2 July 2013

Challenging abuse and neglect

Last week we launched our summer appeal, asking for your support to enable us to continue to challenge abuses in eastern Europe. Our appeal was launched the while we had several lawyers from Bulgaria, Czech Republic and Moldova in our office. With top anti-torture lawyer Phillippa Kaufman QC, we were training them on how to challenge ill-treatment through the courts. The training was funded through a $7,500 grant from the UN Voluntary Fund for Victims of Torture. This is significant in itself, because it demonstrates that this ‘mainstream’ human rights fund now fully recognises that people with disabilities can face discriminatory torture and ill-treatment.

Why did we hold the training? Well, because despite the scale of abuse and neglect, it’s still immensely difficult to take these cases to court.

A slap to the face, a derogatory remark, being treated rudely – these happen on a daily basis to many people with disabilities. But just because something is unpleasant does not mean that it reaches the minimum level of severity of “torture, cruel, inhuman or degrading treatment or punishment” in international law. Sometimes severe physical or mental suffering is intended or made very likely. In these circumstances the intervention may amount to torture. But we have to be careful about using the word “torture” which has a specific meaning in law which is different from a subjective feeling on the part of the victim.

If you want to read more on the topic, try this (my very first blog post!) about disability and ill treatment in Nigeria. Last year with my colleague Dorottya Karsay I co-edited a special edition of the International Journal on Human Rights on the nexus between disability and torture and you can read an article we wrote. It lays out the ill-treatment we discussed in the training seminar last week.

Trainers & participants


Tortuous times

Only recently has the European Court of Human Rights recognised that treatment (in medicine) can be ill-treatment (in law). In the last eighteen months the Court has decided the cases of Stanev v. Bulgaria on conditions of an institution, Bures v. Czech Republic on physical restraints, and ZH v. Hungary on ill-treatment of prisoners with disabilities. I’m immensely proud that all are cases in which MDAC has been involved.

But forget courts for a moment. It’s only in the past few years that patients in central and eastern Europe have begun to challenge their doctors, in a culture which is very much doctor knows best (and here’s a brown envelope for you with a small token of my appreciation, Herr Doctor!). Several participants at the training seminar told us that they know of cases where psychiatrists simply don’t tell their patients vital pieces of information about patient care.

It reminded me of a visit to a Latvian psychiatric hospital some years ago. The chief psychiatrist explained to me that she withheld from her patients their diagnosis, even in cases where the patients knew they had a mental illness. The reason? There’s a lot of stigma about mental illness out there in society and if patients knew their diagnosis it would only add to the stigma. [cue jaw drop]

Nowadays patients with all sorts of medical problems are demanding information and they are demanding choice. In mental health services the shift from object to consumer has been slower because psychiatry is the only area of medicine where a doctor can overrule a patient’s refusal to consent to treatment. Put simply, mental health professionals don’t need to discuss treatment with their patient, because they can impose it on them.



Litigators at last week’s training session talked a lot about the challenges to litigating torture and ill-treatment cases. Sure, lawyers like to complain. But please read on.

One of these challenges was how to find clients who want to litigate. Potential clients are terrified of taking cases. Many people prefer a quiet life. In some countries if a person complains then they are beaten, or their privileges are removed. Two years ago patient in a psychiatric hospital in Moldova told me how he had asked why staff open letters from his mother. He was dragged to the treatment room and given a shot of Haloperidol. Crucial to litigating therefore is how to protect a client from retribution.

At the training last week one of the most horrifying statements was by a lawyer from Bulgaria who said this:


        “I’ve never had experience of clients in institutions being afraid to take a case about their ill-treatment. They get beaten anyway, so they have nothing to lose.”


Such is the culture of violence and impunity in many residential institutions. It’s a devastating indictment about the state of the rule of law.


Challenges to taking challenges

We spent a lot of time talking about evidence (lawyers love talking about this subject). One of the Big Discussion Points was how to collect evidence when in civil law systems there is no system of ‘disclosure’? In simple terms, this means that in the vast majority of Europe, there’s no obligation on the defendant (the hospital, institution, prison or whatever) to disclose all the evidence in their possession which relates broadly to the incident in question, including evidence which goes against the defendant. So they can pick and chose, and wilfully hide evidence of human rights abuses.

Access to medical records was another problem. Medical records are sometimes doctored, if you pardon the pun. This poses a huge problem, but there are ways of discovering falsification of documents, which I am not going to discuss here for obvious reasons.

We discussed how to obtain a power of attorney, which is the document a lawyer needs to have formal confirmation that her client instructs her to take certain proceedings on behalf of the client. Especially difficult are cases where the potential client is under guardianship and therefore “lacks standing”. This means the client is not allowed to instruct a lawyer to take proceedings in domestic courts. Luckily, the European Court of Human Rights loves receiving cases from people under guardianship and then heaping criticism on countries for maintaining ridiculous laws which restrict access to domestic courts.

Cases involving children with disabilities who suffer abuse and neglect are especially difficult to get to court. Who should instruct the lawyer? The abusive institution? The parents who have long abandoned the kid? How about cases where we know that there is abuse in a residential institution but no one has access (like this)? Even more difficult in countries which have no national inspectorate with statutory responsibilities to visit any place where people can be detained. No, you are not reading a Dickens novel: there really are countries in Europe where people are abused in institutions which prohibit them to leave, and prohibit independent visitors to enter.


Skilled lawyers

Lawyers don’t get much training in law school about how to talk to real people. They certainly don’t get training about how to represent people with intellectual disabilities, who may be a child, who doesn’t have any verbal communication, who is being sexually abused. So these cases tend not to be litigated. So governments pretend that these situations don’t exist. My view is that by refraining to take these cases lawyers contribute to the vicious circle of impunity.

So during the training we discussed how lawyers can approach and interview a potential client. We discussed the psychological damage which victims of torture may well have. We discussed the risks of litigation to do further harm, and we discussed the need to put the client in the driving seat of the litigation.


Cases to be taken

Lots of issues under the rubric of ‘ill-treatment’ are ripe for litigation. There should be far more cases coming to courts. Litigating conditions of institutions is important, but these cases may lead to the government decorating the rooms but not making any more substantive changes, like ensuring people’s right to live in the community.

In all countries where MDAC works, consent to treatment is a joke. Safeguards established in mental health laws are routinely ignored (see this blog post where I talk about consent being routinely ignored in Moldova). Surely we can all agree on two things. One, that the numbers of people undergoing forced treatment should be radically reduced. And two, that the circumstances in which consent is overridden - and the manner in which this is done - needs to be carefully circumscribed. Please agree or disagree in the comments below.

Last week we launched an appeal for help. We need funding now to develop and implement litigation strategies which overcome the many practical and evidential hurdles which I’ve described above. We know how to do this. We have the solutions but we don’t have the money. If you know someone who can help, please get in touch