The Ombudsman was made aware of a case where the CSD did not want to submit an application to the court for the admission of a person to the protected department of the social welfare institution, even though it assessed that the admission was absolutely necessary and was aware that the person was unable to give consent. The CSD was of the opinion that consent for a person can be given by their legal representative. The Ombudsman warned the CSD that a person cannot be admitted to a protected department based on the consent of their legal representative, and suggested that the CSD take this into account in the future when dealing with such cases. In the specific case, however, the court had already decided on acceptance based on the application of another complainant, so the proposal that could have been submitted by the CSD was no longer relevant.

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The Ombudsman of the Republic of Slovenia (Ombudsman) was contacted by an open-type social welfare institution (SVZ), which had a service user included in the all-day institutional protection service, who, due to his needs (self- and hetero-aggressiveness, which made him a danger to himself and others) needed placement in a secure ward of a special social welfare institution. For the past few years, the SVZ has been trying to relocate him, but has been unsuccessful, firstly due to the non-cooperation of the legal representative of the user, and then due to the overcrowding of the institutions. The SVZ informed the competent centre for social work (CSD) about the case, which, in a conversation with the legal representative, assessed that the legal representative understood the situation, that she was able to recognise the needs of the ward and act in his favour, that she did not (anymore) oppose his transfer to a secure ward and to show a high level of motivation to cooperate in finding suitable accommodation.

The SZV and the CSD subsequently differed in their position on whether a proposal should be submitted to the court to introduce a procedure for admitting a person to a secure department of a social welfare institution without consent based on a court decision in accordance with the provisions of the Mental Health Act (ZDZdr). The CSD considered that the admission to the secure ward could be carried out with the consent of the legal representative who agreed to the admission, while the SVZ insisted that a proposal should be submitted to the court. In the following, the CSD acted in accordance with its position and helped the legal representative in filing applications for admission, while the SVZ submitted a proposal to the court for the admission of a person for treatment in a protected department without consent based on the court's decision.

As noted by the Ombudsman, the CSD overlooked that the Constitutional Court of the Republic of Slovenia had annulled the third sentence of Paragraph 2 and the third sentence of Paragraph 3 of Article 74 of the ZDZdr,[1] which stipulated that for a person who has been deprived of legal capacity, the consent for admission to the protected department of the social welfare institution is given by their legal representative and that the legal representative can at any time revoke this consent or request that they be dismissed from the secure ward.[2] 

The Ombudsman drew the attention of the CSD to the decision of the Constitutional Court and assessed that, in this particular case, it would be appropriate for CSD itself to submit a proposal to the court to start the procedure for accepting a person for consideration in the secure ward of the social welfare institution, but not to refer another institution, or merely propose and assist the legal representative in submitting an application for admission. All the more so because the CSD itself assessed that placing the service user in a secure ward is necessary. Even if one of the social welfare institutions were ready to accept the service user based on the submitted application, a court decision would have to be obtained before the admission itself, since the service user was unable to give their consent.

The court followed the SVZ's proposal and issued a decision on the admission of the service user to the secure ward of the social welfare institution, so in this particular case the proposal that could have been submitted by the CSD was no longer relevant. However, the Ombudsman suggested to the CSD that in the future, when dealing with such cases, it should be taken into account that a person cannot be admitted to a secure ward of a social welfare institution with the consent of a legal representative. The CSD announced that it will follow the Ombudsman's proposal. 9.7-13/2023

[1] Official Gazette of the RS, no. 77/08.

[2] Decision of the Constitutional Court of the Republic of Slovenia no. U-I-294/12-20 of 10.6.2015.