Russian Mental Health Law

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The Russian Mental Health Law (known also under its official name—the Law of the Russian Federation “On Psychiatric Care and Guarantees of Citizens’ Rights during Its Provision”; Russian: Зако́н Росси́йской Федера́ции «О психиатри́ческой по́мощи и гара́нтиях прав гра́ждан при её оказа́нии») is the basic legal act that regulates psychiatric care in the Russian Federation and applies not only to persons with mental disorders but all citizens,[1] except for those vested with parliamentary or judicial immunity.[2] Providing psychiatric care is regulated by a special law regarding guarantees of citizens’s rights.[3] Due to this fact, it is acknowledged that functions of psychiatry are not limited to identifying and removing biological anomalies that cause "mental illnesses", caring for patients, alleviating their sufferings, but also apply to the scope of their civil rights.[3] The passage of the Law was one of the five conditions for the membership of the All-Union Society of Psychiatrists and Neuropathologists in the World Psychiatric Association.[4] The Law passed on 2 July 1992 and received the number 3185-1.[5]

History[edit]

The Soviet State never considered it reasonable to pass special legislative acts protecting the material and legal part of the patients’ life.[6] It was only instructions of the legal and medical departments that stipulated certain rules of handling the mentally sick and imposing different sanctions on them.[6] The two instructions of 1961 and 1971 were prepared by lawyer Alexander Rudyakov, who headed the legal advice under the Chief psychiatrist of the Moscow Oblast, and read that the ground for urgent hospitalization was social danger of an ill person.[7] Up until 1988, psychiatry in the USSR was not regulated by laws, there were only departmental instructions, especially those of the USSR Ministry of Health, and one article in the Fundamentals of Health Legislation of the USSR.[8] Vague wordings in the instructions led to their wide and arbitrary application, which was fully in the hands of psychiatrists.[8] In the absence of legal control over the actions of doctors, departmental regulation of mental health care has contributed to psychiatric abuse.[8] Only in the beginning of 1988, the USSR adopted the Statute on Conditions and Procedures for the Provision of Psychiatric Assistance, which has been the first legal act in this field and has certainly played a positive role for Soviet psychiatry.[9] However, the 1988 Statute did not fully protect the rights of citizens falling into the field of activity of psychiatry, did not fully protect the mentally ill, did not contain developed mechanisms for legal control over the actions of psychiatrists and did not conform to the USSR Constitution and international standards.[8]

In Russia, the enactment of its Mental Health Law took place under dramatic circumstances despite the need for the Law because of an 80 year delay, after which the Law passed by Russia as against all developed countries, and despite dimensions of political abuse of psychiatry which were unprecedented in history and were being persistently denied for two decades from 1968 to 1988.[1] When Soviet rule was coming to an end, the decision to develop the Mental Health Law was taken from above and under the threat of economic sanctions from the United States.[1] An initiator of creating a serious, detailed mental health law in the USSR was a deputy of the last convocation of the Supreme Soviet of the USSR, a young engineer from a Uralian town.[10] When asked why he as an engineer needs it, he replied to Semyon Gluzman, "All this democracy will soon run out, guys who will come to power, will start repression, and you, Dr. Gluzman, and I will have a hard time. So let's at least get these guys blocked from this possibility and adopt a civilized law eliminating the possibility of psychiatric repression!"[10] The Law was developed with the participation of psychiatrists involved in political abuse of psychiatry.[11] At a meeting held by the Health Committee of the Supreme Soviet of the USSR in the autumn of 1991, the Law was approved, particularly in the speeches by the four members of the commission of the World Psychiatric Association, but this event was followed by the dissolution of the Soviet Union.[1] As its result, the work on the draft of the Mental Health Law automatically ceased.[12]

In 1992, a new commission was created under the Supreme Soviet of the Russian Federation and used a new concept of developing the Law; a quarter of the commission members were the representatives of the Independent Psychiatric Association of Russia (IPA).[1] The main developer of the Law was Svetlana Polubinskaya of the Institute of State and Law of the Russian Academy of Sciences.[12] Polubinskaya was the sole lawyer in the commission of psychiatrists for developing the Law and lodged a categorical protest against including other lawyers in the commission.[13]

The Supreme Soviet of Russia passed the Law on 2 July 1992.[7] The Law has been in force since 1 January 1993.[14] For the first few years, the Law was defied, seen by the doctors as an undue burden and was not let known to the patients.[15] In 1993, when the IPA printed the Law in 50 thousand copies for the general reader, quite a number of heads of the Moscow psychoneurologic dispensaries refused to circulate the Law.[1] Over time, these difficulties were overcome.[1] It became obligatory to know the Law to pass the certification exam.[1]

Practical significance[edit]

Adoption of the Law On Psychiatric Care and Guarantees of Citizens’ Rights during Its Provision is regarded as an epoch-making event in the history of domestic psychiatry, as establishing the legal basis for psychiatric care, and, first of all, mediating all involuntary measures through judicial procedure.[1] That is a major post-Soviet achievement of Russian psychiatry and the foundation for a basically new attitude to the mentally ill as persons reserving all their civil and political rights and freedoms.[1]

The main new democratic innovations for Russian psychiatry were the two ones of the Law:

  1. The mandatory judicial procedure during all involuntary measures (examination, hospitalization, treatment).[16] However, during many involuntary hospitalizations in recent years, the staff of psychiatric hospitals did not follow the mandatory judicial procedure provided for by the Law.[17] Moreover, in 2012, the Independent Psychiatric Association published a paper by its former legal consultant, who in the paper proposed amendments to the Law on Fundamentals of Protection of Public Health in the Russian Federation to legalize involuntary dispensary supervision over persons with mental disorders without their informed consent and court judgment having been taken.[18] Establishing the dispensary supervision over persons specified in part 1 of Article 27 of the Law on Psychiatric Care always leads to legally meaningful consequences for them, such as restrictions on their right to performing specific types of professional occupation and that related to a source of an increased danger.[18]
  2. The highly publicized claim of the full equality of rights and freedoms for the mentally disordered and those for all remaining citizens; the clear reference that it is impermissible to restrict the rights and freedoms on the basis alone of having a psychiatric diagnosis, being under dispensary supervision, in an inpatient psychiatric ward or in a psychoneurological institution.[16] The claim does not correspond to the law enforcement practice, under which the rights to be in correspondence without censorship, send and receive parcels, printed matters and remittances, use the telephone, receive visitors can be restricted by the attending doctor, the head of the unit or the head doctor in the interests of health or safety of the patients and others.[19] In addition, the IPA former legal consultant in his paper insisted that the right to daily walks should be added to the list of patients' rights that may be restricted on the recommendation of the attending doctor or the head doctor in the interests of health or safety of patients and others.[20]

According to the Russian psychiatrists Valery Krasnov and Isaac Gurovisch, the Law minimizes and prevents the institutionalization of the mentally ill if their behavior does not pose a danger to others.[21] However, article 38, which was once included in the Law as a guarantee of keeping the whole Law for patients of psychiatric hospitals, is still not working, and, as a result, the service independent of health authorities to defend rights of patients in psychiatric hospitals is still not created.[22]

Purview[edit]

The Law contains the following 6 sections and 50 articles:[23]
Section I. General provisions
1. Psychiatric care and principles of its provision
2. The legislation of the Russian Federation on psychiatric care
3. The application of this Law
4. Voluntariness of seeking psychiatric care
5. Rights of persons with mental disorders
6. Restrictions on performing specific types of professional occupation and that related to a source of an increased danger
7. Proxying for citizens to whom psychiatric care is provided
8. Prohibition of request for information on mental condition
9. Maintaining medical confidentiality during psychiatric care
10. Diagnostics and treatment of persons with mental disorders
11. Informed voluntary consent to medical intervention
12. Refusal of treatment
13. Compulsory measures of medical nature
14. Forensic psychiatric examination
15. Psychiatric examination to determine fitness of a citizen for service as a military man
Section II. Provision of psychiatric care and social support for persons with mental disorders
16. Types of psychiatric care and social support guaranteed by the State
17. Financial provision of psychiatric care
Section III. Institutions and persons providing psychiatric care. Rights and duties of health workers and other professionals
18. Organizations and persons providing psychiatric care
19. The right to occupation in providing psychiatric care
20. Rights and duties of health workers and other professionals during psychiatric care
21. The independence of the psychiatrist during psychiatric care
22. Guarantees for medical and other professionals involved in psychiatric care
Section IV. Types of psychiatric care and procedure of its provision
23. Psychiatric examination
24. Psychiatric examination of a person without his consent or without the consent of his legal representative having been taken
25. Procedure of submitting application and making decision on psychiatric examination of a person without his consent or without the consent of his legal representative
26. Psychiatric care provided in the outpatient setting
27. Dispensary supervision
28. Grounds for hospitalization in a medical organization providing psychiatric care in the inpatient setting
29. Grounds for involuntary hospitalization in a medical organization providing psychiatric care in the inpatient setting
30. Security measures during psychiatric care
31. Psychiatric examination of an underage person hospitalized in a medical organization providing psychiatric care in the inpatient setting
32. Psychiatric involuntary examination of persons hospitalized in a medical organization providing psychiatric care in the inpatient setting
33. Appealing to a court on the issue of an involuntary hospitalization
34. Considering the application for the involuntary hospitalization
35. The judge's decision on the application for the involuntary hospitalization
36. Prolongation of the involuntary hospitalization
37. Rights of patients in medical organizations providing psychiatric care in the inpatient setting
38. Service for the protection of rights of patients in medical organizations providing psychiatric care in the inpatient setting
39. Duties of a medical organization providing psychiatric care in the inpatient setting
40. Discharge from a medical organization providing psychiatric care in the inpatient setting
41. Grounds and procedure for the internment of persons in inpatient facilities of social service for persons with mental disorders
42. Grounds and procedure for the internment of an underage person in inpatient facilities of social service for persons with mental disorders
43. Rights of persons living in inpatient facilities of social service for persons with mental disorders and the duties of these facilities
44. Transfer and discharge from inpatient facilities of social service for persons with mental disorders
Section V. Control and prosecutorial supervision over occupation in providing psychiatric care
45. Control and prosecutorial supervision over providing psychiatric care
46. Control of public associations over the observance of the rights and legitimate interests of citizens during psychiatric care
Section VI. Appealing against actions in providing psychiatric care
47. Procedure and deadlines for appealing
48. Procedure for considering a complaint in a court
49. Procedure for considering the complaint in a higher authority (by a senior officer)
50. Liability for violation of this Law

Involuntary mental hospitalization[edit]

In 1989, the World Psychiatric Association issued a statement that includes the following phrase: "Involuntary intervention is a great infringement of the human rights and the fundamental freedom of a patient. Therefore, specific and carefully defined criteria and safeguards are needed for such intervention."[24] The Law establishes substantive and procedural criteria for legitimacy of involuntary hospitalization.[25] Russia is among such countries and their parts as Austria, Belgium, Germany, Israel, the Netherlands, Northern Ireland, Taiwan, and the Canadian province of Ontario that emulated the United States in adopting hospitalization criteria based on the presumed danger of the mentally ill.[26] The same was true of the Soviet Union where the two instructions of 1961 and 1971 read that the ground for urgent hospitalization was social danger of an ill person.[7] There is such a thing carefully cultivated by authorities as the prejudice that the mentally ill allegedly pose a danger to society, though it is not so: the percentage of criminals among the mentally ill is less than that among the so-called "healthy" population.[27] Statistics show that the ill with schizophrenia commit fewer illegal acts (less than 1%) than those considered mentally healthy.[28] Involuntary hospitalization in a psychiatric hospital under article 29 of the Law is to meet the following three grounds:

A mentally disturbed individual may be hospitalized in a psychiatric hospital against his will or the will of his legal representative and without a court decision having been taken, if the individual’s examination or treatment can only be carried out by in-patient care, and the mental disorder is severe enough to give rise to:

a) a direct danger to the person or to others, or
b) the individual’s helplessness, i.e. an inability to take care of himself, or
c) a significant impairment in health as a result of a deteriorating mental condition, if the affected person were to be left without psychiatric care.[29]

Neither direct danger[30] nor severe mental disorder is defined in the Law.[31] According to the IPA president Yuri Savenko, loud claims, importunate molestations, shocking texts in a personal computer, participation in protests, hunger strikes, protest reaction against sudden and rude involuntary measures started to be called a direct danger.[32] According to American psychiatrist Thomas Szasz, the psychiatric formula of "dangerousness to self and others" is very susceptible to changes of medical, political and social fashion.[33] Prior to 1973, homosexuality was such a dangerousness, and since then has no longer been.[33] Psychologist-criminalist Nataliya Varskaya says that neuroleptics that are applied to serious patients make them "vegetables", but the ill stop posing a danger to citizens; alas, but there are no other ways to secure surrounding people against them.[34] She adds, dangerous patients are not cured even in psychiatric hospitals, they were previously kept in the wards for life, doctors examined them every six months and prolonged, prolonged, prolonged their custody; the doctors were aware that these patients are very dangerous, it is inadmissible to let them go to the streets.[34]

The citizen may voluntarily come to a psychiatrist who would find a severe mental disorder that requires the mandatory admission to a psychiatric inpatient unit. If the patient refuses the hospitalization offered to him, the doctor gets the right to start the procedure of involuntary hospitalization.[35] As a psychiatrist says, it is only a psychiatrist who is able to inquire into a patient’s condition and to decide whether his refusal to be treated is a free man’s conscious choice or a symptom of a mental disorder.[36] In psychiatrist’s opinion, the mentally ill often do not feel and do not deem they are ill.[37] They actively avoid therapy and resist all efforts to subject them to it.[37] The more the person resists the inpatient psychiatric ward’s demands for his hospitalization, the greater are his chances to find himself indoors or, more precisely, to be left there, because his resistance can be presented by the ward representatives as the lack of his due insight into mental status, as an indication of the severity of his disease.[38] In the same vein, the practice was justified by American psychiatrist Benjamin Rush as early as the eighteenth century: "The more they resist our efforts to serve them, the more they have need of our services."[39] The reluctance of patients to undergo neuroleptic treatment, their "spontaneous irritation", protests, etc. are considered as either unremoved symptoms of mental illness (such as depressive neurosis) or, along with tremor, anxiety, dysphoric mood disorder, as "transitory complications".[3] It is profitable for doctors to hospitalize the person in any cases, then bedspace fills up.[40] Remuneration of the labour of physicians in psychiatric hospitals and funding of the entire industry in Russia are carried out on the basis of the number of beds run by the doctor.[40] Russian human rights activist Valery Abramkin says it should be clear for a Russian patient that each medic legally and illegally snatches his large sum from each bed.[41] However, psychiatrists in their usual way counter the remarks that their funding depends on the number of psychiatric beds by ascribing them to antipsychiatrists and stating that the main motto of antipsychiatrists is the idea that psychiatrists are villains who dream of placing as many people as possible to madhouses.[36]

Data obtained as results of analysing the work of the psychiatric inpatient facilities show that two thirds of patients placed in a hospital without their consent actively refuse hospitalization.[42] In the rest of cases, they are unable to express their attitude to the events because of their mental condition.[42]

Duration and rate of hospitalization[edit]

Despite the 1992 Russian Mental Health Law, coercive psychiatry in Russia remains generally unregulated and fashioned by the same trends toward hyperdiagnosis and overreliance on institutional care characteristic of the Soviet period.[43] In Russia, mental health care is meant to be provided by inpatient psychiatric facilities rather than by outpatient services.[44] In the Soviet Union, there had been an increase of the bed numbers because psychiatric services had been used to treat dissidents.[45] In 2005, the Russian Federation had one of the highest levels of psychiatric beds per capita in Europe at 113.2 per 100,000 population, or more than 161,000 beds.[46] In 2014, Russia has 104.8 beds per 100,000 population and no actions have been taken to arrange new facilities for outpatient services.[47] The number of outpatient clinics designed for the primary care of the mentally disordered stopped increasing in 2005 and was reduced to 277 in 2012 as against 318 in 2005.[47] An average patient’s stay in a day-and-night inpatient psychiatric facility is extremely long, 75.5 days.[44] Nevertheless, the average rehospitalization rate in the Russian Federation amounts to 21.5%, and the portion of people kept in inpatient facilities longer than one year was 21.7% in 2012[44] and 22.2% in 2013.[48] Psychiatrist Sofia Dorinskaya says she saw former convicts who have been living in a Russian mental hospital for ten years and will have been staying there until their dying day because of having no home.[49] The total number of the mentally ill registered disabled has increased by 20% over a few years, from 826,036 in 1999 to 1,020,002 in 2008 for the population of 141.9 million in the country (2010 figure).[50]

Persons who do not respond well to treatment at dispensaries can be sent to long-term social care institutions (internats) wherein they remain indefinitely.[46] The internats are managed by oblast Social Protection ministries.[46] Russia had 442 psychoneurologic internats by 1999, and their number amounted to 505 by 2013.[51] The internats provided places for approximately 125,000 people in 2007.[46] In 2013, Russian psychoneurologic internats accommodated 146,000 people, according to the consolidated data of the Department of Social Protection of Moscow and the Ministry of Labour and Social Protection of the Russian Federation.[51] It is supposed that the number of beds in internats is increasing at the same rate with which the number of beds is decreasing in psychiatric hospitals.[52]

Lyubov Vinogradova of the Independent Psychiatric Association of Russia provides the different figure of 122,091 or 85.5 places in psychoneurologic institutions of social protection (internats) per 100,000 population in 2013 and says that Russia is high on Europe's list of the number of places in the institutions.[53] Vinogradova states that many regions have the catastrophic shortage of places in psychoneurological internats, her words point out to the need to increase the number of places there and to the fact that the Independent Psychiatric Association of Russia is forcing transinstitutionalization—relocating the mentally ill from their homes and psychiatric hospitals to psychoneurological internats.[53] As Robert van Voren, the chief executive of the Federation Global Initiative on Psychiatry, supposes, the Russians want to have their compatriots with mental disorders locked up outside the city and do not want to have them in community.[54] Persons in internats are brought to sleepy condition by psychotropic drugs and have to pass through the very long and complex procedure to be discharged from an internat, as shown in the film See Me, Hear Me produced by Russia Today in 2014.[55] However, according to law, the staff does not have the right to treat inmates in psychoneurologic internats.[56]

Russia is decades behind the countries of the European Union in mental health reform, which has already been implemented or is being implemented in them.[27] Until Russian society, Russian psychiatrist Emmanuil Gushansky says, is aware of the need for mental health reform, we will live in the atmosphere of animosity, mistrust and violence.[27]

Peculiarity of law enforcement practice[edit]

According to Yuri Savenko, the IPA president, law enforcement practice, of course, is very far from the letter of the Law, forensic psychiatric expert examination has deteriorated because of the lack of competition, and courts implicitly fulfill wishes of the hierarchy of executive authority affected by corruption.[37]

Discrediting the citizens by instituting farfetched proceedings to obtain a ground for examination is a favorite tactic of officials whose interests are hurt by the active members of public.[57] The police deliver "the ill" to a psychiatric facility, and the doctor can be sure that his facility will not be reduced, and, in general, the more "patients", the more funding.[57] Even if the criminal case is closed due to its complete failure, it does not regard the dispensary, the person is all the same "ill".[57] There is nowhere to refute one's misdiagnosis in Russia.[57]

According to Yuliya Argunova, the IPA lawyer, police officers are obliged under part 3 of article 30 of the Law to assist medical workers in implementing involuntary hospitalization and to ensure safe conditions for the access to the hospitalized person and for his examination.[58] While assisting hospital attendants to penetrate into the apartments of citizens whose names are written by psychoneurological dispensaries on their referrals to hospitalization, police officers do not care about the absence of court order (which still cannot be presented by this moment), the security of the hospitalized persons, the protection of their personality and preservation of their property.[58] According to psychiatrist Sofia Dorinskaya, the situation always develops in the same way: either in the evening or at night, or in the early morning, when a person sleeps, the police break the door down in his apartment or room, handcuff and escort him directly or through a police office to a mental hospital, where the door is closed behind the person.[59] When the door is closed and you sit face to face with a psychiatrist, then everything written by the psychiatrist will be a proof of your madness for the judge in court.[59] Even if you just sit on a chair, speak nothing or any anything reasonable, the psychiatrist can write that you threw yourself against walls and that you tried to scratch his eyes out and so on and so forth.[59] The lawyers described a case when the ambulance arrived with a rescue service brigade, the iron door was broken down because the person refused to open it, they burst into his apartment, and the doctor has considered that the indignant reaction of the person to all this was abnormal and sufficient to justify his hospitalization.[60] In her book The Psychiatrist's Notes, Dorinskaya depicts how a person well oriented in place and time was hospitalized because of a fit of schizophrenia described in the referral to his hospitalization as "he beat his wife and used bad language".[61] Dorinskaya writes how she and her colleagues forged many signatures of their patients on the forms of consent to hospitalization in medical histories before a prosecutor's investigation.[62] She cites the dialog: "And what if a signature does not match?"—"And who will investigate?"[62]

According to lawyers Yuri Ershov and Nataliya Kozlova, while it is easy for the lawyer to come to places of confinement and meet with his client and the administration of the penal colony after going through the formalities stipulated in law, the lawyers have to litigate for the right to get into a psychiatric hospital.[60]

As St. Petersburg lawyer Fanis Khalikov notes, the information about the time and place of the court session may simply be hidden from the hospitalized person and his representative. The hospitalized person may learn that he is in court at the time when the court session is underway or ready to start presently, when nothing can be done to ensure self-defence. It also happens that the person is not given an opportunity to contact his representative (lawyer), who could defend his interests in court, or with relatives (confidential agents, acquaintances, human rights organizations) so that they find and get a defence attorney to court. Or the defence attorney is not given an opportunity to meet with the hospitalized person; all possible obstacles are placed to prevent it. The hospitalized person is subjected to psychiatric treatment without his consent (and without the consent of the court) as soon as he finds himself in a psychiatric inpatient ward. Psychotropic drugs with effects varying in intensity are compulsorily administered into his body. As a result of having been drugged, the patient sometimes appears before the court in such a state that his look and behavior, caused by the influence of these drugs, can convince the judge that he sees a really inadequate person who is in need of psychiatric care. The patient is often in such an intoxication-induced condition that he is unable to put two words together, not to mention any real defence of his rights.[38]

According to the statement made by the IPA executive director Lyubov Vinogradova in 2005, a court comes to a hospital where it must make a number of judgments as to whether rightly or wrongly the hospital applies for the involuntary treatment of a person. The court makes its judgments for 20 cases within 20 minutes. In practice it means that the judge automatically signs judgments offered to him ready-made by the staff to allow for the involuntary treatments to continue.[63]

According to Doctor of Legal Sciences Vladimir Ovchinsky, regional differences in forensic psychiatric expert reports are striking.[64] For example, in some regions of Russia, 8 or 9 percent of all examinees are pronounced sane; in other regions up to 75 percent of all examinees are pronounced sane.[64] In some regions less than 2 percent of examinees are declared schizophrenics; in other regions up to 80 percent of examinees are declared schizophrenics.[64]

The Russian legislation did not implement Principle 18 of the Principles for the Protection of Persons with Mental Illness and the Improvement of Mental Health Care, approved by the UN General Assembly in 1991, with respect to a patient’s right to an independent psychiatric report.[65] According to a report by the European Committee Against Torture, the Law does not reflect a patient's right to obtain the judgment for involuntary hospitalization.[66] In a hospital courtroom, the judge announces the judgment, but the patient does not obtain any motivated judgment.[66] There are sometimes cases where the patient is not informed by the court at all and hears about the judgment from his or her treating doctor or head of the unit.[66] Since the judgment for involuntary hospitalization, as a rule, is not delivered to the hospitalized person, he cannot appeal against the judgment in appeal hearing.[38] In other cases, the documents sent by him are censored and left in his medical record if not erased.[38] The hospitalized person also does not have opportunities to attend the court to obtain a copy of the judgment or come to the post office to send a complaint against the judgment.[38]

Exception in the Law enforcement practice[edit]

Article 29 of the Law concerning involuntary hospitalization in a mental hospital shall not apply to senior officials and the judiciary on the ground that they are vested with parliamentary or judicial immunity.[2] A psychiatrist who violates this rule can be deprived of his or her diploma and sentenced to imprisonment.[67] Passport data of persons vested with parliamentary or judicial immunity shall be included in the computer database, which is available to every psychiatric institution and shall be used by every psychiatrist before addressing the issue of involuntary hospitalization of a person in a psychiatric hospital.[2] Psychiatrists commented on how to treat the judge vested with judicial immunity as follows: "While knowing that the person in twilight state is dangerous and may kill or maim people nearby, the psychiatrist should provide this information to the regional court so that three judges of the court within 10 days can send to the Supreme Court of the country a petition for the removal of immunity from the judge. It is only a possible victim who should be worried about the fact that aggressive actions are likely to happen now because twilight state is usually short-lived. The victim may suffer or die, but it would happen in strict accordance with the Law on the Status of Judges!"[68] According to the next item of the commentary, the psychiatrist has no right to subject the incumbent President of the Russian Federation to the procedure of involuntary psychiatric examination or involuntary hospitalization.[69]

Amendments and changes[edit]

Amendments and changes were included in the Law several times: on 21 July 1998, 25 July 2002, 10 January 2003, 29 June and 22 August 2004, 27 July 2010, 7 February, 6 April, 21 November 2011.[7]

Over five years, from 1998 to 2003, the Serbsky Center made three attempts to submit for the Duma readings of amendments and additions to the Law, but the IPA and general public managed to successfully challenge these amendments, and they were finally tabled.[70] According to the IPA, these amendments to the Law, if adopted, would have impaired patients’ rights.[71] In 2004, for instance, proponents of mental health reform could hardly prevent the effort by the doctors of the Serbsky Center to roll back some reforms in the Law.[72]

In November 2012, Mikhail Vinogradov, an expert of the Serbsky Center, said: "We must restore the legal act that was in the Soviet Union;" he noted that the request by a large group of Petersburg and Moscow psychiatrists to restore the old mental health act was submitted to the State Duma.[73] At the same time, Vinogradov expressed the opinion that the Soviet mental health act "has never been used for political persecution." Human rights activists who claim it did, in Vinogradov’s words, "are not very mentally healthy."[74] However, Valeriya Novodvorskaya is widely known to have been arrested "for insulting President" in September 1990 and kept in a psychiatric hospital until August 1991.[75] In December 2012, Mikhail Vinogradov repeated his point, "My opinion: we should completely cancel the current Mental Health Law. One cannot give patients the right to decide their fate."[76] He added, "Do you talk about human rights activists? Most of them are just unhealthy people, I talked with them. As for the dissident General Grigorenko, I too saw him, kept him under observation, and noted oddities of his thinking. But he was eventually allowed to go abroad, as you know… Who? Bukovsky? I talked with him, and he is a completely crazy character. But he too was allowed to go abroad! You see, human rights activists are people who, due to their mental pathology, are unable to restrain themselves within the standards of society, and the West encourages their inability to do so."[76]

On the other hand, Leonid Kitaev-Smyk, a doctor and psychologist who specialized in extreme conditions, believes that unscrupulous people may use certain provisions of the Soviet mental health act, if restored, as a tool to settle scores, as was in Soviet times.[77] He says, "In some particular cases, people will simply write complaints against a person, will subject him to involuntary psychiatric examination. And he can be declared crazy after some bribe money have been paid. Creative, nonordinary, talented people have labile (as scientists say) nervous system, movable psychics. And they can be declared not quite normal mentally and, perhaps, even dangerous."[77] Sergei Shishkov, the key lawyer of the Serbsky Center, also disagreed with Vinogradov, "We are unlikely to return to the Soviet mental health act. It would be contrary to the international norms, which Russia has joined, as well as to the Russian Constitution. Article 29 of the Mental Health Law allows placing dangerous patients in a hospital. But when following necessary judicial procedures. If a patient is too socially dangerous, he is placed in a hospital, and a judgment is made through the court post factum. If a patient cannot be left without treatment, but he does not give his consent to the examination, there is such a concept as "deferred examination", or examination postscriptum."[76]

Violations of the Law[edit]

Russian psychiatrists Valery Krasnov, Isaak Gurovich and Alexey Bobrov suppose the Law works successfully enough,[50] though the results of monitorings show that the violations of the rights of patients in psychiatric hospitals are massive.[78] Most psychiatric institutions deny patients the right to receive information about the condition of their mental health, copies of medical documents.[78] The grounds of placing in a hospital are not only undisclosed and unexplained to patients, but even are concealed from them, their consent to hospitalization and treatment are forged.[78] The patient's right to send uncensored complaints and petitions to authorities, the prosecutor's office, court is ignored.[78] Such correspondence is opened and inspected and, instead of being sent to the recipient, is filed to the medical history.[78] Some hospitals censor not only outgoing correspondence (as doctors say, "not to send claptrap") but also ingoing one ("not to injure the patient").[78]

Because of omissions of the administration of hospitals, patients are, as a rule, deprived of daily walks, the right to use the telephone.[78] They are forbidden to see lawyers and other representatives chosen by them, to receive representatives of human rights organizations.[78] In many hospitals, telephone calls and appointments with relatives are allowed only in the presence of attendant staff (a nurse, social worker or hospital attendant), that violates the privacy of such meetings.[78] Receiving an appointment requires beforehand permission of the administration.[78] The patient's natural right to privacy is not implemented.[78] In all psychiatric hospitals, there are patients who are there not for medical but exclusively for social indications, including conflict relationships with family members who live with them.[78]

During many involuntary hospitalizations in recent years, the staff of psychiatric hospitals did not follow the mandatory judicial procedure provided for by the Law.[17] In 2009, several orphans from the city of Kimovsk in Tula Oblast ran away from their orphanage to a local priest.[17] They told that they were sent to a psychiatric hospital through the explanation of their teachers "for disobedience and the edification of others."[17] The expert report from the Serbsky Center for Forensic Psychiatry showed that they were "mentally healthy."[17]

In 2010, 20 out of 72 orphans from an orphanage in Komsomolsk-on-Amur were placed in a psychiatric hospital and exposed to neuroleptic medication.[17] The city prosecutor found that all the children were placed in the hospital to be treated for "emotional disorders" without having been examined by a commission of psychiatrists or provided for by a court judgment.[17] The children told they had been warned that they would send to a madhouse because of their bad behavior.[17]

In the rurban of Sofino in Moscow Oblast from 2008 to 2011, psychiatric hospitalizations and treatments have been imposed on 23 of 46 inmates who reside in a local orphanage.[17] In March 2011, the Saint Petersburg Commissioner for Child Rights Svetlana Agapitova reported on the hospitalization of four orphans from the orphanage No. 19 as a punishment for their disobedience.[17] The medical records of the children did not contain notes of these hospitalizations.[17]

It is significant that none of the cases has reached a trial and entailed real convictions.[17] All taken measures were limited to the prosecutor's investigation.[17] Infant orphans who came of age and received a diagnosis in a psychiatric hospital are sent to psychoneurological internats without asking their consent.[79] There a new problem arises: quite legally capable people cannot get out of there, work, start their family and live a normal life.[79]

Alexander Dvorkin's psychiatric history being digitally photocopied and placed on the Internet shows that the confidentiality of a psychiatric patient's medical history in Russia can be broken any time.[80]

Estimations of the Law[edit]

According to St Petersburg psychiatrist Vladimir Pshizov, the current Law is a boon and works out when having the informal human attitude to the patient.[81] However, as Pshizov notes, a disastrous factor for domestic psychiatry is that those involved in political abuse of psychiatry in the Soviet Union were allowed to stay on their positions until they can leave this world in a natural way.[81] Those who retained their positions and influence turned domestic psychiatry from politically motivated one to criminally motivated one because the sphere of interests of this public has been reduced to making a business of psychopharmacologic drugs and taking possession of the homes of the ill.[81]

According to Moscow psychiatrist Alexander Danilin, the Mental Health Law is certainly a progressive thing but, in reality, nothing changes because the real change is of the attitude of specialists which, however, we will still have to have a long wait for.[82]

The 1993 Law is not foremost, according to lawyer Vladislav Lapinsky, who took part in its passage.[83] The Law has been foremost for the Russian Federation within those times but now is already outdated and does not have many issues written in.[83] Lapinsky says a very big issue is that the judges are not experts in psychiatry and cannot evaluate the patient's condition objectively.[83] On this ground, the judges in courts openly declare that if the doctors in a mental hospital said that the person is sick, they will not check whether healthy or not he is, whether he needs to be hospitalized or not.[83] They just do what they are told by psychiatrists, and psychiatrists for various reasons are very often motivated to place the person in a psychiatric hospital.[83]

According to psychiatrist Sofia Dorinskaya, the Law is in conflict with the Constitution of the Russian Federation.[59] In judicial system, there is procedure for collecting evidence.[59] If a person does not sign a transcript of interrogation or if he signed it, he in court can say that he was forced to sign, and the judge will investigate this.[59] Anyway, it is stipulated.[59] In psychiatry, a person’s opinion is not considered to be something more or less reasonable at all.[59] The judges simply believe psychiatrists.[59] Thus, psychiatry rises above judicial system.[59] The judge very rarely asks a psychiatrist to prove his statements.[59]

Psychotherapist Elena Romek, after making the analysis of the Law, came to the same conclusion that provisions of the Law are in conflict with civil rights guaranteed by the Constitution of the Russian Federation, universally recognized norms of international law, professional and ethical norms of medicine, and presumption of innocence.[3] If violence (involuntary examination, isolation, etc.), she says, is, in fact, used by doctors in accordance with the Hippocratic Oath to do everything to save the patient's life, the listed criteria should be generally valid, i.e. applied also to somatic diseases.[3] Progressing cancer or detachment of the retina, of course, would cause "significant impairment in health" if the person suffering from these illnesses is left without medical assistance.[3] But would the person be subjected to involuntary examination, hospitalization or treatment on this ground?[3] No, not only the person would not be subjected to, but also treatment aimed at actual, not merely possible salvation of his life (or eyesight) would not be carried out for free of charge in many countries allowing involuntary treatment of psychiatric patients.[3] The paralytic cannot "independently take care of himself" and is in need of care due to the individual’s helplessness, but law does not provide for his involuntary commitment to a hospital.[3] The restriction of civil rights of a person to the extent of his forced isolation based on the possibility alone of his committing illegal acts, which is defined through the notions about it in psychiatry—a discipline very far not only from jurisprudence but from socio-humanitarian knowledge in general, clearly violates the fundamental principle of the democratic justice—presumption of innocence.[3] Since, on the one hand, psychiatry considers a great number of organic anomalies (any brain damages, hormonal imbalances, infectious diseases, etc.) as potential causes of criminal insanity and, on the other hand, the diagnostics of mental disorders is based on very vague descriptions of abnormal behavior, almost anyone can be subjected to involuntary hospitalization by the criterion of social danger and in strict accordance with the Law.[3]

Vladimir Rotstein, a doctrinist of Snezhnevsky's school, states, if the relatives of a "not dangerous" patient with psychosis not simply beg ambulancemen to take him to a hospital but promise to "reward" them, then the patient will be hospitalized.[36] The ambulancemen will take care that the patient sign a "consent".[36] It is entirely another story how to do so.[36] It turns out that not simply the Law is unobserved (the patient was hospitalized, though he tried to refuse) but also entails new abuses.[36] Rotstein says, "As for preventing abuses on the part of the state so that Chaadaev and suchlike are not declared mad, it would be at least naive to hope that the Law is able to prevent them."[36] Rotstein sums up his opinion by quoting Alexander Pushkin’s aphorism, "In Russia there is no law—There is only a pillar; and on that pillar—a crown."[36]

According to Russian psychiatrist Emmanuil Gushansky, the Law "On Psychiatric Care and Guarantees of Citizens’ Rights during Its Provision" that has been in force since 1993 is declaratory in nature and does not guarantee any rights.[84] Not only the general and reference items of the Law but also its articles of direct application, which apply to the procedure of involuntary psychiatric examination, involuntary hospitalization, to the procedure of interning and keeping the mentally ill in long-term psychiatric care institutions ("internats" in Russian), are violated in the grossest way.[84] Legal control over observing the Metal Health Law is not exercised.[85] Psychiatry is the only medical specialty in which the doctor is given the right to violence for the benefit of the patient.[86] The application of violence must be based on the mental health law, must be as much as possible transparent and monitored by representatives of the interests of persons who are in need of involuntary examination and treatment.[86] While being hospitalized in a psychiatric hospital for urgent indications, the patient should be accompanied by his relatives, witnesses, or other persons authorized to control the actions of doctors and law-enforcement agencies.[86] Otherwise, psychiatry becomes an obedient maid for administrative and governmental agencies and is deprived of its medical function.[86] It is the police that must come to the aid of citizens and is responsible for their security.[85] Only later, after the appropriate legal measures for social protection have been taken, the psychiatrist must respond to the queries of law enforcement and judicial authorities by solving the issues of involuntary hospitalization, sanity, etc.[85] In Russia, all that goes by opposites.[85] The psychiatrist is vested with punitive functions, is involved in involuntary hospitalization, the state machine hides behind his back, actually manipulating the doctor.[85] The police are reluctant to investigate offences committed by the mentally ill.[85] After receiving the information about their disease, the bodies of inquiry very often stop the investigation and do not bring it to the level of investigative actions.[85] Thereby psychiatry becomes a cloak for the course of justice and, by doing so, serves as a source for the rightlessness and stigmatization of both psychiatrists and persons with mental disorders.[85] The negative attitude to psychiatrists is thereby supported by the state machine and is accompanied by the aggression against the doctors, which increases during the periods of social unrest.[85]

Nikolay Suatbaev expressed a similar opinion, stating that unlawful behavior should be dealt with by police, a public prosecutor's office, a court, even if an offender is mentally ill; after all, only if he is not deprived of his legal capacity, he has rights and obligations equal to those of the healthy.[31] The refusal to institute criminal proceedings is Illegal if based on the fact alone that the offender is on the psychiatrist’s registry and all the more so if accompanied by the delivery of the materials "for taking measures" to the dispensary, which by definition is not a punitive organ.[31] It corrupts the ill and undermines the reputation of psychiatrists, Suatbaev says.[31] The Americans, for example, in New York City, have no dispensaries at all, and if a patient broke a law, it is a problem of police; only later psychiatrists investigate, what yardstick to apply to whom, Vladimir Pshizov writes.[81]

In 2003, lawyer Mikhail Fomin noted that psychiatrists were given preference in order to encroach upon the homes of the elderly and single people.[87] It would seem that the current Law "On Psychiatric Care and Guarantees of Citizens’ Rights during Its Provision" must counteract such manipulations in psychiatry but, in reality, the Law leads to numerous abuses following which single pensioners are sent to a long-term psychiatric care institution ("internat" in Russian) to pass the rest of their life there.[87] In Fomin's words, no one disputes that only a specialist can make a diagnosis but vesting a psychiatrist with the unlimited power to decide the fate of a person is an extreme legislative innovation peculiar at present only to Russia.[87] The very strict control over involuntary interment in a psychiatric institution is exercised in other countries, specifically on the part of the Church, but Russian public organizations are almost powerless.[87]

In 2008, during a scientific and practical conference held by the Advocacy Chamber of the Moscow Oblast, 200 leading legal scholars and human rights defenders noted the same trend when a tool for "relatively honest" encroachment upon property more and more often became the Mental Health Law.[60] In 2014, legal proceedings started against a criminal group that took away apartments from patients of a town narcology dispensary in Novocherkassk.[88] According to the data of law-enforcement agencies alone, the doctors sold seven apartments of patients and tried to do so in six cases more.[88] It will never be possible to find out how many swindles were on the part of the gang.[88] An ill person who lost his home often became a tramp, and citizens with no fixed abode, as a rule, do not appeal to the police.[88]

As psychiatrist Valery Evtushenko notes, the main problem proves to be the optional observance of the Law.[89] The most important thing is the absence of the mechanism to strictly and regularly monitor observance of the Law.[89]

According to the representatives of the Moscow Helsinki Group (MHG), the Law does not comply with the European practice of mental health care. The case of Rakevich v. Russia considered in the European Court of Human Rights gave grounds for the following assertion by the head of MHG legal programs Natalia Kravchuk:

… Russian legislation in this area is featureless and vague. It is for this reason that it is so hard for people to assert their rights, and they have to reach the European Court of Human Rights.[90]

According to the 2013 interview of the representatives of the Independent Psychiatric Association of Russia to Radio Free Europe, because of the Russian Mental Health Law, sending people away for a month in a mental hospital is easy for prosecutors—with the help of pliable judges—and becomes an increasingly common tactic in the country's campaigns against political dissidence, extremism, and corruption.[91]

Lyubov Vinogradova believes the Law is great in theory but in reality there has been a continuous diminution in patients' rights as independent experts are now excluded from processes, cannot speak in court and can do nothing against the State experts.[54]

According to former Radio Liberty commentator Eugene Novozhilov persecuted by psychiatrists, human rights of a person registered in a psychiatric dispensary in Russia exist only on paper.[92] In the eyes of so-called "law-enforcement agencies", such a person in any situation is always guilty even if attacked and beaten by hooligans.[92] Such a person under any hollow pretext can be deprived of his liberty by being placed in a mental hospital for an indefinite period of time.[92] Then he can easily be declared legally incapable and stripped of property and all his "paper" rights, when being turned into a silent animal that spends the rest of his days.[92] With the help of psychotropic drugs in a psychiatric hospital, a vegetable can be made out of a person within a week.[92] To a person trapped in psychiatric torture chambers, the rest of his life can be turned into a long, painful and humiliating agony.[92]

Robert van Voren says, "The law itself is OK but the abuse of it exists."[54] The same occasionally happens in many countries monitored by the Global Initiative on Psychiatry.[93] Psychiatry is regarded as a handy tool to solve disputes, and one can easily buy a diagnosis from a psychiatrist.[93] In most of the countries, forensic psychiatry has changed only slightly, the strong resistance to introducing the modern practices of forensic psychiatry is due to not disparities in schools or views but the fact that the reform of the system would mean the end of corruption.[93] Criminals pay off their imprisonment of many years by having themselves declared insane.[93] Wealthy husbands declare about the mental illnesses in their wives to get rid of them and yet keep control over their children.[93] Children declare their parents and grandparents legally incapable to sell their apartments.[93] Even medical institutions recognize their patients as insane to take their property.[93] It is just a press for printing money.[93]

St. Petersburg lawyer Fanis Khalikov believes that the mental health legislation is subject to fundamental and in-depth reforming, because it is the current editions of the Law No. 3185-1 and other regulations (for example, Chapter 35 of the Code of Civil Procedure of the Russian Federation) that do not hold water.[38]

Related international documents[edit]

In the countries of the former Soviet Union, there is very limited knowledge and understanding of declarations and international documents that guarantee the rights of the mentally ill and include the ethical codes, adopted by the World Psychiatric Association, and the Convention on the Rights of Persons with Disabilities with far-reaching implications for the mental health profession.[94] Individual cases can be solved by litigation at the European Court of Human Rights in Strasbourg, however it does not change the attitudes of both mental health professionals and government officials.[94]

Reports on failures[edit]

In December 2013, the Independent Psychiatric Association of Russia wrote to the World Psychiatric Association the open letter "On the failure of the Mental Health Law and alarming trends in domestic forensic psychiatry."[95] The letter reports on the failure of article 38 of the Law and requests to dispatch the audit commission to investigate a number of cases published in the Nezavisimiy Psikhiatricheskiy Zhurnal—the herald of the IPA, and at first to express formal concern about the contents of its letter.[95]

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Sources[edit]

See also[edit]