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HRD may ask for constitutional review of long-term care committals

The Human Rights Defender will consider asking the Constitutional Tribunal to perform constitutional review of laws governing the placement of legally incapacitated individuals at nursing homes, suggests the response to an HFHR’s inquiry. “This is an important declaration”, says Marcin Szwed, a lawyer working for the Helsinki Foundation. “Polish law is yet to be adjusted to international standards for protection of rights of persons with disabilities”, he adds.

In March this year, the HFHR asked the HRD to file such motion with the country’s constitutional court. The Foundation argued that under the applicable law, the procedure for placing legally incapacitated persons at state-operated nursing homes was contrary to the Polish Constitution and the Convention on the Rights of Persons with Disabilities (for more information, use this link).

The Ombudsman’s Office responded to the HFHR’s letter stating that the Human Rights Defender shares the Foundation’s opinion that the government has failed to effectively enforce the ECtHR’s judgment in Kędzior v. Poland. In Kędzior, the ECtHR obliged the Polish government to amend the procedure that governs placement of legally incapacitated persons at nursing homes. Despite the passage of two years from the entry of this judgment, the defective procedure is still in force.

Recently, the Ministry of Health has prepared draft legislative guidelines for a bill amending the Mental Health Protection Act but it is uncertain whether the bill becomes law in immediate future due to a substantial delay in legislative works.

The HRD agrees with the HFHR that there is a need for de-institutionalising the system of support for persons with intellectual or mental disabilities and reinforcing community-based care. The HRD decided to consider the case of alleged unconstitutionality of the provisions designated by the HFHR. She will evaluate the matter and apply for constitutional review if conclusions of the evaluation so suggest.

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