1.1 Visits to social care institutions (residential homes for the elderly) It was proposed by the NPM that when nursing homes are accommodating residents in a secure ward (irrespective of the definition or designation) and are in doubt as to whether a particular resident were capable of understanding the meaning of the accommodation in this ward and expressing his/ her consent to such accommodation, a psychiatrist should be asked to submit his opinion on this issue. Where a resident is obviously unable to express his/her consent or the psychiatrist’s opinion corroborates such circumstance, the NPM has proposed that prior to the accommodation in a secure ward, the nursing home in question notify the competent court of the necessity for detention. While talking to two residents who had been admitted to the secure ward of Danijel Halas Home Velika Polana with their consent, the NPM established that they no longer agreed with their accommodation in the secure ward for some time and that they wished to be discharged. They informed the responsible persons about their wish on several occasions. The nursing home explained that in regard of one resident, no escort could so far be organised for the person in question while travelling home, while in respect of the other resident, they were waiting for the resolution of a complicated family situation. The NPM highlighted the fact that in respect of a person who revokes his consent, a competent court must be immediately notified thereof or the person must be discharged from the secure ward forthwith. The nursing home subsequently informed the NPM that one of the two residents had been discharged on the very same day, while the other resident had been transferred to another social care institution soon after the NPM’s visit. Some nursing homes also considered prior consent of the resident given upon his admission to an open ward as sufficient for the accommodation. This consent referred to the future accommodation, i.e. to the expression of prior consent to the accommodation in the secure ward, should such accommodation later on prove necessary or well-founded. In this connection, it was observed that ZDZdr does not (yet) regulate the issue of prior consent, which, in the NPM’s view, can be considered a deficiency. In several cases, the NPM established that consent given by special case guardians or relatives had been considered by nursing homes as sufficient basis for the admission to the ward for dementia sufferers. This happened even in respect of residents who had not been deprived of their contractual capacity. In such cases, the NPM drew the attention of the nursing homes to the fact that, taking into account the provisions of ZDZdr, admission based on the special case guardian’s consent cannot be considered as admission with consent. Consent can only be given by a person to be admitted to a secure ward or, when declared contractually incapable, by his/her statutory representative (Article 74 of ZDZdr). Otherwise, the NPM is of the opinion that in the part that regulates the admission of a person deprived of contractual capacity to a secure ward of a social care institution with consent of his/her statutory representative or the revocation thereof, ZDZdr inadmissibly encroaches upon human rights or fundamental freedoms, as it does not ensure the person declared contractually incapable judicial protection concerning the person’s accommodation in the secure ward of the social care institution. Correspondingly, the Ombudsman has already filed a request for the review of the constitutionality of Article 74 (2) and (3) of the Mental Health Act. Therefore, the NPM considers the practices of Bor Home for the Elderly Črni Vrh nad Idrijo as positive because this institution submits proposals for admission to a secure ward to the court also in respect of residents declared contractually incapable, while taking the view that it is the competent court which should decide on admission to a secure ward and not a statutory representative. In this context, the NPM expressed great concern about the decision adopted by Trebnje District Court which, following the receipt of the notification of Trebnje HEto the effect that consent to the accommodation of a resident in the secure ward had been given by the special case guardian, had stayed the proceedings on the detention of the resident in the secure ward, as it had considered that owing to the consent given there had been no need to adopt a decision pursuant to Article 75 (1) of ZDZdr. Even after having received the decision of the Social Work Centre on the appointment of a special case guardian and his consent to the accommodation of the resident in a secure ward, the court rejected the nursing home’s proposal for admission of the person in question. Because of the rejection of its proposal, the nursing home stopped sending notifications. The NPM pointed out that the residents of the secure ward were detained without any legal basis and illegally and further proposed that the home for the elderly immediately (again) notify the court of all persons who were detained in the secure ward and had not submitted a consent to admission and/or were staying in the secure ward with consent given by the special case guardian. Moreover, the NPM notified the court of its findings. In its response report, the nursing home notified Trebnje Court of 21 persons accommodated in the secure ward, while later on, the nursing home, considering the court’s reply, also submitted a proposal for the admission of these persons to the secure ward. IMPLEMENTATION OF THE DUTIES AND POWERS OF THE NPM IN 2013 NATIONAL PREVENTIVE MECHANISM UNDER THE OPTIONAL PROTOCOL TO THE UN CONVENTION AGAINST TORTURE AND OTHER CRUEL, INHUMAN OR DEGRADING TREATMENT OR PUNISHMENT 29