OVERVIEW OF RELEVANT STANDARDS
detainees who have “been shown to have
serious mental problems and suicidal tendencies”. In these cases, the Court requires special
measures to ensure that this condition is
compatible with the requirements of humane
treatment, irrespective of the gravity of the
acts for which he has been convicted or is
suspected of having committed.86
The ECtHR has noted in several instances
that, with regard to forms of coercive and
non-consensual measures against patients
with psychological or intellectual disabilities
in hospitals and all other places of deprivation
of liberty, measures should be employed as a
matter of last resort, when their application is
the only means available to prevent immediate
or imminent harm to the patient or others,
that sufficient procedural safeguards are
provided and that every use of restraint must
be properly recorded.87
The CPT has issued several standards and
recommendations regarding the institutionalisation and treatment of persons with
intellectual and/or psychosocial disabilities,
including for example:
• ensure institutional and functional separation between mental health facilities
(forensic hospitals) and prisons;88
• ensure adequate living conditions, including
sufficient living space per patient, adequate
lighting, heating and ventilation, maintaining the establishment in a satisfactory state
of repair and meeting general hygiene
requirements, allowing persons to keep
certain personal belongings and providing
a lockable space for them;89
• ensure medical treatment, which should
consist of an assessment of the clinical
needs as well as a risk assessment based
on structured professional judgement and
the identification of treatment targets
in consultation with the patient and a
multi-disciplinary approach;90
• ensure that all categories of psychiatric
patients (i.e., voluntary or involuntary, civil
or forensic, with legal capacity or legally
incapacitated) be placed in a position to give
32
their free and informed consent to treatment. Consent to treatment can only be
qualified as free and informed if it is based
on full, accurate and comprehensible information about the patient’s condition, the
treatment being proposed and its possible
side-effects, as well as about the possibility
to withdraw consent. Any derogation from
this fundamental principle should be based
in law and only relate to clearly and strictly
defined exceptional circumstances. It
should also be accompanied by appropriate
safeguards;
• ensure access to purposeful activities,
including a range of therapeutic options (i.e.,
group therapy, individual psychotherapy
and creative therapies such as art, drama
and music, as well as sporting activities)
and involvement in clinically appropriate
rehabilitative psychosocial activities, recreational activities suited to their needs and
unrestricted daily access to the open air;91
• ensure the application of safeguards with
regard to medical restraints, including:
using restraints as a measure of last resort
to prevent imminent harm to themselves or
others and applying them for the shortest
possible time; never using restraints as
punishment, for convenience, because of
staff shortages or to replace proper care
or treatment; ensuring that restraints must
be expressly ordered by a doctor after
an individual assessment, or immediately
brought to the attention of a doctor with
a view to seeking his/her approval; making
sure that every patient who is subjected to
mechanical restraint or seclusion is subjected to continuous supervision; and ensuring
that a specific central register is established
to record all instances of recourse to means
of restraint for the management to be able
to monitor their use;92 and
• ensure adequate staffing levels to enable
the provision of adequate treatment and
care to all residents, as well as psycho-social
rehabilitation activities.
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