HFHR seeks remedy in Supreme Court in legal incapacitation case

The Helsinki Foundation for Human Rights and a woman named B. have submitted complaints in cassation to the Supreme Court, in which they challenge the practice of application of the legal concept of complete incapacitation.

In their complaints, the HFHR and B. petition the Supreme Court to determine whether the total legal incapacitation of B. – an elderly person with a disability – was proportionate and compliant with international standards of protection of rights of persons with disabilities. In both proceedings, the complainants are represented pro bono by lawyers from Wardyński i Wspólnicy.

B. is an elderly person with a mental disability. She needs assistance with everyday activities. Her friend has been properly caring for her for a prolonged period of time. A prosecutor, acting at the request of a member of B.’s family, applied to a court for a declaration of her incapacitation. The Regional Court in Warsaw decided that total incapacitation would serve B.’s best interests because the care provided by her friend needs to be supervised.

The HFHR has joined the proceedings as a party. The appeals brought by the Foundation and B. were dismissed by the Court of Appeal in Warsaw, which upheld the first instance decision.

The complaints in cassation argued that the total incapacitation of B., whose life situation is stable, constituted a disproportionate interference with her rights and freedoms. According to the complainants, the court’s decision infringed the provisions of international agreements ratified by Poland (ECHR and Convention on the Rights of Persons with Disabilities) and also the freedom of every human being, the right to respect for one’s private life and the right to be able to decide about one’s private life as well as the right to respect for one’s dignity guaranteed by the Constitution of the Republic of Poland. The complaints emphasised that since a deprivation of our client’s capacity to perform acts in law would not improve her quality of life, the incapacitation order should be considered unnecessary and impracticable.

“In Poland, the number of incapacitation proceedings is increasing, which relates to, among other things, the ageing of society”, say Dr Dorota Pudzianowska, an HFHR legal expert. “Around 90 per cent of cases end up with total incapacitation. This measure is abused because courts apply it automatically at the request of family members and rarely examine whether its application is absolutely necessary to help a person. After all, total incapacitation cannot be a remedy for problems of an old age and the state should offer various forms of support, including social welfare support, for persons who need such assistance”, notes Dr Pudzianowska.

The case has been conducted as part of the HFHR’s “Article 32” anti-discrimination programme.