1. Introduction

The protection of people suffering from mental disorders (mental patients) is the subject of special attention by the Human Rights Ombudsman. These are people who are pushed to the edge of the life of society and are particularly vulnerable and powerless. Their life in psychiatric hospitals and in social care institutions of various types is usually led behind closed doors, far from the eyes of a public which too often views many of them with mistrust and too little understanding.

We are pleased to note that our work in the area of the protection of people with mental disorders has met with a favourable response. Public interest is increasing and more and more space in the media is being devoted to the issues of personal freedom even in psychiatric, medical and social care institutions. The management and staff of these institutions are increasingly aware of their duties and responsibilities in ensuring legality in the case of non-voluntary hospitalisation or the placing of a patient against his will in the closed department of an institution. None of this however means that we can be content with the current situation. On the contrary, we are still faced with inadequate normative regulation and with many irregularities and unsuitable practice in the implementation of existing regulations in the area of non-voluntary detention in medical and social care institutions.

Non-voluntary hospitalisation in a psychiatric hospital, and, frequently, non-voluntary detention in social care institutions, limit two fundamental rights guaranteed by the constitution: the right to freedom and the right to voluntary treatment (which also includes the right to decline treatment). Human rights and fundamental freedoms are not absolute: they are limited by the rights of others and in cases specified by the constitution. Thus the constitution allows the law to stipulate cases and procedure in which an individual may be deprived of his liberty. The constitution also allows the law to stipulate exceptions to the principle of voluntary treatment.

Of course all limitations of human rights and fundamental freedoms need to be interpreted narrowly and the principle of proportionality observed: the limitation of human rights and freedoms must be proportionate to the legitimate goal and the limitation must not threaten the essence of the right or freedom. A limitation is only allowed to the extent necessary in order to achieve the purpose for which the right or freedom is being limited.

If the above guidelines are intended mainly (though not exclusively) for the legislator, in the area of the implementation of applicable regulations, i.e. in practice, it is necessary to stress in particular the importance of respecting the personal rights and human dignity of people with mental disorders. Special care should be devoted to the enforcing of the prohibition of torture and inhuman or degrading treatment, and the ensuring of independent supervision and accessible and effective complaints procedures.