5(D). Developments in the Czech Republic since 2003
After reading MDAC’s 2003 report, J.K. Rowling – author of the Harry Potter series – weighed in on the use of cage beds. Her criticism led to the Minister of Health banning metal cage beds. Despite good intentions, the decision was taken without proper preparation, education or training of medical personnel and led to opposition and heavy criticism from a number of influential mental health professionals. The minister paid the price by losing his job.
Although the use of cage beds in social care settings has been unlawful since adoption of the 2006 Social Care Act, the 2011 Health Code recognised netted cage beds as a form of lawful restraint in psychiatric institutions. The use of netted cage beds has been criticised by the Ombudsperson (referred to as the Public Defender of Rights in the national context) in a 2013 report on monitoring visits to children’s psychiatric institutions. The Ombudsperson recommended that psychiatric hospitals find alternatives to cage beds.27
The Ombudsperson acted in his monitoring capacity under the Optional Protocol to the UN Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (OPCAT). Since being designated as the ‘National Preventive Mechanism’ in 2006, the Ombudsperson has carried out regular visits with the aim of strengthening the protection of persons restricted of their liberty against torture, cruel, inhuman or degrading treatment or punishment.28
When performing visits the Ombudsperson and authorised employees have the statutory authority to enter all areas in facilities being visited, including the authority to inspect files (including medical records), question all persons (employees, patients, clients or imprisoned persons) and conduct interviews in private. Systematic unannounced visits are made at different times of the day and night.
Findings and recommendations are generalised in summary reports following visits by the Ombudsperson. Proposals for improvement of the ascertained conditions are directed toward individual facilities and their promoters, as well as toward central state administrative bodies. The Ombudsperson collaborates with external experts, especially doctors, nurses, and inspectors of social services.29 The Ombudsperson can (and should) collaborate with non-governmental organisations in organising and conducting monitoring visits, and advocating for resultant recommendations to be implemented.
In 2008 the Ombudsperson published a report on psychiatric hospitals,30 and followed this up with another report in 2010.31 These reports detailed how cage beds were routinely used to prevent ‘unrest’ in the context of low staff numbers. In 2013 he published a report on children’s psychiatric hospitals,32 finding in one a boy who was placed in a cage bed twice every day.
In 2012 the Czech parliament enacted a new Civil Code, partly in response to its obligations under Article 12 of the CRPD which guarantees the right to legal capacity for all persons with disabilities. The legislation, which came into force at the beginning of 2014, abolished plenary guardianship in favour of partial guardianship arrangements, advance directives, and recognition of supported decision-making processes.33 The recognition of legal capacity must apply in all areas of life, including for people in psychiatric institutions, as outlined in Article 12(2) of the CRPD.
27 Public Defender of Rights (Ombudsman), Děských psychiatrických nemonic (Czech), (Brno: Public Defender of Rights (Ombudsman), 2013), available online at: http:// www.ochrance.cz/fileadmin/user_upload/ochrana_osob/ZARIZENI/Zdravotnicka_zarizeni/SZ-detske-psychiatricke-lecebny.pdf (last accessed: 15.06.2014).
28 Public Defender of Rights (Ombudsman), Protection of Persons Restricted in their Freedom: What is ill-treatment, (undated), available online at: http://www.ochrance.cz/ en/protection-of-persons-restricted-in-their-freedom/performing-systematic-visits/what-is-ill-treatment/ (last accessed: 15.06.2014).
29 Ibid.
30 Public Defender of Rights (Ombudsman), Zpráva z návštěv psychiatrických léčeben (Czech), (Brno: Public Defender of Rights (Ombudsman), September 2008), available online at: http://www.ochrance.cz/ochrana-osob-omezenych-na-svobode/zarizeni/zdravotnicka-zarizeni/psychiatricke-lecebny/zprava-z-navstev-psychiatrickych- leceben/ (last accessed: 15.06.2014).
31 Public Defender of Rights (Ombudsman), Zpráva z návštěv psychiatrických léčeben (Czech), (Brno: Public Defender of Rights (Ombudsman), November 2010), available online at: http://www.ochrance.cz/fileadmin/user_upload/ochrana_osob/2009/2009-PL_nasledne.pdf (last accessed: 15.06.2014).
32 Supra note 27.
33 Mental Disability Advocacy Center, ‘Czech Republic enacts legal capacity law reform’, (MDAC: 21 February 2012), available online at: http://mdac.org/en/news/ czech-republic-enacts-legal-capacity-law-reform (last accessed: 15.06.2014).