NPM in psychiatric hospitals – part II
（點我看中文版）
Note：This article is one of the NPM TRAVELBOOK series written by Mr Pavel Doubek and invited by Covenants Watch (CW), Taiwan. The original text was written in English and was translated by Yi-Ching Tsai, CW’s researcher.
Author／Pavel Doubek (Czech scholar and lawyer formerly working at Czech NPM)
Translator／Yi-Ching Tsai (Researcher of Covenants Watch)
Several years ago in the Czech Republic, a person with schizophrenia came to a market, took a knife from the kitchen department and stabbed a random customer to death on the same day he was released from the psychiatric hospital.
Whenever there is a horrible and extreme case like this, the general public becomes outraged and some people might call for the indefinite detention of persons with mental disabilities.
However, such a “simple” solution is very likely to be ineffective in preventing similar cases from taking place, and it can even be counterproductive to the whole society.
For example, through reinforcing stigma on the entire community of persons with mental disability. In fact, research shows that people with mental disabilities are more likely to be victims of crime than its perpetrators.
Of course, the State’s positive obligation to protect people’s lives and health can be a legitimate ground to justify the restriction of liberty of a patient suffering from mental disorder under certain conditions.
Like in Taiwan and many other countries, the Czech law allows for compulsory hospitalization of an individual, if he or she, due to the influence of mental disorder, (a) is instantly and seriously threatening oneself of others, or (b) has committed a criminal offense and is reasonable believed to be dangerous to others if remained free.
However, we still must ensure that patients involuntarily admitted to psychiatric hospitals enjoy their basic human rights, although any evaluation and determination in this regard is sure to meet legal and ethical dilemmas. For example, using intrusive and coercive medical treatment and safety measures without fully informed consent gives rise to human rights concerns.
On the other hand, if the hospitalization has no therapeutic benefit for a patient, then the compulsory stay at the hospital is tantamount to mere detention, which goes against its original purpose and ground of justification.[1]
As a specialized body dedicated to the prevention of torture and ill-treatment, the National Preventive Mechanism (NPM) also has a role in monitoring the practices and conditions of involuntary hospitalization and assess whether it is implemented with necessity, proportionality and effectiveness.
In this article, I’m going to share some of the challenges in approaching this issue from the experiences of the Czech NPM.
Note 1：Detention on medical grounds is justifiable only if it has a therapeutic benefit for the patient. For more discussion on the “criterion of treatability”, see Doubek, Pavel, The Criterion of Treatability from a Comparative Perspective: A Step Forward in Protecting Persons Suffering from Mental Disorders from Involuntary Hospitalisation. Journal of Common Law Review, 2018.
The imposition of involuntary hospitalization
Under the Czech legal system, these two types of situations mentioned above that allows for involuntary hospitalization are respectively termed as “civil commitment” (as per the Health Service Act) and “protective treatment” (as per the Criminal Code).[2]
Since civil commitment is based on an emergency, it must be assessed regularly; as soon as the grounds for involuntary hospitalization no longer exist, the patients must be discharged.
It should be noted that, under the civil treatment regime, besides someone who “shows signs of a mental disorder, or is suffering from a mental disorder”, an individual who is instantly and seriously threatening himself/herself or others “under the influence of an addictive substance” can also be detained in a psychiatric hospital.
As for patients under the protective treatment regime, the court may impose hospitalization for a period no longer than two years; however, the court may decide to extend this period before it expires by no more than another two years. This prolongation can be done repeatedly. [3]
A patient under the protective treatment regime is required to undergo a treatment plan. Three types of protective treatments are recognized in Czech practices, which are (a) psychiatric treatment, (b) sexological treatment and (c) addictive treatment (subtypes: anti-alcoholic, anti-toxic and pathological gambling).
If a patient repeatedly refuses to comply with the treatment plan, the court may take it into consideration and decide to extend the hospital stay.
However, the law also requires that the protective treatment must only be extended if the treatment is effective, but in the Czech NPM’s experience, sometimes the courts impose or prolong protective treatment even though such treatment is manifestly ineffective in an individual case.
Another problem with the Czech psychiatric care system is that, once a patient is discharged from the hospital, adequate follow-up treatment is often not available at the outpatient clinic. This increases the risk of deterioration of the patient’s health and a possible relapse requiring another involuntary hospitalization.
Instead of strengthening the alternative service to hospitalization, the Czech government responded to this problem in 2009 by creating a new type of institution called “secure detention”.
These institutions are established on the interface between the hospital and the prison, and the court may decide to transfer the most dangerous patients under protective regime to secure detention facilities.
Their existence has led to criticism from human rights defenders, the ombudsman and the NPM that, instead of finding ways to ensure effective psychiatric care while protecting the public, the state has chosen to lock a patient in a prison-like facility that cannot provide the psychiatric care equal to that in the psychiatric hospital.
Although some reform of psychiatric care was initiated by the Czech Ministry of Health in 2013, it has not brought any significant improvements.
The Committee against Torture repeatedly urged the Czech government to implement the recommendations made by the Czech Ombudsman and the NPM, and it stressed that the reform of psychiatric care should increase the use of less restrictive alternatives to the forcible confinement of persons with mental and psychosocial disabilities.
Note 2：For the Taiwanese law, please refer to the “mandatory hospitalization” under the Mental Health Act and the “custodial protection” under the Criminal Code.
Note 3：Depending on the determination of how the mental disorder influences the offender and to what extent the offender is criminally liable, the criminal court may impose both prison sentence and protective treatment on an offender, or only protective treatment.
Controversial medical treatment and procedures
Compared with patients who voluntarily seek medical help in the psychiatric hospitals, involuntary patients are often subject to more intrusive medical treatment as well as restriction on their right to give informed consent.
The Czech NPM has made several efforts to address difficult medical problems and sometimes challenge well-established medical procedures.
One controversial medical treatment that the Czech Ombudsman regularly criticises is the surgical castration, which is commonly included in the treatment plan of sex offenders with mental illness.
It emphasizes that patients in protective treatment or secured detention tend to regard it as an “exchange” for their release from detention, which prevents them from giving genuine free consent.
As the European Committee for the Prevention of Torture (CPT) rightly pointed out, surgical castration is an “mutilating, irreversible intervention with serious physical effects and direct or indirect mental health consequences”, and it considers surgical castration of detained sex offenders could easily amount to degrading treatment.
The UN Committee against Torture similarly called on the state to “desist from the practice of surgical castration and amend its legislation in order to bring it in line with international norms.”
The Czech NPM also pays attention to the practice of electroconvulsive therapy (ECT), a standard medical treatment in psychiatric hospitals which is provided to about 1000 patients, including voluntary and involuntary patients, each year.
Since this treatment method is highly sensitive, stigmatized and entails the risk of side effects, the NPM has made a number of recommendations on its use. For example, ECT must be conducted with full and informed consent; performed out of the sight of other patients (preferably in a designated and equipped room); to be carried out by specially trained medical personnel and to create a special register for the documentation of the ECT.
The NPM visits have found that some hospitals deviated from these standards. In one hospital, for example, the ECT took place in a dormitory room so the patient who was undergoing the ECT could be seen by other patients. In another case, the NPM found that the ECT was performed on a patient who was constantly refusing it, but the hospital defended its use on the grounds that it was an emergency treatment.
In another hospital, patients were placed in a net bed overnight to prevent them from eating or drinking to facilitate the use of ECT. The hospital even stated in its internal regulations that the use of net bed is not classified as the use of a restraint, but as “a part of comprehensive care for the severely mentally altered patient before short-term anaesthesia.”
The NPM disagreed with such an argument, stressing that the net bed is a restraint that cannot be used as a preventive measure.
These examples show that the course of medical treatment often involves the use of coercive safety measures, such as the use of sedatives, fixation to the bed, use of isolation units. I will further discuss the Czech NPM’s experience with these coercive measures in the next story.
Overall speaking, we can see that the Czech psychiatric care system is excessively coercive with its frequent imposition and long duration of involuntary hospitalization, highly coercive medical and safety measures in the hospitals and the lack of less restrictive alternatives.
Of course, criticism from the NPM and other human rights bodies is not meant to blame the medical staff who are under great pressure in looking after patients who sometimes have a rich criminal history.
However, if we really want to build a cooperative doctor-patient relationship that promotes effective treatment, provide care in accordance with the highest medical standards, as well as fully respecting the human rights of the patients, such as the privacy and confidentiality of their sensitive medical information and their right to informed consent, then systemic reforms are sorely needed in spite of the reluctance and unfriendly attitude from the government and the society.
Therefore, besides the duty to conduct regular and unannounced visits to psychiatric institutions and make constructive recommendations, NPM also has the responsibility to advocate against the stigma on people with mental disabilities, which can be helpful to generate greater pressure on the authorities to implement the reforms.
References:
1. United Nations Committee against Torture, Concluding observations on fourth and fifth periodic report of Czech Republic (2012), CAT/C/CZE/CO/4-5.
2. United Nations Committee against Torture, Concluding observations on the sixth periodic report of Czechia (2018), CAT/C/CZE/CO/6.
3. The European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT), Report to the Czech Government on the visit to the Czech Republic carried out from 25 March to 2 April 2008 (CPT/Inf (2009) 8).
4. Public Defender of Rights, The Protective Treatment, Restrictive Measures and Other Topics (2019) (in Czech language only).
