Dc presentation

1.How quickly things have changed

When I joined the Mental Disability Advocacy Center (hereinafter “MDAC”) at its inception in Hungary in 2002 we decided to get a sense of what the key issues are across central Europe. During that year, with co-trainers, I travelled to the countries which were accession countries to the European Union. We carried out site visits to community centres (where they existed) mental health institutions, children’s institutions and “social” “care” “homes”. We then facilitated a two training session on the European Convention on Human Rights (hereinafter “ECHR”) as it applies to persons with mental health problems and intellectual disabilities. The seminars were supported by the Open Society Institute and the Council of Europe. Participants at these seminars included human rights lawyers where we could find them, user organisations, people from intellectual disability organisations, some ombuds-type people and some mental health professionals. In some countries these were the first ever seminars which discussed human rights and persons with mental health problems or intellectual disabilities.

In May 2002 MDAC developed a basic training pack on ECHR which dealt sought to provide participants with the basics of how the Convention interfaced with mental health law issues. There were two appendices: the standards of the European Committee for the Prevention of Torture, and the UN’s Mental Illness Principles. We wrote with hardcore provisions of the Convention which provide for the right to life, protection against ill-treatment, with dealt with liberty and detention, the right to privacy and correspondence: all of these human rights areas were firmly attached to a particular Article of the Convention. The final section dealt with guardianship. It was two pages long, and identified a range of sub-issues. The section began with the words:
The lives of thousands of people in the central and eastern Europe are affected in a fundamental way by the system of guardianship. Regulated by Civil Codes largely unchanged since Soviet times, guardianship attracts a low priority for legislators pressed by the international community to reform more visible areas of the legal system. Guardianship remains largely unmonitored whilst people under guardianship are locked away and forgotten: their very status preventing them from complaining. Human rights abuses may pervade the entire system: from judicial enquiry into incapacity, appointment of guardian, guardian’s powers, oversight of the guardian and review of necessity of guardianship.
It was largely rhetorical, to introduce the possibility these legal measures of protection could actually be human rights violations in themselves, as well as create a string of other violations. Few other groups had framed guardianship in this way, with the exception of MDRI which included an analysis Hungary’s guardianship provisions in its 1997 report “Human Rights and Mental Health: Hungary”.
We didn’t refer to ECtHR cases because we couldn’t find any. We didn’t write anything about alternatives to guardianship because, I think, we were so stunned at the variety of abuses faced by people under guardianship. At that time the CRPD was an official sparkle in the international community’s eye (the UN General Assembly adopted Resolution 56/186 on 19 December 2001 calling for a disability convention), but I had barely heard about this initiative and had no idea that the resultant text would have anything to say about guardianship. What we did have at that time was the Committee of Ministers of the Council of Europe “Recommendation No. 4 of 1999”, which was a document before its time, and which we promoted in our travelling circus around Europe.

2.Yet how entrenched attitudes still are

We should not be fooled into thinking that uplifting presentations at UN meetings and even publications by the UN itself represent the general thinking of grassroots practitioners out there, or even everyone with disabilities. In MDAC’s experience the attitudes of some powerful stakeholders – psychiatrists, lawyers, judges, law professors, ministry officials, family members – are wedded to the a medical model of disability whereby a person’s diagnosis dictates that rights should be taken away, almost as part of a treatment package (e.g. Pavel Shtukaturov was diagnosed with schizophrenia, and his psychiatrist recommended to his mother that she have him placed under guardianship, which she did, without informing her son). The removal of rights is usually marketed as protection (of whom against whom?), care and therapy, and – rarely admitted – convenience of non-disordered others.

Engaging with those who currently hold alternative views is in my view essential in order to fully understand their views, to provide them – in terminology which they understand – with reasons why their positions may be untenable logically, objectionable morally, and possibly wrong legally. Can strategic litigation help in shifting attitudes? I think so. The European Court of Human Rights judgment of Shtukaturov v. Russia and the Constitutional Court’s decision in the same case are probably both more powerful advocacy tools than MDAC’s report on Guardianship and Human Rights in Russia, which was a much more extensive and expensive venture.
Attitudes have changed since the judgment already: the Bar Association had previously threatened to discipline Shtukaturov’s attorney Dmitri Bartenev (MDAC’s Legal Monitor in Russia) for his human rights litigation against psychiatric hospitals. After the Constitutional Court decision in the Shtukuturov case which quashed three provisions of guardianship law, the Federal Bar Association honoured Dmitri with an award, citing his outstanding achievements in advocating for the rights of people with mental disabilities. The maverick crazy person’s lawyer who dared publicly disagreed with psychiatrists is – thanks to one case – transformed into a defender of citizens and showered with accolades. What an example of the power of litigation and the expressive value of human rights! What a paradigm shift!