Closed medical institutions: Treatment or violence?
Every year, Belarusian courts consider about 700 lawsuits asking for forced treatment of citizens, 90% of which are met. Meanwhile, the patients of closed institutions keep writing to human rights defenders with complaints of ill-treatment.
Pavel Sapelka, who specializes in analyzing the country’s penal system, concludes that the current legal regulation in this area is insufficient. His findings are based on a detailed analysis of legislation and practice with respect to special hospitals.
CLOSED HEALTH INSTITUTIONS
In accordance with Article 46 of the Law "On Health Care" of 18 June 1993 (version of 11 January 2002), persons with diseases that pose a risk to public health can be, in the case of evading treatment, subjected to forced hospitalization and treatment in public health institutions by the court order on terms and conditions stipulated by the legislation of the Republic of Belarus.
According to the Supreme Court of the Republic of Belarus, Belarusian courts hear annually about 700 cases of forced treatment of citizens.
According to the list of diseases that pose a threat to public health confirmed by decision No. 31 of the Ministry of Health Care of the Republic of Belarus of 13 June 2002 (hereinafter, the list of diseases of 13 June 2002), such diseases include: active microbiologically proven pulmonary tuberculosis (hereinafter, TB) and sexually transmitted diseases (syphilis, gonorrhea).
Law No. 345-Z of 7 January 2012 "On prevention of the spread of diseases that pose a danger to public health, human immunodeficiency virus" defines some rules and definitions with respect to compulsory examination and treatment. Compulsory medical examination of a person, in case there are reasonable grounds to believe that he or she suffers from a socially dangerous disease or HIV, shall be carried out by public health organizations based on the results of a medical examination by a government health care institution and a prosecutor’s warrant. The conclusion about the necessity of compulsory medical examination shall be made in the presence of all of the following conditions: there are reasonable grounds to believe that the person suffers from a socially dangerous disease or reasonable grounds to believe that the person has HIV; the person evades compulsory medical examination.
Compulsory medical examination
The following grounds are considered reasonable when deciding on the presence of a socially dangerous disease:
direct indication by a person with a socially dangerous diseases to a person as a possible source of his or her infection by a socially dangerous disease, or to the person who was with him in close household and (or) sexual contact;
results of clinical-instrumental and (or) laboratory tests indicating the presence of signs of a socially dangerous disease.
The following grounds are considered reasonable when deciding on the presence of HIV:
direct indication by a person having HIV to the person as a possible source of his or her HIV infection, or to the person who was with him or her in sexual intercourse, or to the person who abused narcotic drugs, psychotropic substances intravenously sharing the same injecting equipment;
results of clinical-instrumental and (or) laboratory tests indicating the presence of HIV symptoms.
The following instances are considered as facts of evading compulsory examination:
failure to appear without good reason in the public health organizations to undergo a mandatory medical examination of the person who received from the organization a written formal notice within three days from the date specified in the notice. Refusal by the person to receive the notice is equated with failure to appear without good reason in the public health organizations to undergo a mandatory medical examination. If unable to locate a person at the place of residence, law-enforcement bodies shall take measures to establish the whereabouts of the person to serve the notice;
refusal by the person to undergo a medical examination, clinical and instrumental, laboratory tests.
The following facts are considered as good reasons for failure to appear in public health organizations to undergo a mandatory medical examination: the presence of a disease, which prevented the person to appear in a public health organization to undergo a mandatory medical examination; the presence of a disease requiring care of any of his or her close relatives or spouse; the death of these persons; extraordinary circumstances or other circumstances beyond control of the person, which deprived him or her of the opportunity to appear in public health organizations to undergo a mandatory medical examination.
The conclusion about the necessity of a compulsory medical examination shall be within three days after its issuance sent by the public health organization to the Prosecutor's Office’s local department.
The prosecutor shall authorize the compulsory medical examination or denies permission in the manner prescribed by legislation. The prosecutor’s warrant for a compulsory medical examination is sent to the public health organization, whose medical commission has concluded about the necessity of forced medical examination, and the local body of Internal Affairs. The body of Internal Affairs delivers the person to a public health organization.
Forced hospitalization and treatment
Forced hospitalization and treatment of a person with a socially dangerous disease is carried out in an inpatient state public health organization and by a court decision following a request from a public health care organization.
The request for forced hospitalization and treatment with an attached conclusion of a medical commission is considered by the court in the manner prescribed by the Civil Procedure Code of the Republic of Belarus.
The conclusion about the need of forced hospitalization and treatment of a person with a socially dangerous disease is taken by the medical commission in the presence of all of the following conditions:
availability of results of clinical and instrumental and (or) laboratory tests confirming a socially dangerous disease; evading treatment by the person who has a socially dangerous disease.
Evasion of treatment by a person having a socially dangerous disease is:
failure to appear without a good reason in the public health organization for treatment within three days from the date specified in a notice to appear for treatment. The refusal of a person having a socially dangerous disease to receive the notice is equivalent to a failure to appear without a good reason. When it is impossible to locate the person with a socially dangerous disease, local law-enforcement bodies take measures to establish the whereabouts of the person to serve the notice;
refusal of treatment in the public health organization or unauthorized leave from a reception by a medical specialist after a warning of the presence of a socially dangerous disease and the possibility of contamination of other persons;
failure to comply with the doctors' prescriptions and (or) internal rules for patients;
failure to appear without good cause in a public health organization within the period specified for surveillance and (or) treatment;
failure to appear without good reason in a public health organization of a person released from prison, who, in accordance with the legislation, was notified by the administration of the detention facility of the need to appear in the public health organization.
Good reasons for failure to appear by a person having a socially dangerous disease in a public health organization for control and surveillance (or) treatment are the same as those listed for the medical examination.
The fact of evasion of treatment by a person having a socially dangerous disease should be followed by an entry in the medical records.
Within three days after the issuance by the medical commission of conclusions about the need for forced hospitalization and treatment, the state health organization sends to the court an application with an attached conclusion on the need for forced hospitalization and treatment.
In court, almost a fifth of such requests are considered without the citizens themselves, because such a right is given to the court by the Civil Procedure Code. Almost all (90%) cases are considered with the participation of the prosecutor. Participation of a lawyer in the hearing may take place if the corresponding agreement is concluded with him by the citizen having the disease, or on the basis of power of attorney – by another person. All of this calls into question the guarantees of a fair trial.
A copy of the court decision is sent to the state health organization.
Immediately after receipt of a copy of the court decision, the state health organization forwards it to the local body of internal affairs.
The local body of internal affairs secures, under the procedure established by the Ministry of Internal Affairs of the Republic of Belarus and the Ministry of Health Care of the Republic of Belarus, the delivery of such a person in a public health organization.
In case of unauthorized departure of a person having a dangerous social disease from the public health organization, the organization informs the local authority of the Interior, which shall take steps to establish the whereabouts of the person and assist medical professionals in his or her delivery in a public health organization.
Forced hospitalization and treatment of a person with a socially dangerous disease shall be carried out in the presence of the above conditions (presence of a disease and evading treatment) and continues as long as they are in place. In practice, however, no assurances of an intention to voluntarily continue treatment are essential to change the decision on forced hospitalization.
Within six months from the date of hospitalization, a court shall order a medical examination for a person who has a socially dangerous disease, at least once a month, in order to decide on the need to continue forced hospitalization and treatment. As a result of the medical examination, a medical commission shall issue a conclusion on the need to extend the period of forced hospitalization and treatment, which is the basis for the extension of forced hospitalization and treatment and further sending a person with a socially dangerous disease to a public health organization.
Extension of forced hospitalization and treatment for more than six months from the date of admission of a person having a socially dangerous disease shall be ordered by the court. A state health organization, not later than ten days before the expiry of six months from the date of admission of a person having a socially dangerous disease, shall submit to the court an application for an extension of forced hospitalization and treatment, which shall include a conclusion of the medical commission on the need to extend the period of forced hospitalization and treatment. The court shall consider the application in the manner prescribed by the Civil Procedure Code of the Republic of Belarus.
In order to extend forced hospitalization and treatment for the period exceeding twelve months from the date of admission of a person having a socially dangerous disease, a public health organization shall apply to the court at least once a year in the manner prescribed by the third part of this article.
Thus, the said persons may be detained for compulsory treatment for an indefinite period; moreover, review of each case by the court takes place only once a year.
Special measures during compulsory treatment
According to the law, the application of special measures of medical assistance, they should be provided in its least restrictive for the patient form, which should ensure their safety and the safety of others, provided the medical workers’ do not violate the rights and freedoms of the patient. The law provides for measures of physical restraint and (or) isolation in the application of special measures to provide medical care, which are used in accordance with the law only in cases, forms, and only at that time when other measures cannot prevent actions of the patient posing an immediate threat to him or her and (or) other persons. Measures of physical restraint and (or) isolation are applied under the constant supervision of medical staff. Forms and timing of the use of physical restraint and (or) isolation shall be recorded in the medical records.
The scope of participation of the bodies of the Interior in compulsory treatment is limited: they ensure the protection of public health organizations in charge of forced hospitalization and treatment; prevent the actions of the patient threatening the lives and health of others, as well as establish the whereabouts of the person subject to compulsory examination or forced hospitalization and treatment.
Patients’ rights are defined by the law and provide for respectful and humane treatment precluding cruelty, brutality and humiliation of human dignity.
The patient held in the organization of health has the right to receive visitors. This right may be restricted on the recommendation of physician in charge, head of the department or the head of the organization of health care in cases where the exercise of this right poses an immediate danger to the patient and (or) other persons. In addition, the patient has the right to receive parcels, packets, the contents of which may be limited by the internal rules. The rule suggests that the parcels are subject to inspection by the personnel of the health care organization.
A patient having a socially dangerous disease is obliged to inform the persons with whom he was in close household and (or) sexual contact of the possibility of infection. A patient with HIV is also obliged to inform his or her sexual partners of their possible exposure.
The problem of public control
In Belarus, there are no mechanisms that allow public associations, including human rights group, to directly observe the implementation of rights of persons held in closed hospitals. Meanwhile, human rights activists keep receiving information about the violations of fundamental rights and freedoms of patients held in closed institutions, including the right not to be subjected to ill-treatment.
In April 2008, 83 patients of the Voŭkavičy Republican Tuberculosis Hospital, which is located in Dziaržynsk district of the Minsk region, wrote an open letter to the Ministry of Health Care of Belarus. The patients held in the closed institution complained of bad food, restrictions on visits, forced labor to clean up the territory of the hospital, absence of TV sets, libraries and a shopping kiosk in the territory of the institution, as well as inhumane treatment of the staff.
In January 2008, about a hundred patients of a closed tuberculosis hospital in the village of Navajeĺnia, Dziatlava district, Hrodna region declared a hunger strike to protest against the conditions of detention in the clinic. The patients complained about the dampness and cold in the wards, the opportunity to attend a shower only twice a week, as well as the ban on leaving the hospital territory.
On 24 June 2010, 18 patients of the Voŭkavičy Republican Tuberculosis Hospital went on hunger strike in protest against the conditions of detention. One of the patients, Anatol Shavialchynski, told about the incident to the news agency BelaPAN.
“According to him, the hunger strike was declared after six patients were beaten by police officers on June 23. A police patrol was called due to the fact that patients “drank a little and quarreled”. Two patients, including Shavialchynski, were handcuffed and placed in a detention center where they were kept without food or water, according to the patient. Shavialchynski said that the hospital patients were outraged by what had happened. They went on a hunger strike and wrote a statement to the prosecutor of Minsk region, where they demanded to investigate the incident and inspect the conditions of detention in the hospital.
“We are totally deprived of any rights and are living here like animals,” says the patient. He argues that the hospital has many unnecessary restrictions: on cigarettes, sugar, tea, watching TV, using the phone. There is no shop at the hospital, so patients cannot get the basic necessities: toilet paper and soap. The patients cannot receive their pension, or even deprived of visits and necessary treatment. For example, many people cannot receive treatment for their teeth or do the necessary tests. The patients are visited by doctors only once a week, said Shavialchynski. “We are like prisoners in a camp,” he said. “The hospital is surrounded by barbed wire and armed guards, which is not found even in prison. Cases of beatings patients are not uncommon.”
In July 2012, the regional tuberculosis hospital, situated in the town of Bahušeŭsk, Sianno district, Viciebsk region, a disabled patient declared a hunger strike. According to one of the patients, “the department, where people undergo forced treatment, has wards for two, five and seven people. 40 people have only one women's and men's toilet. One shower. The wards do not even have a washbasin. Four washbasins are located in a separate room. Hot water, which... has a specific swamp smell, and it is not always available. The patients can go for a walk only twice a day in summer for an hour and a half in the morning and evening. The meals are poor, despite statements by the administration that it meets the standards defined by Ministry of Health Care. The menu does not have fruits, few vegetables. We are treated like criminals.”
In the summer of 2015, the HRC "Viasna" received a complaint from a patient of the Voŭkavičy Republican Tuberculosis Hospital, A. Rachkouski. According to him, he was forced to, because he is a foreign national, to agree to treatment in a closed institution, as other treatment options were not free-of-charge. Here are excerpts from his address to the prosecutor sent in August 2015:
“Having given my consent to treatment in such a specific institution, I realized that I was not ready to many things and could not foresee all, to put it mildly, surprises that literally rob me of my elementary human rights. A copy of the court decision was somehow sent to me only two months later. This institution mostly holds people with a criminal past, the so-called ‘controlled persons’, which affects their way of thinking and behavior. Being sick and being on treatment, they continue, they say, act like prisoners. I would not give an assessment of their moral and ethical level and even more highlight my ‘exclusivity’, but this requires an objective assessment of the situation. On a fairly small area, in close proximity to each other there are more than thirty people, most of whom are mentally unbalanced, their behavior barriers are blurred, and the priority of interpersonal relationships is a position of strength. Rudeness, cynicism and impudence towards others reign here. But the most important thing is that all this is compounded by a general regular drunkenness, which contributed to, however absurd it may seem, by the staff, starting with the head of the department and ending with nurses.
With the consent of the department head Ch., the staff gives the patients antiseptic solution for the work they do around the hospital, which they in turn drink.
Also, some of the nurses receive orders and sneak vodka to the protected area where they sell it. I won’t tell about home brew, which, if desired (all patients produce it in large amounts), can always be found and seized.
But the staff, along with the police officers who are always here, do not deal with this. They perform a protection of the perimeter, thereby ensuring no personal safety of the patients. It is not difficult to imagine what a sober person feels next to a drunk one, especially when there are many of them, when all this is happening in a confined space, when by itself tuberculosis therapy is aggressive in nature, adversely affecting the nervous system.
Trying to find an understanding, I told about the problems to the staff, and, in particular, head of the department Ch., but my personal conversations with him were immediately retold to the patients. The latter, in turn, became extremely aggressive towards me. One thing led to another. It began with threats of injuries, then there was beating. I am constantly exposed to moral pressure in the form of coarse, degrading insults, threatened with death in my sleep, a few times I was beaten.”
“My writing to your office (prosecutor) is not accidental, because my complaint to the Ministry of Health Care was not met... After I sent the above complaint, the following day, chief doctor H. arranged an explanatory conversation, during which, he convinced me of the futility of any complaints, making it clear that he and the Ministry of Health Care are one thing. I really hope for your immediate intervention and ask to send your authorized representative, to whom I could explain everything in detail and provide footage of this situation.”
The Prosecutor's Office did not find in the patient’s complaint any reasons to intervene. Moreover, it did not even interview the applicant. Then A. Rachkouski told the HRC "Viasna" and tut.by that on September 11 he was attacked by hospital patients: he was beaten, and then three of the patients tried to commit sexual abuse. Rachkouski called for help, and a nurse came in, after which the violence ceased.
Rachkouski was placed in a room for visits, since the hospital had no other safe place. Subsequently, he was placed in psychiatric hospital to undergo an examination; the hospital administration said it was necessary in order to hide Rachkouski from potential retaliation by other patients, because by the time the Investigative Committee had started a probe into Rachkouski’s violence report. Rachkouski himself is convinced that one of the causes of aggression from other patients was that they learned from the hospital administration about his complaints to the Prosecutor's Office.
Rachkouski’s case clearly illustrates the problem of insufficient level of legislative regulation and practical state of affairs in closed hospitals.