Correctional institutions
stricter precautionary measures can be assumed, which entail more restrictions
to freedom and less easing of measures.
Untenable practice
The Federal Ministry of Justice conceded that there really are different systems
for collecting information in the different locations; however, the advisory
opinions are not generally provided to the treating institutions on a routine
basis.
Some institutions receive the advisory opinions through the competent
court, some through the legal representative or court-appointed expert (with
declaration of consent of the affected patient respectively), and others organise
the advisory opinions through the patient in question themselves. The treating
institutions thus use an individually selected way to achieve a satisfactory
information status. They report however unanimously of an objective need for
accessing information through the advisory opinions.
Lack of a legal base
The Federal Ministry of Justice recognises that the delayed initiation of
therapies shall not be caused by an extended information flow, but remarked
that this is not a prison-related problem (and not a regional Graz problem
either). The issue is that the existing statutory provisions are being applied by
the independent courts.
In this context, it is about the examination of an individual case, which
requires an application accordingly.
Disclosure should be an
obligation
The result is that the current legal situation would thus be confronted with a
binding structure of timely access to advisory opinions in the referral procedure.
The courts are not obliged to disclose information on their own initiative.
The NPM considers the enforced legal regulations inadequate. They in no way
conform with the intensification requirement. The NPM recommended the
Federal Ministry of Justice to urgently forward the problem to the competent
specialised department. A legal regulation should be integrated in the Reform
Act on the Detention of the Mentally Ill Offenders 2020. The structure of the
draft suggests that Section 30 (1) would be applicable here.
X
If the referral advisory opinion is not available to the hospital when treatment is
initiated, therapies can only be applied with delays.
X
If the persons treating and nursing patients do not have the necessary documents, this
has a negative effect on measures that restrict the freedom of the patients.
131
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