4. Most frequently identified breaches of applicable regulations in practice in 1998

During inspections of psychiatric hospitals and social care institutions (hereinafter: institutions) in 1998, and in the treatment of initiatives from this area, the following irregularities and inadequacies were most frequently identified:

a) in the work of institutions:

* institutions do not always notify courts of non-voluntary detention, or notify them outside the legal 48-hour deadline;

* if an extension of detention is necessary (beyond the deadline set in the earlier resolution on detention by the court), the institution must lodge a proposal of extension of detention at least 15 days or 30 days (depending on the length of detention determined by the resolution of the court) before the expiry of the detention period. Institutions do not always respect these deadlines, and a consequence of this can be a breach of the legal deadline in the issuing of a new resolution on detention;

* the court must be sent a notification of detention only in the case of a person being detained in a closed department without his consent. Institutions should not notify the court of voluntary hospitalisation, even if this is in a closed department. Of course, in establishing voluntariness, the provisions of Article 71 of the Law on Non-Contentious Procedure must be observed precisely;

* frequently the notifications of detention sent by institutions to the court are inadequate and do not contain all the compulsory contents specified by the second paragraph of Article 71 of the Law on Non-Contentious Procedure. Since detention must be reported within a deadline specified in hours, every notification of detention must contain an indication of the time of admission;

* forcible (protective) measures and restrictions against patients or inmates are only admissible when this is urgently necessary, for the shortest possible time, and under supervision. Every such measure must be noted in the medical documentation or in the personal file of the person concerned;

* treatment against or at least without the will of the patient also takes place in closed departments where there is no court supervision of non-voluntary detention. In cases of detention which is not on the basis of a court ruling, when in other words a patient is in an institution voluntarily, the patient’s right to decline treatment must be respected as far as possible, and his consent sought for medical intervention of any type;

* general regulations, such as house rules and regulations on internal professional supervision in medical institutions, regulate life in institutions and also a more detailed method of exercising rights. For this reason these regulations must be accessible to patients and inmates so that they may acquaint themselves with them. They also need to set out complaints procedures and disciplinary procedure and specify breaches of discipline and related sanctions;

b) in the work of district courts in relation to hearings and decision-making in detention procedures:

* failure to respect legal deadlines, in particular the three-day deadline following receipt of notification of detention, in which the judge must visit and question the detained person. Similarly, the legal provision that a decision on the extension of deadline must be made before the expiry of the detention term specified in the earlier resolution on detention is not always observed;

* of particular cause for concern are inadequacies in the actual substantive hearing and decision-making;

* even in detention procedure the court must conscientiously and carefully consider all evidence given. There are no rules of evidence in the procedure, and therefore evidence given by expert witness must be considered while taking into account the principle of the free judgement of evidence. We have found that in practice the court briefly questions the detained person but as a rule its decision only takes into account the opinion of the expert witness. The explanation of the resolution is often very inadequate and does not contain the facts required by law for admissible detention. The district court in Celje even makes use of pre-printed explanation forms. We have come across a similarly inadequate explanation to resolutions on detention issued by the District Court in Lenart and the District Court in Radovljica:

‘On the basis of the opinion of the expert witness of the court in relation to data from investigations and the questioning of the detained person it is considered that his illness is proved and that the resolution is therefore grounded.’

Such an explanation says nothing about the existence of reasons which justify compulsory detention in an institution. Illness, or the fact that this has perhaps been proved, by no means fulfils the legal conditions for forced hospitalisation or detention. Detention is only admissible in cases where it is urgently necessary because of the mental illness or mental state of an individual that his freedom of movement is restricted or contacts with the outside world prevented because he represents a threat to his own life or the life of other people or is causing serious harm to himself and others.

A resolution on detention with the type of explanation cited above is handicapped by an absolutely fundamental breach of the provisions of legal procedure, since it does not contain grounds relating to decisive facts and thus cannot be tested. Furthermore, it denies the right to a fair hearing and a just legal decision. An inadequate explanation of a court ruling by which such important human rights as the right to personal freedom and the right to voluntary treatment are decided on also means a breach of the constitutional right to legal remedy. If the appellant against a court ruling is not informed of the reasons for the decision he can neither appeal against it with regard to the content nor produce arguments against it. Such a hearing represents a clear deviation from the clear and completely fixed contents of Article 70 of the Law on Non-Contentious Procedure. It actually means a failure to respect valid legal norms and thus a breach of the constitutional provision which binds judges in the execution of their functions to the constitution and to law. Such inadequate decision-making in detention procedures does not serve to protect patients. As a result court supervision, which was the reason that the legislator prescribed the detention procedure in the first place, fails to serve its purpose.