3. Some inadequancies of legal regulation in Slovenia

* the procedure on the detention of people in psychiatric medical organisations is set out by the Law on Non-Contentious Procedure (Official Gazette of the Republic of Slovenia, No. 30/86-ZNP). Article 70 of this law sets out the material legal conditions for detention. Referral and admission for treatment in a psychiatric hospital without the consent of the patient is also dealt with by Article 49 of the Law on Medical Activity (Official Gazette of the Republic of Slovenia, No. 9/92, 37/95 and 8/96-ZZDej). Unfortunately the laws are not in complete accordance with each other as regards the determining of conditions for the admissibility of detention. Thus the Law on Medical Activity, although a newer regulation, only takes the principle of proportionality into account to a limited extent, since it does not mention as a condition for the admissibility of hospitalisation that the limitation of freedom of movement of a patient or the prevention of contact with the outside world (in order to prevent danger or the causing of harm) must be urgently necessary.

* valid legislation does not practically regulate the commencement of the procedure of non-voluntary detention. Apart from the power of a doctor to send a patient to a psychiatric hospital (with the help of the police if necessary), the valid legislation contains no other provisions on referral and the admission of an individual to a medical or social care institution. It is not stated who is entitled to request the non-voluntary or even forcible hospitalisation of a mental patient. Neither is it specified how to act in cases where a patient does not want to go to a psychiatric hospital and resists this (sometimes physically). What powers a doctor has in this connection, and what powers the police have when assisting - who for example requests access to the (patient’s) home - are not stipulated by the valid legislation. Article 36 of the constitution does however provide for the inviolability of the home and requires a legal basis for entry into another’s home (without a court ruling), so that people and property are protected.

* existing legal arrangements do not specify the material legal conditions and procedure that would make it possible to request the court to order future detention. Non-voluntary hospitalisation thus only comes about on the basis of a decision by doctors/psychiatrists. The court only begins the detention procedure (as per official duty) in cases where an individual is already held against his will in a psychiatric hospital. The Law on Non-Contentious Procedure only regulates the ‘urgent’ procedure when a patient is already hospitalised in a psychiatric hospital against his will and the legal procedure on detention is only carried out subsequently. The law does not set out a ‘regular’ procedure (based on a proposal) when the danger represented by the patient is not a direct threat and it is therefore possible that the person to whom the procedure relates will remain at liberty until the procedure is complete.

* the position of persons detained against their will is completely unregulated. The law does not set out the rights of patients in psychiatric hospitals or inmates of social care institutions. In addition to the rights set out in particular by Article 47 of the Law on Medical Activity, psychiatric patients, in view of their special position, also enjoy special rights such as the right to contacts with the outside world (visits, correspondence, telephone calls), the right to independent and impartial (court) supervision of the restriction of liberty and the right to voluntary treatment, and the right to the protection of the physical and mental inviolability of a detained person.

* the protection of personal data in relation to the database of patients with mental disorders is not suitably regulated. Article 54 of the Law on Medical Activity requires that medical documentation and other records are kept in accordance with a special law. This special law has not yet been passed. Until it is passed, the law on medical records (Official Gazette of the Socialist Federal Republic of Yugoslavia, No. 22/78 and 18/88) remains in use, according to which a separate record is also kept for patients with mental disorders. The collection of medical data in psychiatric treatment needs to be regulated again by law as soon as possible.

* legislation does not regulate the use of forcible remedies and restrictions used in psychiatric hospitals (e.g. the use of straitjackets, tying patients to their beds, isolation and other measures which limit freedom of movement). Since the law does not determine the conditions of admissibility of implementing these forcible measures and restrictions, neither does it determine (court) supervision in the use of them.

* Slovene legislation does not regulate the treatment of mental patients against their will. Under Article 51 of the constitution, no-one may be forced to undergo treatment except in cases determined by law. We can only judge the admissibility of treatment against a mental patient’s will on the basis of Article 49 of the Law on Medical Activity, which permits referral and acceptance for treatment in a psychiatric hospital even without the consent of the patient, and Article 79 of the Law on Non-Contentious Procedure which talks about the ‘continuation of treatment’ of a person in detention. It is also true that the detention of a patient in a hospital is already logically linked to treatment. Nevertheless non-voluntary treatment involves a limitation of the right to voluntary treatment, and every limitation of a human right needs to be interpreted restrictively.

We cannot assume that a patient in the closed department of a psychiatric hospital is by definition incapable of deciding for himself on his treatment. Even if he has been hospitalised against his will, this should not (automatically) mean that he is not capable of expressing his will for a medical intervention or at least taking part in the decision. The decision involved is one which affects him personally most of all, more especially since psychiatric treatment can also be dangerous and have numerous harmful side effects. Psychiatric medicine also uses various sedatives which do not cure but only temporarily remove the crisis.

Non-voluntary hospitalisation does not mean an authorisation to doctors/psychiatrists to subject a patient, without restrictions and merely on the strength of their own judgement, to treatment of any type. In this regard it is worth drawing attention to certain provisions of the Convention for the Protection of Human Rights and Dignity of the Human Being with Regard to the Application of Biology and Medicine (Official Gazette of the Republic of Slovenia, No. 70/98 - International Treaty, No. 17/98), which as a ratified and published international treaty is applied directly in Slovenia. Article 7 of this Convention guarantees the protection of persons with mental disturbances and in this connection limits the admissibility of medical interventions without the consent of the person concerned. In the treatment procedure it is necessary to cooperate as much as possible with the affected individual for the sake of acquiring permission for a medical intervention. Medical measures must be proportionate to their purpose. Where several measures are possible it is necessary to choose the one which encroaches least on the integrity of the patient, which least restricts his personal freedom and which has fewest side effects.

* Slovene law does not contain advocacy. Detained persons do not as a rule have the capability or opportunity of ensuring themselves effective protection of their rights in the case of the non-voluntary deprivation of liberty. It will therefore also be necessary to regulate (compulsory) representation in the compulsory hospitalisation or detention procedure. The assistance of a legally qualified representative will enable the establishment of ‘equality of arms’ so that the detained person will be given, in accordance with the principle of equality, the possibility of active cooperation before the court for the defence of his rights and interests.