◎ A ward and a bathroom in the Czech psychiatric hospital:
photo provided by the Public Defender of Rights (Ombudsman) of the Czech Republic

Author: Pavel Doubek (Czech scholar and lawyer formerly working at Czech NPM)^[1]

National Preventive Mechanisms should conduct preventive visits to various kinds of places where people are deprived of their liberty. One of such places that we often overlook is the psychiatric hospital. It is true that most of the time we decide to seek medical treatment and give consent to stay in the hospitals on our own will, but sometimes the “voluntary hospitalization”, especially with regards to patients who are suffering from mental disorder, may shift to de facto involuntary detention. As was repeatedly criticized by the NPM, it was a common practice that patients were required to sign a very general form containing not only consent to hospitalization but also consent to all diagnostic and therapeutic actions. As a rule, no additional consent was required after this consent form was signed.^[2]

In some other situations, patients can be placed involuntarily based on the court’s decision. In the Czech Republic, both voluntary and involuntary patients are placed at the general psychiatric hospitals, unless they haven’t reached the adult age. In principle, involuntary patients are placed at the specialized wards, but there are also cases where both categories are placed together in one ward. For the reasons above, the Czech NPM visits all types of psychiatric hospitals and psychiatric wards, no matter how the patients are admitted to hospital.

The Czech NPM visits focuses on a wide range of issues such as informed consent, privacy, material conditions, complaints, coercive measures and specific medical treatment. It also conducts thematic visits that target particular patients. For example, between the years 2011 – 2012, the NPM made visits to specialized psychiatric hospitals for children; in 2017, the NPM examined the living conditions of involuntary patients in the regime of protective treatment. In this article, I will first shed light on the basic conditions in psychiatric hospitals, which are relevant to both voluntary and involuntary patients, while the next story will focus on the situations of involuntary patients.

Living conditions and risks to ill-treatment in psychiatric hospitals

Czech psychiatric hospitals are high-capacity health care institutions. The capacity of psychiatric hospitals visited by the NPM usually ranged from 500 to 1000 patients. It is very often that patients are accommodated in rooms with three to five beds. The rooms of twelve beds are also quite common. Some psychiatric hospitals had poor material conditions. For example, the NPM has seen mould on the walls of children’s rooms, poor mattresses, battered furniture, damp premises, and bars on the windows.

The NPM regularly identifies problems related to the lack of privacy. For example, the shielding curtains were not used in the performing of nursing and hygienic procedures on bedridden patients. Further, the toilets were not lockable and some toilets were only equipped with curtains rather than the doors. Other cases include the use of CCTV in the bathrooms, inadequate management of medical records that resulted in releasing of the sensitive information about patients.

◎ CCTV at the toilet:
photo provided by the Public Defender of Rights (Ombudsman) of the Czech Republic

Each psychiatric hospital lays down the rules governing the daily regime of the patients. These rules can restrict the patient’s movement, limit who he or she can meet, what he is allowed to eat and drink, what to dress, when to wake up, how to spend time, and when to go to sleep, etc. The NPM has found that most of the hospital’s rules were applied to all patients and did not consider the specific situation of particular patients. Here are some examples of the measures criticized as not proportionate:

• In one hospital, patients were not allowed to buy sweets, milk, dairy products and fruits, while other products such as coffee, cigarettes, hygiene and mail supplies, were permitted;
• another hospital prevents patients from using notebooks with internet access and mobile phones;
• three visited hospitals set up daily limits on drinking coffee, while others regulate a number of cigarettes that patients can smoke a day;
• some hospitals required patients to wear pyjamas 24 hours a day – one hospital set this rule for the first 21 days of hospitalization, another sees this measure as part of the so-called “motivation system”; and
• three visited hospitals did not allow patients to stay in their rooms during the day-time. The personnel locked the rooms and allowed patients to enter the rooms for only an hour for a break after lunch or when they had to pick up some items from their closets.

Although the Czech NPM often identified shortcomings that violate the right to privacy, the right to family life or other human rights, it is not common for these deficiencies to reach the level of ill-treatment in themselves, but some of the measures did increase the risks of ill-treatment. Therefore, the NPM should take the entire context of treatment into considerations. For example, the Czech NPM had identified ill-treatment in a psychiatric hospital for children, where the young patients were imposed with family contact restriction, excessively short admission time calls and lack of privacy during phone calls, widespread control of correspondence and phone calls, invasion of privacy during hygiene, and duty to stay in their pyjamas during the day.

Insufficient safeguards and monitoring mechanisms

The right to lodge a complaint against the ill-treatment is one of the most important safeguards for persons deprived of their liberty. The Czech NPM has long gone off the alarm that both the external and internal mechanisms for the prevention of ill-treatment in psychiatric hospitals are inadequate. While public prosecutors regularly monitor the living conditions in prisons or children’s institutes (they can issue legal compliance orders, and may even order to release a person who is illegally detained), patients in a psychiatric hospital lack such kind of protection. Today, the Czech Ombudsman’s NPM department remains the only actor that carries out preventive visits to psychiatric hospitals. Therefore, the NPM calls for establishing the power of the public prosecutor over the psychiatric hospitals, including the power to take swift remedial action in the event of violations of rights.

As for internal safeguards, most hospitals were equipped with complaint boxes, but the complaint procedures varied and were not always effective. The NPM stressed that the hospital staff must inform the patients about their right to file a complaint and tell them how to do so. Further, the hospital must ensure that the complaint procedure is secure and that the complaints are forwarded to the directorate without going through the hands of hospital staff. Once a patient claims to have been subjected to ill-treatment or if there is other evidence suggesting that the ill-treatment could occur, the psychiatric hospitals shall document and report injuries that may occur as a result of ill-treatment. Such injuries may not occur only during the patient’s stay in hospital, but may also happen in other situations, for example, when the person is under the police power prior to a hospitalization or is sent to the hospital from another institution, especially from the social-care facility.

According to Article 12 of the United Nations Convention against Torture, state authorities have the legal obligation to investigate into allegations of torture and ill-treatment. Detailed documentation of injuries is the key to ensure an effective investigation. The Czech NPM has set a standard to instruct the hospital to document such injuries in the form of a detailed medical record and emphasized that such a medical report must be submitted to the public prosecutor who can then initiate a criminal investigation of the matter.^[3] In 2018, the UN Committee against Torture similarly calls on the Czech authorities to “investigate all complaints of ill-treatment of persons with mental and psychosocial disabilities in psychiatric institutions, bring those responsible to justice and provide redress to victims” .

To sum up, as we can see from the present story, the general conditions in psychiatric hospitals can make patients very vulnerable to ill-treatment, especially when there’s a grey zone between informed consent and forced treatment. Therefore, the NPM should be able to recognize these situations during the visits, and focus on the factual state of the patient (how he considers the hospital stay) and not be satisfied only with the formal consent form. Furthermore, the NPM should assess whether the treatment to a particular patient is well-justified by his or her medical treatment plan. Of course, involuntary patients are usually subjected to stricter rules and more coercive measures than patients who are hospitalized voluntarily. How should we determine the nature of those treatments and determine whether they reach the level of ill-treatment? This is the difficult issue we will try to discuss in the next story. 

Note:

1. 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. For more information about the column, please read the preface to the column.
2. International standards stipulate that consent for both hospitalization and treatment must be free and informed, i.e. be absent from any coercion and rely on providing all the information the patient needs to make the decision. However, when the legal capacity of the patient is restricted to deliver a valid consent under domestic law (e.g. minors or persons with disabilities), his or her consent can be replaced by the consent of his or her representative (parent or guardian). This raises a risk that the substitute consent will be manipulated or not reflect the needs and wishes of the patient. This problem was highlighted by the Czech NPM in particular with regard to children placed in psychiatric hospitals. It was revealed from medical records that parents (or other legal representatives) were not sufficiently informed about the child’s state of health and the expected course of treatment. Thus, their consent to the hospitalization of the child was not really informed. In addition, the parents of the children who come from the children’s homes were not aware of the purpose of hospitalization, as the signature of the parents was replaced by the signatures of the staff of the children’s home.
3. These recommendations of the NPM are in accordance with the United Nations standards, including the Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Istanbul Protocol (2004) by the Office of High Commissioner for Human Rights.