Kristi Rekand

Human dignity is an important part of being a person and of a person’s self determination. Making decisions and being aware of the consequences is directly linked to it. If the person has a psychological or a mental disorder, determining his or her capacity to exercise his or her will would have to be carried out with particular care, in order to avoid excessive and unfounded curtailing of the person’s rights. The rights of persons with disabilities may be endangered in several instances in civil law matters, for example, upon application of treatment against the person’s will, placing the person in a closed institution and limiting the person’s active legal capacity. These cases involve persons whose right to self determination and making decisions and choices is limited for the protection of the person or the society.

In the last few years the limitations in force so far have been subjected to reassessment based on the criterion of humaneness, especially from the point of view of human dignity, the person’s self determination and the “reasonableness/acceptability” of the society. It has become questionable to set limitations – which have thus far been permissible – of subjecting persons to treatment against their will, determining the treatment methods without finding out the person’s true will, determining the person’s limited active legal capacity and appointing the guardian on the base of it.

The practice of the European Court of Human Rights (the ECtHR) gives the member states good guidelines for interpreting human rights and their restrictions in the aforementioned matters: application of treatment against the person’s will, placement in a closed institution, appointing guardianship, etc. The practice of the ECHR has altered the limits by broadening the interpretation of limitation of the person’s rights, particularly, in order to protect the individual and his rights. Due to self determination, the person has to have the right to make right and wrong choices despite the fact that it may prove reasonable or unreasonable for the society. Certain civil limitations do need to exist, but these limitations must adhere to the requirement of minimal intervention in the person’s rights. If these requirements are not being adhered to it may be a case of abuse or torture.

Political, institutional and preventative developments

Humane treatment and human dignity must be ensured everyone despite the fact the person has a disability. Humane treatment also presupposes finding out the person’s real will and respecting that will, and recognizing him or her as the subject of rights in providing services to that person. A person who may need various services at various times because of his or her disability must receive the services that meet the person’s health conditions and his or her real needs. The ECtHR has concluded that degrading treatment occurs when the person is humiliated or debased, showing the person disrespect, also behaviour, which causes feelings of fear, anguish or inferiority.[1]

Estonia ratified the Convention on the Rights of Persons with Disabilities and its Additional Protocol in 2012, thereby taking on the obligation to prohibit all discrimination based on disability, guaranteeing persons with disabilities equal and effective protection from discrimination on any bases. Estonia also undertook to guarantee that all measures relating to exercising of legal capacity offer appropriate and effective protection from abuse according to international human rights. Such protection must guarantee that measures relating to exercising of legal rights respect the person’s rights, will and preferences, do not contain a conflict of interests or unfounded affect, are proportionate and correspond to the person’s situation, are applied for the shortest possible time and are regularly reviewed by a competent, independent and neutral organisation or a judicial body. Protection must be proportionate to the effect to which such measures affect the person’s rights and interests. The aforementioned indicates that the convention emphasizes recognition of legal capacity of persons with disability in all areas of life on an equal basis, and that the state has the obligation to take all appropriate measures to enable the target group’s access to necessary help in order to exercise their legal capacity. Estonia made a declaration regarding Article 12 insofar as it interprets Article 12 as not prohibiting a person being determined to have restricted active legal capacity if such need arises from the person’s inability to understand or conduct his or her actions. Estonia relies on state law in limitation of rights of persons with restricted active legal capacity. Even though Estonia decided to make a declaration regarding Article, 12 the aforementioned does not mean that breach of a person’s fundamental and human rights is allowed because they have a disability.

The Chancellor of Justice carrying out the function of the state preventative organ stated in Article 3 of Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, in course of which he monitored various psychiatric clinics and social institutions (care homes) in 2013 as well. The visits aimed to monitor whether persons’ basic rights and freedoms had been guaranteed during receiving of the services. Several substantial shortcomings and problems were detected.

The Chancellor of Justice drew attention to the following problems (among others):

–       arbitrary limitation of the basic right to freedom of persons receiving welfare services or in general care homes is prohibited;

–       since seclusion as a method of restraint is an intense breach of right to freedom, application of which increases the danger of torture, cruel or demeaning treatment, there are strict requirements in place (for the room, duration of seclusion, monitoring, requirements for the registry of seclusion, etc).

It is also appropriate to claim that a person’s right to make choices and decisions (including refusing treatment, choosing appropriate services, etc) must be guaranteed also in cases where the person has psychological or mental disabilities. The visits made by the Chancellor of Justice clearly show how easily the rights of persons with disabilities are breached and their self determination is interfered with, and that is why the society needs to pay special attention to the protection of interests of persons with disabilities. The fact that a person has a disability cannot be the basis for limiting his or her rights. If the person’s actual needs are not evaluated, other people make decisions for him or her, whereby the person’s capacity to exercise his or her will has not been evaluated, it might be a case of breach of human rights.

Legislative developments

The interpretation of torture, inhuman or degrading treatment has started to expand on the European Union level as well as on international level moving from the organization/authority level towards the level of relations among the private sphere/persons. Whereas, for a long time abuse has been interpreted in the context of closed institutions under control of the state (prisons, psychiatric clinics), now the appropriate limits have been expanded to include other kinds of organisations and levels (public law agencies and private bodies of social and health welfare institutions, private and family law relationships). At the end of 2013 the Legal Affairs Committee of Riigikogu accepted the draft Act amending the Penal Code and other acts, which intends to bring the definition and composition of torture into compliance with what is stated in Article 1 of the UN convention against torture.[2] Once the amendment has been made the definition of torture will also be in compliance with what is stated in Article 3 of the European Convention on Human Rights, defining torture as wilful physical or mental inhuman treatment. Additional attention and discussion is also needed in evaluating (whether to consider them and how) aggravating circumstances of abuse, which, according to court practice, are the person’s gender, age and state of health. Whether the plan to move the composition of torture to the chapter of offence of official misconduct is in accordance with international practice must also be analysed while the ECtHR has set about expanding the official dependency.

Court Practice

Cases of limiting the rights in question, possible breaches and detection of abuse are yet nonexistent in Estonia. Cases that we can discuss in relation to this field concern court practice dealing with application of treatment against one’s will and placement in closed organizations and appointing guardians. There were some court rulings on state level in the period in question where appropriate bases were evaluated and breaches were detected, for example, based on existence of danger, duration of mental disorder and due to that the detection of restricted active legal capacity, etc.

The NGO Estonian Patient Advocacy Association represented and assisted its target group in various court cases with the objective of bringing about legal clarity and promoting human rights guidelines.

The ECtHR has found in its decisions of 2013 that the state has the obligation to examine physical abuse also in relationships between private persons; physical abuse of a private person by another private person must not go unpunished.[3] The state also has the obligation to effectively examine bodily injuries caused in conflicts between private persons. The minimal requirements to the enquiry are independence, impartiality, openness to attention of the public, excellent performance of duty of diligence and immediacy of proceedings.[4] Abuse of a person by another person is within the scope of application of Article 3 of the convention. The ECtHR has previously found that if the sterilisation of a person is carried out without the person’s clear consent it is an act against human dignity, which is demeaning to the person and causes emotional distress.[5]

The court practice that has been referred to indicates that the limits of interpreting human rights are constantly expanding and that abuse can be found in various fields of life. Hopefully there will be court decisions in Estonia as well, which interpret emotional or physical abuse in private areas of social and health care spheres as torture. Court practice interpreting restriction of human rights as abuse is also needed.

Statistics and surveys

In 2013 the UN Commission on Human Rights Special Rapporteur Juan E. Mendez published a report on torture and other cruel, inhuman or degrading treatment or punishment in health-care settings.[6] Even though the report focuses on international problems in the field, it presents principles, which every democratic state promoting human rights should adhere to. According to the report inadequate determination of capacity to exercise one’s will and carrying out acts of violence in its shadow; the person’s complete subjugation under the justification of “medical need”; restriction of freedom against the person’s will based on disability; mental, physical and sexual violence in organisations, etc can be interpreted as torture and abuse. The aforementioned interventions are equal to at least inhumane and degrading treatment, which are hard to prove in case of a dispute. The right to receive health care services of adequate standard sets the obligation of the Member States for private persons. Shortcomings of the system, the resources, or lack of services cannot become a justification for abuse. The Rapporteur recommends enforcing prohibition of torture in all health care settings – in private as well as public institutions; recognizing that abuse carried out in health care settings can be classified as torture or cruel, inhuman and degrading treatment or punishment; integrating methods of preventing torture and abuse into health care policies. The report also recommends promoting responsibility for torture and abuse in health care settings by identifying acts of law, policies and practices, where abuse is present and enabling state preventative mechanisms to systematically monitor, accept complaints and institute proceedings.

The European Committee for the Prevention of Torture (CPT) published a report in 2013, which discusses its visit to Estonia in 2012.[7] The CPT visited among others Psychiatric Clinic of the North Estonia Medical Centre and Koluvere Care Home. According to the recommendations made in the report:

– the orderlies working at the aforementioned institutions are to be regularly reminded that all forms of ill-treatment of residents, including verbal abuse, are unacceptable and will be punished accordingly;

– whenever injuries are recorded which are consistent with allegations of ill-treatment, the record is systematically brought to the attention of the prosecutor;

– it is to be ensured that the patients have the right to wear their own clothes during the day or are provided with appropriate non-uniform garments;

– continuous supervision ought to be ensured upon using mechanic restraint;

– the duration and frequency of mechanic restraint ought to be minimal;

– chemical restraint should always be fully recorded and the residents concerned should be closely monitored upon its application.

Both analyses point out various problem areas in provision of services by social and health care agencies. The UN report also deals with the quality of services provided to persons with disabilities, the limited nature of services, unjustified interference in persons’ private sphere, etc, which may be interpreted as ill-treatment and torture for medical reasons. This happens in particular in cases where the person’s will is not considered, the services provided to him or her do not fit his or her medical conditions, the system allows for excessive interference in the person’s private sphere although there are less restrictive measures available, etc. The CPT report clearly indicates that restriction of any right automatically brings about restriction of other rights, which is why it is important to make correct and extremely considered decisions from the start. From the point of view of human rights the correct view is where interferences and services provided are allowed only in case of emergency care and based on objective evaluation and proof.

Good practices

Ratification of the UN Convention on the Rights of Persons with Disabilities gives hope to a different interpretation of the situation of persons with disabilities, which in turn decreases unfounded restriction of their rights. A changed interpretation also decreases the danger of ill-treatment if persons with disabilities are offered services that correspond to their actual needs and their actual capability to express their opinion is considered.

NGO Estonian Patient Advocacy Association continued to act in the interests of its target group in 2013 by participating in various working groups, presenting memorandums to ministries and cooperating with various human rights organisations on national as well as international level. Promotion of human rights and guaranteeing them in practice continues to be a priority for the association, especially in the field of persons with disabilities.

An example of a good practice is the purpose of developing guidelines for deinstitutionalization[8] on an international level – moving from institutional care towards community-based care. Article 19 of the UN Convention on the Rights of Persons with Disabilities also states following the principle of independent life and inclusion in the community. It is another matter whether and how the guidelines are followed and whether the interests of persons with disabilities are considered in the end. The trend towards deinstitutionalization should be applied to developing social services provided on the local government level, which means the person’s right to live in his or her home with his or her family and receive the necessary social services. Unfortunately there is currently no information regarding guaranteeing and monitoring of this principle.

Noteworthy public discussions

In 2013 the Ministry of Social Affairs organised an information seminar on the topic of deinstitutionalization in Estonia, guidelines of the European Commission and international practices. It is still of concern that the process of deinstitutionalization is only talked about as a reform of special welfare services rather than the need to approach the problem on a case by case basis. The level of local government has also been ignored, particularly from the point of view of offering social services. In 2013 work on development plan for the years 2014-2020 continued on the initiative of Ministry of Social Affairs. The development plan is directly linked to the plan of deinstitutionalization.

Recommendations

  • The concept of torture must include emotional as well as physical abuse. Determining of the degree of severity of torture must consider among other things the duration of ill-treatment, the nature of ill-treatment, physical and emotional consequences and the person’s gender, age and state of health.
  • The public must be notified of circumstances and cases of ill-treatment.
  • The decision-makers must be notified of the fact that ill-treatment carried out in health care settings can be classified as torture or cruel, inhuman and degrading treatment or punishment.
  • It is necessary to integrate measures for prevention of torture and ill-treatment in policies and to create clear appeal mechanisms and opportunities for processing and investigating appropriate complaints.
  • The basis for capacity to exercise will and for determining it must be regulated on the level of acts of law.
  • Persons with disabilities must be recognized in all areas of life on equal basis as persons with passive and active legal capacity and the reservation regarding Article 12 of the Convention on the Rights of Persons with Disabilities must be removed in order to guarantee human rights.

[1] European Court of Human Rights. 9 January 2014 judgment no. 66583/11.

[2] Available at: http://www.riigikogu.ee/index.php?op=ems&page=eelnou&eid=78433b29-8b2f-4281-a582-0efb9631e2ad&.

[3] 10 December 2013 judgment no. 50115/06 Ceachir v. Moldova.

[4] 14 November 2013 judgment no. 56697/09 Skorokhodov v. Ukraine.

[5] 13 November 2012 judgment no. 15966/04 I.G. et al v. Slovakia.

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