. 2. Use of Restraint (2.1) The new law must regulate seclusion and physical and chemical restraints in more detail. Chemical and physical restraints are widely used in Estonian psychiatric institutions. However the use of seclusion, chemical and physical restraints is not properly regulated by Estonian law. This lack of regulation leaves patients vulnerable to significant human rights violations, and leaves psychiatrists and other mental health staff acting in a legal vacuum, open to criticism from European colleagues for their lack of national regulation. Chemical and physical restraints seriously interfere with a persons dignity and bodily integrity. It is generally difficult to distinguish between the use and abuse of such restraints. Hospitals which have sought to minimise the use of restraints have managed to minimise violence (see MDACs Cage Bed report 2003 for more details on research findings). Thus it is vitally important that restraints and seclusion are properly regulated and monitored. The current law does not establish independent criteria for the use of seclusion, and chemical and physical restraint. Instead it refers to the conditions adopted for detention. This means that restraint can be applied to any detained patient at the discretion of doctors. The new law must introduce separate stringent criteria for permissible use of seclusion and restraint. The new law should take account of different forms of restraint (e.g., non-physical and physical restraint, chemical restraint, and seclusion) and incorporate the basic standards for using them developed by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT). The CPT standards require that the use of restraint is guided by a clearly-defined policy in each institution where it is used initial attempts to restrain someone who is behaving in an agitated or violent way should, as far as possible, be non-physical and that where physical restraint is necessary, it should in principle be limited to manual control (this means person-to-person contact, not mechanical restraints) mechanical restraint (straps, strait-jackets, etc.) may be used only in very exceptional circumstances mechanical restraint must be expressly ordered by a doctor or a doctors approval must be sought immediately afterwards mechanical restraint should be removed at the earliest opportunity physical restraint and seclusion should never be used as a punishment every instance of the physical restraint of a patient (manual control, use of instruments of physical restraint, seclusion) should be recorded in a specific register established for this purpose (as well as in the patients file) staff in psychiatric institutions receive special training in non-physical and manual control techniques. While it may be practical for a legislative act to outline only the main principles regarding use of restraint, the new mental health law should oblige a relevant governmental body to adopt detailed guidelines for staff of psychiatric institutions. The government must ensure that an independent body (such as the Legal Chancellor) is under a legal duty to monitor the use of seclusion and chemical and physical restraints, and to report to Parliament on their use. 3. Treatment (3.1) The new law must spell out the elements of the principle of informed consent to treatment. The current Mental Health Act does not provide people subject to its provisions with the possibility of consenting to treatment. The definition of informed consent in the law clearly falls short of the requirements set forth in the UN Mental Illness Principles and the CPT standards. This is a complex and importance subject which the new law must address. The current Act defines informed consent as consent given where the person is capable of understanding the meaning of consent and the consequences of granting or refusing consent. This phrase is too skeletal to offer any meaningful guidance on what the law actually provides. The Act is silent as to the duty of medical staff to provide a patient with detailed and understandable information about their condition, the benefits, risks and side effects of the treatment proposed, and the consequences of accepting/rejecting the treatment (as has been emphasised by the CPT, consent to treatment can only be qualified as free and informed if it is based on full, accurate and comprehensible information about the patients condition and the treatment proposed). Compared to these standards, the existing law fails to impose obligations on medical professionals to ensure that patients are informed before they give or refuse to give consent. The current provision is less detailed then the rules on consent to treatment contained in the Convention on Human Rights and Medicine (which was ratified by Estonia in 1997). In particular, Article 5 of the Convention refers to the type of information that has to be provided when a patients consent is sought. Importantly, the Convention also provides for specific guarantees for persons who do not have the functional capacity to consent (Articles 6 and 9) Article 5 General rule An intervention in the health field may only be carried out after the person concerned has given free and informed consent to it. This person shall beforehand be given appropriate information as to the purpose and nature of the intervention as well as on its consequences and risks. The person concerned may freely withdraw consent at any time. Article 6 Protection of persons not able to consent Subject to Articles 17 and 20 below, an intervention may only be carried out on a person who does not have the capacity to consent, for his or her direct benefit. Where, according to law, a minor does not have the capacity to consent to an intervention, the intervention may only be carried out with the authorisation of his or her representative or an authority or a person or body provided for by law. The opinion of the minor shall be taken into consideration as an increasingly determining factor in proportion to his or her age and degree of maturity. Where, according to law, an adult does not have the capacity to consent to an intervention because of a mental disability, a disease or for similar reasons, the intervention may only be carried out with the authorisation of his or her representative or an authority or a person or body provided for by law. The individual concerned shall as far as possible take part in the authorisation procedure. The representative, the authority, the person or the body mentioned in paragraphs 2 and 3 above shall be given, under the same conditions, the information referred to in Article 5. The authorisation referred to in paragraphs 2 and 3 above may be withdrawn at any time in the best interests of the person concerned. Article 7 Protection of persons who have a mental disorder Subject to protective conditions prescribed by law, including supervisory, control and appeal procedures, a person who has a mental disorder of a serious nature may be subjected, without his or her consent, to an intervention aimed at treating his or her mental disorder only where, without such treatment, serious harm is likely to result to his or her health. Article 8 Emergency situation When because of an emergency situation the appropriate consent cannot be obtained, any medically necessary intervention may be carried out immediately for the benefit of the health of the individual concerned. Article 9 Previously expressed wishes The previously expressed wishes relating to a medical intervention by a patient who is not, at the time of the intervention, in a state to express his or her wishes shall be taken into account. With regards to the information a patient has to be provided with, the UN Mental Illness Principles offer a useful guidance. Principle 11 of Principles reads 2. Informed consent is consent obtained freely, without threats or improper inducements, after appropriate disclosure to the patient of adequate and understandable information in a form and language understood by the patient on (a) The diagnostic assessment (b) The purpose, method, likely duration and expected benefit of the proposed treatment (c) Alternative modes of treatment, including those less intrusive (d) Possible pain or discomfort, risks and side-effects of the proposed treatment. 3. A patient may request the presence of a person or persons of the patients choosing during the procedure for granting consent. 4. A patient has the right to refuse or stop treatment, except as provided for in paragraphs 6, 7, 8, 13 and 15 of the present principle. The consequences of refusing or stopping treatment must be explained to the patient. 5. A patient shall never be invited or induced to waive the right to informed consent. If the patient should seek to do so, it shall be explained to the patient that the treatment cannot be given without informed consent. Therefore, the above key elements of the principle of free and informed consent should be reflected in the new law. Moreover, given the complexity of the issue (especially, when a patients cognitive capacity is in doubt), the new law should also require the government to adopt a set of detailed guidelines for psychiatrists. (3.2) The law must extend the principle of informed consent to persons under guardianship, ensuring that as a matter of principle persons under guardianship do not receive treatment without their informed consent. In the case of a person placed under guardianship, the current law requires only the consent of their legal representative (i.e., their guardian). This is a fundamentally flawed approach to issue of capacity. Ones capacity should be assessed on the functional basis simply because a persons capacity can be limited in certain areas does not imply they do not have the functional capacity to make decisions about their treatment. In fact, many people placed under guardianship do retain their ability to make informed choices about their treatment. Therefore, the correct approach would be for doctors to be under a duty to seek consent from the person themselves. If the person is unable to give consent (i.e., the person lacks functional capacity to decide on their treatment), then it is appropriate to ask the guardian. Importantly, being unable to give consent is not the same as disagreeing with the doctor. If the person disagrees with the doctor, then the same criteria (if any) for imposing treatment without consent under the new Mental Health Act should be applied. This approach avoids discrimination on the basis of someones legal status of being deprived or restricted of legal capacity. The above approach would bring the Estonian legislation in line with Council of Europes Recommendation R(99)4, Principle 4 of which requires that where an adult, even if subject to a measure of protection i.e., guardianship , is in fact capable of given a free and informed consent to a given intervention in the health field, the intervention may only be carried out with his or her consent (Principle 22). Furthermore, even when a person lacks functional capacity to give consent, the Recommendation requires that treatment can be carried out only if it is to that persons direct benefit. This requirement imposes an additional check on a guardians discretion to consent to treatment. (3.3) The new law must distinguish between detention and involuntary treatment, ensuring that separate guarantees apply to both. The current Mental Health Act fails to draw a distinction between detention and involuntary treatment, instead speaking of involuntary psychiatric care. One of the consequences of this flawed approach is that once a person is involuntarily admitted to a hospital, the choice of their treatment is essentially at the discretion of the hospitals staff. The CPT standards emphasise The admission of a person to a psychiatric establishment on an involuntary basis should not be construed as authorising treatment without his consent. It follows that every competent patient, whether voluntary or involuntary, should be given the opportunity to refuse treatment or any other medical intervention. Any derogation from this fundamental principle should be based upon law and only relate to clearly and strictly defined exceptional circumstances. para. 41, emphasis added The drafters of the new law should bear in mind that involuntary treatment as such constitutes a serious interference with a persons right to physical integrity and right to private life (as protected by Article 8 of ECHR) and potentially freedom from torture and inhuman or degrading treatment (Article 3). Indeed, certain forms of treatment can cause a patient more suffering and anguish than compulsory confinement as such and are often perceived by the recipients as torture. Furthermore, psychiatric medication and other intrusive forms of treatment can be easily abused (by way of punishment, chemical restraint or for economic reasons) if not properly controlled, especially in a country like Estonia where there are no national prescribing guidelines for psychiatric drugs. Council of Europe Recommendation Rec(2004)10 usefully distinguishes between involuntary placement and involuntary treatment. Conditions for the latter are set out separately in Article 18 a) the person has a mental disorder b) the persons condition represents a significant risk of serious harm to his or her health or to other persons c) no less intrusive means of providing appropriate care are available d) the opinion of the person concerned has been taken into consideration. Further restrictions on the use of involuntary treatment are imposed in Article 19 of the Recommendation. Moreover, Recommendation Rec(2004)10 regards treatment as involuntary even when a person does not have the functional capacity to consent but is objecting to the treatment concerned (see Article 16). This is not the approach adopted by the current Estonian law. Importantly, involuntary treatment separately from detention must be subject to judicial review and the patient must have the right to challenge the lawfulness of their treatment. The existing legislation fails to provide patients with an adequate remedy in this area. These deficiencies need to be remedies in the new Mental Health Act in order to bring Estonian law in line with its obligations under international law. (3.4) The new law should reinforce the right to adequate mental health care. It is understood by MDAC that, in Estonia, for persons with mental health problems who do not have proper medical/social insurance, emergency psychiatric care (i.e., detention and involuntary treatment) is the only way to receive any treatment at all. It is therefore possible (and, indeed, there seems to exist such a practice) that such a person – while quite willing to receive psychiatric treatment in principle is forced to agree to being detained, and that courts can be inclined to apply the criteria for detention in a less stringent way. This situation is clearly unacceptable, as a person is prompted to give up some of their rights in order to receive perhaps necessary treatment. Under international law, a person with mental health problems, like other people has the right to adequate health care (for an excellent overview of the right to health care in the context of mental disability, see the 2005 report of the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health, Paul Hunt, esp., paras. 31-46). Therefore, the drafters of the new law should consider how to reinforce the States positive obligation to provide such care to everyone, without resorting to forcing people to agree to being detained before they can access healthcare. 4. Monitoring Institutions (4.1) The new law must ensure that effective mechanisms of monitoring and patient advocacy are in place The Inspect report prepared by MDAC in 2006, emphasised the two-fold nature of the consequences of institutionalisation First, States must make greater efforts to fulfill their obligations to implement the right of people with disabilities to live in the least restrictive setting. Second, whilst this obligation remains unfulfilled, States must ensure that the human rights of people inside institutions are fully respected and protected. The respect and protection of human rights cannot be assured unless and until the cloak of invisibility, so common to institutions, is lifted. The most effective way of removing this invisibility is through the active use of independent inspectorates. Without independent inspectorates, neglect and abuse will continue with impunity, and will continue to be unnoticed and unremedied. Having ratified the Optional Protocol to the UN Convention against Torture, Estonia is now obliged to establish an independent national inspectorate to monitor all places of detention, including psychiatric institutions and social care homes. It is understood that the Legal Chancellor (Ombudsman) will be assigned the role of national preventative mechanism, in other words, the designated focal point for OPCAT activities. For the inspectorate to be truly effective, Estonia must ensure that the inspectorate has a clear legal mandate it is independent qualified and experienced inspectors are recruited visits are effective comprehensive reports are regularly published the inspectorates findings have maximum impact its activities are co-ordinated with those of other relevant agencies. It should be noted, however, that just establishing an OPCAT body is not enough to ensure the proper monitoring of the rights of persons living or/and receiving treatment in institutions. An OPCAT body is likely to have two intrinsic shortcomings (1) its visits will be occasional only (2) with the mandate to prevent torture and inhuman and degrading treatment, it will focus only on particular types of violations and aspects of an institutions living conditions. To ensure monitoring and advocacy on a daily basis, it is useful to establish permanent advocacy services based in institutions themselves (but at the same time independent). 5. Rights of the Patient (5.1) The new law must provide psychiatric patients with specific rights they enjoy while in an institution Patients of psychiatric and social care institutions are particularly vulnerable. Additional guarantees are required to minimise or prevent negative affects of institutionalisation and potential abuse by the staff. Therefore, in addition to the procedural rights already discussed above, patients should have certain specific rights which include, among others, the unrestricted right to meet with a lawyer, the right to complain to the institutions authorities about the treatment and living conditions the unrestricted right to complain to any relevant state authority the right to educational and recreational activities. A provision which would spell out the patients rights is conspicuously missing from the current Mental Health Law. The drafters of the new law may find it useful to consult the Russian Law on Psychiatric Care which contains a relatively sophisticated provision on the rights of patients of psychiatric institutions Article 37. Rights of patients in psychiatric hospitals (1) The grounds and purpose of a patients placement in a psychiatric hospital, their rights and the hospitals internal rules shall be explained to the patient in a language they understand this must be recorded medical files. (2) All patients undergoing treatment or examination in a psychiatric hospital are entitled to contact directly the chief psychiatrist of the hospital or the head of the ward with regards to their treatment, examination, discharge from the psychiatric hospital, and observance of the rights established by this law submit uncensored complaints and applications to legislative and executive state bodies, to the prosecutors office, the court and their lawyer meet with their lawyer or a priest in private perform religious rites, observe religious canons, including fasting, and, after clearing it with the hospitals administration, keep religious accessories and literature subscribe to newspapers and magazines receive education according to the curriculum for comprehensive secondary school or special school for children with impaired intellectual development if the patient is under 18 and receive remuneration for their work commensurate with its quantity and quality, on an equal footing with other citizens. (3) Patients shall also have the following rights, which upon recommendation of their treating doctor can be restricted by the head of the ward or the chief medic in the interests of the health and safety of the patient themselves or others the right to send and receive correspondence without censorship the right to receive and to send parcels and money transfers the right to make and receive telephone calls the right to receive visitors the right to have and purchase essential items and wear their own clothes. (4) Paid services (personal subscription to newspapers and magazines, postal and telecommunication services, etc.) are provided at the expense of the patient using them. 6. Community-based Care (6.1) The new law must provide for an enforceable right to receive treatment and support in the community. As was pointed out above, institutionalisation should be resorted to only whenever necessary care cannot be provided in a less restrictive way (i.e., in the community). However, the physical unavailability of community-based services should not be used by the state as an excuse for institutionalisation the state has an obligation to provide such services. This obligation has been spelled out in the new UN Convention on the Rights of Persons with Disabilities. Even though the convention is not yet in force, it can be said that its relevant provisions reflect the existing general international human rights standards (the Disability Convention is intended to reinforce the existing human rights of persons with disabilities rather than introduce new rights). The right to live and receive treatment/support in the community is a logical corollary of the rights to liberty, personal fulfilment and non-discrimination. Article 19 of the Disability Convention can be used by the Estonian legislators as a useful guidance in improving the mental health legislation States Parties to this Convention recognize the equal right of all persons with disabilities to live in the community, with choices equal to others, and shall take effective and appropriate measures to facilitate full enjoyment by persons with disabilities of this right and their full inclusion and participation in the community, including by ensuring that (a)Persons with disabilities have the opportunity to choose their place of residence and where and with whom they live on an equal basis with others and are not obliged to live in a particular living arrangement (b)Persons with disabilities have access to a range of in-home, residential and other community support services, including personal assistance necessary to support living and inclusion in the community, and to prevent isolation or segregation from the community (c)Community services and facilities for the general population are available on an equal basis to persons with disabilities and are responsive to their needs. One way for the new law to ensure that the state fulfils its obligation to create community services is to provide persons with mental disabilities with a corresponding enforceable right, enabling them to bring an action against responsible governmental agencies. 7. Guardianship (7.1) Guardianship laws should be reformed to comply with international human rights law While the Mental Health Act refers to persons with restricted capacity on several occasions, the questions of capacity and guardianship are regulated elsewhere (the Civil Code and the Civil Procedure Code). The drafters of the new Mental Health Act should be mindful that its progressive provisions can be undermined by existing flawed and outdated rules regarding capacity and guardianship. The existing rules fail to take account of the modern approach to mental capacity which is a functional one. This approach implies that (1) even those persons whose mental capacity is severely impaired by a mental condition may retain decision-making capacity in certain areas and, therefore, any limitation of their legal capacity should be based on a careful assessment of that persons capacity in all relevant areas of decision-making (2) a persons capacity fluctuates with time and may improve if adequate support and a conducive environment are provided. A number of human rights problems with the current law can be easily identified – the law does not ensure that any restriction of a persons legal capacity is strictly necessary – the law fails to tailor assistance (insofar as guardianship can be thought of as assistance) according to the persons actual needs – the procedural rights of a person whose placement under guardianship is at issue are extremely week and fail short of the fair trial requirements under Article 6 of the ECHR – a person under guardianship has no right to request a judicial review of their status, nor do they have effective legal remedies to challenge the decisions of their guardian or seek to displace the guardian – the current laws do not ensure that a persons opinion is always taken into account by their guardian before making decisions – decision-making by the guardian is not subject to substantive standards and effective external review by local authorities. The Estonian law-makers are advised to adopt a holistic approach to reforming mental health legislation which would imply revising the relevant provisions found in laws other than the Mental Health Act. Improving the existing guardianship/capacity rules could be achieved through (1) revising the relevant provisions of the Civil Code and the Civil Procedure Code (2) making the new Mental Health Act more comprehensive by including a separate chapter on capacity. In assessing and revising the existing rules, the law-makers may find it useful to take into account the human rights indicators applied to guardianship which have been developed by MDAC in the light of existing international standards (in particular, Council of Europes Recommendation R(99)4) Legislative purpose or preamble to the law encompasses respect for the human rights, dignity and fundamental freedom of people with mental disabilities. The legislation clearly identifies who may make an application for appointment of a guardian and the foundation needed to support it. An adult has a right to actual notice, and to be present and heard at all proceedings related to the application for deprivation of his or her legal capacity and appointment of a guardian. An adult has a right to free and effective legal representation throughout guardianship proceedings. An adult may not be detained in order to be subjected to an evaluation of his or her legal capacity. An adult has the right and opportunity to present his/her own evidence (including witnesses), and to challenge the opposing evidence (witnesses). No adult is deprived of legal capacity without being the subject of a capacity evaluation, conducted by a qualified professional and based upon recent, objective information, including an in-person evaluation. A finding of incapacity requires a demonstrable link between the underlying diagnosis and the alleged inability to make independent decisions. A finding of incapacity is based upon sufficient evidence and serves the interests of the adult. Selection of a guardian is based on objective criteria and the wishes and feelings of the adult are considered. The guardian should not have a conflict of interest with the adult, or the appearance of such a conflict. An adult has the right to appeal a finding of incapacity and/or the appointment of a guardian. By being placed under guardianship, an adult is not automatically deprived of the opportunity to exercise political rights. By being placed under guardianship, an adult is not automatically deprived of the opportunity to exercise the right to work. By being placed under guardianship, an adult is not automatically deprived of the opportunity to exercise the right to property. By being placed under guardianship, an adult is not automatically deprived of the opportunity to exercise the right to marry, to found a family, and to respect of family life. By being placed under guardianship, an adult is not automatically deprived of the opportunity to exercise the right to associate. A person under guardianship is not precluded from making decisions in those areas where he/she has functional capacity. An adult subject to guardianship must be consulted about major decisions, and have his/her wishes adhered to whenever possible. The scope of authority and obligations of the guardian are clearly defined and limited to those areas in which the adult subject to guardianship needs assistance. A guardian is obliged to promote the interest, welfare and independence of the adult under guardianship by seeking the least restrictive alternatives in living arrangements, endeavouring to allow the adult to live in the community. The guardian must manage the assets of the adult in a manner that benefits the adult under guardianship. The guardian is obliged to visit and confer with the adult periodically. A guardians decisions are periodically reviewed by an objective body and the guardian is held accountable for all decisions. A complaint procedure exists that triggers review of guardians acts or omissions. Less restrictive alternatives to guardianship are available and are demonstrably exhausted before a guardianship is imposed. Guardianships are tailored to the individual needs of the person involved and address the varying degrees of capacity. Guardianship is periodically reviewed and continues only as long as appropriate. An adult subject to guardianship has the right to request modification and/or termination of the guardianship. Selected international instruments Convention on the Rights of Persons with Disabilities Convention for the protection of Human Rights and dignity of the human being with regard to the application of biology and medicine Convention on Human Rights and Biomedicine Principles for the protection of persons with mental illness and the improvement of mental health care (adopted by General Assembly resolution 46/119 of 17 December 1991) Council of Europe Recommendation Rec(2004)10 concerning the protection of the human rights and dignity of persons with mental disorder (adopted by the Committee of Ministers on 22 September 2004) Council of Europe Recommendation No. (99)4 on Principles concerning the Legal Protection of Incapable Adults (adopted by the Committee of Ministers on 23 February 1999) 2005 Report of the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health, Paul Hunt Winterwerp v. The Netherlands, Application No. 6301/73, Judgment of 24 October 1979, para. 39 Section 11(1) of the Mental Health Act provides A person is admitted to the psychiatric department of a hospital for emergency psychiatric care without the consent of the person or his or her legal representative, or the treatment of a person is continued regardless of his or her wishes only if all of the following circumstances exist 1) the person has a severe mental disorder which restricts his or her ability to understand or control his or her behaviour 2) without inpatient treatment, the person endangers the life, health or safety of himself or herself or others due to a mental disorder and 3) other psychiatric care is not sufficient. See, e.g., Dombo Beheer BV v the Netherlands, Application No. 14448/88, Judgment of 27 October 1993, para. 33. see Nikolova v. Bulgaria, Application no. 31195/96, Judgment of 25 March 1999, para. 58 MDAC recommendations for reform Page PAGE 2 of NUMPAGES 18 v,_mu-s Rlr qmFZ3dQL v,_mu-s Rlr qmFZ3dQL IXgw7HYjOat 2FZn O d y
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