Who can request a protective measure for the persons with psycho-social and intellectual disabilities relocated from Bihor County

In the context of the widely reported case concerning the relocation of 409 vulnerable persons from Bihor County (Ministry of Labour press release), I considered it useful to share my own experience as counsel for a psychiatric hospital in a somewhat similar situation that occurred three years ago in Ilfov County, publicly known as the „Homes of Horror” scandal.

Time will pass and the Bihor scandal will gradually fade from public memory, just as the earlier one did, yet the protected persons will remain for a long time in those centres or hospitals if the representatives of the social centres where they were relocated do not take legal action.

Therefore, I strongly recommend that the institutions or social service centres with legal personality where the vulnerable persons from Bihor were relocated initiate legal proceedings for the establishment of a protective measure, under Law 140/2022, by reference to Article 165 of the Civil Code in conjunction with Article 111 of the Civil Code.

Once the court is seized, the protected person will be assigned a court-appointed lawyer, which relieves the authority that filed the application of certain obligations during the proceedings, as these are taken over by the court-appointed lawyer.

Who can take legal action?

The question is who may bring the need for a protective measure to the court's attention, for a person who would be at risk in the absence of such a measure. At first sight, the law provides that it may be requested by the spouse or relatives, by relatives by marriage, or by the person living with them.

But what happens if this category does not initiate the proceedings, either because it has no interest — as long as the patient is in a centre — or for any other reason? This often happens, and the authorities have no effective means of compelling family members to act.

Article 165 of the Civil Code supports us, indicating who else may request a protective measure: „The establishment of judicial counselling or special guardianship may be requested by the person in need of protection, by their spouse or relatives, by relatives by marriage, by the person living with them, as well as by the other persons, bodies, institutions or authorities provided for in Article 111, which applies accordingly.”

At the same time, Article 111 of the Civil Code, which lists the categories of persons required to notify the guardianship court, mentions in the last category, under letter d), the prosecutor, the local public administration authorities, the protection institutions, as well as any other person.

By correlating the two articles, I consider that both medical institutions and social centres with legal personality have standing to seize the court regarding the replacement or establishment of a protective measure for the vulnerable persons relocated from Bihor County.

Practical experience from 2023

Returning to the 2023 situation, I personally filed such applications with the court, seeking either the replacement of the guardian — for reasons such as a conflict of interest between the guardian and the protected person admitted to the psychiatric hospital, arising from the criminal case opened following the „Homes of Horror” scandal — or the replacement of a guardian who failed to fulfil their obligations towards a protected person in long-term chronic hospitalisation, or even the establishment of a protective measure (special guardianship or judicial counselling under Law 140/2022) for a person whom the hospital representatives (medical staff, social worker, etc.) considered to be at risk in the absence of such a measure.

It should be noted that in all these situations, without exception, the hospital on whose behalf I drafted and filed the respective applications was recognised as having standing.

Practical aspects

• Protected persons benefit from court-appointed legal assistance, without the need for an express request.
• The application is exempt from stamp duty, given its subject matter.
• The competent court is the one in the jurisdiction of the social centre or hospital where the protected person is admitted.

Hoping that the information in this article will make a contribution, however small, both to the vulnerable persons and to the representatives of the social services where they were relocated, I remain fully at your disposal.

Sincerely,
Laurențiu Tudorache, Attorney at Law