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HUMAN RIGHTS AND MENTALLY ILL PATIENTS:
A NECESSARY DISCUSSION
Rodrigo Tonel
1
Universidade Regional do Noroeste do Estado do Rio Grande do Sul - Brasil
Maurício Fonana Filho
2
Universidade Regional do Noroeste do Estado do Rio Grande do Sul - Brasil
Daniel Rubens Cenci
3
Universidade Regional do Noroeste do Estado do Rio Grande do Sul - Brasil
Recibido: 20/08/2018
Aprobado: 10/10/2018
Abstract
This research analyses the situation of mentally ill patients and human rights. The subject is
justified because it brings contributions for the legal perspective, especially the right to health.
The goal of this investigation is to verify some psychiatric hospitals and methods of treatments
around the world as well as discussing legislations aspects, with a special view on the Brazilian
Psychiatric Reform and its anti-asylum law Lei Antimanicomial that brought improvements
for the protection of patients and non-abusive treatments. The methodology used in this research
follows the hypothetical-deductive method and consists mainly from bibliographic analysis
through books, dictionaries, newspapers, periodicals, articles, official databases, national and
international laws as well as the use of all types of materials and instruments available on the
Internet. It was possible to demonstrate that our contemporary society still struggles when dealing
1
Master's student and CAPES scholarship from the Graduate Program in Law - Master Course in Human Rights by the Regional
University of Northwestern Rio Grande do Sul – UNIJUÍ; Research Group Member (CNPq): City, Health and Sustainability.
tonelr@yahoo.com
2
Law student by the Regional University of Northwestern Rio Grande do Sul – UNIJUÍ; mauricio442008@hotmail.com
3
PhD in in Latin American Environmental Geopolitics; Doctor in Environment and Development; Professor of the Department of
Legal and Social Sciences and the Master Course in Human Rights by the Regional University of Northwestern Rio Grande do Sul –
UNIJUÍ; Coordinator of the Research Line Human Rights, Environment and New Rights; Research Project Coordinator CNPq
"Environmental law in the context of society at risk: in search of environmental justice and sustainability" danielr@unijui.edu.br
61
with mentally ill individuals. The psychiatric institutions analyzed in Serbia, Mexico,
Brazil, Lithuania, India and Indonesia, demonstrated strong violations of human rights,
discrimination, social exclusion, lack of public health policies, lack of infrastructure,
mistreatment and suffering. It was also discussed the issues of voluntary and involuntary
internment, social exclusion and social inclusion. We concluded that we have to break up this
paradigm based on exclusion. It’s necessary to deconstruct the idea that a mentally ill individual
is incapable or dangerous. The States have the responsibility to protect violations of human rights,
but in some point, we have to remember that we’re all human beings and we all have to be treated
in respectful way.
Keywords: Discrimination. Insanity. Mistreatment. Right to Health.
DIREITOS HUMANOS E DOENTES MENTAIS: Uma discussão necessária
Resumo
Esta pesquisa analisa a situação dos doentes mentais e dos direitos humanos. O tema é justificado
porque traz contribuições para a perspectiva jurídica, especialmente o direito à saúde. O objetivo
desta investigação é verificar alguns hospitais psiquiátricos e métodos de tratamentos em todo o
mundo, bem como discutir aspectos legislativos, com uma visão especial sobre a Reforma
Psiquiátrica
Brasileira e sua Lei Antimanicomial que trouxe melhorias para a proteção de pacientes e
tratamentos não abusivos. A metodologia utilizada nesta pesquisa segue o método hipotético-
dedutivo e consiste principalmente na análise bibliográfica através de livros, dicionários, jornais,
periódicos, artigos, bases de dados oficiais, leis nacionais e internacionais, bem como o uso de
todos os tipos de materiais e instrumentos disponíveis na Internet. Foi possível demonstrar que
nossa sociedade contemporânea ainda luta para lidar com indivíduos mentalmente doentes. As
instituições psiquiátricas analisadas na Sérvia, México, Brasil, Lituânia, Índia e Indonésia,
demonstraram fortes violações dos direitos humanos, discriminação, exclusão social, falta de
políticas públicas de saúde, falta de infraestrutura, maus-tratos e sofrimento. Também foram
discutidos os temas de internação voluntária e involuntária, exclusão social e inclusão social.
Concluímos que precisamos romper esse paradigma baseado na exclusão. É necessário
desconstruir a ideia de que um indivíduo mentalmente doente é incapaz ou perigoso. Os Estados
têm a responsabilidade de proteger as violações dos direitos humanos, mas em algum momento,
temos que lembrar que somos todos seres humanos e todos temos que ser tratados de maneira
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respeitosa.
Palavras-Chave: Discriminação. Insanidade. Maus tratos. Direito à saúde.
Introduction
This research analyses the situation of mentally ill patients and human rights. In some parts of the
world, mentally ill individuals are discriminated by society and don’t receive the kind of treatment
that they need. Besides, there are many reports claiming that violations of human rights have been
occurring inside psychiatric institutions or hospitals.
The subject, therefore, is justified because it brings contributions for the legal perspective,
especially when it comes to the right to health.
The goal of this investigation is to analyze some psychiatric hospitals and methods of treatments
around the world as well as discussing legislations aspects, with a special view on the Brazilian
Psychiatric Reform and its anti-asylum law –
Lei Antimanicomial that brought improvements for the protection of patients and non-abusive
treatments.
The methodology used in this research follows the hypothetical-deductive method and consists
mainly from bibliographic analysis through books, dictionaries, newspapers, periodicals, articles,
official databases, national and international laws as well as the use of all types of materials and
instruments available on the Internet.
It will be possible to demonstrate that our contemporary society still struggles when dealing with
mentally ill individuals. The psychiatric institutions that will be analyzed in further detail are
Serbia, Mexico, Brazil, Lithuania, India and Indonesia. It will be also discussed the issues of
voluntary and involuntary internment, the Brazilian Anti-Asylum Law as well as the subject of
social exclusion and social inclusion.
Considerations about insanity/madness
Before starting the discussion, it becomes necessary to try to make a definition of the word
madness. The term madness can be understood as a circumstance of the human mind that is
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characterized by thoughts and behaviors that are judged incompatible or abnormal in the context
and concept of what is conceived as normal by a certain society.
Thus, according to Júnior and Medeiros (2007, par. 57, our translation):
[...] the theoretical conception of Mental Health perceives madness essentially as a
phenomenon of intolerance and exclusion from social life, in which a rejection of the madman
arises because he is seen as mentally ill, which leads to a hospital stay even against his will, in
order to be isolated. Hospitalization is seen as the pinnacle of social exclusion, and not as a way
contrary to intolerance.
In this sense, according to the Human Rights Monitoring Institute (2014), one in four people come
up with some kind of mental illness. Yet, almost two thirds of those afflicted by mental illnesses
never get the adequate treatment. It just so happens mainly because of the fear to be exposed in
front of the community as well as the fear of consulting to a psychiatrist or to be sent to psychiatric
hospital, stigma and discrimination also proportionate feelings of fear.
In some parts of the world, people do not have the adequate basic mental health care that they
need in order to treat their mental disabilities and live a dignified life. Sometimes, however, “[…]
the absence of community based mental health care means the only care available is in psychiatric
institutions which are associated with gross human rights violations including inhuman and
degrading treatment and living conditions.” (WHO, 2018, par. 2, our griffin).
Other times, even outside the hospitals, those people who suffer from mental disabilities, they
still have to face all kinds of discrimination and they feel excluded from the community where
they live as if they were not part of it. Then, what basically happens is that they don’t find a job,
they don’t have access to education and in the worst case scenario they don’t have access to
housing and some of them have to live a lonely life on the streets. In some countries, they are
treated as if they are not able to vote, marry and have children. Therefore, the majority of them
live in extremely poverty (WHO, 2018).
All of it just so happens because in some countries, either it’s believed that people with mental
disorders are possessed by bad spirits and so they have to be locked away from the community or
it’s because they’re mistakenly seen as dangerous people and therefore they have to be contained,
being locked in cages or tied in order to not disturb the peace inside the community.
On the following, we’ll be discussing the issue of psychiatric hospitals/institutions and its relation
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to human rights.
Are psychiatric hospitals/institutions worse than prisons?
Oftentimes, psychiatric hospitals are more feared then prisons. In some of them, most of the times
behind closed doors, there are the occurrence of a wide range of abuses, mistreatments and torture.
Besides, “[…] unhygienic and inhuman living conditions are common in many facilities, as are
inadequate, degrading and harmful treatment practices.(WHO, 2007, p.1).
Here we can see how the fundamental human rights of shelter, food and clothing are disrespected
and as a consequence, lots of people have to live an absolutely unbearable life. We may realize
that sometimes society becomes insensible and ruthless. With all those mentioned rights denied
those people cant integrate in society and rebuild their lives.
So we have to keep in mind that hospitalization in some cases works although it is not always the
best help option for people who are having problems in their lives. Likewise, the challenge is to
find new and more effective ways - for each specific case - to avoid suicide and also to help the
individual.
Now, let’s pass to the next topic, on which one, we’ll be addressing the methodology, and right
after that, the international perspective about the mental ill people and the kind of treatment that
they receive around the most considered dangerous and fearsome psychiatric institutions/hospitals
on the world.
Methodology
The methodology used in this research follows the hypothetical-deductive method and consists
mainly from bibliographic analysis through books, dictionaries, newspapers, periodicals, articles,
official databases, national and international laws as well as the use of all types of materials and
instruments available on the Internet.
Results and discussion
As states Gostin and Gable (2004, p. 20, griffin added by the authors),
“[…] violations of human rights…are a reality to be found in every corner of the globe!”. And so
the numbers of abuses on mental hospitals worldwide are countless.
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For instance, in Guatemala, there is a mental hospital which is considered to be one of the most
dangerous mental hospitals in the world. It’s been reported that patients used to be raped by the
nurses and guards while sedated, others lying sleeping sedated on the courtyard on the burning
sun, others are happened to be found on the wards totally naked and dirty by their own faeces and
urine (Rogers, 2014).
Conditions of depredation, in other words, it’s a classic sign of child neglect. Likewise, children
who are diagnosed with Down’s syndrome are often put in those kinds of institution for their
entire lives (Haze, 2013).
Furthermore, in India the amounts of abuses are unimaginable and unbelievable. According to a
study made by Dr. Shiv Gautam, thereabout 68 percent of mentally ill people are firstly brought
to quack healers before a psychiatrist. It just so happens because in the Indian culture, it is believed
that people who suffer from some mental illness are possessed by demons and therefore faith
healers are called to get rid of them. Thus, they use different methods and techniques in a try to
cure mentally ill people. The majority of those practices are literally torture, it includes whipping,
inhalation of smoke from burnt chilly, branding with red hot coins, beating, chaining etc. Despite
having laws to bane those kinds of things, these laws are almost never carried out (Sharma &
Krishna, 2013).
Even more troublesome, lots of families use to dump their mentally ill relatives on the jungle. In
most of the times, they hire truck drivers to drop those people –which can be men, women or
children - in the India’s forest reserves. When it involves women, the drivers use to rape them
before dropping into the jungle. There are reports of organ trafficking as well (Sharma & Krishna,
2013).
In this same context, in some psychiatric hospitals in Mexico, we may find unpleasant places
where there are feases and urine everywhere and the stench is unbearable. In one of these
hospitals, medications are distributed by one of the patients. And there are also terrible reports of
astonishing things such as the patient who lives with a helmet in his head and his arms tied behind
his back in order to keep him from hitting his head all the time. In addition, another one “[…] at
the facility [that] hasn't gotten out of bed for 15 years […]. ” (Litoff, 2010, par. 5).
In Brazil, in the so-called Hospital Colônia, from 1930 to 1980, where more than 60 thousand
people have died there. This historic place became so popular that they have written some books
and made a documentary with a much- suggested title: ‘The Brazilian’s Holocaust, because of the
horrific things that had happened in there. Some claim that that place was definitely the hell on
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earth (Mutabis, 2017).
In Lithuania, inside many psychiatric hospitals, patients whose conditions are characterized by
moods of aggressiveness and agitation and therefore are apparently very difficult to deal with,
they are commonly physically and chemically restrained through strait jackets and sedatives,
respectively (Human rights monitoring institute, 2014).
According to the same source, they’re also given large and heavy doses of medications and\or
sedatives in order to calm them down, and after these types of procedures they’re left alone even
for days and nights without the possibilities of, for example, taking a shower, going to the
bathroom, interacting with somebody etc. Yet, during this time, the hospital’s staff did not watch
them.
Additionally, in Indonesia, about 19,000 patients are currently living chained. Inside the mental
institutions they’re submitted to all kinds of abuses such as electroshock therapies, seclusion, and
sexual violence at this last one they’re even forced to contraception. One of the cases really
caught the attention of the researchers which was about a girl who had been shackled for about
15 years by her father. Although she was released, the man also mentioned that she had been
locked up in her room for a decade and a half where she was never bathed, neither clothed or
visited by anybody and used to defecate inside the room which was never cleaned up at all this
time (Jones, 2016).
Besides, in the majority of psychiatric hospitals worldwide, the kind of treatment that the patients
receive is simply a bunch of pills and that’s all. It’s really rare and unique to meet with the
psychiatrist, there is almost no psychotherapy, and the all what the patients can do is just to stay
lying on a bed, wandering in the hospital corridors or watching TV (when there is one set).
By the same token, that’s why international human rights instruments are absolutely necessary in
the context of mental health. Moreover, Ventura (2014, par.
2) underlines that “[…] mental health and human rights are inextricably linked […]. ”
But before the World War II, whenever a violation of human rights occurred it was considered be
as an internal matter within the country’s borders and almost any violation was submitted to
external examinations. Hereinafter, it was realized that this system wasn’t working pretty well in
terms of promoting the adequately protection of rights and freedoms of the individuals. Thus, na
international framework of human rights was adopted with the aim to recognize those rights and
freedoms, preventing future violations. Therefore, “[…] human rights are a matter of international
law enforceable against the state on behalf of persons living within or under the control of the
state. ” (Gostin & Gable, 2004, p. 22).
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Its recognizable that the mental health policies have the goal to work for the benefit and welfare
of the patient as well as the family and the society as a whole. But, sometimes, those same policies
can violate human rights. It can directly affect the autonomy and the privacy of the patient as well
as his rights related to property and liberty (Gostin & Gable, 2004).
Gostin and Gable (2004, p. 29) give us a pretty good example:
Consider the importance of mental health and human rights to women in society. Without good
mental health, women cannot function within the family, community, and workplace or participate
in the political process. Furthermore, women's mental health will suffer if they are subjected to
discrimination, enforced conditions, violence in sexual relationships or marriage, limits on their
possession or use of property, or restrictions on their social status or means of livelihood. Seen in
this way, a woman's mental health may improve by safeguarding her human rights-for example,
by reforming laws relating to divorce, property distribution, labor, and rape. A woman's power to
secure her rights may improve if the government provides services and other conditions necessary
for mental health.
According to Brethour (2018, par. 5), “[…] discrimination and silence all prevent access to care
[…]”. However, human rights can help to support mental health care in several different ways.
Bozelko (2015, par. 11) says that “the problem with modern mental health care is not that people
who want it can't get it or that those who need it won't take it, but that the services they receive in
the inpatient setting are inferior […]. ”
By this context, we get to the topic of voluntary versus involuntary internment, which has been
generating a great debate among the legal profession especially about lawyers and judges -,
because, most of the times, the patient’sdenial in not taking the treatment comes from his own
mental illness. So, it could be pretty much a symptom of the disease to refuse medication or
treatment. And what happens is that the patient’s self-evaluation jeopardized as a result of his
mental condition. In other cases, the patient doesn’t take the medications correctly either because
he fears the possible side effects or he takes part of the medication in accordance to what he thinks
is best. Other times, the patient fears the social stigma and so he doesn’t take the treatment in
order to not be misunderstood as a crazy person.
Many psychiatrists often argue that “[…] underlying many people's doubts about a right to refuse
treatment is their belief that a patient's refusal is almost always related to his psychosis […].
(Appelbaum, 182, par. 16).
Undoubtedly, this is a strongly debated issue. Dr. Okin quoted by Appelbaum (1982, par. 33),
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elegantly “[…] talks of giving committed patients a right to choose among effective treatments,
but not a right to reject all of them […].”
The rejection of any kind of treatment requires that the patient has the capacity to realize that he
is sick and therefore manifesting it through the acceptation of the diagnosis. Otherwise, in case
the patient is acting insanely because of his illness and it represents risks of self-harm and trouble
to the society around him, then it’s advisable to follow an involuntary treatment.
For example, if we take what is prescribed by the Brazilian legislation, specifically, the Law
10. 216, from April 2011, also known as the Anti-Asylum Law Lei Antimanicomial -, which
deals basically with three forms of hospitalization on its article 6º, single paragraph, subsections
I, II, III, namely: voluntary hospitalization, involuntary hospitalization and compulsory
hospitalization. The difference is due to the fact that the first one is given through the consent of
the patient; the second one, without the consent of the patient, but with the request of a third party;
and, finally, the third one, which is determined by justice (Brasil, 2001).
Even though there were many cases where involuntary treatment was understood as a pejorative
synonym for punishment, torture, or cruelty, in theory, it is a way of taking care of the patient, not
letting him hurt himself or others. Therefore, a legislative approach, such as the example of the
aforementioned Brazilian legislation, are mechanisms that serve not only to regulate, but, above
all, to prevent that dangerous situations take place, both for the patient and for society.
It is important to realize that “[…] unlikely other minorities, the mentally ill are the ones that least
express the segregation they suffer and their longings do not reflect socially. 1 (Viladeutopia,
2017, par. 5, our translation).
Besides having to live with all the problems related to the disease such as hallucination,
restlessness, fear, insomnia, sadness, range, paranoia, dementia etc. A mentally ill person still have
to face the stigma and discrimination of being understood as dangerous or violent person.
In this context it is important to make a definition of stigma and we can rescue the meaning of
this word simply through the dictionary. Stigma can be seen as a pejorative mark over specific
circumstances or persons. In other words, “[…] a strong feeling of disapproval that most people
in a society have about something, especially when this is unfair. (Cambridge dictionary, 2018,
par. 1, emphasis added by the author).
Now, when we talk about a social stigma we’re basically referring to that kind of stigma in which
the condition of the individual is part of an inferior group. So, social stigma is also a structural
stigma that can create barriers for mentally ill patients as well. Finally, this leads to unequal access
to treatment services and policies (Ahmedani, 2011). So far we know, the mental ill individual
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was always excluded from the social bonds. Every single person who would demonstrate to have
any signs of craziness would be taken out of society and put to hospitalization in psychiatric
facilities. There, they would be given a bunch of medication and would be far from family, job
market and social relations. Some of them would even be there for the rest of their lives.
As points out Silver (2007, p.1), social exclusion is “[…] a dynamic process of progressive
multidimensional rupturing of the ‘social bondat the individual and collect levels”. In other
words, “[…] social exclusion involves keeping out certain groups or sections of society from the
mainstream, denying them access to basic resources and opportunities that are available to the
rest of society, often treating them with indignity. (Krishnan, 2015, p.156).
Social exclusion also brings social inequalities such as “[…] discrimination, prejudice and
intolerance […]. (Nicholson; Cooper, 2013, p. 334). Notwithstanding, mentally ill individuals
are frequently stigmatized principally because of those three social inequalities and so what
happens is that they’re discriminated because of their condition, they’re rejected and ignored by
society.
Amartya Sen (200, p. 9) would say that “[…] the language of exclusion is so versatile and
adaptable that there may be a temptation to dress up every deprivation as a case of social exclusion
[…]. ”
According to Szazz (1978), throughout the history, social exclusion for mentally ill people started
mainly because of the capitalist system which lays emphasis on normality and productivity.
Therefore, people committed by this evil thing would be put to hospitalization and would be cared
by the psychiatrists.
For now, let’s pass to the final considerations and examine some alternatives for some of the
problems pointed so far.
Final Considerations
However, there is a light at the end of the tunnel. Besides the existence of social exclusion, at the
other hand, there exists the term social inclusion which can simply be characterized “[…] as a
process that helps to integrate people who have been excluded from society”. (Nicholson &
Cooper, 2013, p. 334). Logically, both terms may be considered as antonyms, however, it’s
possible that a particular group may be included in one specific situation as well as excluded from
other specific situation (Krishnan, 2015).
At the same way, some measures have to be taken as soon as possible. Countries should adopt,
for example, policies and laws that can bring a larger range of protection for those people; They
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should also proportionate employment according to each individual’s conditions and limits; Laws
that empower and help to prevent the violations of the human rights; Governments have to
increase the investments related to mental health; Mental health professionals such as
psychiatrists and nurses, police officers and even judges and lawyers, they should receive training
on human rights issues for the purpose of understanding the rights of the patients and put it in
practice (WHO, 2018).
Finally, we, as a society, have to break up this paradigm based on exclusion. It is necessary to
deconstruct the idea that sustains that a mentally ill person is incapable or dangerous. In some
point, we have to remember that we are all human beings and therefore we all have to be treated
in a respectful way.
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