1. The Estonian pilot Legal context : National law vs Human Rights
Jooske Vos, EPSO (European Partnership for Supervisory Organisations in health services and social care),
a co-operation between supervisory bodies in Europe
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2. The Estonian pilot - national law vs human rights (1)
Overview of presentation
The Estonian pilot - starting points (2 slides);
Questions on relation with national legislation (1 slide);
3 Dilemmas in relation to national legislation (1 slide);
Dilemma 1 – national legislation no indication on how to behave(1 slide);
Dilemma 2 - national legislation inconsistent with preconditions for using EPSO Framework (2 slides);
Dilemma 3 - national good practises according to Chancellor of Justice in conflict UN convention (9 slides);
Conclusions (4 slides).
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3. The Estonian pilot- national law vs human rights (2)-
Starting point for the pilot:
Supervisory bodies can improve by:
comparing working methods and relevant experiences (sharing best practices and core values);
integrating and setting relevant norms and standards;
working towards accepted standards;
Therefore the working group had to identify accepted standards.
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4. The Estonian pilot – national law vs human rights(3) )
To identify accepted standards the following line of reasoning was used:
The principles of good governance and good practice in health and social care are all closely related to core values such as equality, fairness, respect, dignity and autonomy as well as self-determination and participation;
These values are based on fundamental human rights, are similar in the various EPSO countries, and should be independent of national laws.
The Working Group therefore used these principles as a starting point.
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5. The Estonian pilot national law vs human rights (4)
Based on the starting point of the working group that good governance and good (medical) practise should be equally acceptable in all countries,
an important and interesting question is whether Estonian national legislation supports a policy based on principles of good governance and good medical practice.
The answer is yes and no
This question leads us to the following 3 dilemmas
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6. The Estonian pilot national law vs human rights (5)
Dilemmas
National legislation does not prescribe how to behave; there may be doubt on how to act.
National legislation is inconsistent or in conflict with essential preconditions and principles of good governance and good practice;
National practice based on good governance and good practice as envisaged by the EPSO Framework conflicts (to the opinion of the Estonian Chancellor of Justice) with the interpretation of Universal Human Rights treaties notably the UN Convention against Torture etc.
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7. The Estonian pilot national law vs human rights (6)
Dilemma 1
Where national legislation does not prescribe how to behave there may be doubt on how to act.
for instance: legal definitions are only governing the use of physical, mechanical and chemical restraint in psychiatric settings.
The gap can be filled by EPSO-Framework, if tested in the broader European context (as a mirror for good and workable practices.
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8. The Estonian pilot national law vs human rights(7)
Dilemma 2
National legislation is inconsistent or in conflict with essential preconditions for using the EPSO Framework
To the working group was suggested that there is a strict and unconditional legal prohibition for any kind of restraints or coercive methods outside psychiatric wards- including strict prohibition to discuss or write down any procedures of good practice or respectful behaviour regarding restraints or coercive methods in this not legally regulated working field.
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9. The Estonian pilot national law vs human rights(8)
Reaction to dilemma 2
- the Working Group is of the opinion that higher values of human rights, good governance and good practice should always fit, in one way or another, with the national legal structure.
-Practices aimed at promoting respectful healthcare with a minimum of restrictive measures should at least be allowed and not forbidden within the borders of the national legislation. If not, this should lead to a serious point of discussion on that legislation .
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10. The Estonian pilot national law vs human rights(9)
Dilemma 3
National practice based on good governance and good practice as envisaged by the EPSO Framework is (to the opinion of the Estonian Chancellor of Justice) in conflict with interpretation of Universal Human Rights treaties notably the UN Convention against Torture etc. To
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11. The Estonian pilot-national law vs human rights(10)
Dilemma 3 – definition torture
The definition of torture used in the UN Convention against Torture etc. reads – summarized – as follows:
Any act by which severe pain or suffering – physical or mental – is intentionally inflicted on a person for reasons such as: obtaining a confession, punishing, intimidating or coercing a person or persons (s) involved, or for any reason based on discrimination.
Note that ‘medical well being’ or ‘good medical’ practice is not mentioned as reason. To
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12. The Estonian pilot-national law vs human rights (11)
Chancellor of Justice in Estonia – position based on convention against torture etc.
The UN Convention against Torture and other cruel, inhuman or degrading treatment or punishment (optional protocol) includes obligation for the State to establish:
- a system of regular visits ( art1) and
- a visiting bodyat national level ( art 3).
In Estonia this is the Chancellor of Justice.
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13. The Estonian pilot national law vs human rights(12)
Chancellor of Justice in Estonia - Powers
The Chancellor of Justice in Estonia is based in the treaty (UN Convention against Torture etc.) as being the ‘national preventive mechanism’ with:
Power to visit any places related to the treaty;
Advising and recommending powers to the State;
The need for the State to examine the Chancellors recommendations and enter into a dialogue on possible implementation measures.
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14. The Estonian pilot national law vs human rights(13)
The Chancellor of Justice in Estonia – Jõgeva case
Legal control in Jõgeva Hospital, nursing departments, (unannounced visit) by Chancellor of Justice ; Main findings:
The Jõgeva Hospital director has confirmed the implementation of restraint procedures at Jõgeva hospital;
No nurse calling system at long-term care department .
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15. The Estonian pilot national law vs human rights (14)
The Chancellor of Justice in Estonia -Jõgeva case
Findings more specific on restraints:
The head of the Jõgeva Hospital approved the implementation of restraint procedures Jõgeva hospital (29 October 2010) on the basis of the Mental Health Act, § 11 paragraph 1 and § 14 SA for outpatient psychiatric services (no licensed inpatient psychiatric services)
there were two magnetic belts in the nursing department.
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16. The Estonian pilot national law vs human rights(15)
The Chancellor of Justice in Estonia -Jõgeva case
Conclusion Chancellor: The Chancellor believes that the implementation of the restraint order and the magnetic belts is unlawful and represents a potential threat to the fundamental rights and freedoms of detainees in custody.
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17. The Estonian pilot national law vs human rights(16)
The Chancellor of Justice in Estonia -Jõgeva case
Reaction by hospital director:
the arrangements for implementing restraint have been repealed;
restraint is banned, including the use of non-magnetic means of restraint (non-magnetic belts);
the staff is informed;
The nurses strive to continuously improve the notification system
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18. The Estonian pilot national law vs human rights(17)
The Chancellor of Justice in Estonia -Jõgeva case
Follow up- reaction by hospital director:
However, in the present situation, we are unable to guarantee the safety of patients and staff;
The notion of the Chancellor of Justice is overly simplistic;
Treatment must take place alongside the main treatment for the disease, and requires also action.
‘We emphasize once again that the Chancellor has a primitive understanding of this kind of treatment.’
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19. Conclusions 1
1. the discussion presented above ( dilemma 3) between hospital and the chancellor illustrates that the concept of restraint is not that clear and easy that it should be banned for a 100% in all cases or in all cases outside inpatient psychiatric care. To say it bluntly: in some cases it might even be a case of torture to leave a person completely without restraint.
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20. Conclusions 2
2. The EPSO framework is based on an open approach (Openness and discussion on all relevant topics) of reducing restraint and coercive methods based on good governance, good medical practice and accepted norms and standards in EPSO countries.
This approach should always fit, in one way or another, with the national legal structure. - ;
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21. Conclusions 3
Practices aimed at promoting respectful healthcare with a minimum of restrictive measures should at least be allowed and not forbidden within the borders of the national legislation.
If not, this should lead to a serious point of discussion on that legislation
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22. Some conclusions 4
The Human Rights treaties including the UN convention on torture etc. should be interpreted in such a way that a respectful behaviour based on core values such as self determination and participation can be openly discussed as part of a policy to reduce restraint and coercive methods in a respectful way within boundaries of reality and possibilities of individuals.
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