CYIL vol. 8 (2017)

PETR ŠUSTEK

CYIL 8 ȍ2017Ȏ

Introduction The role of autonomy of will, and more broadly personal freedom, in modern human rights law is undoubtedly crucial. This is even more true in the area of health law, given that health care is an area where the freedom of especially vulnerable persons can be relatively easily restricted. However, mainly in the context of psychiatric care certain restrictions are necessary in order to avert danger to life and health of patients and third persons. Very complex questions arise from this dilemma, dealing with the fundamental questions of a proportion between freedom and safety, or the autonomy of will of persons with limited cognitive capacity. Psychiatry in the Czech Republic has been repeatedly criticised by international organizations over certain practices. This paper focuses on some of the most controversial practices from the perspective of international law on the abolishment of torture and inhuman or degrading treatment. We will first introduce international regulation mainly in the United Nations Convention against Torture and the European Convention on Human Rights. Then, we will analyse the latest reports of the UN and the Council of Europe bodies controlling the respect to the rights granted in these conventions concerning the current situation of psychiatric care in the Czech Republic. Also several European Court of Human Rights judgments and activities of certain international NGOs will be presented. Even though there could also be identified other controversial topics, we have chosen two of them which are most closely connected to the question of freedom restriction, i.e. involuntary hospitalization and the use of means of restraint. From all the issues identified in the above mentioned reports, we have selected those ones that are most important for the topic of this paper. United Nations Convention against Torture Probably the most important international legal document abolishing torture is the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (hereinafter “ Convention against Torture ”) from 1984. Ratified by the vast majority of the world’s countries, 1 the Convention against Torture sets global standards of the protection of individuals against various violent invasions of the bodily and mental integrity of individuals. In order to decide whether the restrictions of personal freedom in health care are covered by the provisions of the Convention against Torture, it is vital first to analyse the definition of conduct prohibited by the said Convention. Article 1 (1) of the Convention against Torture defines the term “torture” cumulatively by several features. Within the scope of torture is “any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind , when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions. [emphasis added]“ 1 See the map of ratifications of the Convention against Torture available at: accessed 25 April 2017. 1.

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