war crimes in Ukraine

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Human rights in Ukraine 2009 – 2010. 17. Right to health care and medical help



Accessibility of medical help

Currently the health care system of Ukraine is facing a lot of problems, which affect both patients and medical providers.

The Constitution of Ukraine guarantees all the Ukrainian citizens, foreign nationals and stateless persons, residing in Ukraine, free medical care. The majority of medical institutions of Ukraine are either state or municipal.

Practice has proved the inefficiency of this system, which consequently leads to the violation of the right to accessible medical help. The state is unable to fund high-quality and really free medical care. The conditions in many hospitals, especially, designated for TB patients, are lamentable. The public funding does not cover even the renovation costs.

Some medical institutions are trying to resolve the problem by their own means, making patients pay “charity donations”. For example, accepting body substances for testing, medical workers insist that the patients pay something “for the benefit of the lab”. Donations are also expected of in-patients. Without this donation a patient can be refused medical help, issuance of documents referring to his/her medical history or discharge from a medical institution. The donation is registered as “charity” granted by patient voluntarily, so it is not recoverable as illegally extorted money.

The practice, when the in-patients cover all the medication and medical equipment costs and bring their own bedding and plates, is also rather common. Sometimes, patients are given a list of medications in quantities substantially exceeding the actual need. The patients have no way of checking how the drugs were used.

The human rights organizations received complaints referring to the facts, when people were refused medical help in the state and municipal hospitals, if they failed to pay the doctor. If a patient needs an emergency surgery, this practice can lead to really dramatic results.

Here is a legal paradox: in the Autonomous Republic of Crimea a special governmental program “Health for Crimean residents”, envisaging some free medical services, is being implemented, despite the fact, that these services are to be provided free of charge under the Law in force.

Often public medical institutions cannot offer relevant examination or treatment involving state-of-the-art medical equipment, i.e. ultra-sound machines or scanning devices. These services are available only to solvent patients. As a result, large portion of the population, especially, the retired people and rural areas residents, cannot afford a necessary examination or treatment. The efforts of local health departments to establish quotas in use of modern equipment for socially vulnerable categories of society lead only to further corruption. Petitions, submitted to human rights organizations and an anonymous survey, carried out by charity Symferopol organization “Getting over” show that the majority of complaints concerning the violation of right to the health care refer to the inaccessibility of free medical care. Interviews with the petitioners and the survey results demonstrated that the majority of respondents do not believe in budget funding for the high-quality medical care and are ready to pay for it if the appropriate quality of services is guaranteed.


Right to informed consent

Alongside with other rights, the right to informed consent is permanently violated, when a patient needs medical help. According to article 7 of the Law of Ukraine “Fundamentals of Health Care Legislation”, each person has the right to receive “reliable and timely information concerning his/her health condition and public health, including potential risk factors and their severity”. Article 39 of the Law maintains that “a health care provider must provide the patient with clear information on his/her health condition, the goal of diagnostic tests and treatment offered, forecast for possible development of the disease, including the risks for life and health of the patient”. Unfortunately, another requirement, stipulated by international standards, namely, that alongside with clear information on potential risks of diagnostic tests and treatment offered, the health care providers must tell the patient about the possible alternatives to their diagnostic tests and treatment, if available.

The informed consent concept is not implemented in practical operation. The information on diagnostic tests and treatment must be offered to the patient in simple and comprehensible language. It means it should be provided in a language, known to the patient, in a clear and uncomplicated way, without the use of medical terms, unfamiliar to the patient.

In practice, when patients come to an out-patient clinic, they are not always given this information, even when antibiotics or other strong medical drugs are prescribed by a physician. In the hospitals, the patients are requested to sign a short text to the effect that he/she agrees to the whole treatment with possible consequences/side effects. This text can be printed on the back side of the patient’s medical history card. The same text is offered to all patients. Usually it is in one language only, either Russian or Ukrainian, depending on the region, without any translation. It contains no information either on planned examination and treatment of the disease or on potential risks involved. A patient can get oral information from a medical provider only if he/she is persistent enough.

A patient M. was taken to a surgical ward for a planned surgery. The doctor just asked her to sign the information on the other side of the patient’s medical history. The examination showed that several medical procedures were in order to prepare the patient for the surgery. The patient’s consent was not sought for any of these procedures: the woman was just told that such-and-such things will be done to her. After the surgery, complications set in, and physicians insisted on new surgical intervention. Although it was not an emergency case, no consent was obtained for it. The patient’s family (her husband and son, who took turns at her bedside) got no explanations either. After the patient’s death, her relatives filed a complaint with the prosecutor’s office, which ended with administrative penalty imposed on the surgeon and other medical staff involved.

In some cases lack of information is due to the physician’s belief that the alternative treatment is not efficient, and the patients would be unable to make right choice or to afford the alternative treatment. In other cases the doctors themselves are poorly informed of modern developments in the treatment of a given disease.

Thus, there was a case, when a doctor, aware of constrained financial circumstances of a child’s family D., did not inform her parents that there was a more effective treatment for her affliction, offered abroad. He assumed that the parents would not be able to afford this more effective treatment, and, therefore, saw no point in mentioning it. The D. family learnt about the treatment by pure chance. A charity foundation, approached by the patient’s mother, covered all the treatment costs.

In another case the surgeon ordered surgical intervention for a patient T., without letting him know, that there is a compatibly efficient therapeutic method of treatment. The doctor was aware of this method, but doubted its efficiency. When T. refused to have the surgery and asked the surgeon whether other treatments were available, this latter answered him in the negative and proceeded to intimidate the patient, telling him that if he does not agree to the surgery, no one would treat him.

Currently, though, some medical institutions have introduced computerized informed consent forms for every nosology and type of disease. These forms contain some information, presented in a language, comprehensible for the patient. The patient reads it, asks the relevant questions, and signs the paper after he/she is satisfied with the answers received. These forms, although, not all-embracing, are a significant step forward in implementing the patient’s right to informed consent. They can also be used as an evidence that the doctor warned the patient of all possible consequences of the treatment, and of patient’s consent, if a law-suit is filed or prosecutor’s or administrative inspection ordered.


The right to choose physician and medical institution

Adherence to this right under the public health care system comes into conflict with the working norms, work load and salaries of the health care providers. Tariffs and payrolls of the health care and preventive medicine institutions are compiled in accordance with the principles, inherited from the soviet times, and based on residence registration system. The number of providers is estimated in proportion to the number of population in a given area. Therefore, the patient’s choice of a more competent physician (e.g. district general practitioner), or of another clinic, lead only to larger work loads for some physicians and nurses, without affecting their wages or medical institution’s funding.

That’s why when a patient submits a written request, expressing his desire to switch to another doctor, the head physician often responds that there is no way to do it, as the work load is distributed equally between the doctors. In many oblast’s patients are unlawfully denied medical help, if they do not have respective registration stamp in their passport or are not registered in a given district.

A written request with the reference to the current Law of Ukraine, addressed to the head physician of a medical institution, usually resolves the conflict arising from a refusal of a health care staff to provide medical assistance.


Right to confidentiality

The “Fundamentals of Health Care Legislation” of Ukraine stipulate that “the patient has the right to confidentiality of information concerning his/her health condition, his/her seeking medical help and of information obtained in the course of medical examination”. On April 27, 2007 article 39-1 was amended with the provision prohibiting “to request or to provide any information concerning a patient’s diagnosis or treatment at his/her place of work or study”

Notwithstanding clear legislative provisions and liability for its violation, the adherence to this right is often neglected.

For example, in many medical institutions one can obtain medical records by calling a doctor under the patient’s name, or simply by using the patient’s name at the clinic reception.

In July 2006 Pechersk district court (Kiev) passed a ruling, which classified providing information concerning a person’s diagnosis at his/her workplace as violation of fundamental constitutional rights. After that, the Ministry of Health, the Ministry of Labor and Social Policy, Social Security Fund for temporary disability and Social Security fund for industrial accidents and occupational diseases passed a joint Decree № 774/438/207-ос/719 of November 24, 2006 on amending the “Instructions for issuing sick-leave certificates”, with following clause: “Primary diagnosis, final diagnosis and the coding МКХ-10 are included [in the certificate] only with the patient’s written consent. Otherwise primary diagnosis, final diagnosis and the coding МКХ-10 are omitted”.

It is noteworthy that this ban concerns not only the diagnosis, but also its coding, because modern technologies make it quite easy to find out, what is meant by this or that code.

In many instances, however, the medical institutions still write down confidential information in sick-leave certificates. It is done, first of all, on the request from insurance body to spell out patient’s diagnosis. If the diagnosis is not written down in the certificate, the insurance fills out complaints against hospitals or clinics. Although this request is illegal, insurance company continues to pressure physicians, and these latter, unwilling to complicate their lives, include the diagnosis in gross violation of the law and their patients’ rights. Here is just one example of such violation and its consequences:

Patient T. has successfully completed her TB treatment and returned to work. The secretary at T.’s place of work learnt about her diagnosis from the sick-leave certificate and divulged it to T.’s colleagues, who made further work intolerable for T., so that she was forced to resign.

Some medical institutions offer another solution to this problem. Before the sick-leave certificate is issued, the patient is asked to give his/her written consent to divulge the diagnosis. These actions, arguably, are also illegal, as they violate the confidentiality right. If 99% of employees bring to work a sick-leave certificate with the diagnosis, then the 1%, that does not have the diagnosis written down, will immediately become the center of undue curiosity and suspicion.

The sick-leaves without diagnosis are a must, while a sick-leave certificate with a diagnosis introduced on the patient’s request should be an exception. That’s why the joint Decree does not enforce the patient’s written consent, but allows including the diagnosis on patient’s wish and written request. By the way, the codes, used instead of diagnosis, are also illegal.

The confidentiality right is often violated as a result of negligence in handling medical records. The patients share their experience, that in some out-patient clinic and hospitals in Symferopol the test results are put on one desk, from which they are collected by medical staff and patients indiscriminately. Thus, the results can become known to strangers as well. Sometimes the patients (or his/her relatives) are encouraged to go through all the papers to find “their own” information.

Patient G. underwent treatment in gynecology ward. Her medical history was put on a table in the staffroom and became available to a physician from another department. The patient new him personally and was definitely against his knowing her medical history or diagnosis.

Often the confidentiality is violated in relation to contagious diseases, including HIV. Divulging this information leads to drastic consequences for the patient, his/her social life, relationships, work or studies. Sometimes the medical staff assumes that revealing the information they serve the public, warning others of potential contagion. Often it happens through negligence, in conversations.

It is noteworthy, that information is spread (deliberately or accidentally) mainly by middle and junior medical staff, and not by the physicians, who are better aware of their liability for these actions. However, there are cases, when the doctors divulge the patients’ information to their relatives or to the staff of the school, in which the patients are studying, trying to coerce the patients to start treatment.

Thus, a mother took a minor patient home from children surgery ward after refusing the surgery. The doctor insisted on surgery, thinking that all the vital indicators made it necessary. However, he failed to explain his reasoning to the mother. Trying to influence her decision, he called the child’s school, divulged her diagnosis and requested that child would be banned from school to coerce the parents to bring the child back to the hospital. The patient’s mother complained to the lawyers of a human rights organization. They studied the case and explained the need for the surgery to her, thus helping her to change her mind.


Right to accessible medical records

The violation of patients’ right to access the information concerning their health is most common in the current health care system. After treatment is completed, the patient often encounters difficulties in obtaining his medical history with the treatment description or other related medical records.

The health care providers in these situations argue that:

1) a patient, not being in medical profession, is not capable of understating the information (ignoring the fact that it is medical staff duty to present this information in the form comprehensible for the patient);

2) The knowledge of diagnosis and all treatment details can be harmful and sometimes, life threatening; (ignoring the fact that respective information should be provided with due discretion and subtlety);

3) physicians often do not have enough time to go into details, which the patient does not need anyway, or to provide the required records.

Besides, sometimes the doctors assume that only a certificate or an excerpt from medical history are medical information, while all the other documents, e.g. medical history itself, X-rays, scan results etc. are not.

Alongside with that, part 3, article 285 of the Civil Code of Ukraine and article 39 of the “Fundamentals of Health Care Legislation” (part 4) grants physicians the right to restrict information if it can aggravate a patient’s condition or health of his/her parents or guardians and interfere with the treatment. It is up to doctors’ discretion to decide, how harmful the information can be, and rather often the decisions made have no reasonable justification.

The medical practice shows that it is the lack of information and not its excess that is often harmful to the patient.

Ms.K was examined on her complaint of deteriorating vision. Neither final diagnosis nor treatment plan was made known to her. K. decided that lack of information means that she would go blind in the nearest future. Being under extreme stress she tried to commit suicide. After her life was saved, she went to another clinic. There the practice of providing the patients with complete information was in place. After successful treatment K. fully recovered her vision.

Another case: preceding the surgery, patient M. was not given detailed information on treatment, risks involved etc. The doctors contended themselves with having her sign the treatment consent on the second page of her medical history. After patient’ death her family appealed this formal “informed consent” and the medical staff were penalized disciplinarily.


Human rights concerning psychiatric services

In November 2009, The Ministry of Health of Ukraine published statistic data, showing that 1.17 million (2.5%) of Ukrainian citizens sought psychiatric assistance. Among the registered mental cases, people of working age constituted 58.6%, children and teenagers - 19.4%. The Ministry of Health of Ukraine commented that the number of mental disorders is on the permanent increase.

Since 2000 the number of people with disability due to mental condition has grown by 18.7%, and by late 2009 amounted to 593.8 per 100 000 of population. Psychiatrists believe that the real figure representing people in need of psychiatric help is much higher. This discrepancy is due to the fact that patients with mental disorders evade visits to the doctors, because they are afraid that the information on their condition will become public and they will be stigmatized by their surrounding. In other cases, they do not trust the doctors and are afraid to be subjected to forced treatment.

Whatever the case, the number of people suffering from mental disorders in Ukraine is increasing, and the violation of their rights occurs due to the specific nature of mental diseases.

The Ukrainian legislation defining the rights of people with mental diseases has made serious progress. Mental disorders are classified in accordance with the International Statistical Classification of diseases, related health problems and death causes.

The Law of Ukraine “On Psychiatric Service”, as the fundamental legal act, regulates the legal status of individuals, afflicted by mental disorders, and establishes a broad range of their rights. A very significant amendment has been introduced into the Law, i.e. “mental disorder diagnosis cannot be based on a person’s disagreement with current political, moral, legal, religious or cultural social values or on any other grounds apart from those directly related to his/her mental health”.

Here follows the list of most frequent violations of the mental patients’ rights spelled out in the current Ukrainian legislation.


Obtaining information concerning one’s rights

Due to specific nature of the mental disorders, people suffering from them, sometimes have hard time with perception of information. In cases, when medical institutions are unable to provide comprehensible, complete and clear information, the mental patients practically remain uninformed. This is one of the reasons, why the mental patients have no (or limited) access to psychiatric services, especially when they have no close family to help them. Sometimes the service providers refuse point blank to give out information concerning available services to the mental patients, justifying their attitude by the assumption that the patients are incapable of understanding the information. Unfortunately, the patients often are in no position to complain of such attitude or to insist on exercising their rights.


Forced examination and hospitalization

The Law“On Psychiatric Service” stipulates psychiatric examination of an individual without his/her consent (or his/her official representative’s consent) on the request from the family members or other persons, if there are indications for such examination. The doctor can proceed with the examination on the basis of oral request, or immediately after the written request is submitted, if there are grounded reasons to believe that the person in question can be dangerous for the surrounding and for her/himself, and also if he/she cannot perform the daily routine, ensuring his/her normal everyday life.

The law in this case does not require any confirmation or evidence, testifying to the dangerous behavior of a person to be examined, to go together with the request. The requirements towards the request are rather vague. It opens the door to abuses in such examinations. Sometimes forced examination was performed on the neighbors’ or relatives’ requests, when they were upset by the behavior of a completely sane person. Often there was absolutely no reason for such examination. And, on the contrary, when the actions of obviously sick person became a threat for the person and her surroundings, the examination was refused.

The issues concerning forced psychiatric intervention are, under the Law, addressed by the local court at the patient’s area of residence, if his/her examination or treatment is feasible in the hospital only or if a person is diagnosed with severe mental disorder, when he/she commits or is bound to commit actions, which are threatening for her/himself or for the surrounding, and if he/she cannot perform the daily routine, ensuring his/her normal everyday life.

The law also provides for physical restraint or isolation of a mental patient on the warrant not only from the psychiatrist, but also from other medical staff. However, if a person is hospitalized against his/her will, in the next 24 hours this person must be seen by psychiatric board, which should assess the expediency of hospitalization. If it is expedient, a psychiatric staff member submits the notice of forced hospitalization, accompanied by the psychiatric board assessment, to the court within the next 24 hours.

In real life the patients, hospitalized by force, are made to sign the voluntary consent to hospitalization and treatment. This consent usually contains no information on treatment, risks involved and available alternatives for treatment. If a patient has legal representatives, the law allows for making decision without patient’s consent, by agreement with representative only. As a result, in many cases the decision concerning psychiatric help and hospitalization is made arbitrarily, without patient’s consent or court’s deliberation as to the expediency of such intervention into the patient’s life.

In Pidvolochysk raion (Ternopil oblast’) a medical professional at his own discretion diagnosed his close relative S. with manic-depressive syndrome and referred him to Ternopil oblast’ hospital for in-patient treatment. He did so to seize S.’s property. As a result S. spent 5 days in psychiatric ward before the diagnosis was refuted. The proceedings to bring the doctor in question to criminal justice have started.

In this case the victim of unjustified hospitalization managed to leave the psychiatric ward after several days and to insist on diagnosis refutation. In many other similar cases, the victims had to undergo the whole course of unwarranted treatments, which might have seriously and irrevocably affected their health.

Thus, V., a resident of Lyubomyl (Volyn’ oblast’), born in 1958 had no complaints as to her mental condition for her whole life. There was no reason to suspect that her inadequate behavior could endanger herself, her surroundings or public order. After her mother’s demise on April 20, 2006, she became an owner of a house, bequeathed to her in her mother’s will. On June 12, 2006 her sister P., accompanied by her nephew, by force took her to Volyn’ oblast’ psychiatric clinic № 1, where she, on P.’s request, was hospitalized and treated for 30 days. She never gave her consent, either for hospitalization or for treatment. Nevertheless, the doctors diagnosed her with “chronic delirious disorder” and proceeded with the treatment.

V. did not want to stay in the clinic, tried to get to the phone to call militia and ask to release her. She was not allowed to do that and had to stay in the ward.

Next time, on April 24, 2009 P. called two militiamen and her cousin and by force took V. to Volyn’ oblast’ psychiatric clinic № 1, where she was hospitalized and diagnosed with “chronic delirious disorder” again. She was prescribed treatment against her will року, while her signature in medical history was faked. V. filed complaint for compensation of moral and material damages, she incurred while staying in the psychiatric ward. Now she is afraid to live in her house, and constantly fears that any moment she can be hospitalized against her will.

Lack of sufficient guarantees, precluding such abuses, led to the practice of using forced hospitalization and psychiatric intervention as means of reprisals.

That’s what happened to the leader of a public movement “Vinnitsa prosecutor’s office without corruption”, deputy head of an independent trade union “The workers” Andriy Bondarenko. The prosecutor’s office of Vinnitsa oblast’ four times approached the court requesting mandatory examination for Bondarenko. On prosecutor’s motion doctors from the psychiatric clinic also asked the court to order mandatory examination. They justified their request by the fact that Bondarenko many times filed complaints with law enforcement and judiciary bodies in the oblast’. Bondarenko never had any mental disorders. In order to prove his sanity Bondarenko had undergone psychiatric examination thrice and received certificates to the effect that he had no mental diseases. Nevertheless, on October 29, 2010 the Vinnitsa oblast’ court of appeals ruled that Bodnarenko should be hospitalized by force with the goal of psychiatric examination. The ruling referred to conclusions, that Bondarenko suffered from ”acute awareness of his individual rights and demonstrated militant and aggressive readiness to safeguard them by inappropriate means”. A.Bondarenko appealed this ruling in the Highest Appellate Court. Proceedings started, but final decision was not made yet.


Preliminary consent and right to refuse treatment

The right to informed consent and refusal of treatment or diagnostic testing at any point is restricted by the mental patients’ limited capacity to comprehend information concerning these tests and treatments. In fact, the testing and treatment procedures are not regulated by any provisions.

On May 17, 2007 the Law “On Psychiatric Service” was amended with the clause requiring patient’s written consent to the psychiatric assistance. At the same time the law envisages compulsory written consent in cases, when treatment procedures or diagnostic testing involve an increased risk for the patient’s health. This clause contradicts the requirement of informed consent for any medical intervention. Besides, the risk rate is defined by medical professional themselves, and, therefore, an arbitrary decision, endangering the patient’s health, is always a possibility.


Right to free legal assistance in relation to psychiatric services

Currently the public health care system is in no position of ensuring this right. The medical institutions have a lawyer on staff, to represent the employer’s interests. These lawyers, however, do not (and cannot, due to the conflict of interests) provide legal counseling for the patients.

The state budget envisages the coverage for lawyers’ services only in cases, when the state must provide a lawyer free of charge. The system of free legal assistance is limited to criminal defense, while legal counseling for mental patients usually is not provided for.


Right to alternative psychiatric evaluation

The right to alternative psychiatric examination and to evaluation by a psychiatric board with an independent expert participation is defined by the law. In practice, however, this right is very difficult to implement. More often that not, the patients are not aware of this right and have no information that would be instrumental in enforcing this right. On the other hand, if a very persistent patient insists on alternative examination, these dubious claims are regarded as manifestation of his/her morbid condition, which prevents him/her from adequately perceiving the reality and assessing the doctor’s actions. In this case the patient’s requests are simply ignored. Naturally, the possibility that the patients won’t be coherent in the course of examination and treatment is rather high. But at the same time, gross interference into patients’ life cannot be ruled out, as medical staff has the whole authority in decision-making concerning psychiatric treatment, and sometimes these decision lead to irrevocable consequences. An alternative evaluation, meanwhile, could be beneficial both for care providers (if in the future a patient questions their decisions), and for the patients.


Right to participate personally in court hearings, establishing the need for psychiatric help and respective restriction of patient’s rights

This right is spelled out in the Civil Proceedings Code of Ukraine, which also stipulates mandatory presence of the person in question at the court hearings. The courts adhere to this requirement in their daily operation. The patient’s disagreement with the decision on necessity of psychiatric intervention, though, is never reflected in medical records.


Right to compensatory damage

The issue of compensatory damage arises, when a person is illegally hospitalized in a psychiatric or psycho-neurological ward, when a persons’s safety was not ensured or when confidential information concerning mental health or psychiatric treatment has been divulged.

Judiciary practice in Ukraine shows that compensatory damage is feasible. To rule in favor of it, the courts require material evidence of the damages incurred. Namely, the courts maintain that a medical (neurological or other) diagnosis and evidence of further treatment should be in place. According to the judges, stressful situation and moral suffering per se do not create sufficient basis for establishing moral damages in money equivalent and collecting them from the guilty party.

The current Ukrainian legislation defines following rights for the mental institutions in-patients:

  •  communication with other people, including attorneys or other legal professionals, without third parties present, in compliance with house rules of the institution;
  • sharing information on their psychiatric treatment with any person, chosen by them;
  •  enjoying the confidentiality of correspondence in sending and receiving of letters;
  •  access to mass media;
  • entertainment, creative activities;
  • practicing their religion;
  • approaching directly the head (chief physician) of the psychiatric ward on the matters of treatment, discharge from the institution and adherence to other patients’ rights;
  • help in obtaining mandatory social security or pension benefits in compliance with the current law.

This scope of rights is largely based on international standards. However, the enclosed nature of mental institutions, absence of an independent body to supervise their compliance with theses standards and to intervene on patient’s behalf in the disputes between the patient and the hospital, completely nullifies these rights.

For example, a 20-year old K. was put into psychiatric ward by her mother without her consent. The mother justified the need for mandatory intervention by the fact that her daughter changed her religious beliefs, converted to Islam and wanted to marry a Muslim. All the daughter’s claims that she did not want to undergo forced treatment went ignored. Besides, as a Muslim, K. was trying to read namaz and wear a head-scarf. The doctors forbade her to do that, insisting that it was another proof of her mental disorder. Petitions, written by K. to chief physician, remained unanswered. At her mother’s request, K.’s friends and fiancé were not allowed to see her. She could not place a phone call and finally felt totally isolated. Only with a help of other patient’s sister, K. managed to get in touch with a human rights attorney, as the hospital staff gave her no such opportunity

Under the legislation in force, decision on restricting the rights of persons in psychiatric treatment, is registered in medical records, with the term of its validity, and can be appealed in court. The use of such persons in forced labor is prohibited. Nevertheless, sometimes patients are made to work hard in mental institutions. It is called work-therapy and if a patient disagrees to work, he/she can be coerced or even beaten.

Thus, on August 11, 2010 a 43-years old patient died in Novosavitsky mental institution as a result of multiple body injuries, including broken ribs, hematomas and broken jaw. Earlier, patients of this institution complained to an NGO “Committee to fight organized crime”, claiming that they were battered by the staff, forced to do hard work and to take strong psycho-neurological drugs. After criminal law-suit was filed, the law-enforcement staff exhumed 30 bodies of the institution inmates. For some patients under 20 years of age, heart failure and liver cirrhosis were established as the official cause of death. Four institution employees were charged with criminal liability for causing severe body injuries, failing to provide medical care, attempting to hide the crime, abusing their official duties.


Accessibility of information

A person in need of psychiatric help or his/her official representative has the right to familiarize him/herself with the medical history and other medical records, and also to have copies of written decisions concerning the proposed treatment. If complete information about person’s mental health condition can be harmful for the person or threatening for the person’s surroundings, a psychiatrist or psychiatric board can restrict this information.

If this is the case, the psychiatrist or psychiatric board informs the official representative of the person, taking the latter’s interests into account. Medical records reflect the fact of providing/restricting information.

This provision allows psychiatric wards’ staff to make arbitrary decisions on restricting the information, without any justifications as to how or why this information can be harmful or dangerous. Therefore, the patients are denied the whole information on their disease. The medical staff can –and does - also deny information on the basis, that due to specific nature of patients’ affliction they are incapable of comprehending the information and can harm themselves and others by using it.


Interdiction based on mental disease

The possibility of random interdiction based on mental disease remains a serious problem in Ukraine. Civil Proceedings Code of Ukraine spells out the interdiction procedure for mental patients. It can be done on the grounds of the family request or motion from agencies pin charge of care of custody.

The law allows for carrying out the interdiction procedure at the absence of person in question, so that he/she cannot argue his/her case. This provision is contrary to international standards, i.e. any decision concerning establishment of mental disease and restriction of person’s rights can be made only with due consideration to the person’s opinion. In practice, over 90% of all the interdiction cases are ruled without the person’s presence.

The interdiction decision is not preceded by thorough investigation of all the circumstances, while its justification is given in a standard clause, contending that [the person] “cannot understand the meaning of his/her actions or control them”. The forensic psychiatric evaluation is decisive in the process. However, the absence of independent forensic psychiatry and experts’ direct subordination to the Ministry of Health significantly affects the objectivity of their opinion.

The person found incapable has no right to appeal the decision. The procedure for reinstating person in his/her rights in case of changed circumstances and improved mental health is in place, but it can be started only by the patient’s guardian or an agency in charge of care or custody. The patient does not have the right to do it.

The violation of the person’s right to participate in interdiction decision-making often leads to the situation when a person finds out that he/she is legally incapable only after the decision was made.

Thus, Mr.K. was found incapable by the decision of Frunze district court (Kharkiv) of February 17, 1989. He learnt about this decision 20 years later. The decision was made on the grounds of forensic psychiatry evaluation, without K.’s presence. The decision was not served to him either. The guardian was not appointed. The current law prohibits incapable persons from filing appeals against interdiction decisions or initiating the reinstatement process. The custodial agency refused to file the motion for reinstatement of capability. Hence, K. was illegally deprived of any possibility of leading normal life and managing his property, as well as of any opportunity to change the situation.

Under the current law, a person, found incapable by the court decision, cannot act as an independent party in court and other proceedings, or to appeal his/her diagnosis.



1. To separate at the legislative level the notions of accessible and gratuitous medical services in order to enable medical institutions to provide some paid services officially.

2. To introduce medical insurance, which would be able to improve significantly the situation in case of adoption of reasonable law. In this case, it would be better if medical institutions would be independent entities, and help in the form of benefits and free medical services would be provided to vulnerable groups.

3. To amend Article 285 of the Civil Code of Ukraine and Article 39 of the Law of Ukraine “Fundamentals of the laws of health" on access to medical information of the person, whom the information concerns.

4. To amend the Law of Ukraine "On psychiatric care" on provision of all kinds of psychiatric care with patient’s informed consent, regardless of the fact that whether he was deprived of legal capacity or not.

5. To include into the duties of medical workers full and obligatory informing of patients about their health, medical procedures and possible consequences.

6. To elaborate written forms of proper and full informed consent with the possibility of adding extra information about peculiarities of the disease and treatment of concrete patient.

7. To conduct seminars and refresher courses for training of medical staff on rules and procedure of providing information to patients, obtaining informed consent and on the concept of medical confidentiality.

8. To elaborate and put into practice electronic medical records with information security system preventing a doctor or other person from changing the records, with rendering access to it only to a limited circle of persons.

9. To finance hospitals and to pay salaries to doctors depending on the number of patients that obtained medical services.

10. To elaborate on legislative level and put into practice the institute of independent medical examination, including mental health.

11. To amend the Civil Procedural Code of Ukraine regarding the consideration of applications about deprivation of legal capacity with the mandatory presence of the person against whom the application is submitted, and giving such person the opportunity to appeal personally against the decision on deprivation of legal capacity.


1 Prepared by Aygul Mukanova, Institute for legal studies and strategies, Irina Seniuta, Chartity Foundation «Medicine and Law, and Yevgeniy Nivitsky, the Crimean Republican Foundation «World of the Crimea»



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