Admission to a secure ward of a social care institution is provided for in the Mental Health Act. Persons may be admitted to a secure unit with or without consent, subject to certain conditions laid down in the Mental Health Act. In the following, we will also refer to admission to a so-called care home without consent.
Consent
Consent for admission to a secure ward must be expressed with free will of the person, based on an understanding of the situation, and formed based on an adequate explanation of the nature and purpose of the treatment. Consent must be in writing. The law states that consent is normally required, but there are certain situations where admission may be possible without the person’s consent.
Placement in a secure ward
A secure ward of a social care institution is intended for persons who are in need of constant special protection and care on a permanent basis and who cannot leave of their own free will (Article 17(2) of the Mental Health Act). People are admitted to a secure ward for treatment if their acute hospital treatment is over or unnecessary, if they need ongoing care and protection that cannot be provided at home or by other means, or if they pose a risk to themselves or others, or in other words, if they are a threat to their own life or the life of others due to a mental illness, or if they pose a serious threat to their own health or the health of others, or if they are causing serious material damage to themselves or to others, if this endangerment is the result of a mental disorder which seriously impairs the person’s assessment of reality or ability to control his/her behaviour, if said causes and endangerment cannot be averted by other forms of assistance (outside the social care institution, in a supervised treatment), and if the person meets other requirements for admission to the social care institution laid down in the social welfare regulations (Article 74 of the Mental Health Act).
Without consent
Involuntary admission to a secure ward is thus only possible if the person does not consent and the above-mentioned conditions for admission are met. In such cases, a court order is required (Article 75(1) of the Mental Health Act), additionally all the above-mentioned conditions must be met cumulatively, i.e. simultaneously.
Court proceedings
In court proceedings under the provisions of the Mental Health Act and under the provisions of the Non-Contentious Civil Procedure Act as a general rule, courts must protect the rights and interests of persons with mental disabilities. This includes interpreting the statutory provisions in a way that emphasises the protection of the rights and fundamental freedoms of these persons. Detention in a secure ward may be ordered by court for a maximum period of one year but may be extended based on a proposal made by the director of the social care institution. These procedures usually involve the participation of medical experts who give an opinion on the condition of the person under consideration and whether he/she is in genuine need of permanent care and protection.
In case of court proceedings, it is advisable to hire a lawyer who has dealt with similar cases before so that he can advise you and provide you with appropriate legal assistance.
Written by attorney and partner Katarina Emeršič Polić, mag. prav.