Commentary on Article 93. Extension, Amendment and Termination of the Application of Compulsory Medical Measures of the Criminal Code of the Republic of Kazakhstan
1. The extension, amendment and termination of the application of compulsory medical measures shall be carried out by a court upon the submission of the administration of the institution providing compulsory treatment, on the basis of the opinion of a commission of psychiatrists.
2. A person who has been subjected to a compulsory medical measure shall undergo an examination by a commission of psychiatrists at least once every six months in order to determine whether there are grounds for submitting a petition to the court for the termination or amendment of such a measure. In the absence of grounds for terminating or amending the compulsory medical measure, the administration of the institution providing compulsory treatment shall submit an opinion to the court for the extension of compulsory treatment. The first extension of compulsory treatment may be granted upon the expiration of six months from the commencement of treatment; subsequent extensions of compulsory treatment shall be granted annually.
3. The amendment or termination of a compulsory medical measure shall be carried out by the court in the event of a change in the person's mental condition whereby the need to apply the previously imposed measure ceases to exist or the need arises to impose another compulsory medical measure.
4. In the event of termination of compulsory treatment in a psychiatric inpatient facility, the court may transfer the necessary materials concerning the person who was undergoing compulsory treatment to the healthcare authorities for the purpose of deciding on their treatment or referral to a psychoneurological institution in accordance with the procedure established by healthcare legislation.
When imposing a particular compulsory medical measure, the court does not specify its duration, since it is impossible to determine when a person will recover or cease to pose a danger to society.
Part 1 of the commented article establishes the procedure for extending, amending and terminating the application of compulsory medical measures. As established by the legislator, such matters may only be decided by a court on the basis of the opinion of a commission of psychiatrists. This requirement most fully complies with the principles underlying the construction of a rule-of-law state, legality, respect for human rights and democratization in deciding the question of the justification for applying compulsory medical measures.
Part 2 of Article 93 of the Criminal Code establishes the period for examination by a commission of psychiatrists of persons against whom a compulsory medical measure has been applied. The examination must be conducted at least once every six months. This requirement makes it possible, on the one hand, to ensure respect for patients' rights (this period must not be exceeded) and, on the other hand, to adopt an individualized approach to terminating or amending compulsory measures in respect of each patient, depending on their condition (it is not necessary to wait until the expiration of this period). In this case, judicial supervision over the application of compulsory medical measures is established. Following such an examination, on the basis of the petition submitted, the court may terminate or amend the compulsory medical measures.
In the absence of grounds for terminating or amending the compulsory medical measure, the administration of the institution providing compulsory treatment shall submit an opinion to the court for the extension of compulsory treatment. Thus, the grounds for extending compulsory treatment are established. In this case, this indicates that the circumstances that existed at the time of the imposition of compulsory medical measures, as specified in Articles 88 and 90 of the Criminal Code of the Republic of Kazakhstan, continue to exist. The patient's condition has not changed, and they require compulsory treatment. At the same time, it is necessary to take into account not only the condition in which the patient is at the time of the examination, but also to predict their condition in the absence of compulsory treatment conditions. If the patient's mental condition causes concern to the commission, compulsory treatment shall be extended.
The procedure for extending compulsory medical measures has its own distinctive features. Firstly, as indicated in the law, an opinion on the extension of compulsory treatment is submitted to the court. Secondly, the first extension of compulsory treatment may only be granted after six months have elapsed from the commencement of treatment. Thirdly, subsequent extensions of compulsory treatment by the court are granted annually. However, patients undergo a commission examination "at least once every six months."
A person's stay in a psychiatric inpatient facility without regular judicial extensions of the application of a compulsory medical measure is unlawful.
The establishment of a judicial procedure for extending compulsory treatment increases the responsibility of medical professionals for the justification of applying compulsory medical measures to patients and serves as an additional guarantee of protection of the latter's rights and legitimate interests.
The amendment of compulsory medical measures is possible only where the person's mental condition changes to such an extent that the need to apply the previously imposed measure ceases to exist or the need arises to impose another compulsory medical measure.
The process of compulsory treatment does not always achieve the goal of curing a mentally ill person. More often, one encounters persistent changes in mental condition whereby the need for further application of compulsory measures ceases to exist. This does not refer to an improvement in the mental state, but rather to changes that reduce potential dangerousness, for example, by reducing activity or developing physical frailty. During the process of compulsory treatment, the patient's condition may also deteriorate, resulting in an increase in their public dangerousness. This may entail the court amending the previously imposed compulsory medical measure to a more stringent type. For example, compulsory outpatient observation and treatment by a psychiatrist may be replaced with compulsory treatment in a psychiatric inpatient facility of a general or specialized type, as well as compulsory treatment in a psychiatric inpatient facility of a specialized type with intensive supervision.
In the event of an improvement in the mental condition, a person may be transferred by court decision from a psychiatric inpatient facility of a specialized type to an inpatient facility of a general type. Such a decision is possible if the commission of expert psychiatrists issues an opinion stating that the person placed in a psychiatric inpatient facility of a specialized type no longer poses a danger to others.
Thus, the patient's condition may either improve or deteriorate. Depending on changes in the patient's condition, compulsory medical measures may be amended. This makes it possible not only to select a measure appropriate to the patient's condition, but also to change its form during the process of compulsory treatment.
The termination of compulsory medical measures in respect of patients is possible in the absence of a mental disorder associated with the infliction of other substantial harm by these persons or with a danger to themselves or other persons. Thus, the termination of compulsory medical measures is possible upon the patient's recovery. However, in this case, complete recovery is not implied, since this is unlikely; rather, recovery must be such as to exclude the possibility of committing socially dangerous acts.
In the event of termination of compulsory treatment in a psychiatric inpatient facility, the court may transfer the necessary materials concerning the person who was undergoing compulsory treatment to the healthcare authorities for the purpose of deciding on their treatment or referral to a psychoneurological institution in accordance with the procedure established by healthcare legislation.
The mandatory condition for transferring materials concerning a person who was undergoing compulsory treatment to the healthcare authorities is the termination of compulsory treatment in a psychiatric inpatient facility.
Commentary to the Criminal Code of the Republic of Kazakhstan dated 2007, by I.Sh. Borchashvili, Honored Worker of Kazakhstan, Doctor of Law, Professor, Academician of the Kazakhstan National Academy of Natural Sciences.
Date of amendment of the legal act: 02.08.2007
Date of adoption of the legal act: 02.08.2007
Place of adoption: NONE
Body that adopted the legal act: 180000000000
Registration number of the regulatory legal act assigned by the rule-making body: 167
Status of the legal act: new
Area of legal relations: 028000000000
Form of the legal act: COMMENTARY
Legal force: 1900
Language of the legal act: Russian
Criminal Code, Commentaries on the Criminal Code, Normative Resolution of the Supreme Court, Criminal Legislation, Regulatory Legal Acts of the Republic of Kazakhstan.
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