Poland Needs to Stop Institutionalising Incapacitated People Against Their Will

Strasbourg judges have accepted a unilateral declaration from the Polish government that it erred in yet another case of an incapacitated person being institutionalised against his will.

The government admitted the violation of the European Convention on Human Rights in the recent case of a man who suffers from schizophrenia and who has been living in a nursing home against his will for 19 years.

Government admits guilt

In his complaint, Jan Adam* pointed out that the decision to place him in the institution was an illegal deprivation of his liberty. In addition, the applicant complained that for 9 years, while he was fully incapacitated, he couldn’t apply to the court for transfer from the nursing home.

In its statement, the government admitted that the applicant's detention constituted an infringement of the European Convention on Human Rights and that being legally incapacitated the man didn’t have access to any sort of legal remedies and couldn’t try to undermine the decision of placing him at a nursing home. In addition, the government declared it would pay Adam 20,000 PLN (about 4,700 EUR) in compensation.

The case before the ECtHR was conducted by the HFHR’s Strategic Litigation Programme.

Unconstitutional

This is yet another case concerning the placement of an incapacitated person at a nursing home that was brought before the Strasbourg court and that HFHR was involved in. In 2012, the European Court of Human Rights (ECtHR) ruled that Jan Nowak's placement in a nursing home, coupled with the fact that he was deprived of any legal remedies enabling a review of extensions of his placement, amounted to a violation of Article 5 of the European Convention on Human Rights (right to personal freedom).

In June 2016, the Constitutional Tribunal considered the regulations unconstitutional.

It’s time to change the law

In mid-September 2017, a draft amendment to Mental Health Protection Act implementing the recent judgments of the ECtHR and the Constitutional Tribunal was submitted to the Parliament. The amendment establishes that people forced to stay at a nursing home - even fully incapacitated - can apply to the court to check the validity of the decision to place them in the institution.

"Thanks to the amendment to Mental Health Protection Act, there is an opportunity that cases such as Mr. Adam's and Mr. Nowak's will no longer be brought before the ECtHR. We hope that there will be an effective mechanism by which fully incapacitated persons will be able to change the decision of placing them in a nursing home. We have been asking to change these regulations for a few years now," says Katarzyna Wiśniewska, a HFHR lawyer.

*Name has been changed for this story