Resumen

Los pacientes que tinen a la vez retraso mental y trastornos psiquiátricos están particularmente en riesgo de explotaciones de todo tipo y frecuentemente no reciben la asistencia legal que requieren.
El tratamiento de pacientes con diagnóstico doble (trastorno mental y retraso psíquico) es particularmente difícil desde el punto de vista de los derechos humanos, per ejemplo en lo que concierne a la voluntariedad de las intervenciones.

Las recomendaciones de los organismos internacionales insisten en la protección de los jóvenes y las mujeres con retraso nmental y problemas psíquicos, que deben ser alojados en instituciones especiales.

Palabras clave: Retraso mental. Diagnóstico doble. Derechos humanos.

Summary

Patients with mental retardation and psychiatric disorders are particularly endangered by physical, sexual and other forms of exploitation and frequently do not receive adequate legal assistance when needed for questions such as incapacity; information about their rights, etc.

Some recommendations made by international organizations have shown special concern about the treatment of mental patients being particularly difficult to assure for patients with mental retardation, as , for example, that treatment should be " based on a plan discussed with the patient ".

On the other hand, dual diagnosis is a risk factor for re-institutionalization, for treatment in institutional settings, for restrictions on care in the community and for a less frequent use (or lack) of psychotherapies.

International recommendations to protect juveniles from all forms of physical or mental violence are especially relevant for juveniles with mental retardation .. Specifically, these recommendations estate that these patients should be treated in specialized institutions and that in such places where juveniles are detained, a record of mental health problems should be kept and mental health care should be assured, all of which is frequently overlooked in regard to patients with mental retardation are concerned.

Finally, it must be taken into account that women with mental retardation, especially if they have a psychiatric diagnosis or are in psychiatric treatment, are particularly prone to be subject to abusive " eugenic " practices

Key words: human rights. mental retardation. Dual diagnosis

Questions concerning the relationship between health and human rights are summarily addressed in various international documents. There exist two main international documents specifically dealing with the human rights of mental health patients: the " U.N. Principles for the Protection of Persons with Mental Illness and the Improvement of Mental Health Care " (1) and the " Recommendation on the Situation of the Mentally Ill " of the Council of Europe (2). These declarations consider the principal issues of controversy in the realm of ethics and their application to psychiatric care.

On the other hand, the question of the protection of the human rights of people with mental retardation is an issue which is being addressed by international organizations such as the United Nations (3-7), the European Community (8-9) and the World Health Organization. In some documents written by professional associations such as the World Psychiatric Association and the American Psychiatric Association, references are also made to these persons. Moreover, patient and family advocacy groups and some private foundations (the Geneva Initiative on Psychiatry (10), the Association pour les droits de l'homme en psychiatrie (11), the Bazelon Center for Mental Health (12), the Harvard Institute for Health and Human Rights (13) as well as several journals (Health and Human Rights, Journal of the Association for the Severely Handicapped, European Journal on Mental Disability, etc.)) make of the rights of mentally handicapped people an important focus of concern.

Some important events in advocacy in this respect were the creation of the American Association for Mental Retardation (AAMR, 1876), the ARC/USA (1954, originally the Association for Retarded Children), the American National Association for the Dually Diagnosed (NADD), the European Association for Mental Health in Mental Retardation (MHMR) and the publication of the Mental Retardation Planning Amendments (USA 1963) and the American Psychiatric Association statement (1966). Legislation advocating the human rights of persons with mental retardation include the U.S. Rehabilitation Act (1973), the U.S. Individuals with Disabilities Education Act (IDEA) (1975, reauthorized 1990), the UK Disabled Persons Act (1987) and, of course, the Americans with Disabilities Act (ADA) (1990).

2. SOME SENSITIVE ISSUES CONCERNING THE HUMAN RIGHTS OF PEOPLE WITH MENTAL RETARDATION AND MENTAL DISORDERS

2.1. Fundamental Freedoms and Basic Rights

Several international documents refer to the need to protect the fundamental freedoms of mental patients in general areas such as dignity, responsibility, autonomy, to assure civil, political, economic, social and cultural rights and to oppose discrimination, loss of liberty, etc. This is necessary because, effectively, mental patients suffer from negative attitudes and from inequality in the delivery of medical and psychiatric services. In addition, patients with mental retardation and psychiatric disorders are particularly endangered by physical, sexual and other forms of exploitation and do not receive legal assistance when needed on questions such as incapacity, information about their rights such as that to nominate a person to act on their behalf, etc.

International recommendations to protect juveniles from all forms of physical or mental violence (14) are especially relevant for juveniles with mental retardation who are particularly liable to being deprived of their human rights or seeing them abused. Specifically, these recommendations established that these patients should be treated in specialized institutions and that in such places where juveniles are detained, a record of mental health problems should be kept and mental health care should be assured, all of which is frequently not observed insofar as patients with mental retardation are concerned.

Similarly, a significant percentage of criminal offenders are people with mental retardation and it is indispensable to pay particularly close attention to the respect of their rights as they are protected by international declarations (15). Included herein must be the assurance that an insane person cannot be held responsible for criminal actions ; a redefinition of some basic concepts such as "dangerousness" in such persons ; a reduction to a minimum of the practice of compulsory detention for an indeterminate period. In addition, the assurance that persons declared insane by the judiciary be placed under the jurisdiction of medical authorities, must be safeguarded.

2.2. Restrictions on Liberty

Several international documents regulate the non-voluntary hospitalization of mental patients in general, listing several prerequisites to be fulfilled : the person must be considered to be a serious danger to him- or herself or to other persons, strict procedural guidelines must be respected and hospitalization must be limited to a short period, etc. Some of the recommendations are especially important for people with mental retardation, e.g. the requirement that the decision be communicated to the patient; that a judicial body review periodically the case; that the patient have the right to choose counsel and ask for an interpreter or adviser.

2.3. Diagnosis

The international classifications of mental disorders do not sufficiently specify the meaning of "mental retardation" and the operational criteria for the diagnosis of mental retardation most utilized limit themselves to evaluating the presence of a low-level of intelligence (a criterion that has frequently changed over the years), some deficits in adaptive behavior and the appearance of these difficulties during the developmental period. On the basis of these criteria, some epidemiological studies show an average worldwide prevalence of mental retardation of approximately 4%. The most reliable source of data is the United Nations' Statistics on Special Population Groups (1990) (16) which compiles statistics on the prevalence of disability in 55 countries although it is subject to the vagaries of differences in definition used from country to country, and the relative unreliability of determination in many of them.

In relation to dual diagnosis, i.e. the existence of both mental retardation and psychiatric symptoms, around 25% of all persons with mental retardation are affected, thus giving, for example, a population calculated to be approximately 625,000 for the USA, 17,000 for Switzerland or 96,900 for Spain in 1991 (17).

In trying to make a psychopathological evaluation of people with mental retardation, on the other hand, there are multiple sources of error (18): "intellectual distortion" leading to poor communication, "psychosocial masking" and "overshadowing" of some psychiatric disorders that can be thus underestimated, stress-induced "cognitive disintegration" that could be mistaken for psychotic syndromes, etc. Additionally, developmentally normal phenomena (imaginary friends, talking to oneself, etc.) can be misinterpreted. These biases can be partially avoided by using certain evaluation instruments such as the American Psychiatric Assessment Schedule or the PAS-ADD (19) (Moss et al., 1993).

The first ethical requirement towards persons with mental retardation is to avoid these biases in diagnosis which are seriously detrimental to treatment. On the other hand, in order to avoid abuses in "labeling", the international documents state that psychiatric diagnosis should only be undertaken if the following conditions are respected : that the goal of diagnosis be for purposes accepted by domestic law ; that internationally accepted medical standards be observed ; that non-conformity and past treatment shall never be determining factors in diagnosis.