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English Language Page In view of the above these recommendations include proposals pertaining to both the existing Law and the recently developed draft legislation. Recommendations on the improvement of the existing law and the recently developed draft legislation I It is necessary to fully coordinate the draft legislation On Amendments and Additions to Federal Law “On Psychiatric Care and Guarantees of the Rights of Citizens in Therapy” with the Principles for the Protection of Persons with Mental Illness and for the Improvement of Mental Health Care adopted by the UN General Assembly on December 17, 1991 and include the Principles in the Draft Law. These 25 principles that are categorized in detail and formulated with precision are not sufficiently represented in the existing Law. 1. It is necessary that clarification from Part 11 of Principle 11, “beyond the period which is strictly necessary,” be included in Part 2, Article 30 of Federal Law “On Psychiatric Care and Guarantees of the Rights of Citizens in Therapy,” pertaining to physical restraint and seclusion measures, with respect to the period during which application of physical restraint measures is indicated, as well as “qualified” added with respect to medical staff. It is necessary to include in Part 2, Article 30 of the above Law the requirement on immediate notification of patient’s representative of indication and application of physical restraint measures (seclusion) to the patient. Thus the modified article will read as follows: “It shall not be prolonged beyond the period which is strictly necessary for this purpose under permanent control of qualified medical staff. A personal representative, if any and if relevant, shall be given prompt notice of any physical restraint or involuntary seclusion of the patient.” The draft legislation excludes the requirement of the obligatory authorization of physical restraint measures by the doctor. It is necessary to preserve this provision which is of principle importance from the viewpoint of patients’ rights. Removal of the requirement of doctor’s authorization of physical restraint may lead to unjustified application of these measures by junior medical staff of psychiatric institutions and ambulance. It is also necessary to indicate that the “List of authorized forms of physical restraint and seclusion shall be approved by the Ministry of Health Care of the Russian Federation.” As of today the RF Ministry of Health Care only provides its recommendations but the Law does not require a special List of Authorized Measures. 2. It is necessary that prohibition of forced labor from Part 3 of Principle 13 be included in Part 2, Article 37 of the Law in question. Thus, “In no circumstances shall a patient be subject to forced labor. Within the limits compatible with the needs of the patient and with the requirements of institutional administration, a patient shall be able to choose the type of work he or she wishes to perform.” From Part 4 of Principle 13 the prohibition of exploitation of patient’s labor should be added: “The labor of a patient in a mental health facility shall not be exploited.” II Stemming from multiple data, including results of the survey, indicating that safety of patients largely depends on appropriate methods of recruitment of junior medical staff, it is necessary to include in Part 2, Article 16 of the Law in question a provision requiring the state “to stimulate the interest of junior medical staff in their work by offering employment in mental health facilities as a form of alternative civil service provided that candidates are selected according to special professional eligibility criteria.” This should be accompanied by an appropriate clarification from Federal Law “On the Alternative Civil Service”: “The Government of the Russian Federation shall be commissioned to include the psychiatric institution orderly job in the List of works, professions, and jobs eligible for the alternative civil service.” To a certain extent this will help ensure humane and debasement-free treatment of mental patients by junior medical personnel. At the same time this may give chief physicians of mental health care institutions an opportunity to be selective when hiring junior medical staff. Today, due to the ubiquitous deficit of junior personnel, chief physicians as a rule do not dismiss orderlies and hire junior staff without due selection. III The necessity to establish court procedures with respect to all involuntary measures was the main reason why Federal Law “On Psychiatric Care and Guarantees of the Rights of Citizens in Therapy” was adopted. The introduction of a court-based mechanism for involuntary hospitalization has become a guarantee of freedom and personal immunity for any individual whom one might attempt to hospitalize without sufficient grounds. It helps overcome the police-like tradition of the domestic psychiatry, i.e. the idea that the main task of psychiatry is not to protect mental patients and their health from abuses, but to protect the society and the state from mental patients. Stemming from which point we positively object to certain provisions of the draft legislation “On Amendments and Additions to Federal Law “On Psychiatric Care and Guarantees of the Rights of Citizens in Therapy” which significantly impair the existing Law. 1. According to the draft legislation the court procedure is to be postponed by 10 days should a medical concilium find the psychiatric condition to be of a temporary nature. According to the existing norms the court procedure takes up to eight days to complete (48 hours for the medical concilium, 24 hours to report its decision to the court, and five days for the court to pass a legal decision) which is almost as long a period of pre-court hospitalization as the one proposed by the draft legislation. In reality, for the patient who does not voluntarily consent to hospitalization and whose mental condition has turned out to last for more than 10 days it would mean that they would have to stay in the hospital against their will and at doctors’ discretion for at least 16 days (Part 4, Article 32). 2. According to the draft legislation the court procedure is to be canceled if a mental health patient requires therapy but is unable to give a conscious consent even though there are no grounds for involuntary hospitalization and the patient has not been acknowledged to be legally incapable (Part 5, Article 11 of the Draft Law in question). This allows for application of involuntary measures in the outpatient treatment practice without court authorization which limits patient’s freedom. 3. Judge’s authorization is not required for examination of helpless patients if circumstances prevent them from receiving due care and observation (Part 2, Article 24 of the Draft Law in question). This amendment would be acceptable if particularized as follows: “with respect to individuals living alone” without which clarification there is a possibility for abuses by patients’ relatives. 4. The right to appeal a court decision on involuntary examination turns into a meaningless declaration because it is to “enter into legal force at the moment of its adoption” (Part 5, Article 25 of the Draft Law). 5. The ban on testing new pharmaceuticals and treatment methods on patients with severe conditions to whom involuntary measures of medical nature are not applied is lifted. Patient’s consent is not required (Part 7, Article 11 of the Draft Law). The only consent that is required is that of the Committee on Ethics in Citizens’ Health Care. Note that the status and structure of the Committee, as well as its authorities and the method of its composition, remain unclear (it is not clear if this Committee is a ministerial or regulatory body). The right to doctor-patient privilege, information, and confidentiality In the second sentence of Article 9 of the Law in question it is necessary to replace “may be provided” with “shall be provided” and add “in writing” thus obliging administrations of psychiatric institutions to provide the patient or their legal representative with any relevant information they request. Thus, the article will read as follows: “To ensure the observation of rights and legal interests of an individual afflicted with a mental condition this individual shall be entitled to have access to information on the status of their mental health and psychiatric assistance provided to them which information shall be provided to them or their legal representative in writing at their request.” Today patients do not have access to information about themselves in the first place. It is necessary to include patients’ legal representatives in the list of individuals with whom, in compliance with the Law (Part 2, Paragraph 3, Article 37), mental health patients are allowed to communicate in private. Thus, “… communicate with the legal representative, attorney, and minister of church in private.” IV. Restriction of professional activity It is necessary to adopt a new edition of Part 2, Article 6 of the Law which would provide for a complex nature of the commission responsible for putting together the list of contraindications to certain types of professional activity, and its publication in the mass media for discussion prior to its approval by the Government. Thus, “The list of medical psychiatric contraindications to certain types of professional activities and activities associated with sources of extreme hazards shall be composed by a commission appointed by the Government of the Russian Federation which shall consist of psychiatrists, representatives of state institutions and nongovernmental organizations, psychologists, sociologists, economists, lawyers, representatives of the RF Ministry of Labor, and deputies of the State Duma. The Draft List shall be published in available mass media for discussion and shall be approved by the RF Government.” V. Service for the Protection of Rights of Patients of Psychiatric Institutions (Article 38) 1. It is necessary to supplement Article 38 with Part 3: “The Service shall be established by Decree of the RF President under the auspices of the Ombudsman of the Russian Federation on Human Rights and operate on the basis of a relevant Provision approved by the RF President. Head of the Service shall be Deputy Ombudsman of the Russian Federation on Human Rights. The Service shall be funded from the federal budget.” Establishment of the Service under the Ombudsman of the Russian Federation on Human Rights better corresponds with the human rights nature of the Service. Introduction of particularizing additions to the Law will help expedite the process of its establishment. 2. It is worthwhile to amend Federal Constitutional Law “On the Ombudsman of the Russian Federation on Human Rights” with respect to the establishment of the Service for the Protection of Rights of Patients of Psychiatric Institutions to institute the position of Deputy Ombudsman who acts as Head of the Service. VI. Rights of psychiatric care specialists and staff 1. It is necessary that the Government of the Russian Federation urgently undertake measures to develop and approve a Provision on the order and conditions of state insurance of physicians, other specialists, medical, and other personnel participating in the provision of psychiatric care. It was on July 2, 1992 that the Supreme Council of the Russian Federation commissioned the Russian Federation Government to develop such a Provision in order to implement Article 22 of Federal Law “On Psychiatric Care and Guarantees of the Rights of Citizens in Therapy.” 2. It is worthwhile to supplement Part 1 with the following article: “Doctors of psychiatry and other specialists participating in the provision of psychiatric care are subject to obligatory insurance protecting them from liability should a professional error resulting in harm done or damage caused to the health of a citizen be committed, provided that such error is not a result of negligent implementation of professional duties by psychiatric care workers.” This right is accounted for by Paragraph 7, Part 1, Article 63 of Foundations of the Legislation of the Russian Federation on Health Care of Citizens, but it is necessary to also incorporate it into Federal Law “On Psychiatric Care and Guarantees of the Rights of Citizens in Therapy.” This would allow mental health patients to receive insurance benefits should their health be damaged as a result of a professional error which may be committed by any specialist. VII. Rights of public associations 1. Part 3, Article 18 of the draft legislation radically restricts the rights of public associations since it is only “institutions of therapy and prophylaxis” that are granted the right to protect patients’ interests, including in the court of law. It is necessary to preserve the current version of Article 18 of the Law under discussion and grant institutions and professional and public associations of psychiatrists the right to protect patients’ interests in court (Parts 1, 2). Article 18 should be supplemented with Part 3: Institutions providing psychiatric care and public associations that protect rights of citizens in compliance with their charters shall be entitled to the right to protect rights and legal interests of individuals afflicted with mental conditions, including in the court of law. 2. It is necessary to supplement Article 18 with Part 4: “Public associations (societies) of doctors of psychiatry, alongside health care institutions of relevant levels: • participate in the development of strategy and tactics of supplying psychiatric care to the population on administrative territories of their operation; • participate in the certification of specialists who provide psychiatric care to the population; • control the observation of rights and legal interests of citizens in psychiatric therapy; • control the observation of rights of specialists providing psychiatric care.” 3. It is necessary to amend Article 286 of the RF Civil Procedural Code to provide that in addition to guardians, patronage and custody authorities, family members, and psychiatric or neuro-psychiatric institutions public associations are also to be entitled to petition to court to acknowledge an individual to be legally capable, just like it was before. VIII. Funding of psychiatric care (Article 17) It is necessary to preserve the current wording of Article 17 of Federal Law “On Psychiatric Care and Guarantees of the Rights of Citizens in Therapy.” The draft legislation dramatically reduces the level of guarantees of funding of psychiatric care. Instead of funding psychiatric care “in amounts ensuring a guaranteed level and high quality of psychiatric care” the draft legislation proposes to confine the funding to the “program of state guarantees of provisioning citizens with free health care approved by the RF Government in the established order.” This in fact is a retraction of guarantees because the experience of recent years shows that even the funding of the state “urgent measures” program did not exceed 0.2% of the determined level. Only a law may contain guarantees of constitutional rights of citizens, not resolutions of the Government which are only by-laws. IX. Legal-psychiatric expertise It is necessary to supplement the provisions on “Medical expertise” of Foundations of the Legislation of the Russian Federation on Health Care of Citizens as follows: 1. In order to provide nongovernmental professional associations and scientific-practical professional public associations with the right to conduct legal-psychiatric expertise it is worthwhile modifying the part of Article 52 relating to legal-psychiatric expertise as follows: “Legal-psychiatric expertise shall be conducted in institutions of the state and municipal health care system, as well as in nongovernmental expert organizations and scientific-practical professional public associations which have appropriate specialists.” The current wording of the Article suppresses the very possibility of a nongovernmental legal-psychiatric expertise. 2. In Article 53 it is necessary to account for a possibility to conduct an independent psychiatric expertise to ensure competitiveness of expert conclusions and opinions of specialists. Otherwise, according to Foundations of the Legislation of the Russian Federation on Health Care of Citizens the independent legal-psychiatric expertise simply does not exist. 3. Until Federal Law “On the Independent Legal-Expert Activity” is developed without which the conduct of independent (competitive) expert activity is impossible it is necessary to modify Article 41 of Federal Law “On the State Legal-Expert Activity in the Russian Federation” in the following manner: the title should be changed to include “…individuals and organizations that are not state legal experts and state expert organizations that dispose of relevant specialists,” the text should be changed to include “as well as nongovernmental organizations that dispose of relevant specialists.” 4. As far as the possibility of independent participation in court proceedings of the person to whom coercive measures of medical nature have been applied and on which account the court proceedings are underway is concerned it is necessary to reverse back to norms of the RSFSR Criminal Procedural Code (Article 51 of the RF Criminal Procedural Code). The previous Criminal Procedural Code provided for a possibility for a mental patient to appeal the decision of judicial and investigative bodies should it find them unqualified to participate in investigative or court proceedings due to their mental condition. Article 51 of the RF Criminal Procedural Code should be supplemented as follows: “Participation of the patient in court proceedings on application of medical measures of coercive nature accounted for by patient’s commission of a socially-dangerous deed shall be obligatory. Should it be impossible to deliver the patient to the court room the case shall be reviewed with patient’s participation at the place of their hospitalization, or should it also be impossible — the judge shall undertake to personally communicate with the patient in order to pass their own judgment prior to the beginning of court proceedings.” X. Social welfare service It is necessary to enforce state control and introduce public control over the observation of the existing legislation by the administration and staff of neuro-psychiatric institutions of social welfare and special education, especially over the regular, at least once a year, examination of their resident patients in order to determine if their residence should be extended or their incapability status may be redeemed (Article 43 of Federal Law “On Psychiatric Care and Guarantees of the Rights of Citizens in Therapy”). Monitoring of neuro-psychiatric facilities and children’s psychiatric boarding homes remains of paramount importance. Recommendations for changing the existing practice 1. It is necessary to ensure that the Government implements the previously unfulfilled program of urgent measures on reformation of psychiatric service which had been designed for implementation in 1995-1997 and which provides for construction of new psychiatric facilities that comply with modern requirements, because since 2003, one third of the capital structures of psychiatric hospitals has been found to be unfit for exploitation. 2. Given that psychiatric patients are the most vulnerable category of patients it is necessary to ensure that permanent control over the funding of regional psychiatric clinics is exercised, as well as to introduce penalties for violation of regionally established norms of patients’ board and supply of pharmaceuticals. 3. Head physicians of clinics should be given more freedom in managing their funds: they should be given the opportunity to independently enter agreements on supplies of equipment, pharmaceuticals, and foodstuffs. 4. Control over the observation of terms and the order of review of involuntary hospitalization cases should be enforced. 5. Institutions must by all means be provided with intercom communications and security equipment, as well as the necessary laboratory and disinfection equipment. 6. Special attention must be paid to interior fitting of wards and departments, provision of storage facilities for patients’ personal belongings, as well as to ensuring the supply of all necessary inventory. 7. Physicians of psychiatric institutions must be obligated to comprehensively justify the placement of patients in observation wards in their clinical records. Head physicians must be advised that placement of all newly admitted patients in observation wards is unacceptable. 8. It is necessary to enforce control over the upkeep of journals registering aggression incidents and journals registering cases of application of physical restraint measures. 9. It is necessary to ensure that hospitalization and therapy consent forms recommended by the RF Ministry of Health Care be replaced with patients’ personal entries in their clinical records. This will help put an end to the practice of falsification of voluntary consent. 10. The RF Ministry of Health Care should recommend administrations of psychiatric institutions to provide patients with written information on the rights that they have and the venues to which they may resort to have their rights protected. 11. It is necessary to ensure that facilities be provided for the establishment of hostels for individuals with mental conditions who have lost social connections, and in the long run — that facilities specifically designed to accommodate such hostels be constructed. 12. It is necessary to ensure sufficient levels of staffing of psychiatric institutions in regions that suffer from lack of qualified specialists the most for which purpose to provide physicians and junior medical personnel with free housing. |
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