Oliver Lewis, MDAC
Oliver Lewis, Executive Director, Mental Disability Advocacy Center:
‘People still are often subject to the most grotesque neglect and abuse’
by Yana Buhrer Tavanier
Legal capacity and autonomy is one of MDAC’s priority areas. What should change in this direction?
Guardianship is supposed to provide protection, but it does not. In fact it facilitates the human rights abuses. It is a human rights abuse by itself. And the ECHR has recognized it as such.
What happens is that a family member goes to a local court with a psychiatric report which says a person has a diagnosis of a mental health problem or an intellectual disability. The court then deprives the person of his/her legal capacity. Often the person whose capacity is in question is even not informed that this is happening.
And once one is stripped of his/her legal capacity and is placed under guardianship, s/he is deprived of numerous rights, for example the right to vote, to work, to manage his/her finances, to decide where to live, to marry. The properties of such person are managed by his guardian.
We believe that this binary approach is unsuited to the realities of life: everyone has functional capacity to do something, and that people are capable of different things. Article 12 of the UN Convention on the Rights of Persons with Disabilities provides that everyone has the right to legal capacity. It also provides that people should have access to support if they need it in exercising legal capacity. Thus for example supported decision-making is an alternative much more appropriate than fully striping people of their legal capacity. MDAC has been working with NGOs and the governments in Hungary and the Czech Republic, and both governments have introduced changes to their laws, and the Parliaments are considering these proposals. They will be the first two EU countries that are changing their legislation inspired by the Disability Convention.
In Bulgaria the government has not yet taken an interest, but MDAC will be advocating for such changes. In Bulgaria it is quite shocking that the directors of large residential institutions are also the guardians of the residents: this creates an unacceptable conflict of interest.
What about institutions themselves? What, according to MDAC, should happen there?
We want governments to open institutions to public scrutiny. Governments need to establish and fund inspectorates which are thoroughly independent of government and carry out regular and vigorous human rights monitoring of places of detention.
We also want governments to take active steps to close down institutions and to establish community care alternatives so that people with disabilities are integrated into society. Article 19 of the UN Convention on the Rights of Persons with Disabilities provides for a right to live in the community.
We look at what is happening inside the institutions – ill treatment, physical and sexual abuse, isolation, physical restraints, medical restraints, seclusion and death.
Should the EU require better human-rights track-record from future candidate countries?
Undoubtedly yes. When Bulgaria and Romania were joining, it was blatantly obvious what the situation was, there was no lack of information about the human rights abuses in institutions. The situation was even mentioned in the progress reports of the European Commission. But the Commission failed European citizens by totally ignoring this situation. There has been no change since these countries joined the EU, and there are few mechanisms for the Commission to improve the rights of people in its Member States.
Bulgaria and Romania were quite literally getting away with murder: people were, and are, still often subject to the most grotesque neglect and abuse, and such human rights violations are carried out with impunity.