Mínimum criteria in deprivation of liberty
Convention on Rights of Persons with Disabilities, of 13 December 2006, and the
Observations of the United National Committee for Rights of Persons with Disabilities
in its initial report for Spain (CRPD/C/ESP/1).
313. As regards the non-voluntary admission to senior citizen residential centres, the
existing legal gaps have caused both the authorities and the judges and public
prosecutors to apply inconsistent policies. Until such reform of the law, the policy is that
the system of safeguards currently contemplated in article 763 of the Civil Procedure
Act should extend to senior citizens who are admitted to residential centres when
they are not in condition to give freely their consent to their admission.
314. Thus, in any case in the absence of independence of a person to give his
consent to his admission to a centre, the procedure contemplated in article 763 of
the Civil Procedure Act for non-voluntary admissions should apply. In general,
the application should be processed through ordinary channels prior to admission, by
the family relatives or tutors who are aware of the need for admission and the lack of
independence.
315. Where an emergency situation is observed that requires immediate admission
to the centre, the requirements contemplated in article 763 of the Civil Procedure
Act and implemented by Judgment of the Constitutional Court 141/2012, of 2 July,
should be met, considering particularly, that the admission will only be founded in the
case of serious mental disorder and in a situation of emergency or immediate need for
medical action, and the measure of admission should not only be advisable but should
also meet the requirements of need (no other less burdensome alternative measure
may be adopted) and proportionate (with regard to the purpose sought).
316. The non-voluntary admission should be urgently reported to the responsible
court authority as soon as possible and in any case within twenty-four hours after
admission, for the compulsory ratification of the measure. The notice should include at
least information on the following issues: precise date and time of admission;
circumstances of admission; medical report evidencing the mental disorder founding
immediate admission, grounds for the need and proportionality of the measure and, if
appropriate, evolution of the state of mental health; and forecast duration of the
measure.
317. As regards the court control, the delay on the part of certain court authorities
in non-voluntary admission proceedings, particularly in those of an urgent nature,
and the lack of grounds observed in many proceedings for non-voluntary
admission, in which the need and proportionality of the measure are not assessed
contravening constitutional case law (FJ 7c of STC 141/2012) are matters of concern.
Accordingly, the appropriate measures should be adopted, evaluating the needs that
the court bodies may have and, if necessary, reinforcing the court bodies and the
public prosecutor’s office, to ensure that the safeguards of the rights of persons in
respect of whom non-voluntary admission is requested is effective, including regular
visits to the centres in question.
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