4(C)(ii). Boris faces retribution

Facts

Ten years ago Boris was placed under guardianship on the basis of a diagnosis of mental illness. Since then he has lived at home with his mother. His mother develops Alzheimer’s disease and is in turn placed under guardianship. Boris’s sister becomes guardian of both him and their mother. Without consulting him, she places Boris in a social care institution where Boris is allowed relative freedom to choose what he does each day, to come and go as he pleases. Nevertheless, he does not want to live in an institution and wants to go home. As there is no possibility of doing this while under guardianship, he initiates a review of his guardianship and represents himself during the court proceeding.

The court rejects his claim on the basis of a psychiatrist’s opinion which states that his mental illness is permanent, and also refuses Boris’s request to obtain a second opinion. An appeal court upholds the placement under guardianship. Boris approaches a lawyer but as a person under guardianship he cannot legally sign a power of attorney: only his guardian can sign it on his behalf. The lawyer says he will help anyway, which Boris is pleased about. Reacting to his efforts to challenge the guardianship and institutionalisation, his sister tells Boris she will transfer him to an institution further away unless he stops contact with the lawyer. Boris does not want to be transferred and agrees to sign a paper saying he will not contact the lawyer.

Discussion

These facts may seem far-fetched but are based on a case in which MDAC has been involved. Lies, intimidation, and threats are common when placing people into institutions and blocking them from getting out. In this example we will consider issues of access to justice and the right to a fair trial.

1. Community supports: Boris is in an institution where he doesn’t want to be, so his right to live in the community is being violated.
    
2. Liberty: If Boris cannot get out of the institution when he wants, he is detained and his right to liberty is restricted.
    
3. Privacy, family and home: Depending on the setup of the institution, Boris’s right to a private life may also be restricted.
    
4. Non-discrimination: Similar to Ann, Boris has been placed in an institution only because of his label as having a mental disability. Lawyers could argue a discrimination point on these grounds. 
    
5. Access to justice: Boris’s guardian has tried to block Boris from seeing his lawyer, and therefore his access to justice is being denied. In this case, the authorities are being inconsistent: they are dismissing Boris’s legal capacity to decide to leave the institution, but implicitly recognising his legal capacity by accepting the validity of his signature, which was obtained through coercion.
    
6. Fair trial: This right may be engaged as the court has relied on one single expert opinion which states that Boris’s condition is permanent: in most national laws which have guardianship, this is not a sufficient justification for removing a person’s legal capacity. The fact that a court has rejected a second opinion may also raise fair trial issues.
    
7. Conditions: The UN Special Rapporteur on Torture has raised the possibility that wrongful detention in an institution may amount to ill-treatment in and of itself. Here Boris is detained in an institution for people with Alzheimer’s disease, so lawyers may raise a claim highlighting the likely detrimental effects of long-term institutionalisation.