HFHR appeals against court-ordered total incapacitation. Will the Constitutional Tribunal step in?

The HFHR submitted an appeal against a court decision ordering the total incapacitation of an elderly person with a disability. According to the HFHR, total incapacitation constitutes a disproportionate interference with this person’s rights and liberties.

Let us remind our readers that the case concerns B., an elderly person who needs assistance with everyday activities. Such aid is provided by her close friend, among others. However, the court decided that the total incapacitation served B’s best interests because she cannot live on her own and – in the consequence of her medical condition – is unable to take any decisions.

In ordering the incapacitation of B. the court did not take into account the arguments presented by the HFHR, who maintained that in cases like this the international standards of protection of rights of persons with intellectual or mental disabilities must be observed. “These standards emphasise the need for protecting the dignity, autonomy and subjectivity of persons with disabilities”, says Dr Dorota Pudzianowska, the HFHR legal expert.

In the appeal, we have argued that given the care B. receives, depriving her of the capacity to perform acts in law was not necessary and would not improve her situation” Dr Pudzianowska explains. “The court has actually failed to consider whether less restrictive measures could have been used instead of the incapacitation order. The measures that do not result in the removal of the capacity to perform acts in law include, for instance, an appointment of a guardian for a person with a disability”, adds Jarosław Jagura, a lawyer working with the HFHR.

Apart from submitting the appeal, the Helsinki Foundation petitioned the court to request a constitutional review before the case is finally resolved. Such a request will possibly result in the assessment of whether the laws on total incapacitation conform with the Constitution, the ECHR and the Convention on the Rights of Persons with Disabilities.

“There are reasonable concerns that the measure of total incapacitation in its current shape is contrary to the Constitution and the ECHR. This is because this measure is not flexible and severely affects the situation and rights of individuals. Furthermore, the Constitutional Tribunal could decide if total incapacitation conforms the Convention on the Rights of Persons with Disabilities, which excludes the possibility of depriving persons with disabilities of their capacity to perform acts in law”, Dr Pudzianowska adds.