Human Rights Watch Submission to the United Nations Committee on the Rights of Persons with Disabilities regarding Croatia

However, there are laws and practices still in place in Croatia that prevent persons with disabilities, particularly those with intellectual or psychosocial disabilities, from exercising their human rights.

In your upcoming adoption of list of issues on Croatia, Human Rights Watch urges you to question the government of Croatia about the following key issues:

1.           Denial of the right to legal capacity;

2.           Obstacles to enjoying the right to independent living and community participation;

3.           Involuntarily detention and forced treatment of people with disabilities.

This document does not review every issue relevant to the abovementioned topics. Rather, it underscores several concerns that figured most prominently in our research, and that significantly influence the degree to which persons with disabilities are able to exercise other rights, such as the right to education, the right to work, and the right to health, among others.

Right to legal capacity (Article 12)

Croatia has made some progress in recognizing the right to legal capacity for persons with disabilities. The Family Act, adopted in June 2014, abolishes full deprivation of legal capacity and full or plenary guardianship. In the next five years, courts in Croatia are expected to review all decisions on deprivation of legal capacity with the aim of restoring partial or full legal capacity. Currently, more than 18,000 persons with intellectual or psychosocial disabilities are deprived of their legal capacity – out of these, 90% are fully deprived.[3]

However, Croatia continues to allow for limitations in the enjoyment of the right to legal capacity. Courts retain the power to partially restrict legal capacity and place individuals under partial guardianship in order to “ensure the protection of the rights and interests in areas where a person’s legal capacity has been limited by a court decision.”[4]

Self-advocates and experts in Croatia expressed concerns that this provision may result in the Courts granting only few people full restoration of their legal capacity and in other cases specifying large numbers of activities that a person is deemed incapable of undertaking independently and for which a guardian can make decisions, particularly with regard to health care and property. [5] In such circumstances the number, impact and significance of decisions that a person would be allowed to make independently would be so limited that it would amount to de facto full deprivation of legal capacity.

The Family Act combines the concepts of mental and legal capacity: assessing mental capacity and denying legal capacity accordingly. According to the new Act, deprivation of legal capacity to make a particular decision is decided on the basis of an opinion of a “medical court expert” who assesses the health condition of the person concerned and “the impact the health condition has on the ability of the person concerned to protect or endanger their rights and interests of others.”[6]

Neda Mimščević, legal expert in the Association for Promotion of Inclusion who acts as a legal guardian for 18 people deprived of legal capacity, told Human Rights Watch that courts lack the means to verify these assessments and, as a consequence, their decisions rely entirely on medical opinions.[7] Persons with disabilities rarely appear before the court.[8]

Dr. Radmir Rakun, a psychiatrist who is also a medical court expert in the proceedings on deprivation of legal capacity, told Human Rights Watch that the medical assessment often includes also an opinion on whether the person concerned is capable of participating in the court proceedings or not.[9] As a consequence, an individual may be denied the right to legal capacity as a result of legal proceedings at which the individual was not even present.

The Family Act stipulates that “protection of persons with disabilities, if possible, should be secured by other means and measures… before a decision on deprivation of legal capacity and guardianship is made.”[10] But the Law does not specify what alternative protective measures might be.

The Family Act introduces the concept of supported decision-making for persons with disabilities: “there is a necessity to encourage and support people deprived of legal capacity in their enjoyment of the right to community participation and independent decision-making.”[11] However, this approach is flawed for two reasons. The first is that supported decision-making is applied only to people who are deprived of legal capacity rather than as an alternative to it. The second is that this provision, read together with the provision on guardianship for adults (referenced above), could restrict the support to be provided by the guardian.[12]

While the Family Act urges guardians to accept personal desires and attitudes, it also stipulates that personal preferences shall be replaced when they are contrary to the “best interests” of the person in question.[13] The “best interests” are to be assessed by the guardian.

The Family Act allows a person with a disability to appoint a substitute decision-maker (guardian) in case of anticipated legal proceedings on deprivation of legal capacity through a public notary.[14] However, this provision is problematic because it reinforces the notion of guardianship instead of allowing the person with a disability to appoint a support person to help with making decisions.

Based on interviews with people with intellectual or psychosocial disabilities in Croatia, Human Rights Watch found that denial of the right to legal capacity of persons with disabilities continues to limit other human rights including the right to liberty, the right to fair trial, the right to marry and found a family, parental rights, the right to give consent to medical treatment, and the right to chose where and with whom to live.

In your upcoming adoption of list of issues on Croatia, Human Rights Watch urges the Committee to question the government of Croatia regarding the steps it has taken to protect the right to legal capacity and supported-decision making for people with disabilities, including:

• What mechanisms are in place to protect persons with disabilities from abuse, exploitation and/or neglect in situations where their decisions, choices and preferences are substituted with those of their guardians?
• What initiatives are being taken to replace substituted decision-making with regimes of supported decision-making, in conformity with Article 12 of the Convention?
• What steps has Croatia taken in order to build confidence and skills of persons with disabilities so that they can exercise their right to legal capacity?
• What is meant by the concept “protection of persons with disabilities… by other means and measures” now included in the Family Act?
• How will the expected court reviews of decisions on deprivation of legal capacity secure the rights of and prohibit the discrimination against persons with disabilities?
• How will the government ensure that an individual subject to or at risk of deprivation or limitation of legal capacity is able to participate in person in all court proceedings related to that deprivation of legal capacity?

Right to live in the community (Article 19)

The Croatian government has made some progress in implementing the right to community participation and independent living. In 2011, Croatia adopted a National Plan for Deinstitutionalization and Transformation of Social Welfare Homes.[15] To date, 11 of 46 state institutions have begun this process, and as of July 2014, 458 persons with intellectual disabilities and 96 persons with psychosocial disabilities have moved out of institutions and live in the community.[16]

However, persons with intellectual and psychosocial disabilities in Croatia still face barriers to their right to live in the community on an equal basis with others. As of July 2014, more than 6,500 persons with disabilities continue to live in institutions.[17] The Master Plan is limited in scope and does not encompass persons with intellectual or psychosocial disabilities who live in the 24 privately-run but state-funded institutions, denying them the choice of where and how to live. [18] Psychiatric hospitals, run by the Ministry of Health, which provide long-term housing to persons with psychosocial disabilities on the basis of an agreement with the Ministry of Social Policy and Youth, are also not included in the Master Plan.

The plan also does not include persons with intellectual or psychosocial disabilities who are placed in so-called “family homes”[19] (designed for up to 20 people and run by private individuals), and “foster families for adults” (where adults with disabilities are placed without their consent and with limited interaction with the community).[20] The Law on Social Welfare considers family homes and foster homes for adults as non-institutionalized community living arrangements, but based on its research Human Rights Watch considers that they might amount to institutionalization if residents are not placed there by choice, they are closed to outsiders, and they restrict interactions between residents and the community.[21] According to the national Master Plan, the Croatian government considers these homes as preferred forms of non-institutionalized community living arrangements, creating a real risk that people with disabilities will be moved from larger institutions into these homes without consent.[22]

Individuals with intellectual and psychosocial disabilities who live in institutions that are part of the de-institutionalization plan face barriers to their right to community living and participation. First, they continue to be subjected to an assessment by institution staff on whether an individual is “ready to live in the community.”[23] Persons with disabilities have the right to choose their place of residence and should not be obliged to live in a particular living arrangement without their consent because they did not pass the “readiness” test. Assessing individual’s needs and strengths should serve only as an assessment on the kind of support and assistance that is necessary to make available to the person.

Second, according to the Law on Social Welfare, guardians still retain the right to make decisions on where and with whom people stripped of legal capacity can live. According to directors of three Croatian institutions, an estimated 90 percent of people with disabilities in each of these three institutions are deprived of legal capacity.[24] Finally, there is limited community housing and support for people with disabilities even if they are permitted to leave an institution.

People with psychosocial or intellectual disabilities in Croatia told Human Rights Watch they have no real choice in deciding their living arrangements once they leave an institution. They usually live in community living arrangements established and monitored by the institution and continue to receive assistance and service from the institution. Furthermore, lack of financial resources limit the ability of persons with intellectual or psychosocial disabilities to live independently on their own as opposed to community living arrangements established by institutions or NGOs. Those who do live independently have limited access to daily living support – such as entitlements (financial assistance) or in-home assistance (service of help and care at home). Croatia’s personal assistance program that is designed to help persons with disabilities in their home, to facilitate participation in the community and help with financial matters, continues to benefit only persons with severe physical disabilities.[25]

While physically moving from an institution to an apartment in the community is of enormous importance for persons with disabilities, the right to live in the community involves having choice and control over their lives and has an impact on so many other rights. [26] Under the CRPD, persons with intellectual or psychosocial disabilities should be able to go to school, to work, access healthcare in the community, and enjoy leisure activities on an equal basis with others.

In Croatia, workplaces and services continue to be inaccessible for persons with intellectual or psychosocial disabilities. Persons with intellectual or psychosocial disabilities who have been declared unfit to work by the Croatian Pension Fund are legally prohibited from working and completely excluded from the sphere of employment.[27] In addition, the Croatian social protection system creates disincentives for persons with disabilities to work: for example, people with disabilities who pursue a full-time job are ineligible for community-based housing. Lack of access to or segregated education, stigmatization and discrimination makes it very difficult for people with disabilities to obtain employment.[28]

Access to healthcare in the community continues to be a challenge for many: persons with intellectual disabilities who have moved to apartments usually have to continue to go to see doctors at an institution. The Croatian Ombudswoman for Persons with Disabilities has documented that not even minimal progress has been made in the development of outpatient treatment and improving the quality of health care for people with psychosocial disabilities, which leads to multiple hospitalization.[29]

In your upcoming adoption of list of issues on Croatia, Human Rights Watch urges the Committee to question the government of Croatia about:

• Why non-state institutions, psychiatric hospitals with long-term residents, so-called “family homes” and foster homes where adults are placed without their consent are not part of the deinstitutionalization process and about the government’s plans to provide more community-based living choices for people with disabilities, in line with Article 19?
• What steps they have taken to encourage persons with disabilities to live independently in the community and about the support it provides for people with disabilities who live independently in the community?
• What measures have been undertaken to allow persons with intellectual and psychosocial disabilities to have access to the personal assistance program?
• What measures have been adopted by Croatia at the local level to introduce inclusive community services, and how persons with disabilities have been involved in these measures?
• What steps, if any, is the government taking to reform other laws that deny persons with disabilities their right to legal capacity, including the social welfare law that permits placement in institutions without consent?

Involuntary detention and forced treatment of people with disabilities (Arts. 12, 14, 15, 17, 25)

In Croatia, persons with disabilities who have been deprived of their legal capacity can be placed in institutions – social welfare homes, foster homes and family homes – without their consent and without a possibility to challenge their placement. According to the Croatian Law on Social Welfare, placement in an institution is considered a social benefit, a “right” and a guardian’s consent for placement can substitute for the consent of an individual who is deprived of legal capacity.[30] The Law does not provide for a judicial supervision of such placements nor is there any provision in the Law according to which a person could challenge such placements.[31]

Placement in psychiatric hospitals in Croatia follows a different process. Persons who are currently placed in psychiatric hospitals in Croatia have been placed either a) voluntarily at their own request, b) involuntarily but with the consent of a guardian, or c) forcibly via court proceedings initiated by the hospital where the person is placed.[32] According to the Mental Health Law – “Law on Protection of Persons with Psychosocial Disabilities”[33] the last option involves a periodic review by a court; placements by a legal guardian are not considered “involuntarily” and such cases are therefore not referred to a court for review.[34]

In July 2014, the Croatian Parliament was considering amendments to the Mental Health Law, which would introduce obligatory review of all future involuntary placements in hospitals by the Ombudsperson for Persons with Disabilities with the possibility of referral by the Ombudsperson to the courts for judicial review.[35] According to the proposed amendments to this law, a guardian continues to have a right to give consent to placement in psychiatric hospitals.[36] However, these placements are not considered to be “voluntary” and psychiatric hospitals will now be obliged to inform the Ombudsperson for Persons with Disabilities, who is then expected to review such placement.[37] In case the Ombudsperson is concerned with a placement without consent, Ombudsperson will inform a court which will then initiate judicial proceedings on involuntary hospitalization.[38] Conditions for involuntary hospitalization and forced confinement in psychiatric hospitals continue to be justified if “a person with severe psychosocial disability, because of the disability, seriously and directly endangers his or her own or someone else’s life, health or safety.”[39]

On consent to treatment, the current Croatian mental health law allows a guardian to give consent if the treatment is in the “best interest” of the person concerned. [40] The proposed amendments to the Mental Health Law, even though they keep the “best interest” test provide that “people with psychosocial disabilities can be subjected to medical treatment only with their ​​written consent.”[41] However, proposed amendments retain that mental capacity to give consent must be determined in each case.[42] In other words, a person with psychosocial disability despite having full legal capacity could still be subject to treatment without consent. Human Rights Watch is concerned how Croatia will ensure that existence of a psychosocial disability will not justify the presumption that a person lacks the capacity to provide informed consent for treatment. For example, when Human Rights Watch asked the director of Lopača Psychiatric Hospital if persons in the hospital are asked for informed consent before medical treatment is undertaken, he explained, “I disagree with you whether they want or don’t want to take medications. Medication is obligatory. All people in this hospital are on medication.”[43]

Electroconvulsive treatment in Croatia is currently allowed without the consent of the person concerned.[44] The new amendments to the Croatian mental health law prescribe that electroconvulsive treatment cannot be administered without the consent of the person and there are no exceptions to this rule.[45]

In 2010 and 2014, Human Rights Watch documented abuses of the rights of persons with disabilities in institutions and Lopača Psychiatric Hospital, including many cases of prolonged detention without consent, treatment without consent, prolonged seclusion, and the use of physical and chemical restraints.

Residents at the Lopača Psychiatric Hospital who were interviewed by Human Rights Watch told how they were placed there without their consent, forced to take medication, work, and spend considerable time in seclusion rooms and have experienced use of restraints – both physical and chemical. Current Mental Health Law in Croatia prescribes that restraints will be used only in exceptional cases “to remove imminent danger arising from the behavior of the person concerned and which seriously and directly endanger the person’s life or health or life and health of other persons.”[46] However, during a visit to Lopača Psychiatric Hospital in May 2014, most of the people Human Rights Watch saw who lived there appeared sedated. Currently, there are no official guidelines on the use of restraints in Croatia,[47] allowing for broad discretion on the use of physical and chemical restraints and seclusion by healthcare staff in psychiatric hospitals. The United Nations Special Rapporteur on Torture’s 2013 report on abuses in health care settings states that any restraint on people with mental disabilities, including seclusion, even for a short period of time, may constitute torture or ill-treatment.

In addition, Human Rights Watch observed that restraints are used also on persons with intellectual disabilities who live at the Center for Rehabilitation Stančić in Croatia. As the mental health law applies only to people with psychosocial disabilities it is not clear on what legal basis are persons with intellectual disabilities restrained.

Human Rights Watch urges the Committee to ask Croatia what measures they have taken to ensure that all persons with disabilities enjoy their right to informed and consented medical treatment, their right to liberty and security of persons and that no person is deprived of their liberty on the basis of their disability, including:

• What measures have been adopted to ensure that health care services, including all mental health care services, are based on the free and informed consent of the person concerned? Is there an oversight mechanism to protect people with disabilities from forced medication to control their behavior?
• What actions has the Croatian government taken to abolish any legislation, including the Social Welfare Act, that permits the deprivation of liberty of persons with disabilities on a discriminatory basis?
• How many people are currently detained under the 1997 Law on the Protection of Persons with Psychosocial Disabilities on the basis of a guardian’s consent and what steps have been taken to review all cases of persons with disabilities who are deprived of their liberty in hospitals and specialized institutions?
• What guidance has been issued on use of seclusion rooms and what measures have been adopted to replace seclusion in the treatment of patients?
• What measures are being taken to prevent chemical, physical and mechanical restraints in psychiatric hospitals and institutions?
• What is the legal framework for the restraint of people with intellectual disabilities?

We hope you will find the comments in this letter useful and would welcome an opportunity to discuss them further with you. Thank you for your attention to our concerns, and with best wishes for a productive session.