K. v. Bulgaria: A New Case in Strasbourg Aneta MIRCHEVA On 4 October 2006, the complaint of the Bulgarian citizen Mr K. against Bulgaria was filed with the European Court of Human Rights in Strasbourg. The occasion for submission of the application was his unlawful detention and the violation of his right to private life (a violation of his rights pursuant to Articles 5 and 8 of the ECHR). BACKGROUND Mr. K. worked and was a respected specialist in his professional field for many years. Following the death of his mother, Mr. K. began to display symptoms of mental illness. At that time, his relations with his sister became strained, with the conflicts focused on her desire to manage the commonly inherited property of both siblings in the manner she deemed appropriate. Relations between them became unbearable. Mr. K’s sister filed a complaint with the District Prosecutor, requesting that he be admitted for involuntary treatment. The procedure was initiated. A request was filed with the District Court, the questioning of witnesses and recording of expert testimonies started. None of the witnesses (other than his sister) indicated that Mr. K. was aggressive or posed a danger to anyone. During the court hearing, five experts testified that cutting Mr. K. off from his usual everyday life would be harmful, rather than beneficial to him. They gave an extensive explanation of the nature of the conflict that had arisen between Mr. K. and his sister, and the need to try and resolve the conflict, without the use of any forcible means of isolating Mr. K. from the community. The Court, however, ordered that Mr. K. be admitted to a psychiatric hospital. The higher court upheld that decision. Suddenly, 6 months after the last court decision, the police burst in on Mr. K. and arrested him. They took him to a psychiatric hospital. The decision thus enforced had been issued in accordance with the PHA (Public Health Act), which had been repealed months before the police action. Mr. K. spent three months in a psychiatric hospital. He was subjected to drug treatment without his consent. During that time, he was deprived of all the activities that the psychiatrists who had provided their opinions in court had said were maintaining some equilibrium in his life. No non-pharmaceutical therapy was conducted during Mr. K’s stay in the hospital, despite the fact that the attending physician was aware that this was necessary. All that was asked of the “patient” was that he swallow his pills, without any explanation of the reason for taking them or their effects upon his health. Mr. K. has left psychiatric care, but his loss of faith in the existence of a fair court hearing and personal inviolability continue to this day. COMMENTARY Even after the changes to the effective legislation regulating the involuntary treatment of persons with mental illnesses, there continues to be a risk. It is especially high in families or groups in which there is one reason or another for high tension in the relationships between their individual members and a high degree of conflict in situations of handling property matters or the undertaking of various responsibilities. It continues to be all too easy to “settle the score” with an inconvenient family member by using the mechanism for involuntary treatment. Prosecutors all too readily place their confidence in those who file complaints,
without carrying out the necessary investigations required by law, simply filing requests for involuntary treatment with the courts. Even if such a case is dismissed, the victim is left feeling offended and ashamed, as well as deeply frustrated about the ordeal. The next risk lies within the court proceedings themselves. Prejudice towards persons with mental illness continues to exist to this day. The attitude towards persons to whom the label “crazy” has been affixed is one of suspicion and stigma, and perceptions of them are confined to fear over the potential danger posed by them. This danger very often exists only in the mind of an expert whose knowledge proves insufficient to “translate” the matter into the language of the law. In order to fill this gap in their own knowledge, judges enlist the services of an expert from another field: a psychiatrist. The psychiatrist provides the court with his/her specialized knowledge of mental illness and informed opinion regarding the condition of a particular individual, and this forms the basis for the court decision. According to this model, the decision is not made by the court, but by the expert (in this case, a psychiatrist). The case of Mr. K., which has been taken to Strasbourg, is the best possible illustration of the insecurity that citizens are subjected to in the enforcement of court orders for involuntary treatment. There is no normative structure for determining when the court’s decision should be enforced. This leads to the enforcement of decisions that are so old that nobody can even remember why they were issued in the first place, nor about the legal norms in force at the time. The existence of such phenomena renders the entire procedure for imposing mandatory treatment, as set forth in the Public Health Act, totally meaningless. The law’s purpose is to provide guarantees against the arbitrary exercise of forcible interference in such a private sphere of human life as health care, and acts of intervention along those lines. Another significant issue regarding psychiatric treatment is that of “informed consent.” This concept has been introduced in order to ensure that every patient has the opportunity to be involved in one’s own treatment, as well as to have access to the most complete information possible. However, this idea has been completely undermined in cases of psychiatric treatment. According to the PHA, there are certain cases in which informed consent for treatment may be given by another party, rather than the person in question. Unfortunately, today the institution of informed consent, regardless of whether it is given by the patient or by a person appointed by the court, is such a formality that it in no way fulfills its intended purpose. One of the objectives of the complaint of the Bulgarian citizen in “Mr. K. v. Bulgaria” is to seek accountability for the arbitrary use of methods of force and restriction, as well as for formal interpretations of the existing legal standards, which contravene the overall spirit of the law and the fundamental principles of respect for personal freedom and the right of every citizen to a private life. As well as in defense of the position that the right to private life presupposes the ability to choose one’s physician and method of treatment, and the right to be treated in humane conditions.