Human Rights Oversight in Institutional Settings Copy

8/9/2019 Human Rights Oversight in Institutional Settings Copy

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1Human Rights Oversight in Institutional Settings

Belgrade, 2014.


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2 Human Rights Oversight in Institutional Settings

Publisher:

Mental Disability Rights Initiative MDRI-S

Author:

Oana Georgiana Girlescu

Design and pre-press:

Mladjan Petrovic

Printed by:

Manuarta, Belgrade

Number of copies:

100 pcs

Project was supported by an intenship grant fromthe Open Society Foundations


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Contents

Abbreviations and acronyms .......................................................................5

Executive Summary ......................................................................................7

Introduction .................................................................................................10

Institutions and their impact on people ...........................................10

What is an institution? ...............................................................10

Why is deinstitutionalization necessary? .................................10

Monitoring teams and their role in protecting people

with disabilities against human rights abuses .................................12What is a monitoring team? ......................................................12

Why is monitoring important? .................................................13

Actors responsible or human rights abuses in institutions ..........14

Staff o institutions ......................................................................15

Te judiciary ................................................................................15

International legal instruments and standards ........................................17Admission to institutions ...........................................................................20

Overview ..............................................................................................20

Legal considerations ...........................................................................25

Psychiatric treatment ..................................................................................27

Overview ..............................................................................................27

Legal considerations ...........................................................................32Seclusion and restraint practices ...............................................................35

Overview ..............................................................................................35

Legal considerations ...........................................................................40

Neglect, exploitation, violence and abuse ................................................41

Overview ..............................................................................................41

Legal Considerations ..........................................................................42


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Abbreviations and acronyms

CATConvention against orture and Other Cruel,Inhuman or Degrading reatment or Punishment

CoE Council o Europe

CRPDConvention on the Rights o Persons withDisabilities

CRPDCommittee

Committee on the Rights o Persons withDisabilities

CPT

European Committee or the Prevention oorture and Inhuman or Degrading reatmentor Punishment

ECHREuropean Convention or the Protection oHuman Rights and Fundamental Freedoms

ECtHR European Court o Human Rights

EU European Union

MDRI-S Mental Disability Rights Initiative- Serbia

NPM National Preventive Mechanism

OPCATOptional Protocol to the Convention againstorture and Other Cruel, Inhuman or Degradingreatment or Punishment

UN United Nations


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Executive Summary

Social care institutions and psychiatric hospitals are places wheremany people with disabilities are spending shorter or longer periods

o their lives, sometimes these being the only “home” they will ever

have. While allegedly there or their best interest, in order to be pro-

tected and receive treatment, people with disabilities are only isolatedin places where access to inormation, education and employment is

virtually non-existent. Tey are restricted rom developing relation-ships with others. Tey are separated rom amilies, riends and the

wider society.

Tis document is aimed primarily at the education in relation to newly

developing standards concerning persons with disabilities. It is not ex-

haustive in the sense that not all relevant issues are being addressed. Temost pressing problems existing within the institutionalized system and

which are likely to perpetuate in alternative services have however been

identified. Each o them is being addressed in one chapter.

Te Introduction will help the reader understand what an institution isand why such environment cannot have a therapeutic or rehabilitative

role. It will explain how institutions promote social isolation, a reduced

environmental stimulation and loss o control over almost all aspects odaily lie, having thereore extremely detrimental effects on the health

and wellbeing o an individual. Te Introduction will also discuss the

role o monitoring teams and o other actors in fighting human rightsabuses.

Chapter I, International legal instruments and bodies, provides ageneral overview o the most relevant international and regional in-

struments and bodies, within the disability ramework and the work o

monitoring teams.


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Chapter II, Admission to an institution, discusses several aspects re-lated to admission. Contrary to involuntary admission, voluntary ad-mission will always require the personal consent o the person admit-

ted and will be associated with the ability and right to move reasonablyreely throughout the institution, the ability and the right to leave theinstitution at will and the right to give or withhold inormed consent totreatment. Te Chapter will urther explain that coercion in the contexto admission can take a wide variety o orms, rom legal provisionswhich allow involuntary admission to being subjected to duress or pres-sured into care by amily, clinicians, riends or work colleagues. Usingcoercion will have a series o detrimental effects such as a lesser extent o

improvement o symptoms and a reticence towards seeking psychiatrictreatment in the uture.

Chapter III, Psychiatric treatment, underlines that treatment in institu-tions should always include therapeutic and rehabilitative therapies and,,only when necessary, pharmacotherapy. Moreover, treatment should bebased on the ree and inormed consent o the person. Tis means thatthe consent has to be given without using any orm o coercion and

should be based on ull, accurate and comprehensible inormation. Ob-taining ree and inormed consent is the most desirable outcome notonly because it is legally required, but also because it can positively im-pact the efficacy o treatment, it supports a therapeutic relationship be-tween the patient and the medical proessional, it decreases the chanceso medication being used abusively and it makes the negative conse-quences o orced treatment disappear – these negative consequencesinclude eeling angry, helpless, embarrassed, sad, panic, having integrityand psychological comort violated, rightened and humiliated.

Chapter IV, Seclusion and restraint practices, explains what thesemeasures are and why they should be abolished. Seclusion is a processo separating a person rom environmental stimulation and opportu-nity or social interaction or a certain period o time, sometimes allor most part o the day. Restraint can be manual, physical, mechanical,chemical or emotional and it is used to restrict a person’s ability to reactphysically or emotionally. Having no therapeutic value, they are mostly

used in practice to punish unwanted behavior. Tey can have extremely


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detrimental effects on individuals, such as affective disturbances, diffi-culty in thinking, concentration and memory, problems with impulsivebehavior control, rage, severe depression, apathy, visual and auditory

hallucinations, physical injury and even death.

Chapter V, Neglect, exploitation, violence and abuse, describes prac-tices which can be encompassed under this title, including inadequateprovision o ood and clothes, lack o medical care, lack o reasonableaccommodation and corporal punishment. While the extent o abusivepractices in institutions has been repeatedly brought to public attentionby numerous international and national organizations, prosecution o

perpetrators and prevention strategies have ailed to protect people.Tis is happening because o the widely spread stigma against peoplewith disabilities, because o the lack o reporting individual cases andbecause o violence being embedded into the institutionalized culture.Te Chapter thereore urges monitoring teams and other relevant actorsto take measures. While developing new plans and strategies, it is alsoemphasized that the specific needs o girls and women with disabilitiesneed to be considered.


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Introduction

Institutions and their impact

on people

What is an institution?An institution is “any place in which people who have been labeled ashaving a disability are isolated, segregated and/or compelled to live to-gether. An institution is also any place in which people do not have, orare not allowed to exercise control over their lives and their day-to-daydecisions. An institution is not defined by its size.”1

Institutions are widely known as places where multiple orms o humanrights violations occur. While there have been steps taken towards im-

proving the physical conditions in institutions, many systemic underly-ing problems have not been addressed. Tese include orced treatment,seclusion and restraint, abuse and neglect and involuntary admission.

Why is deinstitutionalization necessary?In an institution, regardless o the admission being voluntary or invol-untary, people have to deal with social isolation, reduced environmentalstimulation and loss o control over almost all aspects o daily lie. Tese

can have extremely detrimental effects on the health and wellbeing oan individual.2

Social isolation implies an intererence with the possibilities o social in-teraction, with the ability to establish relationships, educational and other

1 Parker, Camilla. (2010). Wasted time, wasted money, wasted lives. A wastedopportunity?. European Coalition or Community Living, p. 78.

2 See or example the part related to the impacts o seclusion.


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personal development opportunities. When systematically deprived o so-cial contact with diverse others, a person will have, ofen with permanenteffects, its sense o “sel ” impaired because the sense o sel “is shaped and

maintained through social interactions. Social contact is crucial or orm-ing perceptions, concepts, interpreting reality and providing support.”3

Reduced activity and stimulation will also strongly impact physical andpsychological development, especially when imposed rom a young ageor/and or long periods o time. Studies indicate that reduced sensoryinput can also lead to reduced brain activity.4

Lack o control over one’s daily activities is another characteristic o

any institution. “Institutionalized living ofen means that residents areorced to sleep as a group, eat as a group, wash as a group, spend theirday as a group and – to the extent that employment is possible in aninstitution – work as a group. Tere is no room or individual autonomy[…] and behavior diverging rom the norm is punished.”5

Institutions thereore imply social isolation, reduced environmen-tal stimulation and loss o control over almost all aspects o daily lie.Moreover, they perpetrate human rights violations. Te act that they

still exist is, to a certain point, surprising. Tere are several reasons orthe perpetuation o this practice.

A primary reason is the lack o alternatives to institutionalization. “Tetypes o necessary services are wide-ranging and include housing (in-cluding supported housing), care in the amily home, social work sup-port, and supported employment, as well as access to mainstream services such as health care, education, etc.”6

3 Shalev, Sharon. (2008). A sourcebook on solitary confinement . London School oEconomics and Political Science, Mannheim Centre or Criminology, p. 18.

4 Shalev, Sharon. (2008). A sourcebook on solitary confinement . London School oEconomics and Political Science, Mannheim Centre or Criminology, p. 19.

5 (2011). Out o Sight.Human Rights in Psychiatric Hospitals and Social CareInstitutions in Croatia. Mental Disability Advocacy Center and the Association orSocial Affirmation o People with Mental Disabilities (SHINE), p. 58.

6 Parker, Camilla & Clements, Luke.(2012). Te European Union Structural Fundsand the Right to Community Living . Equal Rights Review, p. 97.


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One other actor ofen invoked or institutionalization is the danger-ousness to others, a myth ofen attached to people with mental dis-abilities. Such decisions are based on the impressions o psychiatric

proessionals which “are roundly criticized as inaccurate, sometimeslittle better than chance.”7 Medical proessionals can themselves beprejudiced. “While studies […] have shown that people with mentaldisabilities are slightly more dangerous than average, the difference ismarginal; and the proportion o violence caused by people with mentaldisabilities is small.”8

Besides dangerousness to others, dangerousness to sel is also an ofen

encountered justification or detention. “Te protection o sel is largelya paternalist justification. […] [I] an individual understands the risks tohimsel or hersel o remaining outside a psychiatric institution, it is airto ask why he or she should not be allowed to run those risks.”9

Monitoring teams and their role in

protecting people with disabilities

against human rights abuses

What is a monitoring team?

Monitoring o institutions where people with disabilities live or aretreated, or shorter or longer periods o time, can be done by many ac-tors including governmental bodies, independent governmentally es-tablished bodies or members o civil society. Monitoring teams can in-

7 Bartlett, Peter. (2012). A mental disorder o a kind or degree warranting confinement:examining justifications or psychiatric detention. Te International Journal oHuman Rights, p. 838.

8 Bartlett, Peter. (2012). A mental disorder o a kind or degree warranting confinement:examining justifications or psychiatric detention. Te International Journal oHuman Rights, p. 837.

9 Bartlett, Peter. (2012). A mental disorder o a kind or degree warranting confinement:

examining justifications or psychiatric detention. Te International Journal oHuman Rights, p. 837.


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clude people with various proessional or personal experiences, such asmedical proessionals, legal proessionals, social assistants, amily mem-bers and users o different services.

Independent governmental monitoring bodies have been established bygovernments because they are perceived as necessary, but also becausethis is requested by several international human rights instruments. Tetwo most relevant instruments in the context o mental health whichrequire such bodies to be established are the United Nations’ Conven-tion against orture and Other Cruel,Inhuman or Degrading reatmentor Punishment (CA) and the UN Convention on the Rights o Persons

with Disabilities (CRPD).10

Teir relevant provisions will be discussedurther in this document.

Why is monitoring important?

Monitoring institutions is necessary and valuable or a variety o reasons.Firstly, it gives an understanding o what is happening in an institution,revealing the most pressing problems which need to be addressed. Tiswill guide legislators and policy makers in their decision making- pro-

cess, ensuring that laws and policies address ground existing realities.It will also contribute to ensuring that human rights are not being vio-lated. Secondly, it will pressure relevant actors to respect existing anddeveloping standards. Knowing they are being supervised by indepen-dent interested actors, people working to support and treat people withdisabilities will understand that they are accountable or what they do.Tis will contribute to actual support and treatment being provided, tothe human rights o people with disabilities being respected and to a bet-

ter working environment or medical and other relevant proessionals.

Tirdly, monitoring contributes, when necessary, to properly investigateand prosecute human rights abuses.Te vulnerability o institutional-ized people “flows in part rom the act o the institutionalization: in-stitutional residents are within the oversight and control o institutionalstaff at all times and any challenge to the institutional regime risks, or

10 Which requires the establishment o monitoring bodies in its article 33.


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may be perceived by the individual to risk, ramifications among thosestaff. Further, the mental condition o some residents – people withlearning difficulties or dementia, or example – will limit the ability o

those residents to press or change, at least in the absence o advocacyand support services that are ofen non-existant in these institutions.Tis is thereore not necessarily a population that can be expected topress vocierously or its rights.”11 Monitoring teams have the power toreveal the reality o institutionalization, to react to what is happening, tomake silenced voices heard.

Actors responsible for human rightsabuses in institutions

Article 15 o the CRPD, by stating that no one shall be subjected to illtreatment, makes it clear that state responsibility will extend well be-yond the traditional setting o prisons and places o criminal detentionto sites commonly associated with violations against the physical andmental integrity o persons with disabilities.

“Te proscriptions will be applicable [also] in cases o private violencewhere the State may be deemed to acquiesce, as in the case o maintain-ing civil laws that effectively strip persons with disabilities o their legalcapacity and thus, their ability to protect themselves and to assert theirrights in cases o violence (whether public or private).”12

Te responsibility or what is happening in institutions where there arepeople with disabilities alls thereore on multiple actors.

11 Bartlett, Peter. (2012). A mental disorder o a kind or degree warrantingconfinement: examining justifications or psychiatric detention. Te InternationalJournal o Human Rights, p. 833.

12 Lord, Janet, E. (2010). Shared Understanding or Consensus-MaskedDisagreement? Te Anti-orture Framework in the Convention on the Rights o

Persons with Disabilities. Loyola o Los Angeles International and ComparativeLaw Review, p. 65.


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Staff of institutions

One broad category is the staff o the institution, including medical pro-essionals, administrative staff and social care workers.

It doesn’t matter i the institution is private or public. People are entitledto the protection o their rights in all places. Violation o rights will trig-ger responsibility when is being perpetrated directly by public authori-ties, but also when it is perpetrated at the instigation, consent or mereacquiescence o the public authorities.

The judiciary

In relation to persons with disabilities, the activity o the judiciary isrelevant when they are involved in the procedure o involuntary com-mitment or deprivation o legal capacity. In such cases, the judiciary hasthe duty to make sure that legal provisions and judicial practice is inconcordance with international law and international standards.

In Serbia judges ofen base their decision in relevant cases solely on theopinion o the medical experts, which generally is in avor o the most

restrictive measures such as deprivation o legal capacity or deprivationo liberty. Tis practice has to change. Medical opinions, either comingrom court experts or rom other medical proessionals can contributeto court decisions. But all relevant acts and opinions have to be careul-ly considered, such as those o the person concerned and other peoplewho might have an understanding o the situation (personal doctors,social workers, amily members).

Judges cannot deer their decision to medical experts invoking lack

o knowledge. I they eel they don’t have enough knowledge, judgesshould ask or more trainings on these specific issues, more relevant ed-ucation to be provided. Moreover, or each particular trial the judiciaryhas to call to court everybody who has understanding o the situation othe person concerned, especially outside the medical field. Tis is whythe judiciary was involved: or the medical experts not to have absolutecontrol on human lives. Listen to the person concerned! Listen to amilymembers, to social workers, to psychologists!


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When assessing its training and knowledge, the judiciary also has to baseits opinion on acts and not on stereotypes or impressions. Te danger-ousness o a person has to be considered when taking a decision only in

cases where it would be considered regardless o the person’s disability.

People with disabilities are not as a rule more dangerous than otherpeople. Psychiatric associations themselves, such as the American Psy-chiatric Association have admitted that “psychiatrists have no specialknowledge or skills with which to predict dangerous behavior.”13 More-over, as the only option or doctors is to rely on their instincts, they will vastly choose a sae way out by over-predicting dangerousness whichwill result in the detention o large numbers o people who would noteven have caused harm.14 No other proessionals have better predictiveabilities; not the ones rom the medical field, or with legal background,or with social services related experience.

13 Agnetti, Germana. (2009). Te Consumer Movement and Compulsory reatment: A Proessional Outlook. International Journal o Mental Health, p. 39.

14 For an overview o the literature regarding prediction o dangerousness ina psychiatric context, see Monahan, John. (2006). A Jurisprudence o Risk Assessment: Forecasting Harm among Prisoners, Predators and Patients.VirginiaLaw Review, 92: 392-435 and Grann, Martin, Langstrome, Niklas et. al.(2005).

Psychiatric Risk Assessment Methods: Are Violent Acts Predictable? A SystematicReview. Swedish Council on Health echnology Assessment: 405-427.


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International legal

instruments andstandards

United Nations Context


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European context


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Admission to institutions

Overview

Voluntary admission vs. involuntary admission

Voluntary admissionVoluntary admission implies:

Personal consent to admission: Te consent needs to come directly rom the person who

will be admitted Te consent o the guardian can never be taken

into consideration in deciding the voluntary statuso admission

Persons unaware o their deemed voluntary status haveto be considered involuntarily admitted

Te consent has to regard admission I the person comes to an institution or clinic vol-

untarily, but with no intention to being committed,the admission has to be considered involuntary

Te ability and right to move reasonably reely throughout theinstitution

Te ability and the right to leave the institution at will and Te right to give or withhold inormed consent to treatment.

Involuntary admission

Involuntary admission includes cases when:

the person was admitted on an involuntary basis, and voluntary admission becomes involuntary, or a longer or short-

er period o time.


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Voluntary admission becomes involuntary when:

Te right to move reasonably reely throughout the institution

is inringed Te right to leave the institution at will is inringed; examplesinclude:

Cases when the person tries to leave the institution andencounters barriers, such as:

Having to give a prior notice several days beore(or that period the person has to be consideredinvoluntarily admitted)

Remaining in the institution because the institu-

tion reserved holding powers Having departure unreasonably delayed by invok-

ing busy schedule, reerrals to people who are inmeetings or not at the institutions

Te person eels that is being permanently supervisedand knows that i trying to leave, the staff would try toimpede this rom happening

Te right to give or withhold inormed consent to treatment isinringed

While the best interest o the patients is invoked when involuntary ad-mitting them, there is more and more evidence that this orm o co-ercion has little benefits. Te CRPD does not use the notion o “bestinterest” in relation to adults. In practice, “best interest” “is ofen in-terpreted narrowly to mean ‘best medical interests.’”15 Many involun-tarily admitted patients remain institutionalized or lie, never improv-ing their health state. In the ortunate cases when they are released, themajority still does not find involuntary admission to have been justified.16

15 (2011). Submission to the Department o Health on its Review o the Mental Health Act 2001. Centre or Disability Law & Policy NUI Galway, p. 30.

16 See Priebe, Stean, Katsakou, Christina et. al. (2009). Patients’ Views andReadmissions 1 Year afer Involuntary Hospitalisation. British Medical Journal194: 49 and Gardner, William, Lidz, Charles, W. et. al. (1999). Patients’ Revisionso their Belies about the Need or Hospitalization. American Journal o Psychiatry156: 1385 cited in Bartlett, Peter. (2012). A mental disorder o a kind or degree

warranting confinement: examining justifications or psychiatric detention. TeInternational Journal o Human Rights, p. 834.


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“[E]ven those who retrospectively viewed their detention as justified didnot change in the way they elt about the admission: those who wereangry at the time o admission were still angry.”17

Involuntary admission is currently legally regulated and possible in allcountries. Involuntary admitted patients are protected by a wider rangeo saeguards than those voluntarily admitted; it is necessary to ensurethat all those entitled to them benefit o these saeguards. According toevolving international principles, involuntary admission on the basis odisability should be abolished!

Coercion in the context of admissionCases o people coerced into consenting to admission include:

Cases o persons deemed voluntary admitted and aware o theirstatus who do not consider their status genuinely voluntary be-cause:

people eel they didn’t have a real opportunity to choosebecause o:

the lack o next o keen, the lack o a support group, the lack o alternatives

the person is being subjected to duress by another per-son (social worker, amily member, riends, medical per-sonnel), being threaten. Examples include:

staff in the ambulance on the way to the psychiat-ric hospital saying that i the consent wouldn’t be

signed they would involve the police being threaten with loss o employment by workcolleagues

being threaten with children being taken away being threaten with prison

17 In Bartlett, Peter. (2012). A mental disorder o a kind or degree warranting

confinement: examining justifications or psychiatric detention. Te InternationalJournal o Human Rights, p. 835.


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Te person being subjected to physical violence in order toconsent

Coercive actors can appear at the point o reerral, at the point

o admission or afer admission when the person tries to leaveand can have a series o detrimental effect on the person con-cerned.

Detrimental consequences o using coercion:

People who are coerced into admission experience an improve-ment o symptoms to a lesser extent than others.

Being coerced into doing something, people eel the lack o con-trol which makes the experience negative and rightening.

Te legal possibility o using coercion encourages abuse and notproviding all relevant inormation.

Fear o re-experiencing orced institutionalization can impedepeople rom trying to access treatment, even i they think suchtreatment would be necessary.

Detrimental effects of institutionalization (based on voluntary or involuntary admission)

Te characteristics o institutions impair an individual’s physical or psy-chological wellbeing, interering with social interaction, the ability toestablish relationships, educational and other personal opportunities.In an institutionalized setting the individual is likely to be subjected tonon-consensual psychiatric treatment, including highly intrusive drugtreatments and sometimes electro-convulsive therapy.

Institutionalization triggers discrimination in a wide range o aspects,including sel-stigma, and in relation to procedural rights; or example,i a person has been institutionalized, it is more likely that his compul-sory admission will be prolonged again and again, without alternativesbeing provided.

Institutionalization is said to be in the best interest o persons because

it will “help improve the state o health”; however, in many cases, once


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admitted, the person will remain in the institution or decades or orthe whole lie. When individuals are in these environments or a longperiod o time, their development o sel is substantially stunted, ofen

with permanent effects.

Other aspects to look for during monitoring:

– Effective complaints procedure. – Availability o inormation about legal rights and awareness

among patients and staff.Te lack o awareness o rights is widespread among insti-

tutionalized people. Few institutionalized people attempttochallenge the lawulness o involuntary placement, eitherduring the initial placementprocedure or afer detention hadbegun, although they do not agree with it. While some werenot aware o such possibility, those who were aware wereound to be reluctant to challenge their detention becauseo ear o victimization or concern that complaining couldresult in worse treatment.18

– Periodic review o involuntary admission.

Remember!

“[A]ll human persons are capable o orming wills and preerenc-es where the person has access to the correct supports […]. [Deci-sions] based on will and preerences should in all cases be upheldand legally validated.”19

Just like everybody else, people with disabilities have the right tolive in the community! Tey are ree to choose where they live,with whom they live and how their home looks like!

18 (2012). Involuntary placement and involuntary treatment o persons with mentalhealth problems. European Union Fundamental Agency or Human Rights, p. 48.



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Just like everybody else, people with disabilities should be able to re-ceive social housing or rent or buy their own home! Tey should also beable to inherit property!

Just like everybody else, people with disabilities should not have theirliberty and reedom o movement restricted unless that has been doneas a part o criminal proceedings or in emergency situations. Tis in-cludes not being involuntarily admitted to a social care institution or toa psychiatric acility!

In certain circumstances deprivation o liberty may amount to tortureor cruel, inhuman or degrading treatment or punishment!

Legal considerations

Te CRPD’s general principles include respect or inherent dignity, in-dividual autonomy, reedom to make one’s own choices, independenceo persons. Tey also include respect or difference and acceptance opersons with disabilities as part o human diversity and humanity.20

Tis translates into awarding people with disabilities the right to choosewhere they leave, with whom they live and how their living arrangementlooks like.

According to the CRPD persons with disabilities have the right to recog-nition everywhere as persons beore the law, enjoying legal capacity onan equal basis with others in all aspects o lie.21 Tis means people withdisabilities have the right to be able to control their lives in all possibleaspects. Tey should thereore be able to decide where to live. Recogniz-ing that some people might need help, the CRPD provides or the op-portunity o supported decision making, a case in which, while personscan receive support or taking decision, their wills and preerences have

20 Article 3, United Nations Convention on the Rights o Persons with Disabilities(CRPD).

21 Article 12, CRPD.


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to be respected.22 Tis means that the person has to maniest the will ora representative to be chosen and has to have a word to say in how thisrepresentative will be chosen. Moreover, the representative should never

be given the power to take any decision contrary to the will and preer-ences o the person concerned.

States Parties shall also “take all appropriate and effective measures to en-sure the equal right o persons with disabilities to own or inherit prop-erty, to control their own financial affairs and to have equal access to bankloans, mortgages and other orms o financial credit, and shall ensure thatpersons with disabilities are not arbitrarily deprived o their property.”23

Involuntary admission is a orm o deprivation o liberty. Article 14 othe CRPD adopts a disability-neutral stand, stating that the existence odisability shall in no case justiy a deprivation o liberty and that peoplewith disabilities shall “not be deprived o their liberty unlawully or ar-bitrarily. Restriction o reedom o movement and choice is allowed incases where it applies generally, such as in relation to criminal proceed-ings, but never on the basis o disability. Tis translates into a prohibi-tion o being involuntarily admitted to a social care institution or to apsychiatric acility.

In Article 19, the CRPD recognizes the right o people with disabilitiesto live independently and be included in the community. States have toensure, among else, that “persons with disabilities have the opportunityto choose their place o residence and where and with whom they liveon an equal basis with others and are not obliged to live in a particularliving arrangement.”24Article 25 o the CRPD states that people with dis-

abilities shall never be closed in hospitals or other institutions in orderto receive treatment. reatment should be provided as closest to theircommunity as possible, be based on their ree and inormed consentand promote their rehabilitation.

22 Article 12(4), CRPD.




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Psychiatric treatment

Overview

Psychiatric treatment includes pharmacotherapy (administration omedication) –sometimes necessary, and a wide range o rehabilitative

and therapeutic activities, such as “talking-therapies”, occupationaltherapy, group therapy, individual psychotherapy, art, drama, music andsports –always necessary.

Tese can be provided alternatively or cumulatively .

Psychiatric treatment has to be provided with the free and informedconsent o the person involved.

Free and inormed consent involves:

Te lack o any orm o coercion. Cases o coercion are extremely likely to appear when

the person concerned has doubts about the proposedtreatment. “People with mental illness complain thatthe willingness to attribute capacity to them evaporateswhen they seek to reuse medical treatment, or express a

preerence or an alternative medical treatment, ofen onthe basis that they ‘lack insight’ into their illness and thebenefits o treatment.”25

Institutionalization automatically implies coercion. Eveni ormally existing within institutions only as an excep-

25 Weller, Penelope. (2011). Te Convention on the Rights o Persons with Disabilitiesand the Social Model o Health: New Perspectives. Journal o Mental Health Law, p. 78.


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tional measure, coercion is not only widely spread, but ithas a “considerable effect on psychiatric care in general.Te very possibility that coercive measures can be used

will be part o the situational context in cases in whichstaff and patients differ in their opinions […]. Hence[…] the boundary between coercive measures and pa-tients’ voluntary acceptance o treatment is blurred.”26

Being based on ull, accurate and comprehensible inormation. Such inormation has to be provided at the initial stage

o acquiring consent, as well as during ollowing treat-ment.

ime constraint cannot be used to justiy not providingsuch inormation. Clinicians can make no presumptions about the aware-

ness o patients (by or example skipping what they con-sider general knowledge, or not relevant or the decision).

Inormation cannot be hidden in order to influence de-cisions.

Reaching a decision by proper communication and collabora-tion between the medical proessional and the person concerned.

Proper weight has to be given to both: the doctor’s expertise and the patient’s values, personal experience and cur-

rent liestyle choices; this is particularly relevantas clinical staff ofen disregards side-effects o themedication, which have an extensive impact on thequality o lie; they include:

26 Sjostrom, Stean. (2006). Invocation o coercion context in compliancecommunication — power dynamics in psychiatric care. International Journal oLaw and Psychiatry, pp. 36-37. Tis has also been emphasized by a US Courtin 1973 when it was stated that “It is impossible or an involuntarily detainedmental patient to be ree o ulterior orms o restraint or coercion when his veryrelease rom the institution may depend upon his cooperating with institutionalauthorities and giving consent. […] Tey [patients] are not able to voluntarilygiveinormed consent because o the inherent inequality o their position.” (in

Kaimowitz, No. 73-19434-AW, No. 73·19434·AW, Mich. Cir. Ct., Wayne County,July 10, 1973)


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- impaired memory, loss o hair, weight gain andnausea;

- nerve damage, sexual dysunction, drooling,

sleep disorder and depression:- to take a specific example, the side effects o

chlorprothixene, a commonly used neuroleptic,include highly sedative properties, dry mouth,massive hypotension and tachycardia, hyperhi-drosis, substantial weight gain and extra-pyra-midal effects such as Parkinsonianism, dystonia(abnormal ace and body movements), restless-

ness, and tardive dyskinesia (rhythmic, involun-tary movements o tongue, ace, andjaw). Teseextra-pyramidal effects can be permanent.

Te humiliation and ear associated with compulsorytreatment is ofen linked by those who experience it withthe lack o proper communication.

Other elements which can damage the ree and inormed char-acter o consent:

an untrustworthy person providing the inormation; inormation that is not in language they can under-

stand; medication that literally ‘stops your ability to think’; lack o empathy with the person’s mental or emotional

distress; and lack o time to process inormation.

Te effectiveness o neuroleptic drugs has not much objective evidence.Studies show that there has been little change in outcomes o people di-agnosed with serious mental illness over the past 100 years,27 althoughadvances in pharmaceutical industry has occurred, and neurolepticstarted being used more and more. Further, there is growing evidencethat neuroleptics themselves are responsible or brain changes that are

27 Hegarty, J., Baldessarini RJ et. al. (1994). One hundred years o schizophrenia: A meta-analysis o the outcome literature, American Journal o Psychiatry 151:1409-1416.


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ofen pointed to as evidence o certain mental illness such as schizo-phrenic deterioration.28

Admission to a psychiatric institution, whether voluntary or involun-tary, has to be separated rom consenting to treatment!

Consenting to admission cannot be construed as implying con-sent to treatment; and

Te admission o a person to a psychiatric establishment on aninvoluntary basis should not be construed as authorizing treat-ment without his consent.

Free and inormed consent is necessary because:

It ensures protection o the persons’ dignity and autonomy It maximizes the likelihood o the treatment offered:

Meeting specific needs Being adhered to Reaching therapeutic goals

It supports a sustained therapeutic alliance between the medicalproessional and the person involved.

reatment provided without ree and inormed consent can havea wide range o negative consequences such as:

eeling angry, helpless, rightened, embarrassed, sad,panic, having integrity and psychological comort vio-lated, both at the time o being orced into treatment andaferwards

Promoting psychological dysunction by undermining

eelings o sel-efficacy, which may be essential to the re-covery process.

resistance to voluntarily seek treatment when needed

28 Chakos, M.H. et. al . (1994). Increase in Caudate Nuclei Volumes o First-EpisodeSchizophrenia Patients aking Antipsychotic Drugs. American Journal o Psychiatry151:1430-1436, and Gur, R.E. et. al . (1998). Subcortical Volumes in Neuroleptic

Naive and reated Patients With Schizophrenia. American Journal o Psychiatry155:1711- 1717.


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it leaves place to abuse and to using medication or other

than therapeutic purposes, such as controlling unwanted

behavior and maintain order in the ward.

o check the adequacy o the psychiatric treatment, look at the person’s

treatment plan. Te treatment plan has to be:

Individualized: each person has specific needs that need to be

responded to; treatment plans cannot be identical or extremely

similar or more patients even i they have been ound to have

similar conditions that need care.

Focused on recovery ethos, linked with a discharge plan and

support to return to the community. It thereore has to include

not only details about the used pharmacotherapy, but also about

rehabilitative activities

Te treatment plan has to be a result o a shared decision-mak-

ing. Its establishment has to show a participatory and collabora-

tive approach between the medical proessional and the person

concerned Te presence o objective indicators that treatment plan-

ning is being achieved through a process o shared deci-

sion-making;

Evidence rom patients that they have experienced

shared decision-making and that the subsequent ad-

ministration o medical treatment is consistent with

their consent, inherent dignity and physical and mental

integrity; Has to include the experienced side-effects such as weight-gain,

impaired memory, loss o hair, nerve damage, sexual dysunc-

tion, drooling, nausea, sleep disorder and depression (while

these are given substantial consideration by patients, they are

ofen ignored by medical staff)

Has to exist in written orm; this written orm has to be acces-

sible both to the patient and to the clinical staff involved in the

patient’s treatment


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Other aspects to look or during monitoring:

effective complaints procedure

periodic review o involuntary treatment

Remember!

“[A]ll human persons are capable o orming wills and preerenc-es where the person has access to the correct supports […]. [Deci-sions] based on will and preerences should in all cases be upheldand legally validated.”29

Just like everybody else, people with disabilities have the right toreuse any interventions they do not want!

Just like everybody else, while people with disabilities can takeinto consideration the opinions o medical proessionals regard-ing the desirability o interventions, these opinions cannot be im-posed upon them!

Coerced treatment can amount to torture or cruel, inhuman ordegrading treatment or punishment!


Article 25 o the CRPD states that “persons with disabilities have theright to the enjoyment o the highest attainable standard o health with-

out discrimination on the basis o disability.” It underlines that healthservices include not only pharmacotherapy, but also health-relatedrehabilitation and that they need to be provided “as close as possibleto people’s own communities, including in rural areas.”30 Tis has alsobeen emphasized by the CP, which stated that psychiatric treatment


30 Article 25 (c), CRPD.


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“should involve a wide range o rehabilitative and therapeutic activities,including access to occupational therapy, group therapy, individual psy-chotherapy, art, drama, music and sports. Patients should have regular

access to suitably-equipped recreation rooms and have the possibility totake outdoor exercise on a daily basis.”31

Te CRPD requires treatment to be provided only on the basis o reeand inormed consent. Tis is generally stated in its article 12, whichreaffirms that persons with disabilities have the right to recognitioneverywhere as persons beore the law,32 their will and preerences needto be respected33 and that, when necessary, states need to provide ac-

cess to supported-decision making.34

Te requirement o ree andinormed consent is reiterated in article 25 (d) o the CRPD whichstates that health services, including mental health services, are to beprovided to people with disabilities “on the basis o ree and inormedconsent by, inter alia, raising awareness o the human rights, dignity,autonomy and needs o persons with disabilities.” Te rights to healthcare being provided on the basis o ree and inormed consent mustbe applied without discrimination. Discrimination based on disabil-

ity includes both cases when limitations to this right applies only topeople with disabilities and when it disproportionately affects peoplewith disabilities.

Article 17 o the CRPD recognizes the right o persons with disabil-ities to respect or physical and mental integrity, on an equal basiswith others. Tis is to reaffirm “that disability is not a loss o physi-cal or mental integrity, but a situation in which people possess theirown physical and mental integrity that deserves respect equally with

31 (1998). 8th General Report on the CP’s activities. European Committee or thePrevention o orture and Inhuman or Degrading reatment or Punishment(CP), para. 37, available at http://www.cpt.coe.int/en/annual/rep-08.htm

32 Article 12(1), CRPD




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others;”35 this implies respect or difference and acceptance o personswith disabilities as part o human diversity and humanity. Its relevancein relation to coerced treatment is obvious also because coerced treat-

ment implies losing control over what chemicals are introduced intoone’s body, which undermines the respect or physical and mental in-tegrity and autonomy.

Adding to this, article 15 o the CRPD prohibits torture and cruel, inhu-man or degrading treatment or punishment, including nonconsensualmedical experimentation, and requires states to take effective measuresto prevent persons with disabilities, on an equal basis with others, rom

being subjected to such treatment.

35 Minkowitz, ina. (2007). Te United Nations Convention on the Rights o

Persons with Disabilities and the right to be ree rom nonconsensual psychiatricinterventions. Syracuse Journal o International Law and Commerce, pp. 412-413.


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Seclusion and restraint

practices

Overview

SeclusionSeclusion is a process o separating a person rom environmental stimu-lation and opportunity or social interaction or a certain period o time,sometimes all or most part o the day.

Characteristics o seclusion:

No environmental stimulation

Social isolation; human contacts reduced to superficial commu-nication with staff

Dependency on staff or the provision o all his basic needs Movements are tightly controlled and closely observed

Examples o seclusion:

the person is isolated in one room; it is irrelevant i the door is

or not locked A person is told by the staff to remain in a specific area o theroom or a prolonged period o time

A person is placed in a room o our beds in a row, but havinggreat difficulties in communicating with the others

Seclusion is used in practice:

as a punishment or behavior disapproved by the staff; such be-havior includes:


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rudeness, intrusiveness,

not taking medication,

not obeying staff, the person has caused property damage, there is risk o absconding.

merely because staff is unable to think o an alternative method

Seclusion has nothing to do with therapy!

Seclusion is said to have a calming and positive effect on patients,

allowing them to get away rom the excitement o the ward environment and other people who had upset them. However, get-ting away can be ensured by providing proper personal privatespace. It is not necessary to orce people into spending hours ordays or weeks in a specific environment! Imagine i anybody elsewould be locked away because people would believe the personneeds an escape rom hard to deal with lie events.

Seclusion has prooundly deleterious effects on mental unc-

tioning, on health in general and on the over-all wellbeing o theindividuals. Tis can take various orms: individuals become incapable and/or unwilling o main-

taining an adequate state o alertness and attention to theenvironment

seclusion can, even in the absence o physical brutalityor unhygienic conditions, actively cause physical illnessand mental health problems such as:

hypertension, headaches, appetite loss, weight loss,

heart palpitations the confinement psychosis, a “medical condition

typified by psychotic reaction characterized re-quently by hallucinations and delusions”36

36 Scott, G.D. and Gendreau, P. (1969). Psychiatric Implications o Sensory Deprivation ina Maximum Security Prison. Canadian Psychiatric Association Journal, 14(1), p. 338

cited in Shalev, Sharon. (2008). A sourcebook on solitary confinement . London Schoolo Economics and Political Science, Mannheim Centre or Criminology, p. 11.


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Te separation syndrome that includes emotional,

cognitive, social and physical problems.

emotional damage

Intense agitation and random, impulsive, ofensel-directed violence.

ecal misuse, perceptual changes, affective distur-

bances

difficulty with thinking, concentration and memo-

ry, disturbances o thought content

problems with impulse control, claustrophobia,

rage, severe depression, withdrawal, blunting o a-

ect, apathy, visual disturbances, nervousness, talk-

ing to onesel, conusion, irrational anger, prob-

lems sleeping

Suicidal thoughts or behavior and sel-harm in-

cluding banging one’s head against the wall.

Paranoia

Seclusion can have temporary or permanent long-term

effects such as: Intolerance o social interaction, which prevents

successully readjusting to the broader social envi-

ronment o the institution or the community.

post-traumatic stress (such as flashbacks, chronic

hyper-vigilance, and a pervasive sense o hope-

lessness)

lasting personality changes such as subtle angri-

ness an ear Seclusion can impact the saety o the person to which it

is applied.

Te use o seclusion has to be abolished because:

it does not have a therapeutic purpose

In practice it reveals itsel as a orm o abuse.

It has severe detrimental consequences on individuals.


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Restraint

Restraint can have the ollowing orms:

Manual, physical and mechanical restraints include any meanso restricting a person’s ability to react physically.

Manual restraint includes the cases in which a person is

being held down by arms, legs and shoulders by, most

commonly, several people.

Means o mechanical and physical restraint include

cuffs, braces, or straps (o cotton, leather or canvas) that

are astened with buckles or magnetic locks used or at-

taching residents to beds. Straightjackets and cage beds

are also orms o restraint.

Chemical restraint is the use o medication in order to modiy

or control behavior or restrict the person’s reedom o move-

ment. It generally includes psychotropic medications in over-

doses, sedatives, anti-psychotics, hypnotics and tranquilisers. It

is distinguishable rom treatment as treatment has a therapeutic

purpose, and chemical restraint will most commonly be used tocontrol behavior and encourage submission.

Emotional restraint is usually applied through use o coercion

and threat. For example, behavior can be influenced by threat-

ening someone with seclusion which, even i not applied, can

create ear. Tis orm o restraint is very difficult to prove and

deal with. It can be elimination through changing institutional

culture.

Te use o restraint:

Is largely a matter o institutional culture and not patient demo-

graphics.

It is an indication that acilities have given up trying to deter-

mine the cause o the difficulty or the appropriate treatment.


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Restraint has nothing to do with therapy!

Restraint gives rise to dangers such as asphyxia, aspiration, blunt

trauma to the chest, catecholamine rush, rhabdomyolosis, andthrombosis. It also causes physical injury and sometimes death

Negative psychological effects include: Feeling less sae no longer eeling comortable wearing watches or belts eeling ashamed and dishonored

escalating aggressive behavior, particularly in adoles-cents

Reliving traumatic experiences; a common example othis is women who have suffered past sexual abuse. Ithese women are restrained by their wrists, or have theireet tied up and their legs apart, they ofen perceive therestraint as a reenactment o their past trauma.

Restraint practices damages relationships between hospital staffand individuals

Te use o restraint has to be abolished!

Remember!

Just like everybody else, people with disabilities should not be putin isolated rooms where they are restricted rom communicat-ing with other individuals or rom exercising daily activities! Tiscannot be done nor as a orm o treatment, nor as punishment!

Just like everybody else, people with disabilities should not bekept in cage beds, nor tied to their beds or chairs!

Supervisors can be held legally liable or ailure to protect a pa-tient/client rom inappropriate treatment by staff!

In certain circumstances seclusion and restraint may amount totorture or cruel, inhuman or degrading treatment or punishment!


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Restrictions through seclusion and restraint appear as practices in

which the will and preerences o the person are ignored, this being in violation o the CRPD. Its Article 12 CRPD affirms that persons withdisabilities have the right to recognition everywhere as persons beorethe law 37 and that their will and preerences need to be respected.38

Seclusion and restraint can reach the necessary level o severity to con-stitute torture or inhuman or degrading treatment or punishment,which are strictly prohibited by article 15 o the CRPD. Seclusion and

restraint are gravely inringing also on physical and mental integrity,which need to be protected according to CRPD’s article 17. Te reedomto move one’s own body has been described as “the most basic orm oreedom,”39 an observation with which most would agree but it is highlydisregarded within institutions. In the cases where death is the conse-quence o using such measures, there is a violation o article 10 o theCRPD as well.

Te requirement o ree and inormed consent to treatment is affirmedin article 25 (d) o the CRPD which states that health services, includingmental health services, are to be provided to people with disabilities “onthe basis o ree and inormed consent by, inter alia, raising awareness othe human rights, dignity, autonomy and needs o persons with disabili-ties.” As seclusion and restraint are always officially justified by their al-leged therapeutic capabilities, ree and inormed consent or such prac-tices has to be required.



39 Moncada, Angelika. (1994). Involuntary Commitment and the Use o Seclusionand Restraint in Uruguay: A Comparison with the United Nations Principles or the

Protection o Persons with Mental Illness. University o Miami Inter-American LawReview 25, p. 612.


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Neglect, exploitation,

violence and abuse

Overview

NeglectNeglect is reerring to doing harm to a person’s health or well-being by aperson or an institution responsible or this health or well-being.

Examples o neglect include:

Food related: ailure to provide adequate ood

ailure to take into consideration dietary needs and pre-erences

ailure to provide ood in an adequate manner such aseeding people with large spoons while they are lying bed

Clothes related: Not giving people the opportunity to choose what clothes

to wear (colours, sizes etc.) Lack o appropriate medical care

Not including rehabilitative activities within the provid-ed treatment

Not taking care o not disability-specific illnesses such asflues, dental care etc.

Not keeping detailed records o people’s state o health Lack o reasonable accommodation

Not adjusting sanitary acilities in order or people to beable to use toilets or take showers in private and on their

own or with little help


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Exploitation, violence and abuse include:

Physical violence and abuse such as corporal punishment

Sexual exploitation violence and abuse Forced sterilization and orced abortion Emotional abuse such as being teased, made un o or threaten

Remember!

Just like everybody else, people with disabilities cannot be subjected to any orm o physical or emotional violence! Tey can-not be beaten, threaten, black mailed or subjected to any orm o

sexual violence!Just like everybody else people with disabilities cannot be denied ordeprived o health care or proper treatment! Tey cannot be orceded or deprived o ood! Tey cannot be deprived o access or rea-sonable accommodation to ensure access to hygiene related utilities!

Just like everybody else, people with disabilities, even when in in-stitutions, have the right to be able to move around and do physi-

cal exercise i they wish so!Just like everybody else, when requiring medical help, people withdisabilities have to receive the best services available! Tey cannotbe considered less worthy o help!

In certain circumstances abuse and/or neglect may amount to tor-ture or cruel, inhuman or degrading treatment or punishment!

Legal Considerations

Tere are several CRPD provisions relevant in the context o neglect,exploitation, violence and abuse. One o the general principles o theCRPD is that all people, including people with disabilities, must betreated with respect or their inherent dignity.40 Nothing can be done

40 Article 3, CRPD.


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that can endanger the lie o people with disabilities. According to ar-

ticle 10 o the CRPD, every human being has the inherent right to lie

and states shall take all necessary measures to ensure its effective enjoy-

ment by persons with disabilities on an equal basis with others. Andno one shall be subjected to torture or to cruel, inhuman or degrading

treatment or punishment.41

o underline the specific vulnerability o people with disabilities to

neglect, exploitation, violence and abuse, the CRPD emphasizes in

its article 16 that governments must take all appropriate legislative,

administrative, social, educational and other measures to protect

persons with disabilities rom all orms o exploitation, violence andabuse, both within and outside the home.42 Government should also

prevent such events rom happening.43 And they must have legislation

and policies, including gender ocused and child-ocused dimensions,

in order to identiy, investigate and prosecute instances o exploita-

tion, violence and abuse.44

States must also ensure that acilities designed or people with disabilities

are independently monitored.45 And while monitoring is being under-gone to prevent, protect and prosecute exploitation, violence and abuse,

public authorities have the duty to promote the physical and mental re-

covery, rehabilitation and integration o persons who have experienced

abuse, exploitation or violence in an environment that promotes dignity

and autonomy.46Article 17 comes to emphasize once again that every

person with disabilities has a right to respect or his or her physical and

mental integrity on an equal basis with others.








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Tese provisions address neglect, exploitation, violence and abuse gen-erally. However, as these practices can take such a wide variety o orms,other provisions can also be relevant. For example, a orm o neglect is

leaving people lie in bed or long periods o time, not providing wheelchairs, not providing the opportunity to use mobility equipment. Some-times people are kept in a small bed with bars which does not allowmovement, or in a place so small that it does not allow getting out o abed, getting into a wheelchair and moving the wheelchair. Tese prac-tices constitute a violation o CRPD’s article 20, which provides thatstates shall take effective measures to ensure personal mobility with thegreatest possible independence or persons with disabilities, including

by acilitating the personal mobility o persons with disabilities in themanner and at the time o their choice, and at affordable cost; acilitat-ing access by persons with disabilities to quality mobility aids, devices,assistive technologies and orms o live assistance and intermediaries,including by making them available at affordable cost; and providingtraining in mobility skills to persons with disabilities and to special-ist staff working with persons with disabilities and encouraging entitiesthat produce mobility aids, devices and assistive technologies to take

into account all aspects o mobility or persons with disabilities.When not provided reasonable accommodation to use sanitary acili-ties in private, people with disabilities can have their right to privacy, asestablished in article 22 o the CRPD, violated. When they are deprivedo proper health care, disability specific or not, people with disabilitieshave their right to health violated. Tis will be in breach o the article 25o the CRPD, which states that States Parties shall provide persons withdisabilities with the same range, quality and standard o ree or afford-

able health care and programmes as provided to other persons, includ-ing in the area o sexual and reproductive health and population-basedpublic health programmes.47 States should also prevent discriminatorydenial o health care or health services or ood and fluids on the basis odisability.48

47 Article 25(a) CRPD.

48 Article 25(), CRPD.


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Conclusions

It is common in Central and Eastern Europe to find social care insti-

tutions and psychiatric hospitals where people with disabilities spendshorter or longer periods o time. Most ofen they are there or years,decades or their whole lie. Tese places are generally reerred to as “in-stitutions.” While different in sizes, ranging rom places with around 10persons to places with hundreds o people, institutions segregate people.Tey are widely known as places where multiple orms o human rights violations occur, including involuntary admission, orced treatment, se-clusion and restraint, neglect, exploitation, violence and abuse.

Involuntary admissions to an institution are characterized by the lacko consent or a blurred consent o the person admitted. An admissionis only voluntary when there is a personal consent to admission comingdirectly rom the person who will be admitted (not rom the guardian oranyone else). Voluntary admissions can transorm in involuntary oneswhenever the right to move reasonably reely throughout the institutionis inringed, when the right to leave the institution at will is inringedand when the right to give or withhold inormed consent to treatmentis inringed. Te admission will be involuntary also when the consentto admission has been obtained through coercive measures, such situ-ations including cases o people who didn’t have a real opportunity tochoose because o lack o alternatives or o support groups, persons be-ing subjected to duress, physical violence and/or threats by social work-er, amily member, riends or medical personnel. Involuntary admissionon the basis o disability, whatever orm it takes, is prohibited by currentinternational law standards.

Forced treatment constitutes another practice which violates the rightso institutionalized people. Psychiatric treatment in institutions shouldalways include therapeutic and rehabilitative therapies, and, only whennecessary, pharmacotherapy. In order not to be orced, treatment has tobe provided with the ree and inormed consent o the person involved,which requires the lack o any orm o coercion and the provision oull, accurate and comprehensible inormation Obtaining ree and in-

ormed consent is the most desirable outcome not only because it is


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legally required, but also because it can positively impact the efficacyo treatment, it supports a therapeutic relationship between the patientand the medical proessional, it decreases the chances o medication

being used abusively and it makes the negative consequences o orcedtreatment disappear – these negative consequences include eeling an-gry, helpless, embarrassed, sad, panic, having integrity and psychologi-cal comort violated, rightened and humiliated.

Seclusion and restraint practices constitute another set o human rights violation. Seclusion is a process o separating a person rom environ-mental stimulation and opportunity or social interaction or a certain

period o time, sometimes all or most part o the day. Restraint can bemanual, physical, mechanical, chemical or emotional and it is used torestrict a person’s ability to react physically or emotionally. Having notherapeutic value, they are mostly used in practice to punish unwantedbehavior. Tey can have extremely detrimental effects on individuals,such as affective disturbances, difficulty within thinking, concentrationand memory, problems with impulsive behavior control, rage, severedepression, apathy, visual and auditory hallucinations, physical injury

and even death.Practices which constitute neglect, exploitation, violence and abuse areanother set o human rights violations ofen associated with institutions.Tey include inadequate provision o ood and clothes, lack o medicalcare, lack o reasonable accommodation, corporal punishment, orcedlabor and sexual violence.

All the practices reerred to above constitute human rights violations,

being strictly orbidden by international law. Te most relevant inter-national human rights instrument or institutionalized people with dis-abilities is the United Nations Convention on the Rights o Persons withDisabilities (CRPD). Its general principles include respect or inherentdignity, individual autonomy, reedom to make one’s own choices, in-dependence o persons. Tey also include respect or difference and ac-ceptance o persons with disabilities as part o human diversity and hu-manity. Tis translates into awarding people with disabilities the right to

choose where they leave, with whom they live, how their living arrange-


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ment looks like, the right to be treated only with their ree and inormedconsent, the right to have liberty o movement and the right to be reerom neglect, exploitation, violence and abuse.

In order or rights to be respected, monitoring o institutions is neces-sary, being as well required by international law 49. Monitoring teams,whether governmentally established or run by the civil society, have tobe aware o all these issues and pay particular attention to all aspects re-erred to above when doing their work. Only this will ensure promotingcurrent international standards, will reveal the most pressing problemsand will contribute, when necessary, to properly investigate and pros-

ecute human rights abuses.

In conclusion, institutions do perpetrate human rights violations andmonitoring teams have to pay particular attention to instances wherethe rights o people labeled as having a disability are being inringed.Tese instances include involuntary admissions, restraint and seclusion,orced treatment and neglect, abuse and violence. Related practices mayamount to torture or cruel, inhuman or degrading treatment or punish-ment. While deinstitutionalization has to be the priority, it has to be en-sured that institutionalized people are not having their rights inringed.Just like everybody else, people labeled as having a disability are subjectso human rights!

49 Te two most relevant instruments in the context o mental health which requiresuch bodies to be established are the United Nations’ Convention against orture

and Other Cruel,Inhuman or Degrading reatment or Punishment (CA) and theUN Convention on the Rights o Persons with Disabilities (CRPD).


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CIP - Каталогизација у публикацији

Народна библиотека Србије, Београд

364-787-056.24(497.11)316.728-056.24(497.11)

GIRLESKU, Oana Georgiana, 1988- Human Rights Oversight in InstitutionalSetting / [author Oana Georgiana Girlescu]. -Beograd : #Inicijativa za prava osoba samentalnim ivaliditetom #MDRI-S =#MentalDisability Rights Initiative #MDRI-S, 2014(Beograd : Manuarta). - 48 str. : otogr. ;

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