Jan Nowak* was declared totally incapacitated in December 2001. Several weeks later, he was placed in a nursing home at the request of his brother, who, at the time, was acting as his legal guardian.

Nowak opposed his placement in the facility, but authorities ignored his wishes because they determined that his mental state precluded him from being able to make lawful decisions about his welfare.

But his placement in the facility was not approved by a court, despite this being a requirement under the Family and Guardianship Code, nor did Nowak undergo an appropriate psychiatric evaluation.

Over the years, Nowak repeatedly but unsuccessfully petitioned the court to amend the incapacitation order issued against him.

He could not leave the nursing home because Polish law provided no mechanism for judicial review (performed ex officio or upon request) of a totally incapacitated person’s institutionalization at the request of their legal guardian.

Judgments

In 2012, the European Court of Human Rights ruled that Nowak’s placement amounted to a violation of Article 5 of the European Convention on Human Rights (right to personal freedom). The case before the ECtHR was argued by lawyers of the Strategic Litigation Program of the Helsinki Foundation for Human Rights (HFHR).

Despite this ruling, Nowak remained in a nursing home because of the Polish Parliament’s delay in adopting a law that would amend the existing defective regulations, a fact that was communicated by the HFHR to the Council of Europe’s Committee of Ministers.

Even the judgment of the Constitutional Tribunal, issued on June 28, 2016, which considered the rules on placement and extending placement of legally incapacitated persons unconstitutional, changed nothing in the case.

Notably, these rules are still in effect, although the government started working on their amendment in September 2016.

In April 2016, a regional court changed Nowak’s status to partial incapacitation, but this did not result in his immediate release from the nursing home.

HFHR intervenes

In April 2017, the HFHR sent a letter to the director of Nowak’s nursing home, informing him that guardians of partially incapacitated persons cannot independently decide on their institutionalization.

A partially incapacitated person may be placed in a nursing home, but only after an involuntary placement order is issued by a court, which is done under the same procedure as that which is applied to the placement of persons with full capacity to make lawful determinations.

As no such order was issued in Nowak’s case, there were no legal grounds for his involuntary placement in the nursing home. As Nowak informed the HFHR in a letter, it was only after this intervention that he was allowed to leave the home and return to his family.

Rights violations common

At the beginning of July 2017, the ombudsman prepared a report after the National Torture Prevention Mechanism carried out inspections of 146 nursing homes.

The ombudsman’s report revealed several systemic problems with the operation of nursing homes in the country.

The report shows that existing regulations only govern the rules for compulsory placement at a nursing home but, crucially, do not include the obligation on administrators to conduct periodic and systematic reviews of the legitimacy of continued stay at a facility.

Another problem identified in the report, which is titled "Nursing home residents’ rights," is that it is difficult for the residents to leave the facility, resulting in severely limited contact with the outside world, and they face restrictions on the use of their own money.

These practices are enforced in various ways, from simply discouraging residents from leaving the facility to locking the exits.

More and more incapacitated people

The most serious problem, however, is the situation of fully incapacitated persons. Although under the law this procedure aims to help the person involved to deal with personal matters, in practice it leads to the deprivation of any autonomy and influence on one’s own life.

The scale of the phenomenon is worrying: within the last 10 years, the number of incapacitated people in Poland has doubled.

More and more often, the only reason for the limitation of rights is a person’s age. In 2015, nearly 14,000 new applications for incapacitation were submitted, 9,000 of which were accepted.

The number of nursing homes is also growing. According to 2015 data, there were 873 such facilities in Poland, 90 more than in the previous year.

In order to not repeat cases such as that of Jan Nowak, the law must change.

*His name has been changed for this story