Thanks to an intervention of the Helsinki Foundation for Human Rights, a man considered partially incapacitated was able to leave a nursing home where he had been living for fifteen years.
Incapacitation order
The man known as “John Smith” (his real identity cannot be revealed for legal reasons) was declared totally incapacitated in December 2001. Several weeks later, Mr Smith was placed at a nursing home at the request of his brother, who, at the time, acted as his legal guardian. Mr Smith opposed the placement at a home, but his position was ignored because he was deprived of the capacity to perform acts in law. What is more, his placement was not approved by a court, despite the relevant requirement of the Family and Guardianship Code. John Smith did not undergo an appropriate psychiatric evaluation.
Over the years, Mr Smith repeatedly but unsuccessfully petitioned the court for amending the incapacitation order issued against his person. He could not leave a nursing home because Polish law provided for no mechanism for a judicial review (performed ex officio or upon request) of the reasonableness of a totally incapacitated person’s institutionalised at the request of their legal guardian.
Judgments
In 2012, the European Court of Human Rights ruled that John Smith’s placement at a nursing home and the fact that he was deprived of any legal remedies enabling a review of extensions of his placement amounted to a violation of Article 5 of the European Convention on Human Rights (right to personal freedom). The case before the ECtHR was conducted by the HFHR’s Strategic Litigation Programme.
Despite the above, the man remained at a nursing home because of the Parliament’s delay in adoption of a law that would repair the existing defective regulations, a fact that was communicated by the HFHR to the Council of Europe’s Committee of Ministers. Even the judgment of the Constitutional Tribunal from 28 June 2016, which considered the rules on the placement and extending placement of legally incapacitated persons unconstitutional, changed nothing in the case. Notably, these rules are still in effect, although the Government started working on their amendment in September 2016.
In April 2016, a regional court changed John Smith’s status to partial incapacitation but this did not result in his immediate release from a nursing home.
Release after HFHR’s intervention
In April 2017, the Foundation sent a letter to the director of MR Smith’s nursing home, informing that guardians of partially incapacitated persons cannot independently decide on their wards’ residence. A partially incapacitated person may be placed at a nursing home but only after involuntary placement order is issued by a court, which is done in the same procedure as that applied to the placement of persons with full capacity to perform acts in law. Since no such order was issued in the case at hand, there were no legal grounds for Mr Smith’s involuntary placement at a nursing home. As John Smith informed the Foundation in a letter, it was only after this intervention he was allowed to leave the home and return to his family.
