Restrictions of freedom
The Act of 29 October 1992 (and subsequent amendments) replaced the Act of 27 April 1884 on the State Supervision of the Mentally Ill. It is known as the B.O.P.Z. A new bill (Care and Force) is under preparation at the moment. This bill deals extensively with involuntary care. The B.O.P.Z. applies in case of internment in a nursing home or a psycho-geriatric ward, in general in accommodation where the doors can be locked. In case of internment in a home for the elderly or a pension etc., the B.O.P.Z. does not apply. Involuntary internment in accommodation where the B.O.P.Z. applies can be realized in three ways: by involvement of a court, a mayor or an assessment committee.
The conditions for involuntary internment
A court may grant an interim order for a person who is suffering from a disturbance of his/her mental faculties to be admitted to and accommodated in a psychiatric hospital. If the person has already been voluntarily admitted, the order would be to prolong his/her accommodation. The order can only be granted on the basis of two conditions being fulfilled:
- That the disturbance of mental faculties constitutes a danger
- That the danger cannot be averted by the intervention of persons or institutions other than a psychiatric hospital.
However, the above two conditions are not sufficient. An order for involuntary internment is dependent on the fact that the person for whom the measure is intended does not consent to being admitted. An order by the court is also needed if the person himself gives his/her consent, but the guardian or mentor is opposed to internment.
The procedure for involuntary internment
A petition for an interim order can be made by the spouse, parents, a blood relation (up to the second degree), a guardian, trustee or mentor of the person concerned. The petition must be made in writing and sent to the Examining Magistrate (public prosecutor) of the competent court, which in most cases is the court in the place of residence of the person concerned. If the petition is clearly unfounded or less than one year has elapsed since a previous request for the same person was rejected and no new facts are stated, the petition may be rejected.
The petition must be accompanied by a declaration made by a psychiatrist who has recently examined the person concerned but who has not been professionally involved in his/her treatment. S/he should nevertheless consult the family doctor and the psychiatrist responsible for the person's treatment. If the person is already in the psychiatric hospital on a voluntary basis, the declaration should be made by the medical superintendent of the hospital. The declaration should provide details of the reasons why internment is required.
If a guardian has been appointed for the person, an extract from the register (as defined in article 391 of Book 1 of the Civil Code) must be provided. In the case of a mentor, a copy of the judgement by which mentorship was established and the mentor appointed must be provided.
Before making a decision, the court hears the parties involved, unless s/he considers that the person concerned is not willing to be heard. If s/he does want to be heard but is not in a fit condition to appear in court, the judge and the registrar visit him/her at home or in the psychiatric hospital if s/he is accommodated there. Unless the person objects, the judge orders the legal aid office to appoint a representative for him/her.
The judge can seek the advice of those who presented the petition, the spouse, the person responsible for care, the guardian, trustee, mentor and the institution or psychiatrist treating or accompanying the person. The judge can also arrange for expert examinations and summon the experts and witnesses. The person concerned and his/her legal adviser have the opportunity to make their viewpoint known.
Once a decision has been made, the registrar sends a copy of the judgement to the person involved, his/her legal representative, the spouse, the person responsible for care, the person who made the petition and the examining magistrate. The family doctor is immediately informed if the interim order has been refused. If it has been accepted, s/he is informed of the judgement and receives a copy of the medical declaration.
It is not possible to appeal to a higher court with regard to the decision concerning the granting of an interim order. Once the decision has been made, it must be executed immediately. If more than two weeks have elapsed since the day it was made, it is no longer valid.
The duration of involuntary internment
The interim order is valid for a period not exceeding six months. After this time, an order must be made for continued accommodation. The court must be satisfied that the disturbance of the mental faculties of the person concerned will still be present after the current interim order has expired. S/he must also be of the opinion that such disturbance will cause danger to the person involved and that this cannot be averted by any other means than the psychiatric hospital.
A petition for continued internment must be accompanied by a declaration by the medical superintendent of the psychiatric hospital in which the person is accommodated.
The application for granting an order for continued accommodation must be made no later than the sixth or fifth week before the end of the period of validity of the current order. The judge can repeatedly grant an order for continued accommodation. However, after five years of continued accommodation, an order for continued accommodation may be made for a period of maximum 2 years' validity. In case of involuntary admittance to a nursing home, prolongation with a maximum of 5 years is possible (art.17, lid 4 B.O.P.Z).
Order for internment by a Mayor
In emergency cases, the major may make a custody order for a person over 12 years of age if:
- this person is causing danger.
- the danger to the person involved is believed to be due to a disturbance of the mental faculties.
- the danger is so immediately pressing that it is not possible to delay internment.
- the danger cannot be averted by any person or institutions except a psychiatric hospital.
The mayor may use the services of the police, who must obtain the support of one or more people experienced in the care of mentally disturbed people.
The police may enter a place in which the person is to be found if this is considered to be necessary for the fulfillment of the task. The major cannot order that the person be detained unless a psychiatrist, preferably one who is not involved in the person's treatment, has provided a written declaration. If it is not possible to obtain a declaration from a psychiatrist, a doctor may examine the person and make a declaration. On admission to hospital, the major shall, if possible, inform the spouse, the legal representatives and the close relatives of the person concerned.
The person who has been interned on the order of the major can request the court to award compensation on the grounds that the order made by the major was unlawful.
Involuntary admittance by an assessment committee
A person over the age of 12, who shows no signs of willingness or resistance in the matter, may be admitted to a care institution on the basis of a statement from a B.O.P.Z. assessment committee. The condition for such admission is that s/he cannot as a consequence of a disturbance of his/her mental faculties maintain him/herself outside an institution. According to Blankman, the majority of Alzheimer patients who are involuntarily admitted to a nursing home or psycho-geriatric ward are admitted on this basis. As long as the person neither resists nor agrees with admission, the committee can admit him/her in accordance with the admission criteria. Should the person resist admission, the involvement of a court is needed.
The rights of people who have been involuntarily interned
The B.O.P.Z contains a whole chapter (Chapter III) on the rights of patients involuntarily accommodated on the basis of a decision of a Mayor, a court or a B.O.P.Z. assessment committee in a psychiatric hospital. In the B.O.P.Z. ‘psychiatric hospital’ includes nursing homes and psycho geriatric wards. The management of a psychiatric hospital is responsible for notifying in writing the spouse, legal representatives and immediate family of the person concerned (the patient) which doctor or other person in the hospital is to have particular responsibility for the patient's treatment. This person must ensure that the patient receives an explanation on this subject on a monthly basis.
The right to complain
The patient has the right to lodge a complaint against the hospital and against non-application of an agreed treatment plan. However, if the inspector in charge of the complaint considers that the complainant is clearly inaccessible to reason, s/he may decide not to follow it up.
According to chapter 7 of the B.O.P.Z, the management of psychiatric hospitals belonging to a certain category are obliged to ensure that patients are supported by a patient's “confidant”. A patient's confidant is a person who affords patients in a psychiatric hospital advice and support at their request in matters connected with their admission to and accommodation in the hospital. Although this person is employed by the psychiatric hospital, s/he acts independently of the management and hospital staff.
Restriction of personal liberty
Freedom of movement in and around the hospital may be restricted on therapeutic grounds. It can also be restricted if those responsible for the patient's treatment consider that this could have serious negative effects on the patient's state of health or that it is necessary in order to prevent criminal acts or disturbances within the hospital (e.g. disrupting internal regulations). In certain circumstances the right to receive visits and to use the telephone can be limited or denied. Any such restrictions must be reported to the medical superintendent without delay.
Restraint and other coercive measures
The administration of treatment against the patient's will is dealt with in the section on "consent to treatment". However, it is interesting to note that article 39 of the B.O.P.Z. allows for the use of coercive measures in certain circumstances. According to this article, certain measures can be taken (other than those which are necessary for carrying out a treatment plan) in order to deal with temporary emergency situations brought about by the patient in the hospital as a consequence of the disturbance of his/her mental faculties. The measures which can be administered are determined by "Orders in Council". According to Blankman, such measures include confinement to one's room, fixation and forced application of medication or liquid food. The use of such measures may not exceed 7 days and must be recorded.
The medical superintendent must notify the patient's spouse and legal representative. Should they be absent, a member of the immediate family should be contacted, and in any case the inspector.
A diagnosis of dementia makes a person ineligible to drive a motorized vehicle. In case of doubt or suspicion that a person is in the early stage of dementia, a specialist assessment is advised which includes a driving assessment.
 Act of 29th October 1992 in replacement of the Act of 27th April 1884 Stb. 96 for the Regulation of the State Supervision of the Mentally Ill
Last Updated: Mittwoch, 14. März 2012