Lawyer Viktoria Ishchenko made comments on the draft law which will make it difficult to prove one’s mental capacity

25 April 2012
Mental medicine has been used extensively to harm patients, rather than to their benefit. In the period of Developed Socialism many political dissidents were confined in mental hospitals, while in the free market economy the well-practiced methods are used for property redistribution. The point is, people with mental disorders cannot make transactions, make/ protest against decisions, and therefore the right to dispose of their property will be transferred to guardians. Even now over two thousand citizens of St.-Petersburg are annually confined in mental hospitals.

Doctor told that he’ll stay at the bughouse

The case of Pavel Shtukaturov is the most telling example of “market mental medicine”. This young citizen of St. Petersburg was unlucky enough to inherit a flat in the city and a land plot in the Leningrad region from his granny. On application of his mother the boy was confined in the City mental hospital no. 6 (Naberezhnaya Obvodnogo Kanala) – hospital “experts” declared him a psycho, based on several signs including his attending the Buddhist temple. It took about 10 minutes for the Vasileostrovsky district court to decide the matter: they didn’t bother to invite the “psycho” to the court session, and the pubic prosecutor adopted a passive attitude towards the case.

His mother was appointed his guardian, and, consequently, gained the right to dispose of his property. Directors of the hospital no. 6 took all due measures to protect her interests - the patient was denied the opportunity to communicate with people, including lawyers. Courts, prosecutor's offices and other agencies dismissed petitions of Pavel Shtukaturov, because he was disqualified, and only the guardian was entitled to decide what is good/wrong for him. The circle has been closed.

It is only the Strasbourg Court that managed to break the vicious cycle. That said chief medical officer for the hospital no. 6 has initially refused to fulfill an official requirement of the ECHR president to provide a meeting of the patient with his lawyer. The Strasbourg court conclusively ruled in favor of Pavel Shtukaturov and stated multiple violations of rights guaranteed under the European Convention on Human Rights committed by the Russian authorities. The Constitutional court of Russia came to the same conclusion and declared inadmissible any hearing of the case (on recognition of citizen to lack dispositive legal capacity) without the person involved being present, as well as abridging the said person's right to challenge the judgment.

Punitive psychocapture

This is not an altogether rare occurrence in Russia (including St. Petersburg), and neither the supreme courts rulings, nor the amendments to the law adopted according to these rulings did improve the situation. For instance, judges are obliged to examine matters related to involuntary psychiatric examinations within three days from receipt of doctor's statement. And experience shows that should the individual attend the hearing, provide quite reasonable explanations and protest against hospitalization, the court (in the overwhelming majority of cases) shall deem the submitted medical opinion as a final and irrefutable evidence of person’s mental incompetence. Over the last year, St. Petersburg judges have examined 2710 cases related to involuntary hospitalizations and disqualification of citizens, and 2667 (98,4%) claims seeking to confine people in mental hospitals were satisfied.

Sane citizens of the RF (suddenly declared to be psychos) will lodge an appeal as a last resort. According to figures from the Justice Department, the Second Instance Court tends to treat the issue more thoroughly: one in six challenged rulings falling into this category is reversed in favor of citizens. After all, it often becomes clear that psychiatrist (who has drawn up an opinion) never laid their eyes on the patient, the later was not duly informed of the matter, the notice was taken away by “thoughtful” relatives, etc.

5 days to think it over

However, sane persons will be denied this opportunity very soon. The current Civil Procedure Code of the Russian Federation stipulates that individuals may file appeal petitions within a month from the date of decision, but the Supreme Court of the Russian Federation suggested that the appellation period will be reduced to five days with respect to cases involving involuntary psychiatric examination.

To protect the rights of “suspects”, the court is responsible for notifying them of decision made within three days. However, given that standard mail delivery time within St.-Petersburg is 2 days (actually some letters may take up to several weeks for delivery), the “doomed” person is unlikely to receive the letter containing the decision before the time for filing a notice of appeal has expired. Judges did not see fit to grant them time to reflect on the decision, to get legal advice, or to draft an appeal, etc. And should an unwitting person go away on holiday or on business trip for some ten days, their relatives shall easily make them “psycho”, with the assistance of Esculapians.
Roman Chorny, President of the St. Petersburg Citizens Commission on Human Rights, is persuaded that rights of sane persons can and will be violated: “One can hardly draft any smart appeal (cassation petition) in such a short period of time. Moreover, there are none too many lawyers in Russia, able to deal with involuntary hospitalizations in a professional manner”.

You will want a certificate

Lawyers interviewed recognize that individuals cannot provide an overall protection against such abuses: “Any cases relating to involuntary hospitalization are examined with mandatory participation of all persons involved, therefore the court should notify a citizen on the date of the court proceedings, it should also mail or hand over a copy of doctor's statement”, said Maria Kozlova, lawyer at the Rightmark group. “At the same time, it is quite impossible to guarantee that the court will not examine a case in that person's absence (being away on holiday or on business trip). However, having all the evidence that a citizen was unable to receive judicial summons, the court will revive the deadline for appeal”.

Victoria Ishchenko from consultancy of S&K Vertical advises people to prepare for impending dangers: “Preventive measures is a matter to be decided in each individual case, however, any person who feels that they are in danger of being hospitalized, should see a psychiatrist and undergo a voluntary examination. Afterwards they will be able to produce a certificate issued by psychiatrist. Besides, a person suffering from such diseases is unlikely to go on a business trip. And I believe that an individual able to go on a business trip and to cope with their duties has best proofs of their mental capacity”, said the lawyer.

Roman Chorny also believes that it does make sense to obtain an independent psychiatric evaluation and to carry the applicable certificate on. However, a certificate issued by psychiatrist does not guarantee complete protection against troubles, “A psychiatrist, especially if they carry out someone's orders, can always declare that there was a sudden onset of mental illness”.
Moreover, lawyers also advise citizens to elect some honest acquaintance or relative, to act as one’s authorized representative, and to issue and notarize a delegable power of attorney in their name. Should the citizen undergo an involuntary hospitalization, their representative shall be entitled to file complaints or to enter into a contract with a lawyer. This shall apply not only to admission to a mental hospital, but to any other unforeseen circumstances (when a person went missing, fell critically ill, was arrested, etc).

Baltiiskoye Informatsionnoye Agentstvo

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