Bundesverband Psychiatrie-Erfahrener e.V.



To the
German Ministry for Justice
III B 2 – 9510/91-1-16
11015 Berlin

September 14, 2000


Dear minister,
Dear ladies and gentlemen,

we protest energetically against planned massive discrimination of the human rights of so-called mentally ill and handicapped people which is included in the called »›White Paper‹ on the protection of the human rights and dignity of people suffering from mental disorder, especially those placed as involuntary patients«.

»We intercede for the right of self-determination of all people. In the psychiatric institutions of the Federal Republic of Germany and of Berlin-West the human rights were not observed – even the official ›Psychiatry-Enquete‹ of the government showed this. We are indignant, that psychiatrists do not only lock up human beings for their whole lives into psychiatric institutions, but they want to incapacitate those who could escape from their claws, too. Just looking to the evil and not yet resolved wholesale killings of so called ›mentally ill‹ with the cooperation of the psychiatrists during the atrocious time of German Fascism, we realise it is about time that finally consequences were drawn. Patients may never again be at the mercy of psychiatrists devoid of all rights.« (Translation by Peter Lehmann / R. Bartle)

At this place we remind You on the quoted passage of a resolution (original is submitted) that Gerhard Schroeder in 1982, before he became Federal Chancellor of Germany, had signed. We are appealing to you to stand protecting in front of us.

The White Paper is composed by the working Party about psychiatry and human rights, a subordinated institution of the Steering Committee on Bioethics of the Council of Europe, and its guidelines literally should

»... should aim to ensure protection of the human rights and dignity of people suffering from mental disorder, especially those placed as involuntary patients, including their right to appropriate treatment.«

However, the opposite was the case: As soon as the White Paper passes, it enforces an extensive right of treatment of the psychiatrists inside as well as outside psychiatry. Even after leaving a psychiatric institution after an acute stay,
(ex-)users and survivors of psychiatry shall possibly be forced in freedom to do a prophylactic application of psychiatric drugs for life. Even in psychiatric quarters, ambulant coercive treatment is a controversial topic: So the plenary assembly of the World Federation for Mental Health accepted this resolution of the World Network of Users and Survivors of Psychiatry (WNUSP) in September 1999 in Santiago de Chile:

»Because of our concerns about the expansion of community based forced treatment we have resolved, that the WFMH will be supporting the resistance WNUSP against community based forced psychiatric treatments.«

Even electroshocks shall be allowed against the will of the ›patient‹. All that is a scandalous offence against article no. 3 (physical and mental inviolability) as well as article no. 8 (private life) of the European Convention on Human Rights. In the case of refusal of the ›patient‹ not even an independent judicial decision shall be necessary in some countries, instead a permission of a social worker or manager of the institution shall be enough for the execution of the treatment.
If various other institutions have access to the treatment files, we have to speak of massive offence of data protection: We defeat the telephone tap only because of rules of the House because it offends against article no. 10 European Convention on Human Rights (freedom in getting and notifying of ideas and messages). A right on file inspection shall still be kept back of (ex-)users and survivors of psychiatry.

In all these bills we see obvious offences against all efforts for the abolition of unequal judicial treatment and for judicial equality with physically ill people.

Considering the due menace to our human rights, the positive aspects of this bill step decisively into the background and/or get a downright cynical character: While ›users‹ of psychiatry can completely lose the power of disposal over their own physical inviolability, they shall be fobbed off with the right to a beside table in a psychiatric institution. That lobotomy on children shall be forbidden is as commendable as the planned participation of (ex-)users and survivors of psychiatry in complaint commissions. Nevertheless no complaint commissions, independent of influence from psychiatric institutions and with a full-time team including lawyers is planned. So the planned complaint agencies at best have an alibi function and cannot be an effective control on power abuse and inadmissible treatment and commitment. Moreover it remains an open question, as to what one will be able to complain against – when this whole set of human rights offences, included in the White Paper come into force giving the power of nearly unrestricted arbitrary treatment is to psychiatrists.

After all the Paper of this new bioethics convention (the authors of this bill are not mentioned by name) breathes the same spirit as the famous bioethics convention of the 90's which allows the research on people not being able to agree. The fatal consequences of the complete deprivation of rights of socially weak people were first shown in the years of German Fascism. Please do everything you can possibly do to prevent the passing of the White Paper in this present form.


Result

We wonder about the nonchalance with which the resolutions made at the Health Ministers' conference in November 1999 in Brussels shall be offended. With these resolutions the bills formulated at the conference »Balancing Mental Health Promotion and Mental Health Care«, a common meeting of the WHO (World Health Organization) and the European Commission in Brussels in April 1999 have been accepted. Counting here in particular: the »development of mental health legislation based on human rights, emphasising freedom of choice« (quoted of: World Health Organization / European Commission (1999): Balancing mental health promotion and mental health care: a joint World Health Organization / European Commission meeting. Brochure MNH/NAM/99.2. Brussels: World Health Organization, p. 9 [see www.enusp.org/documents/consensus.htm]).

A treatment against the will shall fundamentally base on the same law principles as in the medical area: treatment with informed consent. The obligation to explain intended treatments and depict risks realistically, against which psychiatric institutions obviously constantly offend, has to be finally carried through. If the person intended to be detained is unable to make an legally recognised declaration, his/her natural will have to be respected. If he/she cannot express his/her natural will, an advance disposition will have to be respected. If this disposition is not recognised, one has to proceeded on the assumption of a denial of the consent.

Instead of an expansion of the scope of – not uncontested – psychiatric special laws on »mental illness«, which can be all and nothing, only those persons who endanger their own lives or the lives of others by a chronic loss of self control should be denied their freedom and removed to a closed psychiatric clinic – and then only as long as this danger cannot be averted in another way.

Please carry our alteration wishes through. (Ex-)users and survivors of psychiatry want legal security, too. (Ex-)users and survivors of psychiatry follow the laws or offend against them just the same manner as everyone else. Human rights are not divisible. (Ex-)users and survivors of psychiatry must have the same rights as persons with physical illness.


Yours faithfully
in the name of the board
Peter Lehmann

Enclosed:
The central passages of the White Paper with the original quotations belonging to it


Enclosure: The central passages of the White Paper with the original quotations belonging to it

  1. Contradictions for the BPE

    1. Coercive treatment inside and outside psychiatric institutions

      »The scope of application of the new legal instrument: It is proposed that it should deal with both involuntary placement and involuntary treatment, whether or not the latter takes place in the context of the involuntary placement.«

    2. Arbitrary decision for coercive commitment and treatment in standard cases
      Decisions shall be made by an experienced and competent psychiatrist or doctor. The decision shall be proved by a »relevant independent authority«, where it shall be based on »valid and reliable standards of medical expertise«. The independent authority can also be a social worker or a hospital manager.

      »The Working Party had considered at length the notion of ›relevant independent authority‹. In particular, it took into consideration Recommendation 1235 (1994) of the Parliamentary Assembly on psychiatry and human rights, which advocates that the decision of placement be taken by a judge. It was also informed that in several member States this decision could be taken by bodies other than courts. It noted that case-law of the European Court of Human Rights had never required the initial placement decision to be taken by a court or court-like body. In the opinion of the Working Party, the relevant question was the independence of the body or authority which takes the decision of placement, the independence of which could be verified by the fact that it was a different authority than the one which proposed the measure and by the fact that its decision was a sovereign decision not influenced by instructions from any source whatsoever. It was thus noted that, in some countries, the relevant authority may be a doctor authorised to take such a decision within a psychiatric establishment, for example, who should be independent in relation to the doctor who proposed the placement measure, in others, it may be a social worker or hospital manager, who may work alongside the doctor examining the patient for the purposes of involuntary placement.«

    3. Unique competence of the psychiatrist for the end of coercive placement and treatment

      »It was underlined that the psychiatrist in charge of the care of the patient should be responsible for assessing whether the patient still meets the criteria for involuntary placement or treatment.«

    4. Uncontrollable deciding competence for coercive placement and treatment in a so-called emergency

      »The Working Party has thus considered that, in an emergency situation, the involuntary placement and treatment can take place without the relevant independent authority having taken the decision but on the basis of a valid and reliable medical opinion following medical examination of the patient with a view to the placement and treatment.«

      »When because of an emergency situation the appropriate consent cannot be obtained, the Working Party, on the basis of the relevant provisions of the Convention on Human Rights and Biomedicine, considered that any medically necessary intervention may be carried out immediately.«

    5. Coercive treatment with penal placement also as obligation outside forensic placement

      »The Working Party also felt that courts and court-like bodies should be able to sentence a person to placement (in a medically appropriate place), and/or treatment...«

    6. Optionality of the idea of illness

      »It hence was of the opinion that mental disorders could not be classified with absolute precision and that the term ›mental disorder‹ could cover mental illness, mental handicap and personality disorders (as regards mental handicap, it was noted that some countries used the concept of ›learning disability‹). (...) However, it was suggested that involuntary placement or treatment should only be appropriate with regard to certain types of mental disorder, e.g. some people suffering from psychoses or severe neuroses, certain types of personality disorder and in significant mental handicap. Persons with a mental handicap sometimes exhibit behaviour which is seriously aggressive and/or irresponsible. Such behaviour may or may not be associated with mental illness. In a situation where mental handicap is associated with mental illness, management of the situation occasionally requires the use of the legislation on involuntary placement and treatment. The term ›significant mental handicap‹ has been used as a description of this disorder.«

    7. Omission of the data protection

      »It was also considered that (...) relevant medical information on the patient's health, including medical data, could be transmitted to the medical doctor or appropriate health and social care workers who may request it.«

      »... It was also underlined that measures such as (...) listening to patients' phone calls should be applied in compliance with the house rules of the psychiatric establishment concerned.«

  2. Something discrepant

    1. Coercive placement does not automatically mean coercive treatment – but coercive treatment is also possible without coercive placement

      »It added that a distinction had to be made between the legal ground for involuntary placement and the legal ground for involuntary treatment. In other words, this means that the involuntary placement as such does not mean that the patient can in any event be treated against his/her will, nor that involuntary treatment should inevitably require involuntary placement.«

    2. Compulsory sterilisation not impossible on principle

      ».... should this issue be mentioned in the new legal instrument being prepared, it would be appropriate that the Recommendation provide that except in the most exceptional cases, there must be no permanent infringement of an individual's capacities to procreate without the individual's consent. Furthermore, the permanent infringement of an individual's capacities to procreate should always take place in the best interest of the person concerned; in other words, the clinical aim of such an infringement should always be the protection of the person concerned. It should then certainly be appropriate to specify that the mere fact that a person suffers from a mental disorder does not constitute a sufficient reason for causing permanent infringement to that person's capacities to procreate. Where permanent infringement of individual's capacities to procreate is envisaged, the matter should be examined by a court or court-like body.«

  3. Positive starts of doubtful relevance

    1. (Ex-)users and survivors of psychiatry not principally without the human rights of physical uninjury

      »It appeared appropriate to retain the view that even if the patient was admitted involuntarily, the presumption of competence to decide about his/her own treatment prevails...«

    2. Therapy is not impossible on principle

      »Furthermore, importance should also be accorded to the provision of group therapy, psychotherapy, music therapy, theatre, sport activities, etc., and opportunities for daily physical exercise. Lastly, education was considered to be an important component of daily living activities.«

    3. Ban on electroshocks without muscle-relaxants, but violently administered electroshock is permitted if »administered in circumstances in which the dignity of the patient is always fully respected«

      »... the use of non modified electroconvulsive therapy should be strictly prohibited. In severe depressive illness, emergency administration in the absence or, rarely, against a patient's consent may be warranted because of the severity of the illness and lack of effective alternatives. Electroconvulsive therapy should be administered in circumstances in which the dignity of the patient is always fully respected.«

    4. No control of the own body indeed, but at least of a bedside table

      »... for example, sufficient living space per patient as well as adequate lighting, heating and ventilation, the provision of bedside tables and wardrobes, individualisation of clothing, to avoid the use of large-capacity dormitories...«

    5. Alternatives possible as long as there are no sufficient capacities of treatment

      »Means of giving the patient the appropriate care which is less restrictive than involuntary placement are not available. In this context, mention has been made of the alternatives to placement, which might include immediate access to the various forms of open care (e.g. day hospitalisation, daily nursing support in the home, effective psychosocial treatments, social welfare assistance). Member States must ensure that measures are taken to make alternatives to placement as widely available as possible.«

    6. Ban on violent psychosurgical measures on adults, ban on all psychosurgical measures on minors

    7. School education should not be kept back of children in psychiatric institutions

    8. Quality control, user-participation and commissions for complains

      »In addition, professionals, both psychiatrists and non-psychiatrists, as well as lay-persons and users should be involved in the system for the setting up and monitoring of quality standards for the implementation of mental health legislation.«

      with tasks like:

      »... notifying to the appropriate authority the death of persons subject to involuntary placement or treatment; ensuring that powers exist to order an investigation into the death of a patient and that an independent investigation of the local mental health services into the death of the person concerned has occurred«

      »visiting and inspecting such premises to establish their suitability for the care of patients with mental disorder, at any time and, where deemed necessary, without prior not«

      »meeting privately with patients subject to provisions of Mental Health legislation and accessing their medical and clinical file at any time«

      »receiving complaints confidentially from any such patients and ensuring that local complaints procedures are in place and that complaints are appropriately replied to«

    9. Participation of (ex-)users and survivors of psychiatry in the provision and supervision of quality standards

      »users of services should be involved in visiting and inspecting local Mental Health Services to establish that suitable alternatives to detention in hospital are provided for the care of patients with mental disorder«

  4. Minimum (literally)

    • Coercive measures shall »should only take place for therapeutic reasons«, »under no circumstances be used for political ends«, »must in all cases be administered for the benefit of the patient«, »have a therapeutic aim and be likely to entail a real clinical benefit«, »only officially recognised pharmaceutical products should be used involuntarily«.

    • So-called »side effects and dosage regimes should be carefully monitored«, the dosage should only be as high as »therapeutically appropriate«.

    • Compulsion and isolation shall be of a short time period and »in due proportion to the benefits and the risks entailed«. The staff shall be extensively trained »in techniques of physical restraint«.

    • The right of communication of the (ex-)users and survivors of psychiatry shall »visits should not be unreasonably restricted«.

    • People shall not be »detained in premises which are not registered by the appropriate authority«.

Translation by Pia Kempker