Court recognizes forcible holding person in psychiatric facility by guardian’s consent unconstitutional

The Constitutional Court of Ukraine has ruled that forcible holding of an incapacitated person in a psychiatric facility by guardian’s consent is a disproportionate restriction of the constitutional right to liberty and safety of person.

Thus, the court granted the request of the Ukrainian Parliament Commissioner for Human Rights to recognize that Part 1 of Article 13 of the Law “On Psychiatric Care” (admitting to or holding of a person in a psychiatric facility) contravenes Article 29 of the Constitution of Ukraine (right to liberty and safety). The Court’s ruling has been published today.

The Commissioner reasoned her request saying that “hospitalization of an incapacitated person without his/her consent when he/she cannot give such a consent because of health condition to a psychiatric facility, which such a person cannot leave at any moment on own will, equals, according to paragraph 1 of Article 5 of the 1950European Convention on Human Rights, to confinement because a person is kept in a confined space for a long time without his/her consent.”

In turn, the judges stressed that “the established procedure for hospitalization of an incapacitated person to a psychiatric facility at the request or with the consent of the guardian by the decision of the psychiatrist does not provide for judicial control over such hospitalization as legislators actually considered it as voluntary, although an incapacitated person is hospitalized without his/her conscious consent.”

The Constitutional Court considers that such hospitalization should be carried out solely on the basis of a court decision.

“The Constitutional Court of Ukraine believes that such hospitalization by its nature and consequences is disproportionate restriction of constitutional rights of an incapacitated person to liberty and safety of person, so it should be carried out in compliance with the constitutional guarantees of rights and freedoms of person and citizen, taking into account the international legal standards , the legal position of the Constitutional court of Ukraine and solely on the basis of a court decision in accordance with Article 55 of the Basic Law of Ukraine,” reads the ruling.

The judges recommended that the Parliament should bring the legislation in the field of mental health care into line with this ruling.