...The Czech Ombudsman has issued the opinion that the placement of a person who is deprived of their legal capacity in a care home must be authorised by a court. This ruling awaits review by the Czech Constitutional Court, but will potentially affect over 30,000 people subject to guardianship laws in the Czech Republic, and rather puts into perspective the squealing of courts in England and Wales about having to review a few hundred deprivation of liberty authorisations. According to the Mental Disability Advocacy Centre (MDAC) the Ombudsman issued this opinion on the basis that placement in a social care institution by a guardian, without any means to challenge it, was a violation of human rights. I would love to know more about his legal reasoning, if anyone in the Czech Republic is reading this...
MDAC have previously reported that a ruling by the Russian Constitutional Court found that:
...placement in a social care institution against a person’s will constitutes deprivation of liberty and a restriction on the right to freedom of movement. In a new development of jurisprudence, the court said that a judicial review needs to be carried out before deciding to transfer someone to an institution, and that the review must be attended by the same fair trial guarantees as involuntary hospitalisation. The interpretation of the Constitutional Court has direct application and will require a court order in every case of institutional placement of a person deprived of legal capacity. It requires the legislature to develop procedures for such cases.
Domestically I think we can be rather over-smug about protection of human rights and our mental capacity laws. However both the Czech Republic and Russia seem to be more active than our domestic courts in requiring judicial supervision of placement in institutional care of people said to lack capacity. It is worth bearing in mind that if a person who is said to lack capacity is placed in a social care facility in England or Wales, unless they are subject to the DoLS there are very few sources of scrutiny or accessible mechanisms available for them to have their objections considered. These international rulings appear to apply to adults who are said to lack capacity, whether or not they object to their placement. Meanwhile in the UK, following rulings like C v Blackburn with Darwen, even objections may not trigger any external review of placement in institutional care settings. We may have a better law on paper, but without any source of proper independent scrutiny of placement decisions, and no accessible means to challenge assessments of incapacity and determinations of best interests, it's not at all clear people are much better off here.