Remembering the private and family lives of mentally disabled persons

In the case of Stanev v. Bulgaria the Grand Chamber gives hope for future developments in the Court’s approach towards the protection of private and family lives of mentally disabled people (Lycette Nelson from the Mental Disability Advocacy Center has also blogged about this case, read it here). Even though the majority did not find it necessary to examine Mr. Stanev’s complaint under Article 8, the dissenting opinions of four judges show that there are voices within the Court that consider that the institutionalization of mentally disabled persons has more aspects the Convention should protect.

Mr. Stanev argued under Article 8 that the guardianship regime imposed on him had not been geared to his individual case but entailed restrictions automatically imposed on anyone declared incapable by a judge. He added that the fact of having to live in a social care home had effectively barred him from taking part in community life and from developing relations with persons of his choosing. The authorities had not attempted to find alternative therapeutic solutions in the community or to take measures that were less restrictive of his personal liberty. As a result, the applicant developed “institutionalisation syndrome”, that is, the loss of social skills and individual personality traits (paragraph 250). In the dissenters’ opinion, these were regarded as genuine issues that deserved to be examined separately under Article 8: “Admittedly, a large part of the allegations submitted under Article 8 are similar to those raised under Articles 3, 5 and 6. Nevertheless, they are not identical and the answers given in the judgment in relation to those provisions cannot entirely cover the complaints brought under Articles 8 and 13.” Judge Kalaydjieva even stated:

 “[T]he applicant’s complaints under Article 8 of the Convention remain the primary issue in the present case”.

In some instances, the Court has shown itself sensitive to the suffering of people who are unnecessarily institutionalized, admitting that the issue goes beyond the scope of Article 5. Regrettably, however, all the Court has done is to show sympathy towards these people. For example, in the case of Ashingdane v. the United Kingdom the Court stated:

 “This conclusion does not alter the unfortunate fact that the applicant suffered, in human terms, an injustice in having to endure the stricter regime at Broadmoor for nineteen months longer than his mental state required. The Government themselves have expressed sympathy at his plight and their great regret at the events giving rise to the application. The problem of transfer from the “special” hospitals in England and Wales, which lay at the root of the present case, was undoubtedly a serious one for those affected. However, the injustice suffered by Mr. Ashingdane is not a mischief against which Article 5 para. 1 (e) (art. 5-1-e) of the Convention protects” (paragraph 49).

A few words on the current standards of psychiatric care are in place. The birth of asylum was widely perceived (in the 19th century) as the symbol of an enlightened and progressive civilization that no longer ignored or maltreated its dependent mentally disabled citizens. A hundred and fifty years later, however, it is viewed by many mental health professionals and policy makers as the most important obstacle to the realization of psychiatry’s therapeutic commitments.[1]

Advances in antipsychotic medications and in treatment programs have meant that most individuals who were previously institutionalized can be treated in community settings.[2]  And with regard to the value of community-based treatment the American Psychiatric Association, which represents 36,000 American and international psychiatrists, has stated that:

“For individuals able to manage the process, the ability to choose exposure to the world of opportunities that depend on community integration is invaluable. Indeed, in mental-health terms, the enhancement to such manageable opportunities is near the core of what treatment and ‘habilitation’ are fundamentally designed to achieve.”[3]

Taking into account the developments in psychiatry, one can see the serious and unfortunate situation of persons who are fit to be treated in less restrictive, community-based settings, but are in a country that has not developed any meaningful alternatives to hospitalization. In that situation the person has to stay hospitalized, which, in turn, starts to ‘work’ against him/her and even the therapeutic aims – the person’s private and family life suffers unnecessarily and his/her personality experiences changes, as the syndrome of institutionalization develops.

European consensus

If the Court looked at the European consensus on community-based care, it should first look at Article 19 of the UN Convention on the Rights of Persons with Disabilities, which explicitly recognizes the right to community living. All Council of Europe Member States, except Moldova, Switzerland, and Liechtenstein have signed the Disability Convention. Out of the 44 Member States that have signed the Disability Convention, 29 have also ratified it.

Furthermore, in 2005 representatives of all Council of Europe Member States gathered in Helsinki, developed and adopted the Mental Health Declaration for Europe. In this declaration the States note that many aspects of mental health policy and services are experiencing a transformation across the European region. Services are provided in a wide range of community-based settings and no longer in isolated and large institutions exclusively. The States reaffirmed that this is the right and necessary direction, and took on the responsibility to develop community-based services to replace care in large institutions.

General interest

In balancing the interests and determining the width of the margin of appreciation, financial matters may be important. It is likely that Governments will bring into play budgetary considerations as the general interest. It is thus important, to my mind, to point to some research findings on the costs of institutional and community care. The dominant findings are that there is no evidence that community-based models of care are inherently more costly than institutional care, once the comparison is made on the basis of comparable needs of residents and comparable quality of care. Other studies argue that institutional care may in fact be more expensive than community care, but the assessment of all direct and indirect costs – and of long-term benefits of increased social participation – remains open to different interpretations.[4]

In conclusion, and taking into account all the above-mentioned considerations, I would like to say that the lack of development of any meaningful alternatives to institutionalization by States is not acceptable. Such circumstances should raise issues under Article 8. The latest report from the United Nations on human rights of persons placed in institutions is called “Forgotten Europeans – Forgotten Rights”. So far, few judges have ‘remembered’ those people and their right to respect for private and family life; a right that should be ‘practical and not illusory’. The Court should move beyond mere expressions of sympathy.


[1] Enric J. Novella, Mental health care and the politics of inclusion: A social systems account of psychiatric deinstitutionalization, Theoretical Medicine and Bioethics, Volume 31, Number 6, pp. 411 – 427.  See also: Freeman, H. L., ed.. A century of psychiatry. London: Mosby-Harcourt., 1999, p. 234.; Bartlett P., Wright D., Outside the walls of the asylum. The History of Care in the Community 1750-2000, The Athlone Press, 1999.

[2] American Psychiatric Association, Amici Curiae in: Supreme Court of the United States, Olmstead v. L.C., 527 U.S. 581 (1999).

[3] American Psychiatric Association, Amici Curiae in: Supreme Court of the United States, Olmstead v. L.C., 527 U.S. 581 (1999).

[4] Report of The Ad Hoc Expert Group on the Transition from Institutional Care to Community-based Care, 2009, available at: http://ec.europa.eu/social/main.jsp?langId=en&catId=89&newsId=614&furtherNews=yes

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s