Deconstructing Legal Capacity Reforms in Croatia Piers Gooding, PhD In behalf of Kristijan Gr đ an, SHINE, Croatia

Brief history of time More of people with disabilities (mostly „intellectual” and/or „psychosocial”) and elderly fully deprived of legal capacity Most of people placed in institutions were fully deprived of legal capacity which led to deprivation of their freedom Procedural faults in process for deprivation of legal capacity were proven in many cases that appeared before the ECHR – E.g. The person who instituted proceeding for LC deprivation represented the person during the judicial process, person concerned was not heared before the court, some people even did not know they were deprived of legal capacity; Although majority of protective decisions done by guardians concerned the property issues (approximately decisions per year); sellig or mortgaging, the persons fully deprived of legal capacity were not able to decide on any other aspect of their lives, including: – Decide where to live (see X and Y v. Croatia) – Give a consent to medical treatment – Give a consent for adoption of their child (see X v. Croatia) – Recognize paternity for biological child (see Krušković v. Croatia) Persons fully deprived of legal capacity could be held, against their will, in the psychiatric hospital under the category of „voluntary patients”

Reform of the Mental Health Law Background The Task Force established by the Ministry of Justice in 2012 with aim to harmonize Mental Health Law with the Criminal Procedure Act in aspect of „medical treatment at freedom” only; In 2013 the new Task Force was formed and consisted of lawyers, two psychiatrists and SHINE represetative – Besides need to harmonize MH Law with the CPA the Task Force concluded that emerging changnes in the international law and scope of violations of human rights that happened in Croatia concerning psychiatric patients call for broader scope of changes The Task Force decided to propose novel Mental Health Law that was prepared from March 2013 to November 2013, the public debate held and parliamentary procedure in 2 stages done. The draft law became an Act in June, 2014.

Reform of the Mental Health Law Main changes I The legal capacity disconnected from mental capacity; even if person is deprived of legal capacity the consent for treatment has to be sought if person is able to give the consent The substitute consent for treatment and placement in the psychiatric hospital is still possible (now called „involuntary treatment”), however safeguards are introduced: – For „non protesting” persons, the Disability Ombudswoman would monitor whether indications for placement and treatment in the hospital meets legal stantards; – For „protesting” persons, the hospital is required to inform the Court about the placement of the person so the Court would perform the same procedure as for „forced placement” for persons who are not deprived of legal capacity

Reform of the Mental Health Law Main changes I The substitute consent prohibited for these procedures: – Castration – Electro-convulsive therapy (ECT) – Biomedical research The advance directive for decisions on medical matters introduced into the law (with exception to castration, ECT and biomedical research) The judicial control introduced into the law for the purpose of better protection of restrained patiens (see M.S. v. Croatia no. 2)

Reform of the Family Law Background The substantive and procedural aspects of LC deprivation are regulated in the Family Law; the Task Force for preparing draft law was established in 2012, the SHINE was not directly involved but participated in public debates and occasionally advised the Task Force The draft law became Act in June 2014 and entered into force in September 2014 On January 12, 2015 the Croatian Constitutional Court suspended novel Family Law by saying it was not protective and clear enough when it comes to legal capacity, inter alia.

Reform of the Family Law Main changes The institute of plenary guardianship abolished The scope of decisions that cannot be affected by legal capacity determined: – Recognizing paternity – Giving consent to form extramarital opposite or same-sex unions – Giving consent for adoption (which can be replaced by the court in certain circumstances) – Consenting to dissolve marriage The scope of decisions that can be decided only by the court, with an appeal to the Supreme Court possible – Sterilitazation – Organ donation – Participation in biomedical research – Life sustaining treatments Procedural aspects of partial deprivation of legal capacity significantly improved Advanced directives for some decisions introduced into the law

Conclusion The harmonization of legislation with the CRPD only partially done Legal changes are still subject of debates since they do not seem to be protective enough (abolishment of plenary guardianship heavily criticised); There is an opposition from the biomedical researchers to abolishment of substitute decisions for consenting to biomedical research There is a danger that more conservative governments would bring back the old legal solutions in both laws under the pressure of different lobbies The long-term strategies for engaging broader society in making a pressure towards political stakelolders have to be developed in order to ensure sustainability of legal reforms in line with the CRPD