Restrictions of freedom
Involuntary internment is covered by the Law on Non-Contentious Procedure (Official Gazette of the Republic of Slovenia, No. 30/86-ZNP) (the LNCP). Article 49 of the more recent Law on Medical Activity (Official Gazette of the Republic of Slovenia, No. 9/92, 37/95 and 8/96-ZZDej) also deals with involuntary internment. However, the two laws are not in complete accordance with each other, especially with regard to the conditions for involuntary admission.
The conditions for involuntary internment
Under article 70 of the LNCP, a person can be involuntarily admitted to a mental institution or other institution (e.g. a social care institution) by a court of law on the following grounds:
- S/he is suffering from a mental disorder or mental illness AND
- S/he presents a serious danger to the life or health of him/herself or that of other people OR
- S/he represents a serious danger to the property of him/herself or that of other people.
The Law on Medical Activity does not stipulate that admission to hospital must be urgently necessary to prevent causing harm or damage.
The procedure for involuntary internment
The courts must be informed within 48 hours of the involuntary internment in the closed section of a mental health institute. Information must be provided about the interned person, his/her medical condition, the reasons for internment and who brought the person to the mental health institution (LNCP, art. 71). Such notification is only necessary in the case of people who are detained in a closed department without their consent and does not cover voluntary hospitalisation even in a closed department.
The court then immediately informs the social welfare office, the mental health institution and a spouse or next of kin that a court procedure has been started.
Within 3 days, the court visits the person who has been interned and interrogates him/her (unless this would be damaging to the latter due to his/her medical condition). Doctors involved in the course of treatment and other people who can give information about the person’s mental condition are interrogated. The person is also examined by a psychiatrist from another mental health institute. (LNCP, art. 74 and art. 75)
On the basis of this information, the court decides whether to prolong the internment or dismiss the person from the institution. This must be done within 30 days of notification that a person has been detained against his/her will. During this time, the mental institution can move the person to an open ward or dismiss him/her if it feels that the reasons for internment are no longer valid (LNCP, art.76).
The Human Rights Ombudsman points out that deadlines are often not respected and that there are considerable inadequacies regarding the hearing and decision-making process. For example, despite the fact that detention is only admissible in cases where the person, due to his/her mental state, represents a danger to him/herself or others, the court often decides simply on the basis of the opinion an expert witness who confirms the person’s mental state and not the danger (and hence urgent need for hospitalisation). Although the detained person is briefly questioned by the court, in practice, this has little influence on the decision.
Duration of involuntary internment
If, on the basis of the evidence given, the court decides to further retain the person in the institution against that person’s will, it defines the period of involuntary internment which cannot be longer than 1 year.
If the institution judges that further treatment will be necessary, it must request a prolongation of the involuntary commitment at least 15 or 30 days before the initial period of involuntary internment expires (LNCP, art. 79).
The right to appeal and suspension of the ruling
The interned person, his/her patient advocate or guardian, the social welfare office, a spouse or relative and the mental health institution can appeal against the internment decision. This must be done within 3 days of the court decision (LNCP, art. 77).
Deprivation of liberty
Article 143 of the Penal Code deals with false imprisonment. It states:
(1) Whoever unlawfully incarcerates another person or keeps him/her incarcerated or otherwise deprives him/her of the freedom of movement shall be sentenced to imprisonment for not more than one year.
(2) If the offence under the preceding paragraph is committed by an official through the abuse of office or of official authority, such an official shall be sentenced to imprisonment for not more than three years.
(3) Any attempt to commit the offence under the first paragraph of the present article shall be punished.
(4) Whoever either deprives another person unlawfully of his/her liberty for a period exceeding one week or acts so in an aggravated manner shall be sentenced to imprisonment for not less than six months and not more than five years.
Restraint and other coercive measures
According to the Human Rights Ombudsman of the Republic of Slovenia (2007), the conditions governing the implementation of restraint in psychiatric hospitals (e.g. straitjackets, isolation and bed straps) are not regulated by law and there is therefore no court supervision of such measures. Nevertheless, the use of forcible protective measures and restrictions should be used for the shortest possible time, under supervision and be recorded in the patient’s medical file.
Mistreatment and abuse within the family
The Family Violence Prevention Act (ZPND) of 2008 covers various forms of violence inflicted by one family member against another. Family violence is the term used to refer to any form of physical, sexual, psychological or economic violence exerted by one family member against another irrespective of age, sex or any other personal circumstances of the victim or the perpetrator of the violence (article 3). Detailed definitions of the types of violence are provided. They focus on the results of the various acts of violence such as pain, fear, shame, feelings of inferiority, endangements and anguish. Economic violence is defined as:
...undue control or setting of restrictions of any family member concerning disposing with one’s income or in other words managing teh financial assets with which the family member disposes or manages and it can also mean undue restricting of disposing or managing the common financial assets of family members.“ (Article 3 (6))
The provisions of the act also cover “disregard“ which is defined as a form of violence in which a person does not provide due care to the family member who is in need of it due to illness, disability, old age, developmental or any other personal circumstances.
Article 4 states that special care must be taken when considering violence and providing aid for older and disabled people as well as for people who, due to personal circumstance, are not capable of taking care of themselves. According to article 2 of this act, such people do not have to be related to the perpetrators of the violence as the definition of family member includes “persons living in a common household“.
The act gives victims of violence the right to have an assistant to protect their integrity and represent them in all violence-related proceedings as well as a legal representative. The victim’s assistant can be any adult person who is not considered to be the perpetrator of the violence. Measure can also be taken to remove the perpetrator of the violence from the home or to enable the victim to safely gather the belongings they need for their basic vital needs.
General provisions relating to mistreatment or abuse
Articles 133 to 135 of the Penal Code deal with actual, aggravated and grievous bodily harm.
Whoever violates the physical or mental integrity of another by maltreating him/her shall be punished by a fine or a prison sentence of up to six months. Prosecution is only initiated if a complaint of mistreatment is filed (article 146 of the Penal Code).
It is considered a crime, under the Penal Code, to expose another person to danger. Article 138 states:
Whoever leaves another person helpless and in a life-threatening situation which s/he himself has caused shall be sentenced to imprisonment for not more than two years.
Whoever abandons a person who has been entrusted to him/her or whom s/he is bound to take care of in circumstances which endanger the life or health of the entrusted person shall be sentenced to imprisonment for not more than two years (article 139)
Last Updated: mercredi 14 mars 2012