November 15, 2012
In October, the European Court of Human Rights in Strasbourg issued two rulings bolstering the rights of persons with psycho-social disabilities. Both cases were brought by Hungarian-Slovakian disability rights activist János Fiala-Butora LL.M. ’10, an S.J.D. candidate at Harvard Law School and an associate of the Harvard Law School Project on Disability, known as HPOD. (see a feature about the program).
In one of the cases, Bures v. Czech Republic (PDF), the plaintiff, who had been hospitalized after he inadvertently overdosed on medication prescribed by his psychiatrist, was strapped to a bed for several hours, resulting in long-term injuries to his arms and ending his career as a cello player. He brought criminal charges, but they were dismissed.
In its decision in Bures, the European Court of Human Rights found that “the application of restraining belts on the applicant was a willful act constituting inhuman and degrading treatment“ violating Article 3 of the European Convention on Human Rights. The court also held that the failure to sufficiently investigate the client’s complaint was a violation of the convention. The plaintiff was awarded 20,000 euros. (Among the co-counsel in the case was another HLS graduate, human rights attorney Babora Bukovská LL.M. ’05.)
Fiala-Butora says he hopes the decision will lead to the reform of the use of restraints on patients in psychiatric facilities in Central Europe. More broadly, he says, “it opens a new avenue for lawyers and courts to contest decisions which have until now been in a purely medical domain.” Fiala-Butora has brought 17 cases before the European Court of Human Rights and 6 before the U.N. Committee on the Rights of Persons with Disabilities as well as a series of cases before domestic courts in Central Europe (see profile of Fiala-Butora).
The decision is also important for setting new standards for the obligation to investigate the “ill-treatment of persons with disabilities,” he adds. “We need a new type of review proceedings accessible to victims and able to provide them redress and compensation,” says the advocate, who has written a paper elaborating this idea. He believes legal frameworks for combatting ill-treatment of the disabled should be based on the formulation in the U.N. Convention on the Rights of Persons with Disabilities.
Professor and Harvard Project on Disability Executive Director Michael Stein ’88 was instrumental in the convention’s drafting and adoption and submitted an amicus brief in Bures as well as in several other cases brought by Fiala-Butora. (See Boston Globe story on Stein.)
Stein calls the unanimous decision in Bures “a landmark victory,” which he hopes will pave “the way for further action directed at changing the behavior of state institutions and, hopefully soon, eradicating them altogether.”
He says the ECHR’s decision in the other case won by Fiala-Butora in October, Pleso v. Hungary (PDF), creates “new ground for challenging forced interventions and detentions under the guise of paternalistic concerns.”
The plaintiff in that case had been hospitalized against his will and forced to undergo treatment for schizophrenia, although his guardian ad litem had argued in an earlier hearing that he posed no danger to himself or others. The European Court of Human Rights found a violation of Article 5(1) of the European Convention on Human Rights (the right to liberty) and awarded the plaintiff 10,000 euros.
The court’s ruling, says Fiala-Butora, “confirms that people with disabilities should be able to make decisions about their medical treatment, just like everybody else.”
The decision stated that a fair balance must be struck “between the competing interests emanating, on the one hand, from society’s responsibility to secure the best possible health care for those with diminished faculties (for example, because of lack of insight into their condition) and, on the other hand, from the individual’s inalienable right to self-determination (including the right to refusal of hospitalisation or medical treatment, that is, his or her ‘right to be ill’)."
The phrase “the right to be ill” is especially striking, according to Fiala-Butora. “This is the first time I’ve heard this from a court,” he says. “This perhaps doesn’t strike you as a very important right, but the opportunity to take risks is something that persons with disabilities badly need and it’s often denied them.”
It’s a topic central to Fiala-Butora’s S.J.D. thesis. He is focusing on the ways the “seemingly benign” institution of guardianship for people with disabilities in countries around the world denies them the right to make basic decisions about their lives.
“I am challenging a 2000-year-old approach of treating persons with disabilities as unworthy of autonomous existence, and suggesting a better solution for law to address their existing decision-making difficulties.”
His thesis, he says, is very much a culmination of his practice. Since 2004, he has represented people with disabilities who were marginalized by their communities and by the law. “I am trying to step back from my advocate’s role, and suggest a solution that I think is worthy of academic interest.” At the same time, he continues with litigation to influence the development of international norms and help the victims he is representing.