Comments made by lawyer Viktoria Ishchenko to an article by Baltiiskoye Informatsionnoye Agentstvo “If you wish to sell your flat, you’ll end up in loony bin”

13 July 2011

Petersburgers willing to sell their flat or any other real estate may end up in trouble. Notaries, realtors or buyers ask them to present a certificate issued by psychiatrist, confirming mental capacity of the seller.

Loony-bin mysteries

Elderly people are the ones who most often undergo examination by psychiatrists. Even if they are of sound mind and memory, other people often doubt their rationality and try to hedge their bets, and ask the elderly people to furnish proofs. Physicians, in turn, have the opportunity to cash in on these fears. They extract the complete information concerning future transactions, as if to assess mental condition of the examined people. The further use of this information is anyone’s guess.

Galina K., 70 yrs old, from St.-Petersburg, came up against such situation: the potential buyer of her garden cottage in a prestigious area asked her to obtain a mental health certificate. She applied to a clinic located on Obvodny Kanal so as to confirm her mental capacity.

“First I was proposed to list digits in the numeric order, to make arithmetic calculations, and to rearrange coloured cards, etc.,” said Galina. “They also asked me about my diseases, why I was recognised disabled, etc. In end of this stage doctor declared that I am more than normal.”

However, the examination was not over with assessment of her mental capacity– other doctor asking other questions. I was asked for what price and to whom I intended to sell my dacha, how I planned to use money, who my cohabitants are, etc. First of all they asked me not to be surprised at their questions, because they shall question me and record the answers to prove my legal capacity. I must say, I do not understand, how I could give up and honestly answer all the questions: it was only upon returning home that I realized how illogical they were. After all, the certificate contains not a word about dacha; it is issued to whom it may concern and to make any legal transactions. I.e. I could openly lie to them (for instance, to tell them that I’m going to buy a room, etc.),” stated Galina.

The examined person shall pay 936 roubles for this “interview” (voluntary examination conducted by psychiatrists) for this "interview" (voluntary medical examination carried out by psychiatrists). According to the concluded contract, a patient should fulfill all requests of medical staff, etc.; at the same time, the contract stipulates no obligation of the clinic to keep secret data received and accurately recorded by physicians.

The interviewed lawyers have mixed feelings on questions concerning terms of transaction asked by psychiatrists. According to Natalia Sibgatulina, a doctor only issues a certificate on whether a person is registered with psychiatric dispensary. She is convinced that “There is no need to undergo an examination and to answer any questions to give such information.”

On the contrary, Viktoria Ishchenko of legal consultation office “Vertikal” believes that there is nothing criminal in psychiatrist asking questions on a person’s cohabitants, the reasons of selling their flat, and its price, etc. “It is a clinical interview, and the doctor should discuss the situation with the person which applied to him. One may draw conclusions about mental health based upon the received answers. Moreover, if a person under examination understands that the psychiatrist asks some irrelevant questions, they can refuse to answer the respective question,” believes the lawyer.

To mental hospitalby default

An employee of dispensary who introduced herself to the BaltInfo reporter as Elena Avgustovna, the “deputy chief” and refused to tell her surname, explained that by asking “strange” questions, “a doctor shall evaluate how adequately a person understands the situation and the nature of their actions. This information is stored as any other medical data, and may be accessed only by the staff”.

However, according to people who received certificates in other dispensaries, they were asked no questions about the commercial aspect of transaction: psychiatrists only issued certificates based on their own card index, or asked only a few really professional questions.

Anyway, the question that has to be answered is: how shall gathered data be used? Apart from simply giving burglars a tip-off about the property, physicians have much more possibilities – tens of Petersburgers already became victims to criminal activity of psychiatrists. For instance, certificates made by psychiatrists served as grounds for recognizing 22-yrs-old Pavel Shtukaturov mentally incapable. The judges did not invite the said citizen to attend hearings, but appointed the "interested party" (who made the application) his guardian. As a result, the young and capable student of humanitarian university was de facto deprived of the title to his flat, as well as of the possibility to challenge judgments delivered against him: the court refused to accept applications filed by both the lawyer and the public prosecutor's office as “based on complaints of a mentally incapable citizen”.

Pavel Shtukaturov could only restore justice in the European Court of Human Rights. The judgment delivered by ECHR was confirmed by the Constitutional Court of Russia which prohibited judges from making decisions on mental incapacity based upon sole forensic psychiatric expert examination, without interviewing the citizen at issue. Despite these decisions and special amendments made to the RF legislation, quite capable citizens are still in danger of getting into the loony bin. Especially if they are old, lonely and own some expensive real estate, or are willing to sell it.

Lodging for sane people

This being said, the law does not oblige transactors to present certificates issued by psychiatrists, though some notaries and realtors made it a habit to request such documents. “Nobody is entitled to oblige a person to undergo a psychiatric examination so as to close a transaction,” said Natalia Sibgatulina. “Moreover, no certificate issued by a psychiatric dispensary shall constitute grounds for mental capacity/incapacity. Subject to legislation a notary shall establish mental capacity independently.”

According to lawyer Viktoria Ishchenko, any decision pertaining to mental incapacity is within the exclusive competence of court: a physician can issue a certificate on presence or absence of any mental diseases, and whether a person is registered with a psychoneurologic dispensary. The above certificate is necessary to eventually minimise the chance of this transaction being nullified based on the fact that at the moment of making contract a person was unable to understand the meaning of their actions or to control them”.

The St.-Petersburg Notary Association also recognises that sellers and buyers of the real estate should not necessarily rush to psychoneurologic dispensary to obtain certificates. “When notarizing transaction, the notary shall assess capacity of transactors: he is obliged to find out a citizen’s age, and will, to check whether they can adequately perceive the nature of the respective document and its effects. Such information can only be gathered during a notary’s personal interview with the citizen. Should a notary be insure about a citizen’s capacity, the former has the right to request additional documents and data necessary to perform notarial actions, including a mental capacity certificate,” stated members of the Association.

One may well understand the logic of notaries: eventually, should the seller of an apartment be found mad, the notary can be made responsible for any negative consequences of the notarized transaction. Therefore, should a notary have reasonable doubts in capacity and should the medical assessment report be unavailable, they are authorised to deny settlement of a transaction, while transactors can challenge such denial in court. However, such cases are extremely rare.

Pavel Netupsky  

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