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English Language Page On September 26, 1999, an ambulance brigade brought the 42-year old resident of Yekaterinburg, Tamara Rakevich, to the city psychiatric hospital #26, against her will. The ambulance was called for by her friend M. with whom one day prior they had held a fervent debate on the interpretation of the Bible. According to her friend T. Rakevich was agitated, unavailable for contact, and represented danger for herself and her immediate environment. The same records were made by ambulance and admission unit physicians. Tamara insists that she did not display any aggression. A concilium that took place within the first 48 hours acknowledged the hospitalization of T. Rakevich to have been justified, diagnosed her with “paranoid schizophrenia” and forwarded appropriate documents to the court. Therapy began on the very first day although T. Rakevich refused to submit to it. The Ordzhonikidze district court of Yekaterinburg which was to review the petition of the hospital within a period of five days in an open hearing and pass a decision on whether or not the submission of T. Rakevich to involuntary therapy had been justified took place only on November 5, i.e., almost 40 days after she had been institutionalized. The court found the hospitalization to have been justified and ruled that the therapy were to be continued. The court decision was based on the conclusion of the concilium with which neither T. Rakevich nor her attorney were allowed to familiarize themselves. The court had also taken into account the testimonies provided by her work colleagues who indicated that lately T. Rakevich had been impossible to work with and that she had been constantly writing complaints accusing her co-workers of being biased against her. The primary witness of Rakevich’s behavior at the moment immediately preceding her institutionalization, her friend M. with whom she had held extended religious debates, was never summoned to testify in the court of law. The court decision was never handed either to T. Rakevich or her attorney. On November 11, T. Rakevich filed a brief cassation complaint in which she expressed her disagreement with the decision passed by the Ordzhonikidze district court. On December 24, 1999, the Sverdlovsk regional court declined the cassation appeal of T. Rakevich having confirmed that her hospitalization had been justified. At the same time the Sverdlovsk regional court admitted that there were no longer grounds for keeping T. Rakevich in involuntary therapy although this decision did not make much sense since by that time the plaintiff had already been discharged from the hospital. In the year 2000, the petition that T. Rakevich submitted to the European Court on Human Rights with assistance of lawyers from the regional public organization Sutyazhnik was found eligible for review and the European Court initiated a correspondence with the plaintiff and the RF Government. On January 11, 2002, T. Rakevich was examined at her request by the specialists of the Independent Psychiatric Association of Russia who at the time of the examination did not identify the plaintiff to be afflicted with any psychotic conditions but failed to reach a consensus on whether her submission to therapy on September 26, 1999, had been justified since they did not have access to her medical documentation. With consent of T. Rakevich they submitted a request to the Yekaterinburg psychiatric hospital #26 with the view of obtaining an abstract from her case-record to which head physician M. Treschilov responded that “stemming from the literal interpretation of Article 46 of Federal Law “On Psychiatric Care and the Guarantees of the Rights of Citizens in Therapy” he “did not have the right to provision an abstract from the clinical record of T. Rakevich.” It is necessary to note that in that request we referred to not only Article 46 that empowers public organizations to exercise control over the observation of rights and legal interests of citizens receiving psychiatric assistance but also to other articles of Federal Law “On Psychiatric Care and the Guarantees of the Rights of Citizens in Therapy” and Foundations of the Legislation of the Russian Federation on the Health Care of Citizens (Foundations) which provide for the right of citizens to access their clinical records, receive copies of their medical documents (Article 31 of the Foundations), as well as the right of health care institutions to provide with consent of citizens information constituting a medical secret to other citizens (Article 61 of the Foundations). On June 17 and October 7, 2003, the European Court reviewed the Rakevich case and passed a decision in favor of the plaintiff. Everything that had happened to T. Rakevich is typical for Russia in every respect. Such cases could be constantly observed happening throughout the entire country. Yekaterinburg was the first city in which well-trained lawyers who were able to not only protect individuals with mental conditions within the country but also to organize their international defense, were found. In 1999, courts did not comply with the review timeframes accounted for by the law practically everywhere. It is not incidental that the first special report of the RF Ombudsman, O. Mironov, was dedicated to the observation of rights of citizens afflicted by mental conditions and which stated, in particular, that “patients would frequently spend more than a month in resident therapy without an appropriate authorization of the court.” The situation has significantly improved since then. However, according to the results of the survey on the observation of human rights in Russian Federation psychiatric clinics conducted in May-June of 2003, there are regions in which courts continue to violate the timeframe legally established for the review of cases on involuntary hospitalization, and conduct court hearings with gross violations: in the absence of the prosecutor, the patient, and their legal representative, etc. Among them are the Moscow, Penza, Astrakhan, and Perm regions, the Republics of Karelia, Kalmykia, and Buryatia, the Krasnodar, Krasnoyarsk, and Khabarovsk territories, etc. According to some head physicians, petitions that they send to the courts to remind them of the requirement to comply with the legally established timeframe of legal review are often rudely rebuffed: “We will complete the review when we are able to do so. Your business is to treat people, therefore do not interfere with ours.” Involuntarily hospitalized patients are never provided with court decisions and are therefore deprived of the possibility to submit an appeal in a timely manner. Neither the hospitalized citizens nor their lawyers can familiarize themselves with clinical documents in the overwhelming majority of country regions. Physicians refuse to provision clinical documents referring to Articles 5 and 9 of Federal Law “On Psychiatric Care and the Guarantees of the Rights of Citizens in Therapy” which in fact associates the provisioning of such information with the patient’s mental condition. According to the survey results at least in 70% of the Russian psychiatric institutions all clinical documentation is still a secret for the patients. It is provisioned only at the request of courts and investigation authorities, as well as health care authorities of higher levels. Court hearings on involuntary hospitalizations are usually conducted in a precipitant manner: the courts simply confirm the conclusions of psychiatrists on the necessity of therapy and not only do they not summon witnesses on behalf of the hospitalized individual but they also pass their decisions in the absence of patient’s attorney or legal representative and sometimes even in the absence of the patient himself. The average number of cases when courts refuse to authorize involuntary hospitalizations of citizens does not exceed 1—2 % of the overall number of cases reviewed country-wide. The courts do not want to look into the essence of each case and base their decisions entirely on the conclusions of concilia provided by psychiatric clinics. Many judges in fact refuse to review far and wide the cases on involuntary hospitalizations justifying themselves by their lack of knowledge in the sphere of psychiatry — “We do not understand anything about it anyway, we trust the doctors.” In the meantime, according to the Russian legislation, the psychiatrist must determine if the citizen is afflicted with a mental condition and whether he requires a therapy at the moment. The question of whether a particular citizen may be submitted to therapy against their will is the prerogative of the court which is to pass its decision on the matter within the first seven days upon the hospitalization. The proceedings at the European Court clearly demonstrated the faults of the involuntary hospitalization procedure utilized by the Russian psychiatry. Representatives of the Government focused on proving that T. Rakevich was severely ill and represented danger to herself and her environment at the moment of hospitalization. The European Court accepted the argument supporting the plaintiff’s illness without questioning her clinical records but identified violations of both Russian and international legislation in the case. The submission of T. Rakevich to therapy in a psychiatric institution against her will was effected in violation of Article 34 of Federal Law “On Psychiatric Care and the Guarantees of the Rights of Citizens in Therapy” (the timeframe and the legal review procedure), as well as paragraph 4 of Article 5 of the European Convention on Human Rights and Fundamental Freedoms that requires availability of special means of protection of the hospitalized individual’s right to freedom (in this case — the possibility for T. Rakevich to independently petition to court immediately upon her hospitalization). Responses of the state to the claims of the plaintiff turned out to be very characteristic. For example, having acknowledged the violation of the timeframe legally established for court review, the Plenipotentiary Representative of the Russian Federation at the European Court on Human Rights, P. Laptev, declared that the delay had not caused any harm to the health of the patient. The notion of health in this case is interpreted as something purely biological. The issue of restricting one’s freedom against their will is not discussed. When explaining why the plaintiff and her attorney had not been given an opportunity to familiarize themselves with the conclusion of the psychiatric concilium (upon which the court decision in favor of the involuntary hospitalization and therapy was made) Russian representatives declared that this information could have exacerbate her condition and that in view of her illness she had not been in the position to adequately interpret such information. As far as the plaintiff’s demand to have witness M. testify in the court of law was concerned, Mr. Laptev declared that there had been no need in that as “M. was not a psychiatrist and her testimony would not have added any essential information” — an argument which ignores the requirement to provide sufficient grounds of not only medical nature but also such that prove that the individual is helpless or presents danger to themselves or their immediate environment, to justify their involuntary hospitalization. The decision passed by the European Court is a good lesson not only for the Russian system of justice but also for Russian psychiatrists. Although in this particular case it is the court that is to be blamed in the first place, not the psychiatrists. In fact it was the latter who had been accused of illegally treating a person for several weeks. Such accusations were found first and foremost in the Russian mass media. The European Court did not point to any concrete culprits. In addition, it was demonstrated that our Russian law which is ostracized by some psychiatrists for its being excessively democratic and preventing them from treating patients, is in fact far from being in full compliance with international standards. Being an instrument of individual protection the European Court pointed to the fact that the Russian legislation did not provide the individual submitted to psychiatric therapy against their will with the right to independently petition to court with the view of determining whether their placement in a psychiatric institution was legal. According to Part 2, Article 33 of Federal Law “On Psychiatric Care and the Guarantees of the Rights of Citizens in Therapy:” The petition seeking authorization for involuntary placement of an individual in a psychiatric institution shall be submitted to appropriate court by a representative of the psychiatric institution in which the individual in question undergoes therapy. The patient is not provided with such a right. The judicial power was reminded of the necessity to strictly comply with the legally established timeframes, to conduct court hearings as a process of competition of parties (despite the fact that one of the parties is afflicted with a mental condition) with observation of all applicable rules, and to justify their decisions authorizing involuntary hospitalization, i.e., forceful deprivation of the human being of their freedom, not only by detailed indications to the patient’s condition, but also by its compliance with the provisions of Federal Law “On Psychiatric Care and the Guarantees of the Rights of Citizens in Therapy.” The involuntary hospitalization of T. Rakevich took place in 1999. As it has been mentioned before, back then it was a typical case. Violation of timeframes and court procedures are to be found today as well, however there are regions in which court proceedings on involuntary hospitalization are conducted in compliance with all the necessary requirements, with participation of prosecutors and attorneys or legal representatives of the patients, with testimonials of witnesses, etc. And although the number of refusals to authorize a clinic to hospitalize a patient against their will does not exceed an average of 1—2% country-wide, this figure is beginning to grow which indicates that courts are beginning to pay more serious attention to cases dealing with application of involuntary measures in psychiatry. But all this pertains to the cases when patients object to their hospitalization and the latter is viewed as involuntary, succeeded by submission of appropriate petitions to courts. What does one do when a hospitalization is viewed as voluntary? When in the admission unit or later in the department the patient signed a paper indicating their consent to hospitalization and therapy? In the meantime, according to the results of the recently conducted survey, in the majority of the Russian psychiatric clinics more than 95% of the patients undergo therapy voluntarily. Here is one of the typical examples of such “voluntary” hospitalization that occurred in Yekaterinburg in 2002, three years after the hospitalization of T. Rakevich. On October 14, 2002, Mr. Samsonov (the name has been changed), a student of the Nizhnii Tagil School of the Ministry of Internal Affairs, was forbidden to attend classes without explanation of reasons and on October 17, 2002, brought to the Sverdlovsk regional psychiatric clinic “for examination.” Representatives of the school insisted Samsonov’s behavior had been inadequate, he had been demanding a promotion and claimed that he had been “hearing the voice of God” and speaking to him. Samsonov assumed that the reason of his hospitalization was the school management’s negative attitude towards him caused by his participation in a recent fight. At the hospital, in the presence of individuals who accompanied him, namely head of the infirmary and his platoon commander, Samsonov was offered to sign a paper indicating his consent to hospitalization and therapy. Samsonov assumed that he would be examined and let go of when physicians would have ascertained that he was not ill. He did not want to stay in the hospital but the officers who accompanied him told him that he would have to stay there for two days required for the examination to complete, and Samsonov could not but obey the orders of the officers. Immediately upon admission to the department, Samsonov had an interview with a doctor who without any explanations prescribed injections that made Samsonov feel extremely unwell as they caused spasms in his muscles so that he could not walk, eat, etc. Samsonov asked that the treatment be modified but it was not done immediately. Having been notified of what had happened Samsonov’s parents came to the Sverdlovsk regional psychiatric hospital on October 21. In the hospital they were told that their son had serious health problems and that he required extended therapy. They were not provided however with any information about the conclusions made by the medical commission which had examined their son, or the diagnosis and the required therapy. Samsonov’s parents refused to continue their son’s treatment at the Sverdlovsk regional psychiatric hospital and took their son to the Perm hospital, at the place of his permanent residence, where all the necessary tests were conducted. Then they submitted a petition to the court complaining about the actions of physicians of the Sverdlovsk regional psychiatric hospital. The case was litigated at the Kudymkar city court of the Komi-Permyatsky autonomous district. By that time the first hearings on the Rakevich case had already been held at the European Court and Russian courts had already begun to pay more serious attention to cases involving application of involuntary measures in psychiatry. Only several months before the review of such a case in the court of law had been practically impossible because the patient had provided his consent to therapy. In this case the Kudymkar city court studied the situation attentively, researched the medical documentation, and questioned witnesses. On September 15, 2003, the court determined: 1. The court qualifies the consent to hospitalization provided by Samsonov — a serviceman who had given an oath — in the presence of two officers of a higher rank to be a result of coercion which does not reflect the will of Samsonov himself.” 2. …it follows from the explanations provided by Samsonov that the attending physician had informed him that he would be examined during two days but he would not be submitted to any treatment … Samsonov’s explanations are supported by the contents of his clinical chart in which there are no records indicating that his rights had been explained to him.” In view of the above “the court qualifies Samsonov to have provided his consent in fallacy and determines that in violation of Part 3, Article 5 of Federal Law “On Psychiatric Care and the Guarantees of the Rights of Citizens in Therapy” (receipt of information on one’s rights) his rights had not been explained to him.” 3. The court has determined that Samsonov, whose mental condition is not affected and who is comprehensively oriented, had not been provided with information pertaining to the nature of his affliction, goals and methods of therapy, as well as any painful sensations that it might inflict.” 4. According to Article 12 of Federal Law “On Psychiatric Care and the Guarantees of the Rights of Citizens in Therapy” the individual affected with a mental condition … has the right to refuse to undergo the therapy offered or stop the therapy already underway. It follows from the explanations provided by Samsonov that he felt sick after injections and repeatedly requested to be relieved from them but the administration of injections continued as he was forced to submit to them, which is supported by records in his clinical chart dated October 19, 2002, which indicate that in the course of the morning round he stated that he would take the pills but would not submit to injections. With assistance of other patients he was brought to the room for medical procedures from which he attempted to walk away several times … under these circumstances the court qualifies Samsonov to have been submitted to the Sverdlovsk regional clinic and the ensued therapy in violation of the provisions of Federal Law “On Psychiatric Care and the Guarantees of the Rights of Citizens in Therapy.” In addition, the court specified that: The defendant had failed to provide any proof demonstrating the necessity of Samsonov’s urgent hospitalization, and his clinical chart clearly states that his mental condition is not affected and that he is oriented comprehensively and correctly. As a result the court ruled that: “The actions of officials of the Sverdlovsk regional psychiatric hospital with respect to Samsonov shall be qualified as illegal and the hospital shall compensate the plaintiff for the moral damages caused” in the amount of 15 000 rubles. Physicians however disagreed with the court decision: because the patient had been ill and provided his consent to therapy. The cassation instance — the Court of the Komi-Permyatsky autonomous district — upheld the decision of the Kudymkar district court having noted that: There was no need in Samsonov’s urgent hospitalization since his behavior did not represent any danger to himself and his immediate environment and because he was not helpless. His mental condition was not affected, he was oriented comprehensively and correctly, and urgent psychiatric assistance could have been provided on an outpatient basis. No doubt that this just decision of the court demonstrating its victory over its own stagnancy is most directly associated with the case of Tamara Rakevich. No sooner had the European Court showed an example of litigation of cases associated with involuntary hospitalization and demonstrated to the Russian courts the imperfection of their work as it turned out at once that Russian courts could also be objective and unbiased and pass just decisions in favor of patients. Shortly after that, on December 19, 2003, the Plenum of the Supreme Court of the Russian Federation passed a resolution clarifying that courts must pass their decisions in similar cases while taking into account “the decisions of the European Court on Human Rights containing interpretations of provisions of the European Convention on Human Rights and Fundamental Freedoms that are to be applied in this case.” Thus, the case of T. Rakevich confirmed once again that European standards require strict judicial control over the application of involuntary measures in psychiatry. In Russia such control is not effective enough yet. Petitioning to the European Court is not the most expedient but the most effective mechanism of defending one’s violated rights and the Russian human rights activists have learned how to use it. Dozens of human rights organizations specializing in international defense of citizens’ rights have been created in the country. They employ a cadre of well-trained lawyers who have undergone internships in the West and have a good knowledge of the European legislation. Today the second largest number of petitions submitted to the European Court on Human Rights originates from Russia, the largest one coming from Turkey. And sure enough there will be a great many other cases associated with psychiatry. Especially if the RF draft legislation “On Amendments and Additions to Federal Law “On psychiatric care and guarantees of the rights of citizens in therapy” which significantly restricts utilization of court procedures in the application of involuntary measures is passed, and the attempts to stall the development of the institution of independent expertise continue, since all of that deprives the human being of their right to a just protection in the court of law. |
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