IDMHLHR 2011-12

STUDENT: AIKATERINI NOMIDOU

ASSIGNMENT FOR MODULE 6

1)	Like all human beings and people with no disabilities or people with other disabilities, Mrs. A has rights under human rights laws. However, myths and stereotypes about mental disabilities that relegate mentally challenged people to powerless positions, contributed to violations of her indivisible, interdependent and interrelated human rights protected under human rights instruments, such as the European Convention on Human Rights (art.3), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, art.7 of the ICCPR and the CRPD. Mrs. A was deprived of her liberty and autonomy against her will and segregated from her family and society in a mental health institution (violation of articles 3,12,14,19 and 25(d) of the CRPD) where she was further subjected for the purpose of ''protecting her'' to severe restraint under painful conditions and intrusive medical treatment without her consent (violation of articles 3,12,15,16,17 and 25(d) of the CRPD). In our case it is obvious that her involuntary hospitalization and treatment took place in accordance with the non-binding MI Principles which run counter to the provisions of the new CRPD. In order to avoid abuse, her deprivation of liberty could only take place if there was a serious and imminent deterioration of her health if not treated (of course ''hyperactivity, prodigality, sexual disinhibition and insomnia'' do not allow such an interpretation). Moreover, Mrs. A was tied to her bed and this prolonged immobilization not only amounted to inhuman ill-treatment under article 15 of the CRPD but also caused her death. Ill-treatment is antithetical to every notion of health care and human dignity. Her rights to human dignity, physical and mental integrity, health, security, personal life and family were fatally strangulated. Health settings should be places where human rights are realized and fulfilled, not debased and violated and governments should be accountable for placing health providers and patients in unacceptable situations whereby ill-treatment is neither documented, prevented, punished or redressed. Consequently, under international law and the Convention against Torture in particular her State should criminalize ill-treatment, prosecute perpetrators, impose penalties and provide reparation to Mrs. A' s family.

2)	Twenty years after the start of psychiatric reform in Greece, following the international outcry at the unspeakable conditions in the Greek psychiatric hospital on the island of Leros, in some parts of the system little has changed. Today mental health is regulated by the general health law 2071/92 (10/155 articles are dedicated to mental health, 7 of which regulate involuntary hospitalization and treatment). Under this law which has harmonized the Greek legislation to the Recommendation No R (83)2) of the Committee of Ministers of the Council of Europe on the legal protection of persons suffering from mental disorders placed involuntarily, patients can be hospitalized without their consent only where the following legal preconditions are met: mental disorder PLUS threat/danger OR need for treatment. Involuntary admission is requested only whena a patient is seriously ill and refuses medication. All other available options are taken into consideration, although, unfortunately, rehabilitation structures like a day hospital or a day centre are not widely available and hospitalization is a one-way street for the majority of the cases. According to the Greek legal framework Mrs. A' s involuntary hospitalization could be requested by her close relatives to the competent Public Prosecutor of the district where Mrs. A has her residence. The Public Prosecutor’s order would be taken by a close relative to the police station which then would organise a home visit and the transfer with police escort to the nearest Mental Health Unit for psychiatric assessment by two trained psychiatrists. The duration of time between the submission of the application until the assessment of the patient by the psychiatrists would vary from less than a day to two weeks or even longer, despite the law stating that the assessment should take place within 48 hours. The psychiatrists in Greece who perform mental health assessments under Law 2071/1992 admit the majority of individuals. They also accept the presence of a police officer during the assessment more often than expected. The decision for involuntary admission is always taken by the Court which in our case would be most probably to protect the general public (Police power approach) and not the patient herself (Parens partiae approach). After the assessment, in the event of no availability of beds Mrs. A would be removed again in a police car to another hospital, where a bed could be made available (even in a psychiatric hospital in case of no available beds in a mental health unit of a general hospital).

Given that involuntary placement and treatment are not separated modalities (combined approach), it is automatically assumed that involuntary patients are also unable to give informed consent and that they must be treated involuntarily (restriction on her legal capacity affecting the right to refuse treatment). Furthermore, the danger criterion is sufficient on its own for involuntary treatment, and therefore Mrs. A would be admitted and put under antipsychotic medication immediately. Clinicians in Greece tend to use antipsychotic agents, usually in combination with a benzodiazepine, for the management of severely disturbed patients, whereas in a significant proportion of cases further coercive measures are applied. Conventional agents are almost exclusively preferred despite the availability of atypical antipsychotics parenteral formulations.

Although the law mentions that as soon as the patient is taken to the hospital he/she is informed of his/her rights and in particular of the right to appeal, in practice this never happens nor mandatory inclusion of patient counsel is possible. Today there are no national guidelines regarding the use of rapid tranquilisation and other coercive measures nor alternatives to coercive care which are in line with international human rights principles and the recovery model, and psychiatrists rely on their clinical experience for the management of agitation, or they follow guidelines from other countries. In theory, the current legislation for involuntary admission secures to a great extent the patients’ fundamental rights and respects their dignity and stipulates that patients receive the same level of care as informal patients and are treated according to the same rules. Also, Greece has ratified the Convention against Torture in 1988 and signed the OPCAT in 2011. Furthermore, in the Greek Constitution (article 7, par. 2), it is stated that it is prohibited and a crime punishable by law to engage in torture, any kind of bodily ill-treatment or injury to health, or to resort to the use of psychological pressure or any other offence against human dignity. The Committee against Torture has raised concerns about inadequate living conditions in hospitals for persons with disabilities in the context of ill-treatment under article 16 of the Convention against Torture. As noted by the former Special Rapporteur on Torture,''Poor conditions in institutions are often the result of the failure of the State to live up to its obligations to provide persons in their custody with adequate food, water, medical care and clothing, and may constitute torture and ill- treatment.” Discriminatory practices that inflict severe pain or suffering on persons with disabilities may also constitute torture or other form of ill-treatment. There is also growing agreement that there is no therapeutic justification for the prolonged use of restraints, and their use may constitute torture or ill-treatment''.

Unfortunately, there is a divergence between theory and practice. Forced medication and mechanical restraint in Greece is the typical pattern of coercive measures in cases such as Mrs A's case.

3)	Suggestions:

Law 2071/92 represents an improvement over the previous law with respect to involuntary admission. However, in several cases, the European Court on Human Rights has found Greece guilty of violations Article 3 (prohibition of torture or inhuman or degrading treatment or punishment). Bearing in mind the experience from its application, it is felt that a substantial revision is due so that it can place more emphasis on aftercare, be less bureaucratic, actively involve persons with mental disabilities and their representative organisations in strategies to prevent torture, cruel, inhuman or degrading punishment and treatment in accordance with articles 4(3) and 15 of the CRPD and base its philosophy on the sensitive equilibrium between the protection of the rights of patients on the one hand and the preservation of the therapeutic alliance on the other.

New legislation should:

provide for recognition and respect of the legal capacity of persons with mental disabilities to make their own decisions in all aspects of life, including health and mental health services;

prohibit provisions authorizing a) the institutionalization and treatment of persons with mental disabilities on the grounds of their disability without their free and informed consent and b) their preventive detention on grounds such as the likelihood of them posing a danger to themselves or others;

ensure that MI Principles for involuntary confinement (currently in force) are superseded by provisions of articles 14 and 25(d) of the CRPD and that the right to live in the community is not restricted ''to the extent possible'' as mentioned in the MI Principle 3 but will be in the light of articles 3 and 9 and the preambular paragraph (j) of the CRPD.

provide for incorporation into its body the abolition of violent and discriminatory practices against people with mental disabilities in the medical setting, including deprivation of liberty, the use of restraint and enforced treatment and take steps to implement a trauma-informed approach to care

ensure that all cases of ill-treatment and death occurring in institutions are duly investigated and where necessary criminal convictions are pursued and to ensure remedies for victims or their families.

provide for the establishment of an independent body to monitor hospitals, the training of personnel, and the protocols in place (including their observance) for recording of all incidents of violence, use of restraints and complaints in mental health units

provide for immediate information of patients' families and/or personal representatives when patients are subjected to seclusion of restraint procedures

establish national guidelines in accordance with international proposed guidelines that may result in the harmonisation of the practices of chemical restraint of Greek units with other units worldwide.

Furthermore, in order to better implement human rights issues raising from this case, Greece should make a plan with target dates to close down all psychiatric institutions and to take steps to ratify the CRPD and its Optional Protocol.