Strasbourg goose laying golden eggs

The golden eggs are Bureš v The Czech Republic and Kedzior v Poland and whilst I would love to provide intelligent insightful analyses of these cases right now I’m both too pleased and too overwhelmed by teaching to do so. In two weeks a colleague takes over my EU lectures and I can come back to this. Consider this a placeholder. In the meantime anyone interested in standards of treatment for people with psychosocial disabilities, or the doublebinds created by placing someone under guardianship and leaving them no effective mechanism to challenge that guardianship should read these judgments.

Several weeks ago I was very kindly invited to give a paper at the Institute of Psychiatry concerning the Convention on the Rights of Persons with Disabilities and what impact it might have on treatment for disabled people. They asked me to look beyond the issues affecting people with mental health needs and consider other disabilities too. Afterwards I said I’d place the paper on this blog and then err did not.

But here it is! The paper had to be cut to make it work as a blog post and I have added some references and as many links as I can to make it useful to readers who were not present.

Đorđević v Croatia

This is a decision of the ECtHR concerning the scope of Articles 3 and 8 as they apply to the victims of harassment.

In this case the victims were Dalibor Đorđević (the first applicant) a man with both learning and phsyical disabilities in his mid 30’s who suffered a sustained program of abuse and harassment at the hands of children attending a school some 70m from his home and his mother Radmila Đorđević (the second applicant) who was also his carer.

The harassment persisted for a period of at least four years. Some of the incidents that occurred were extremely serious, including one occasion when the first applicant received cigarette burns to his hands and another when his head was hit against iron park railings. But most of the incidents were more insidious: jostling and pushing the applicant whenever he left his home, throwing snowballs at him, banging the walls of the flat late at night, spitting at the windows, gathering on a bench outside and talking loudly late in to the night and shouting verbal abuse concerning the first applicant’s disability and nationality (both applicants are Serbian).

X v Finland – Are we in trouble?

The decision of the European Court of Human Rights in X v Finland (Application no. 34806/04; judgment of 3 July 2012) makes significant new law concerning the provision of mandatory psychiatric treatment. It is at best highly doubtful that the approach in the Mental Health Act 1983, where compulsory treatment flows from detention automatically and with limited distinct procedural and substantive safeguards, is consistent with Article 8 of the ECHR.

D.D. v Lithuania

Four weeks after the decision in Stanev v Bulgaria we had the decision in DD v Lithuania. The facts are superficially similar, both cases concern individuals with legally questioned capacity, placed under guardianship by the state and subsequently deprived of their liberty in social care homes. In DD’s case her adopted father initially agreed to act as her guardian, although he subsequently requested that he be replaced and was replaced first by her psychiatrist who was later replaced (after losing her position for unrelated misconduct) first by her adoptive father and then by the social care home in which DD was detained.

The Appropriation of Suffering by Vieda Skultans

Blimey this blogging is harder work than it looks. And trying to produce enough commentary for it to actual function as a blog whilst also indulging my/our inner desire to be all scholarly and thorough is more difficult than it looks. Maybe once the last essay is marked and the summer is here…

One intended function of this blog was to provide a space for discussing the conceptual stuff that we do not necessarily find time to write about or even think about especially deeply but which floats across our consciousness and makes us think ‘Hmmmm’. The ideas that we encounter between Trusts tutorials and exam scrutiny meetings but only ever file in the big pile of articles we keep on our desks and plan to return to one day.

I have a big pile so I thought I would institute a tradition of posting a blog post about one paper from my pile once a week. The traditional day for doing things like this is Friday but I do not work as an academic on Fridays. (On Fridays I work as a parent contemplating such great imponderables as ‘Where have you hidden your shoes?’, Why are you so quiet?’ and most importantly ‘How long till naptime?’.)

So this is my first such post. The article that had drifted to the top of my pile had looked absolutely fascinating when I came across it by chance when flicking through Theory, Culture and Society for something else. The full cite is:

Vieda Skultans, ‘The Appropriation of Suffering: Psychiatric Practice in the Post-Soviet Clinic’ [2007] Theory, Culture and Society 24:27 DOI: 10.1177/0263276407077625. A copy of the paper can be found online here (pdf)

Rabone v Pennine Care NHS Trust – some scattered reflections

You will note that it is four weeks since the decision in Rabone v Pennine Care NHS Trust and still no comment on this blog. This is not because I had not spotted it. I had. It is because the implications in the mental health field of this decision seem so far-reaching that I have struggled to work out what, if anything, I wanted to say about it.

Fortune favours the tardy, and in the interim some excellent summaries of the decision have been published here, here and here. I have also volunteered to write a case comment on it so a lengthy exegesis on this judgment can wait for somewhere else. Instead, I want to use this space for a few personal reflections.

Is the Mental Capacity Act 2005 out of step with the Council of Europe?

The following is a fantastic guest post by Lucy Series who runs The Small Places blog.

The recent publication of an issue paper on legal capacity by Thomas Hammarberg, the Commissioner for Human Rights at the Council of Europe, caught my eye. The issue paper is strongly influenced by Article 12 of the Convention on the Rights of Persons with Disabilities (CRPD), the right to equal recognition before the law. I have written about Article 12 before, and there is plenty of interesting writing about it around on the internet (I particularly recommend papers by Quinn, Dhanda and the Center for the Human Rights of Users and Survivors of Psychiatry for thought provoking reading). It would be easy to dismiss this paper as being mostly relevant to “other” international guardianship regimes and not recently revised “modern” guardianship regimes like the Mental Capacity Act 2005 (MCA), but there are elements of it that are quite challenging to practices in England and Wales.

Another reason why £9000 tuition is a bad idea

Effective legal aid is essential to the running mental health law. Anyone who works in the field knows that the considerable bulk of people admitted to psychiatric facilities have few if any assets; without effective legal aid they will not have effective representation. It is disturbing that no one appears to have given serious thought to the effect of high tuition fees on legal aid practice.

What will the Care Quality Commission Performance and Capability Review mean for mental health services?

The Care Quality Commission has been in trouble for a while. Externally it has been under fire from the media for failing in big ways and in smaller ways. Internally it has struggled to deal with the demands of delivering a new streamlined regulatory model to ensure compliance across all ‘care’ settings in England, especially as it is fashioned from the remnants of three older regulatory bodies: the Healthcare Commission, the Commission for Social Care Inspection and the Mental Health Act Commission, bodies which themselves had diverse institutional histories and cultures.

So the publication today of the DH Performance and Capability Review is of great interest to anyone interested in standards in care for people with mental health needs in England. The report published is basic but a few conclusions are transparent: