2011: Restrictions of freedom
The provisions of the Mental Health Protection Act of 19 August 1994 (MHPA), amended on December 3, 2010, cover people who are mentally ill (i.e. those who demonstrate mental disorders, those who are mentally retarded and those who demonstrate other disturbances in mental functioning which, according to current medical knowledge, are classified as mental disorders) and who need health services or other forms of assistance or care in order to live in the family or social environment. This law addresses the issue of involuntary internment in a psychiatric institution and involuntary internment in a nursing home. As it is more likely that people with dementia would be admitted into a nursing home, the following section will cover involuntary internment in a nursing home.
The conditions for involuntary internment
A person who, due to mental illness or mental retardation, is incapable of looking after his/her own basic needs, who has no possibility of obtaining help from other people and who needs continuous care and nursing services (but not hospital treatment), may be involuntarily interned in a nursing home i.e. without his/her consent or that of his/her guardian (MHPA, article 38).
The procedure for involuntary internment
A request may be made to the Guardianship Court for admission to a nursing home without the consent of the person concerned or the guardian:
- by the head of a psychiatric hospital (in the case of a hospitalised person who would not be able to cope alone if discharged but does not need further treatment) or
- by a social welfare agency if the person poses a risk to his/her own life.
The Judge has the right to visit the person in the nursing home at any time to supervise the legality of the admission or residence, to ensure that the person’s rights are being respected and to control the conditions of residence therein (art. 43). The actual procedure is defined in a legally binding ordinance.
The Guardianship Court instigates a hearing within 14 days of the request for commitment. The Judge must visit the hospital or nursing home within 48 hours of the provisional commitment and must immediately discharge the person and stop legal proceedings if the measure was clearly unjustified (art. 45). There are no court costs for proceedings before the Guardianship Court for matters relating to involuntary commitment.
If the proceedings continue, the Court must obtain an independent expert opinion from one or more psychiatrists (art. 46). For people being admitted to a nursing home, necessary assistance should be provided by a social welfare agency.
The court may designate a lawyer for the person concerned by the proceedings even if s/he has not requested one (art. 48).
The duration of involuntary internment
There does not seem to be any mention of the duration of involuntary internment in the MHPA. However, article 49 of this act states that detailed regulations for matters concerning nursing homes (e.g. admission and discharge) are issued in the form of a legally binding ordinance from the Minister of Labour and Social Policy in consultation with the Minister of Health and Social Welfare and the Minister of Justice (art. 49).
The right to appeal and suspension of the ruling
The person who has been involuntarily admitted into a nursing home, his/her guardian, de facto guardian, spouse, blood relative or sibling may appeal to the Guardianship Court against the court decision.
The Guardianship Court designates a keeper who is responsible for assisting a person who has been involuntarily interned throughout his/her stay in the nursing home.
Restriction of personal liberty
Deprivation of liberty is covered by article 189 of the Penal Code which states that depriving a human being of their liberty shall result in imprisonment for a term of between 3 months and 5 years. If the deprivation of liberty was for more than 7 days or involved particular torment, the sentence would be for between 1 and 10 years.
Isolation is included in the definition of physical restraint. Please see below for details.
Restraint and other coercive measures
According to article 18 of the MHPA, amended by The Act on Changes in the Act on Mental Health Protection, which defines in detail the kinds of coercive measures, as well as changes added by The Act on Medical Activity of April 15, 2011 concerning direct coercion, physical restraint of people with mental disorders may only be applied if a person represents a risk to his/her own life or health, or that of other people, threatens public safety or violently damages or destroys surrounding objects (or if warranted by special regulations of the MHPA). If necessary, the doctor may request the assistance of the police and the fire brigade. Direct coercion is used when it is necessary for the conduct of indispensable medical activity aimed at the removal of the causes of admission to hospital without the person's consent. It may be also used in order to prevent the person's unlawful departure from the hospital.
The Resolution of the Minister of Health and Social Welfare of August 23, 1995 on the manner of applying direct coercion described when and how such measures could be used. The Act on Medical Activity of April 15, 2011, in Article 139, provides more changes in article 18 of the MHPA.Physical restraint includes holding down, coerced administration of medication, compulsory medication, immobilisation and isolation, which cannot last longer than four hours. In case of need, a doctor, upon a personal examination of the patient, may prolong the immobilisation for further six-hour periods. The decision to apply physical restraint must be made by a doctor who should also determine the manner of physical restraint used and supervise its implementation. In psychiatric hospitals and nursing homes, a nurse may take this decision in the absence of a doctor and then notify the doctor. In life threatening situations, when the person needs immediate treatment, a person responsible for the work of a medical rescue team (a paramedic) may take this decision. After ordering direct coercion, a card detailing the use of such measures should be filled out, providing the reasons for its use, the kind used and the duration of immobilisation or isolation. The card is added to the patient's medical documentation. The least inconvenient measure possible should be chosen and during the use of direct coercion special care and consideration for the person's good should be exercised.
Direct coercion can be used no longer than necessary to obtain a medical result, and in cases where it is difficult to obtain, only for the time needed to transport the patient to hospital. The transport of the patient under coercive measure must be carried out in the presence of the medical rescue team.
The person for whom the measure is intended must be informed beforehand. The method causing least personal discomfort should be selected and care must be taken to safeguard the well-being of the person concerned
Justification for the use of restraint by a doctor employed in a health facility must be assessed within 3 days by the head of that facility or by a psychiatric specialist authorised by the local authorities if applied by any other doctor.
Articles 190 and 191 of the Penal Code address the issue of threats with or without the intent to compel the threatened person to behave in a certain way or refrain from certain behaviour.
The Penal Code covers various forms of physical abuse. Articles 156 and 157 deal with grievous bodily harm and boily injury/impairment to health respectively.
Dangerous neglect is covered by article 160 of the Penal Code which states that whoever exposes a human being to an immediate danger of loss of life, a serious bodily injury or seriously endanger his/her health may be sentenced to up to 3 years’ imprisonment. If the perpetrator is responsible for the care of the person who was exposed to such danger, s/he may be imprisoned for between 3 months and 5 years.
The Act on Social Welfare of March 2004 provides that persons living in nursing homes should be granted human rights, especially right to dignity, liberty, intimacy and safety. The Act gives detailed description of services which nursing homes should provide and what kind of training and skills the staff of a nursing home should have. However, there are still incidences reported in the media of mistreatment and abuse of the elderly in nursing homes. More and more such institutions appoint special Ombudsmen to work in nursing homes, safeguarding patients' rights. They are employed by the Office of Patients' Rights Spokesman of the Ministry of Health.
In Poland, driving licences are usually issued for an unlimited period of time. If a person commits a driving offence, they might lose their driving licence and to get it back a medical examination is needed. There are no specific regulations for healthcare professionals concerning the procedure to follow when patients are found to have a condition which might have an adverse effect on their ability to drive (Kloszewska and Kwiecińska, 1997). In a Resolution of the Minister of Health and Social Welfare of April 15, 2011, changing the previous provisions in the Resolution on Medical Examinations of People applying for a driving licence, two diseases are mentioned (epilepsy and diabetes), which the doctors entitled to issue certificates about the health conditions of applicants, should take into account, before giving their decision about the person's ability to drive.
Kiejna, A., Rymaszewska, J. and Hadryś, T. (2008), Practice of competence assessment in dementia: Poland. Ed. Gabriela Stoppe (2008),Competence assessment in dementia,Springer Wien New York.
Last Updated: Wednesday 14 March 2012