What are the requirements for lawful involuntarily placement in a mental health care institution?
The decision to place a person in a mental health care institution in the case of mental incapacity is a very serious restriction of physical liberty. It can result in serious anxiety and humiliation.
Human rights state that this is detention. Therefore, such a decision must be carefully considered and it must be lawful. Lawfulness means that the involuntary placement must be allowed by law and is executed in a non-arbitrary way. Whether the placement is truly necessary in the specific case and whether a less severe restriction may be possible must always be considered.
Placement allowed by law
Lawfulness means that the law clearly explains the situations in which someone could be placed in a mental health care institution against his or her will. The law must explain both the grounds of such a placement and provide a fair and clear procedure.
In Bulgaria, a compulsory placement due to mental incapacity or diminished capacity in a criminal case must always be related to the offence, which a person has committed. It must be part of the criminal proceedings and the decision must be made by the court. In Bulgaria, the grounds and procedure for such a compulsory placement is explained in the Criminal Code and the Criminal Procedure Code.
Non-arbitrary placement
Having a law and procedures in place does not always guarantee that the best decision regarding a placement is made. In addition to being allowed by law, the involuntary placement must not be arbitrary. To avoid situations of arbitrary placement, the following things should be considered:
- A person truly is suffering from mental incapacity or diminished capacity, which has been determined by a competent authority and for which there is objective evidence
- A person, because of his/her mental state and the criminal offence they have committed, is a danger to society
- The decision has to be made following a fair and proper procedure as set out in the Criminal Procedure Code
- The compulsory placement decision must clearly state why the person’s condition and the criminal offence committed correspond with the grounds for involuntary treatment
- A person must be suffering from this mental incapacity or diminished capacity at the time of the execution of the order for compulsory treatment; the expertise must not be outdated
- The authorities must not act in bad faith - they must not have hidden or inappropriate reasons for your compulsory placement
- You should be placed in an institution that is truly meant for the treatment of people with a mental disorder or disability. In Bulgaria, this means a psychiatric hospital
What human rights violation may there be?
If your compulsory placement did not correspond with lawful grounds or did not comply with the procedural requirements set out in the Criminal Procedure Code, or was not properly conducted and adequately justified, it can result in a violation of the right to liberty and the security of a person.