Another special day

I feel like I’m on a positive wave. I was quite sceptical towards todays lectures on Mental Health Law and Detention, and on Psychiatric Treatment, because I was worried it might end up in a very fundamental disagreement. But that didn’t happen.

This morning we started again at 9 am. The first lecture was from Peter Bartlett, about Mental Health Law and Detention. First we addressed and analyzed article 14 on liberty and security of the person of the UN CRPD which says that disability cannot play a part in any decision making on liberty (UN CRPD art 14.1.b).
This means that current legislation on forced treatments which give a partial role to the existence of a mental disability (combined with dangerousness to self or others) are also a violation of the human rights. (see OHCHR annual report 2009 A/HRC/10/48, point 48 and 49, http://www.un.org/disabilities/documents/reports/ohchr/A.HRC.10.48AEV.pdf )

Then we analyzed art 5 Right to liberty and security of the European Convention on Human Rights, which says that
1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:
(e) the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants;
This is not positive of course.

Current mental health laws are based on the tradition of justifying detention.
The European Convention on Human Rights dates from 1950, and is really vague about “a procedure” and “unsound mind”. It took almost 30 years before the first trial on a mental health law took place (Winterwerp vs Netherlands) where boundaries were set on “the existence of a real mental disorder (diagnosis), the procedure (with real doctor), who had to convince that detention was the best option, embedded with reasons, a right to challenge this before a court, and detention would only be justifyable when the disorder is ongoing” . After this case about a few more cases followed until now, with varying successes (some were really disappointing, like in 1991: “treatment cannot be degrading when it’s done with good intentions of doctors”)
Unfortunately, the bonds of national governments with the European mechanisms is stronger than the bonds with the (newest) UN mechanisms, like the UN CRPD Committee.

There are many reasons not to continue with the practices of mental health detention. One reason is that it is discrimination on human rights, another reason is that coercion destroys the care-relationships. Although these are clearly valid arguments, there is often an attitude of “that’s the way it is, and it’s justified by the state, so it’s not us..”

The traditional justification of mental health detention is based on dangerousness to others (which goes back till 1600 mentioning “detaining lunatics in fury” -and probably this was happening long before). The association and focus on danger increases and reinforces stigma. Furthermore it is questionable if dangerousness can be predicted (1/2 to 2/3 is false positive and never becomes dangerous). Predictions based on checklists and statistics are discriminatory (highest risks are found amongst young, poor males with other ethnicity, but you can’t lock them all up preventively). Statistics just don’t apply to an individual.
Also the criterion of “danger to self” is often a cover up for other motivations to apply force. The argument of incapacity is applied to a really vulnerable and manipulable category, often just to oppose decisions that are “not liked”. But about whose wellbeing is this? Whose perception? And who is to question personal choices?.
And also the danger to self is hard to predict (you can’t look into the future). If a person can have choice in medical care, why not in psychiatric care?

Thirdly there is the argument of “need for care or treatment”, by which detention is suddenly explained as beneficial to users, while for others this is not. Also there are no good results of this detention-treatment. So what is ethical: detain or undetain? In the community you may get hurt, but if it is done by a user, it suddenly has all different kind of severe consequences.
The decision on forced treatments is done subjectively, because opinions on danger and illness may vary per person, so mental health detention becomes a lottery.

Peter Bartlett then discussed with us the case of H.L. vs UK, which illustrates how vague detention on itself can be. H.L. had no option to leave (lacking capacity to do so), but the door wasn’t locked. And if he would try to leave, he would be forced to stay. This may be a relatively unclear situation, but however this is effective and complete control over a person, which is called detention.

The quotes from the OHCHR annual report 2009 A/HRC/10/48, point 48 and 49, http://www.un.org/disabilities/documents/reports/ohchr/A.HRC.10.48AEV.pdf clearly state that criteria for detention should be de-linked from disability.
This quote also mentions “preventive detention” (which in criminal law can be applied in case of proven attempts), but if this not applies to anybody else, then it also shouldn’t apply to persons with mental illnesses.

But after all we should not keep on discussing on the language of the CRPD endlessly. The real issue is about cells, caged beds, bedstrapping etcetera.

Peter Bartlett’s presentation was really more positive than I had expected, and this made me feel more positive about the entire course and MDAC again. Every day I’m loosing more reservations. It’s really a great feeling, a real relief. It feels like I’m climbing up a stairs, into the light.

Then Eva Szeli proceeded with a lecture on Forms of Treatment, which was basically meant to inform the non-mental health experts by giving an overview of the various treatments, and explained some main areas of concern.
Historical treatments are exorcisms (often somehow violent, to chase away spirits) and trephening (making a hole in one’s head to release spirits). Later on came the biomedical approach, such as psychopharmaceuticals, Electroshocks (ECT), psychosurgery /neurosurgery (lobotomy), insulin shock therapy and hormone therapy/ sterilization.
And also there is psychotherapy (talking) and various other treatments (music, sports, creative and so on) which is less of a human rights concern, but the physical and chemical restraints are. Also aspects as polypharmacie (multi-medicating of a user), inpatient/outpatient/community care, (in)voluntary treatments and other living conditions need consideration.

Then Peter Bartlett analysed with us which articles of the UN CRPD were relevant to mental health treatment and detention, basically these were article 12. Equal recognition before the law (legal capacity), article 14. Liberty and security of the person, article 4. General obligations (non-discrimination), article 15. Freedom from torture or cruel, inhuman or degrading treatment or punishment, article 17. Protecting the integrity of the person, article 19. Living independently and being included in the community and article 25. Health, (especially article 25 d. on free and informed consent)

After the lunchbreak we had another interactive groupwork session on Lawyering Skills, in which we analysed yesterday’s fictional case of Alma to prepare for Moot Court (the final exercise next week). We were defending Alma, who wanted out of the institution. It was very educative to learn how to handle such a case. We learned about applying the legal standard (criteria on mental illness and danger), about the burden of proof (the hospital has to prove there is a mental illness AND danger, or the patient has to prove there is not a mental illness and/or danger, and/or defeat the evidence of the hospital). We also learned about the standards of evidence: in criminal proceedings you have to proof beyond reasonable doubt, but in civil proceedings the evidence needs to be clear and convincing, and the balance needs to be clear (preponderance of evidence), also the evidence should be sufficient to support the findings.
Also there are rules on evidence, like hearsay is no evidence, but it is possible to use records, and experts and witnesses, who need to be competent to testify.

During the group work we analysed the strengths and weaknesses, and discussed how to deal with evidence, burden of proof, which experts we would need and so on. It was really interesting. I learned a lot by this exercise.

The final session of today was used to prepare for the Site Visit tomorrow. We all got the Ithaca Toolkit for monitoring Human Rights and General health care in mental health and social care institutions. Tomorrow we will perform a monitoring visit to a social care home (residence) where 116 persons with intellectual disability are living. It won’t be pretty what we will see there. I’m quite prepared. It isn’t my first visit.

Because a lot of students had showed interest in my alternative mental health care law model, I gave a spontaneous presentation after the official sessions, and I explained my alternative model (Eindhovens Model) of using Family Group Conferencing for supported decision making in mental health crisis situations. I was a little bit nervous, because I wasn’t as well prepared as usual, but it all went well. I mainly focussed on the legal arguments, and less on the care-contents. Also the lecturers were impressed and gave their compliments. I’m very proud of that.

After all of this the third schoolday was done. I was intending to join a group going to the hot thermal bath, but instead I stuck with 3 girls from my course and made a nice walk through Budapest, over the bridge, up the hill, having an overview of all of the city. I was for the first time really relaxed and enjoying Budapest. I feel like I finally landed here. It was another special day for me.

I know that tomorrow we may see some disturbing things at the Hungarian institution, but I have visited sad and disturbing institutions before. I will manage. I’m just making sure that I’m prepared. It’s a really intense week. But I’m really proud of doing this.