Indicator 1(D): Does the law respect the choices of people with disabilities about where and with whom they live and which services they receive?

Conclusion:
Whilst the new Civil Code gives greater recognition to the decisions made by people with mental disabilities, the Czech Republic still maintains a system of guardianship and a bias towards substituted decision-making which can be used to invalidate the choices of some people with mental disabilities.

Explanation:
Under the 2006 Social Services Act,^[25] social services are provided to people with disabilities on a contractual basis. This means that a civil contract between a client and a registered social service provider is concluded before the person is admitted to an institution. In principle, this means that people with disabilities are empowered to make decisions about the services they use.

For those who are not under guardianship, the right to choose fully applies. People with mental disabilities can make legal decision by themselves or grant general or specific powers of attorney to a third party. However, in a situation when a person with mental disability has no guardian and an assessment has been made that they should be placed in residential social services, and where it is determined that they lack the cognitive capacity to decide, the Social Services Act permits local authorities to enter into a contract on their behalf.^[26] Social care providers can also initiate placements under guardianship, a situation likely to result in a conflict of interest.

Where a person is placed under guardianship, the right to make decisions about social services is vested in the guardian. However, the new Civil Code^[27] gives recognition and validity to the choices of people under guardianship as long as the choice does not entail any risk of harm.^[28] Anecdotal information suggests that, in practice, social care providers continue to discuss contractual and care issues primarily with the guardian.