CYIL vol. 8 (2017)

CYIL 8 ȍ2017Ȏ RESTRICTIONS OF PERSONAL FREEDOM IN THE CONTEXT OF PSYCHIATRIC CARE … We may therefore identify four main components of the term torture as used in the Convention against Torture: – the consequences consisting in the infliction of severe pain and suffering, – the intention of the wrongdoer to inflict the relevant consequences, – a qualified wrongdoer’s intention consisting in obtaining information, carrying out a punishment, intimidating or coercing the tortured or the third person, or consisting in discriminatory reasons, – while the wrongdoer must either be a public official or other person acting in an official capacity, or act at the instigation or with the consent or acquiescence of such a person acting in an official capacity. While certain restrictions of personal freedom in health facilities may inflict severe pain or suffering, the staff is almost never motivated by the wish to harm the patient. On the contrary, the intention behind such conduct is usually an authentic belief in its necessity for the patient’s or other persons’ safety and well-being, at worst mixed with convenience and unwillingness to change the routine. Any case of sadism or other motivation directed to inflicting suffering would be extra-systematic and would probably result in a conduct that would be deemed illegal under most jurisdictions. Possible cases of restrictions motivated by the above-listed motivation would possibly fall into the category of torture, but most likely they would be rather the result of undue actions of the State’s repressive apparatus than the health care system itself. For these reasons, we can conclude that the restrictions which represent the topic of this paper cannot be considered torture. 2 However, this does not mean that any invasion of bodily and mental integrity of patients in health care can be justified. Under certain conditions, such interventions may represent other acts of cruel, inhuman or degrading treatment 3 within the meaning of Article 16 (1) of the Convention against Torture which states: “Each State Party shall undertake to prevent in any territory under its jurisdiction other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture as defined in article I, when such acts are committed by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. In particular, the obligations contained in articles 10, 11, 12 and 13 shall apply with the substitution for references to torture of references to other forms of cruel, inhuman or degrading treatment or punishment. [emphasis added]” Cruel, inhuman or degrading treatment is therefore relatively very vaguely defined, leaving place for certain restrictions of patients’ freedom to be abolished. While members of the medical staff will normally not be considered public officials, there may be cases in which the health care providers, physicians and other persons may be arguably qualified as persons acting in an official capacity. Furthermore, the prohibited practices in health facilities may be very well overlooked or instigated by the state authorities. 2 See (in Czech language) ŠUSTEK, Petr, The Provision of Health Services in the Czech Republic from the Perspective of the UN Convention against Torture. In ŠTURMA, Pavel, LIPOVSKÝ, Milan et al. Preventivní mechanismy dle opčního protokolu k Úmluvě proti mučení. (Univerzita Karlova, Právnická fakulta v nakladatelství Eva Rozkotová, Praha 2016), p. 66. 3 As the United Nations explicitly stated in Article 1 (2) of the Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, “[t]orture constitutes an aggravated and deliberate form of cruel, inhuman or degrading treatment or punishment” .

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