4
situation is completely different in other cases: not even regarding to wrongdoers,
who still have some more or less elemental degree of autonomy, based on their
lucidity and the surrounding environment –though sometimes physically, socially and
institutionally restricted-. The history of autonomy – or rather, heteronomy- and
subjection practices in prison runs along the history of the institutions for people with
mental illness, who belong to a marginalized world. Criminals and the “possessed” go
hand in hand in this abstruse narration.
15.
Consequently, mentally ill persons who are confined in State institutions
frequently receive less support than other persons, live in a state of defenselessness
and face two-fold discrimination –as a result of social exclusion and due to the rarity
of their illness itself-, are incompetent to exercise an atypical form of autonomy –
which sometimes lacks direction and sense and is prone to surrendering to danger
and risk- and, based on the foregoing, demand a more accurate focus of the
guarantor position of the State on most basic issues of manhood.
16.
The Inter-American Court has assessed the special intensity of the guarantor
position of the State regarding to inmates of institutions under strict rules of
conduct, unflinchingly imposed, intended to govern all the time almost every event
of their life, as it happens in prisons and institutions for children and adolescents. In
the Case of Ximenes-Lopes, the Court addresses for the first time the situation of an
inmate with mental illness and the guarantees -of preservation and relative exercise
of irrevocable rights- provided by the State: either directly or by delegation of a
service, that places service-related duties in a different person without annulling the
public liability for the efficient and respectful provision of the lex artis –that governs
the duty of care in the provision of psychiatric services-, the specific rules of ethics
applicable to patient treatment in general and psychiatric patients in particular, and
the undertaking of control and assistance obligations relative to the performance and
results of the service.
17.
Any person with mental illness who experiences total deprivation of his
autonomy – including both logical discerning capacity and self-governance- and is
absolutely dependent on the person in charge of his care –the direct or indirect State
agent, either on its own or by delegation- becomes an individual in need of full
attention, more than anybody else subject to the jurisdiction of the State, and the
guarantor position of the State becomes more imperative and accurate, demanding
and comprehensive than under different circumstances.
7.
THE “ENCOUNTER” BETWEEN THE PERSON WITH MENTAL ILLNESS
AND THE STATE
18.
As the State sustains a broader liability, which demands a more
comprehensive–complete and absolute- response, the State that assists psychiatric
patients is expected to grant a more comprehensive, intense and sustained
guarantee of the rights of private individuals regarding to the conditions that would
allow them to exercise those rights on their own: life, food, health, relationships,
among others. This guarantee spreads in all naturally practicable directions: either
by omission –for example, respect for personal integrity, protection against illegal
experiments and mistreatment- or by action and provision –of conditions that
mitigate misfortune and foster, whenever possible, health recovery or pain and
anguish relief.