The basic purpose of the amendment is to implement judgments of the European Court of Human Rights (ECtHR) and of the Constitutional Tribunal that concern the placement of legally incapacitated persons in state-run nursing homes.

Judicial review

Under the original law, such persons could be placed in nursing homes at the request of their legal guardians, without any judicial review. Moreover, after admission to a nursing home, an incapacitated person did not have any legal remedies to seek release.

The amendment brings the applicable law in line with the standards developed by the Polish Constitutional Tribunal and the ECtHR: under the new regulations, a legal guardian needs to obtain a court’s approval to place an incapacitated person in a nursing home. More importantly, incapacitated people themselves can submit a motion for their release to a court.

Professional counsel

The amendment introduces several other positive changes. For example, all persons committed to psychiatric hospitals or placed at nursing homes must be represented by professional counsel in all legal proceedings related to their stay at a facility. Moreover, guardianship courts are now obliged to rule on whether a person should or should not be committed to a psychiatric hospital promptly after holding a hearing.

The amendment also introduces detailed rules of a procedure for transfers of inmates between different nursing homes and establishes more detailed rules governing the lawful use of physical violence.

HFHR's contribution

The amendment has implemented proposals that had been voiced by Liberties member the Helsinki Foundation for Human Rights (HFHR) for years. The HFHR previously litigated the landmark European Court of Human Rights case Kędzior v. Poland, which concerned an incapacitated man placed in a nursing home. The case concluded in 2012 when the ECtHR ruled that there had been a violation of Article 5 (right to liberty) of the European Convention on Human Rights.

The HFHR has long been monitoring the execution of this decision and calling for a change in the law. The organisation also submitted an extensive amicus curiae opinion to the Constitutional Tribunal in a case that involved the constitutionality of certain provisions of the Mental Health Protection Act. Furthermore, during the legislative works on the amendment in the Sejm, the lower house of Poland's Parliament, the HFHR issued a legal opinion in which additional modifications of the Mental Health Protection Act were suggested. Many of the proposals were ultimately accepted.