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HFHR’s opinion on draft amendment to Mental Health Protection Act

The government’s draft amendment to the Criminal Code and the Mental Health Protection Act establishes “personality disorder treatment centres” operating as part of the mental health protection system.
“According to the proposed amendment such centres will be used to accommodate convicts who have completed their prison term but may still pose a threat to others”, says Barbara Grabowska, a HFHR lawyer.

A decision to place a convict in a centre will be taken by a guardianship court. The circumstances considered in making a placement decision will include mental illness, mental impairment or sexual preference disorder which may lead to a situation where a person poses a threat to the life, health or sexual freedom of other people or the sexual development of minors. According to the proposed law, the governor of the prison in which a convict is detained may move for his or her placement in a centre.

The HFHR sent its opinion on this legislative proposal to the Ministry of Justice. According to the Foundation, the draft’s main flaw lies in the fact that a placement decision may be based on, among other things, “personality disorders” or “sexual preference disorders” which are not classified as mental illnesses.

In consequence of this, a mentally healthy person may be still placed in a centre. “Applying such a broadly defined test which includes ‘personality disorders’ or ‘sexual preference disorders’ may cause doubts as to the compliance of the new provisions with the European Convention on Human Rights”, explains Ms Grabowska.

The Convention allows for “the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants”. Where the law provides for the detention of persons suffering from “personality disorders”, a vague category of disorders which do not fall neatly under the heading of “mental illnesses”, it may turn out that the proposed amendment breaches the standards guaranteed in the Convention.

The Convention also forbids punishment without law. In the opinion of the HFHR, the drafter tries to avoid making a placement in a personality disorder treatment centre another punitive measure imposed for the offence for which a convicted person has already served prison time. On the other hand, the proposed amendment closely links the probability of committing another offence with the prison sentence for a previously committed act.

“We have indicated in our opinion that it will be crucial for further legislative works to include the position of psychiatric doctors regarding the proposed changes”, says Ms Grabowska. In the end, their evaluations will be vital for decisions of guardianship courts in cases concerning placement in personality disorder treatment centres.

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