Amended Mental Health Protection Act to improve situation of incapacitated persons

An amendment to the Mental Health Protection Act entered into force on 1 January 2018. The basic purpose of the amendment is to implement judgments of the European Court of Human Rights and of the Constitutional Tribunal that concern the placement of legally incapacitated persons in state-run nursing homes.

Under the pre-amendment law, such persons could be placed in nursing homes at the request of their legal guardians, without any judicial review. Moreover, after incapacitated inmates of nursing homes did not have any legal remedies that could be used to seek release. The amendment brings the applicable law in line with the standards developed by the CT and the ECtHR: under the new regulations, a legal guardian needs to obtain a court’s approval to place an incapacitated person at a nursing home. More importantly, an incapacitated person themselves can submit a motion for their release to a court.

The amendment introduces several other positive changes. For example, all persons committed to psychiatric hospitals or placed at nursing homes must be represented by professional counsel in all legal proceedings related to their stay at a facility. Moreover, guardianship courts are now obliged to rule on whether a person should or should not be committed to a psychiatric hospital promptly after holding a hearing. The amendment also introduces detailed rules of a procedure for transfers of inmates between different nursing homes and establishes more detailed rules governing the lawful use of physical violence.

The amendment has implemented proposals that had been voiced by the Helsinki Foundation for years. The HFHR has taken on the landmark ECtHR case of Kędzior v. Poland, which concerned an incapacitated man placed at a nursing home and was concluded with a 2012 judgment in which the Court found a violation of art. 5 ECHR. The HFHR has been long monitoring the execution of this decision and calling for a change in the law. The Foundation has also submitted an extensive amicus curiae opinion to the Constitutional Tribunal in a case that involved the constitutionality of certain provisions of the Mental Health Protection Act. Furthermore, during the legislative works on the amendment in the Sejm, the HFHR issued a legal opinion in which additional modifications of the Mental Health Protection Act were suggested. Many of our proposals were ultimately accepted.