Annual Report 2014 of the National Preventive Mechanism
318. In addition, it would be advisable to set up services of legal guidance for
persons with disabilities at bar associations that do not have them and to carry out
training and sensitising actions among the professionals members of the various bar
associations.
319. In addition, we agree with the policy contemplated in the Manual of good practices
of specialised services of the public prosecution in the protection of persons with
disabilities and supports, according to which the Public Prosecutor’s Office,
whenever possible, in addition to reviewing the report prepared by the centre, will take
into account the report of the forensic medical practitioner or a professional
designated by the judge, different and independent from the centre, and will
grant the person whom the measure affects a hearing.
320. When the admission is voluntary and the party in question subsequently
states his change of opinion in respect of the voluntary nature of his stay, the
requirements established in article 763.1 of the Civil Procedure Act must be met to
maintain the stay and the 24-hour term to report it to the court body will commence (FJ
5c of said STC 141/2012). In addition, it would be advisable for the notice to state the
evolution of the state of mental health of the person in question since his admission
and the reasons for the change of voluntary to non-voluntary internment.
Likewise, all cases of relevant cognitive impairment should be reported to the public
prosecutor for said authority to consider the need to institute a proceeding for
incapacitation or require court authorisation for non-voluntary admission due to
supervening disorder.
321. Upon expiry of the seventy-two hour term in which the court authority must
issue a decision, without the measure having been ratified, the centres are not
protected by the law to keep the person in question forcibly interned. This should
be conveyed to the responsible court authority, to the public prosecutor and, if
appropriate, to the legal representative of the person in question. In such a situation, if
the inmates expresses his intention to abandon the centre, he may do so by signing the
voluntary release form.
322. In respect of the regular control of non-voluntary admissions, it is the obligation of
the centres, pursuant to article 763.4 of the Civil Procedure Act, to inform the court of
the need to maintain the measure every six months, unless the court establishes a
shorter term. For absolute respect of the safeguards of the inmates, the medical
reports sent to the responsible courts regularly must be complete and updated.
323. In Spain the implementation of article 12 of the United Nations Convention on the
Rights of Persons with Disabilities, whereby the State must ensure adequate and
effective safeguards for measures relating to the exercise of legal capacity to
respect the rights, will and preferences of the person to be proportionate and
adapted to their circumstances and to be subject to regular tests by a responsible,
independent and impartial court body or authority, among other requirements, is as yet
to be implemented.
106
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