CHANCELLOR OF JUSTICE AS THE PREVENTIVE MECHANISM Once again it should be pointed out that seclusion as a means of restraint may be used only in the most serious cases and on the condition that other measures (e.g. verbal pacification) did not help. In any case, a service provider, when restricting a person’s freedom of movement by use of seclusion, should very carefully consider the requirements provided for by the law to ensure that the restriction of the freedom of movement is justified. 5. Maintaining a register of the use of seclusion in a social welfare institution The question concerned mainly non-disclosure of the personal data of clients and the data on the use of seclusion recorded in the seclusion register to other clients of a social welfare institution. Each provider of 24-hour special care service who has a seclusion room should have created a register for recording the use of seclusion, and a client in respect of whom seclusion was used (and where applicable, also their legal representative) have the right to examine the records made on them in the register, to obtain copies of such records and add explanatory remarks concerning the incident to the register. This requirement arises from the report of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) on the visit to Estonia14 (which took place in 2003), in paragraph 103 of which it is noted: “every instance of the physical restraint of a patient/resident (manual control, use of instruments of physical restraint, seclusion) should be recorded in a specific register established for this purpose (as well as in the patient’s file). The entry should include the times at which the measure began and ended, the circumstances of the case, the reasons for resorting to the measure, the name of the doctor who ordered or approved it, and an account of any injuries sustained by patients or staff. This will greatly facilitate both the management of such incidents and the oversight of the extent of their occurrence.” The CPT in paragraph 52 of it standards15 also emphasises the necessity of a register for recording incidents of restraint. According to this, patients should be entitled to attach comments to the register, and should be informed of this right; at their request, they should receive a copy of the full entry. During the discussions it was found that the practice of maintaining a register for recording incidents of seclusion differs in different social welfare institutions. The register is maintained either electronically in a computer, on paper in a journal or a small booklet. As a client in respect of whom seclusion was used has the right to examine the entries on him or her and add comments to the register, social welfare institutions have faced practical problems how to ensure that a person has access only to information concerning themselves and would not have an opportunity to examine the information on other persons. Under § 35(1) of the Social Welfare Act, a person has the right to receive information about documents concerning him or her in the possession of a social welfare institution. Under § 6 clause 7 of the Personal Data Protection Act (PDPA), a data subject, i.e. a person whose data are processed, must be given access to the data pertaining to him or her, and the person should also be notified of the data collection. In the meaning of the PDPA, data on the use of seclusion measures are personal data (including sensitive personal data requiring increased protection) to which the person should be given access (§ 19 of the PDPA). Personal data may not be communicated or disclosed to third persons, except in cases clearly provided for by law (§ 14 of the PDPA) − none of the bases established by the law give a client the right to have access to the data of other clients, including data on seclusion. In addition, § 6 clause 6 of the PDPA establishes the principle of security of the processing of personal data: a processor of personal data must apply security measures to protect personal data from involuntary or unauthorised processing, disclosure or destruction. The current legislation and the CPT documents do not establish requirements with regard to the form of a register for recording incidents of seclusion. Thus, a social welfare institution may maintain a register either electronically or on paper. In view of the above norms, although a person is entitled to examine the data concerning themselves, a social welfare institution must avoid a possibility of access to the data on other clients, including data concerning seclusion. On this basis, it would be recommended to structure the register in a way that each case of seclusion is recorded electronically in a computer or in a paper journal on a separate page. This ensures that a person in respect of whom seclusion was used can have access only to the data concerning themselves. 14 Available online: http://www.cpt.coe.int/documents/est/2005-06-inf-eng.pdf. 15 Available online page 52: http://www.cpt.coe.int/en/documents/eng-standards.pdf. 15