2.3.6 Persons with restricted movement at psychiatric hospitals and social care institutions Regarding deprivation of liberty due to a mental disorder or illness, we discussed 21 complaints in 2015 involving restriction of movement in psychiatric hospitals (29 in 2014) and 12 complaints involving social care institutions (the same as in 2014). We continued to visit these institutions in the capacity of the National Preventive Mechanism (more is provided on this in a special NPM report). Similarly to 2014, the complaints referred to admission to treatment without consent at the department under special supervision of psychiatric hospitals or the admission and discharge of persons from secure wards of social care institutions (in some cases with police assistance) and requests for relocation to other institutions, the possibilities of going outdoors, exits etc. Some complaints also referred to living conditions, treatment, care and the attitude of medical and other staff to patients or people in care in these cases. 2.3 RESTRICTION OF PERSONAL LIBERTY Complainants’ claims were further verified by making inquiries at the competent authorities, and complainants were then informed about the Ombudsman’s findings and explanations regarding procedures for admission to treatment and accommodation in social care institutions. We also answered their questions. The share of justified complaints in this field still remains high. Four of the 16 resolved complaints relating to psychiatric hospitals were assessed as founded, including five out of a total of eleven resolved complaints relating to persons in social care institutions. The majority of complaints (including providers of psychiatric treatment and social care services and programmes) again related to the Mental Health Act (ZDZdr) or unresolved systemic issues. Unfortunately, no progress was made in 2015 in the drafting (of certain urgently needed) amendments to the ZDZdr. Our recommendation i.e. that work on the preparation of necessary amendments to the Mental Health Act to eliminate established shortcomings (recommendation no. 30), still remains unrealised. Our recommendation that the Ministry of Labour, Family, Social Affairs and Equal Opportunities adopt all necessary additional measures to ensure suitable facilities to accommodate persons in special social care institutions according to court decisions on the basis of Article 74 of the Mental Health Act also remains unrealised (recommendation no. 31). The participants at the expert consultation held at Hrastovec Social Care Institution in April 2015 and subsequently at Nina Pokorn Grmovje Home in December 2015 pointed out that the situation in this field, to which the Ombudsman has been drawing attention for some time, is alarming. Representatives of courts, social work centres, psychiatric hospitals, special and combined social care institutions as well as representatives of the Ombudsman’s office ended the consultation by alerting the competent authorities (Ministry of Labour, Family and Social Affairs, the Ministry of Health and the Ministry of Justice) about the need to amend the provisions of the ZDZdr, which have so far proven deficient in practice. A legal basis and appropriate conditions for further treatment should be ensured for those forensic patients who need long-term specialised and protected treatment due to the risk that they might commit offences after being discharged from the forensic unit. We also warned the competent authorities that they should take all necessary measures to ensure suitable capacities to accommodate persons in (special) social care institutions according to court decisions pursuant to Article 74 of the ZDZdr. They also expressed the opinion that the question of the payment of accommodation costs in (special) social care facilities based on court decisions must be carefully studied, especially from the aspect of the equal treatment of persons deprived of liberty (e.g. those who are sentenced to imprisonment), which is dealt with below. 54 ANNUAL REPORT OF THE HUMAN RIGHTS OMBUDSMAN OF THE REPUBLIC OF SLOVENIA FOR 2015 The Ombudsman emphasised this issue to the Ministry of Labour, Family, Social Affairs and Equal Opportunities at a meeting on 7 July 2015 (also attended by the Minister of Health, since the issue involves matters that require interministerial collaboration); however, despite their promises, no (significant) progress has been made. When deciding on these matters, the courts emphasise that it is the duty of the state to provide sufficient capacities and ensure the suitability of institutions to ensure the protection of personality rights of an institutionalised person, as well as the personality rights of other persons in the institution (see, for example, Maribor Higher Court decision as of 6 November 2015, ref. no. I Cp 1245/2015). Recommendation no. 32 for the adoption of amended expert guidelines on the use of special protective measures (SPM) has not been realised (yet). We received information that the Psychiatry Department at the Faculty of Medicine in Ljubljana agreed to prepare a draft of amended guidelines that are harmonised with the ZDZdr, so that the Expanded Professional Board of Psychiatry at the Ministry of Health could consider them. In the last year’s report, we recommended to the Ministry of Labour, Family and Social Affairs as well as the Ministry of Health that they use the same forms for reporting on the use of SPM (recommendation no. 33), but this recommendation has not yet been realised. The Ministry of Labour, Family and Social Affairs reported that they had not prepared the forms because they were waiting for the Ministry of Health to prepare them in collaboration with the Expanded Professional Board of Psychiatry. Unconstitutionality of the ZDZdr Article 74 of the ZDZdr regulates the admission of a person by way of consent into a secure ward of a social care institution. Paragraph two of the aforementioned Article states that consent must be an expression of free will, that it must be based on comprehension of the situation and given on the basis of an appropriate explanation regarding the nature and purpose of the treatment. The consent must be given in writing. If a person is declared incompetent, the law clearly states that the consent in his/her name must be given by his/ her legal representative. Paragraph three of Article 74 of the ZDZdr states that a person who has consented to admission to a secure ward may at any time revoke his/her consent explicitly or by his/her actions whereby such intent may be inferred, and demand to be discharged from the secure ward. The Act requires that such a person be discharged immediately. A social care institution must act in the same manner if the consent is revoked by the person’s statutory representative. Therefore, an incompetent person is prevented from participating in the procedure regarding admission to a secure ward. Under the ZDZdr, the admission of a person declared legally incapable is considered to be admitted with consent (by a statutory representative), regardless of whether the person concerned agrees or not and without any form of control of such a decision by a statutory representative being envisaged. This also excludes the opportunity for the court to decide on the regularity of such an admission to a secure ward. In this part, the applicable statutory regulation as referred to in the ZDZdr is significantly different from the previous regulation under the Non-litigious Civil Procedure Act, where, specifically in Article 71, the detention of a person declared legally incapable was considered detention without consent and thus provided for judicial control of such detention. In the Ombudsman’s opinion, the ZDZdr in this part significantly exacerbated the position of persons without legal capacity and exposed them to potential abuses. For this reason, the Ombudsman addressed a request to the Constitutional Court of the Republic of Slovenia in 2012 to review paragraphs two and three of Article 74 of the ZDZdr (this was described in greater detail in the Ombudsman’s report for 2013, pages 77 and 78). The Ombudsman believes that the contested provision, which lays down the rules on the admission of an incompetent person to a secure ward of a social care institution by consent given by his/her statutory representative and the revocation of such consent, violates paragraphs three and four of Article 5 of the Convention for the Protection of Human Rights and Fundamental Freedoms, and of Articles 14, 19, 22 and 23 of the Constitution of the Republic of Slovenia, because it unacceptably encroaches on the human rights and fundamental freedoms of incompetent persons, and it fails to ensure judicial protection to such persons when they are admitted to a secure ward of a social care institution. At its session on 10 June 2015, the Constitutional Court of the Republic of Slovenia granted the Ombudsman’s request and nullified the third sentence of paragraph two of Article 74: this involved a provision determining that a legal representative gives consent to admission to a secured ward of a person who has been declared ANNUAL REPORT OF THE HUMAN RIGHTS OMBUDSMAN OF THE REPUBLIC OF SLOVENIA FOR 2015 55 2.3 RESTRICTION OF PERSONAL LIBERTY The findings of the review of court operations in the above-mentioned case confirmed our warnings that the court should in no event delay the decision-making process for applications made by the Unit that warn about the seriousness of patients’ health status. We expect that all the measures that have been taken, especially, the instruction mentioned above, will prevent similar cases from happening. We presented this case at a press conferences on 31 July 2015 and 29 October 2015, and also discussed it in Pravna praksa (Legal Practice Journal) no. 7-8/2016 2.8-8/2015.