Mandatory placement at nursing homes is unconstitutional

Under the applicable law, the procedure for placing legally incapacitated persons at state-operated nursing homes is contrary to the Polish Constitution and the Convention on the Rights of Persons with Disabilities, the HFHR argues. The Helsinki Foundation called on the Human Rights Defender to initiate the constitutional review of the relevant provisions of law.

“The currently applicable provisions of the Mental Health Protection Act and Social Assistance Act allow for the placement of an incapacitated person at a nursing home provided that a consent of the guardian is obtained”, says Irmina Pacho, HFHR lawyer.

“The law also provides that a person can be institutionalised even without a consent of a guardian. In such a case, a guardianship court issues a relevant order”, Ms Pacho explains. However, as some cases the Foundation has been working on suggest, this requirement is not consistently kept.

More importantly, incapacitated persons themselves have no right to challenge rulings and decisions that effect a placement at a nursing home. There is also no procedure that would enable an institutionalised person to request a judicial review of the legality and reasonableness of a long-term placement at a nursing home.

The HFHR noted that such provisions contravened the European Convention on Human Rights, which has been confirmed by the European Court of Human Rights in cases such as Kędzior v. Poland. “Two years have passed since the entry of this judgment, and the defective procedure is still in force, generating an influx of new applications to the ECtHR”, Irmina Pacho says.

In its statement sent to the HRD, the Foundation pointed out that even an overhaul of the procedure for mandatory placement of legally incapacitated persons would not guarantee the full protection of their rights, which is required from Poland under the Convention on the Rights of Persons with Disabilities. To achieve that, Poland must adopt a comprehensive reform of the system of social assistance. The HFHR recommends departing from the culture of institutionalisation and implement a more individualised approach to support mechanisms for persons with disabilities, which would improve their integration with society and local communities but, at the same time, protect their freedom and right to privacy.

The Helsinki Foundation asked the HRD to use her authority to persuade the lawmakers into taking the necessary legislative action.