Invisible people

Here is a thought for the old year's end: we do not know how lucky we are. After traipsing back from a snarl-inducing day '“ shouted at by small fat judge, client unnecessarily imprisoned, tiny fees, late trains and smelly tubes '“ and well into heavy whining mode as a result, I read an email which could have been headed 'Reality check for lucky Brit lawyers', but was rather politer than that.

It was from the Mental Disability Advocacy Centre, (MDAC) a charity and NGO based in Budapest which I and my chambers support '“ and this column is an appeal that you support them too.

MDAC works in East Europe generally and Central Asia, using advocacy, law and campaigning to reduce human rights violations for people with psycho-social difficulties (mental disorder for example) and learning difficulties. They are the only NGO in the world which uses multinational strategic litigation on the rights of persons with disabilities.

The email announced that on the International Day of Persons with Disabilities '“ 3 December for those who, like me, missed it '“ MDAC together with the Bulgarian Helsinki committee and the World Organisation Against Torture had begun another initiative to radicalise the Bulgarian government's treatment of people with mental disability.

Soul-destroying institutions

Put crudely, the present system combines deprivation of legal rights and soul-destroying institutional care. Under the present Bulgarian Family Code, anyone with psycho-social problems or learning difficulties can be declared legally incapable of making their own decisions and become subject to a 'guardianship' regime that is ill regulated and unmonitored.

In a country where community care does not exist, and where stigmatisation of mental health difficulty runs rife, those under guardianship are effectively sentenced to long terms in institutional care.

Although guardianship is a legal procedure with a technical right to be represented, there is no legal aid system and no ready access to lawyers in any event: 'ill regulated' in this context does not mean that there might be occasional delays in access to a court or less-than-generous funds for trained lawyers on a mental health panel '“ it means unequal before the law. 'Guardianship' does not mean a person acting with you in your best interests, overseen by a court, but the removal of your legal autonomy and civil rights, including your right to manage your finances, to decide where to live, to marry, to work and '“ further exacerbating the political invisibility of people with disabilities '“ to vote.

And an unmonitored guardianship system means just that '“ a system where your guardian can be the director of the institution with a financial interest in keeping you there, or an estranged family member who now has the legal rights over your house '“ and who can place you in an institution without further court approval or review.

No witnesses to the abuse

Institutional care is not in a small hospital on a bus route for your family or even a semi-pleasant nursing home '“ it is an enormous Soviet Bloc-style asylum buried in a remote rural area with no witnesses to human rights abuses. That is not melodramatic '“ MDAC, through its work in Bulgaria and East Europe generally, has uncovered example after example of human rights violations, from the use of caged beds to endemic sexual and elder abuse, in living conditions so bad they have been deemed to amount to inhuman and degrading treatment. Imagine for a moment what this means '“ exiled from your family, warehoused for years in a dirty ugly prison, at risk of physical and sexual abuse, kept hungry and cold, without appropriate treatment or therapy, without access to a review of your detention or civil status, or even knowledge of your legal rights.

Bulgaria is revising its Family Code '“ but although it is a signatory to the United Nations Convention on the Rights of Persons with Disabilities, the draft does not deliver quite enough for its most vulnerable citizens: there are no proper mechanisms to exercise individual autonomy and be treated as equals before the law; no protocol setting out the duties of guardians (or system to monitor them); and no provision of community-based support for persons with disabilities and their families.

And of course there are no plans to shut the institutions. And it is not only adults who live like this but children too. Bulgaria has the highest proportion of institutionalised children of any EU member state and children with disabilities are, inevitably, among the most vulnerable to abuse and neglect.

A hopeless situation?

Is this just another human tragedy playing out in our modern Europe about which nothing can be done? Happily, no. MDAC for one is doing what most lawyers became lawyers for: to use the law and its mechanisms to change the world. The road through domestic courts and up to the ECtHR is tortuous and winding '“ but so it has won several domestic cases, had legislation amended and raised awareness in place of indifference.

There is much more to come '“ nine cases against Bulgaria are pending before the European Court, and 13 before domestic courts, covering denial of legal capacity, involuntary detention, ill treatment and deaths in social care institutions.

And a completely smashing win in October 2008 could change the landscape for institutionalised children. The European Committee of Social Rights in MDAC v Bulgaria found violations of the European Social Charter in a group of institutions, including the right to education, and the right to non-discrimination. That decision matters to the Bulgarian government, which now has to remedy the fault and comply with the decision against them.

MDAC does important and valuable work '“ which for sure puts cross fat judges into better perspective, however loud they shout. And even more for sure, their work needs funding. . . a UK-based sister charity MDAC-UK (Behind Bars is a trustee, and glad to be so) would be very pleased to receive your dosh, your support, or even your Christmas good wishes . . . Happy Christmas to you all.

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