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Austria

Restrictions of freedom

Involuntary internment

Internment in Psychiatric Hospitals or Wards

Under the 155 th Federal Law of 1 March 1990 on the Internment of Mentally Ill Patients in Hospitals/clinics (Internment Law) [1] , a person who is suffering from a mental illness can be involuntarily interned in a psychiatric hospital, clinic or psychiatric ward if s/he presents a serious and considerable risk to his/her own life or health or that of other people. Another provision for internment is that a person cannot be medically treated or cared for in any other way, particularly outside of an institution. In legal terms "internment" includes the holding of a person in a closed area or subjecting the person to any other form of restriction of movement. A closed area includes a ward where the exit is locked, but also any ward where a person has to ask for permission and to be helped by another person such as a nurse to leave.

Voluntary and involuntary internment

Internment can take place with or without the consent of the person concerned. A personal request for internment can only be accepted if the person is able to understand the reason for and significance of internment and can determine his/her will on the basis of this understanding. The request must be in writing and be made in person before admission.

A person can be interned against his/her will if a doctor in the public health service or a police doctor examines the person and certifies that the conditions for internment have been fulfilled. In practice, a hospital specialist re-examines whether the conditions for internment have been fulfilled. The justification for internment must be given in the certificate. At the request of the patient, of his/her legal representative (e.g. patient advocate or guardian) or the attending doctor a further specialist (i.e. psychiatrist) must issue a certificate to confirm that the requirements for internment have been met. Only when both medical certificates make the same statement may the internment be pursued.

Public security services agents can bring a person before a doctor for examination if they feel that internment would be justified. In case of emergency, the person can be interned without prior examination and certification. This can be done on arrival and duly recorded. As soon as a person has been involuntarily interned, the ward manager must notify the Court immediately and provide copies of the relevant medical reports.

The procedure for internment

Although doctors are responsible for the decision to intern a person in a psychiatric institution, judges are responsible for determining in the course of the court proceedings whether or not the decision was legal. The regulations governing the proceedings are as follows.

Within a period of four days a district court judge must hear the patient in person and review the admissibility of internment for the first time. If the internment requirements are met (i.e. mental illness, danger to oneself or others, no other treatment available), admissibility of internment is declared. Fourteen days later a further court review is held. The court summons experts (at least one psychiatrist who is not affiliated with the hospital) who examine the patient and draw up an assessment. In addition, the patient, the patient's advocate, the medical head of the ward and in some instances family members are interviewed. On the basis of the information obtained, the court again decides whether the internment requirements have been met and whether internment is admissible or not. If the mentally ill patient has to stay in a psychiatric institution, the decision is reviewed in court after 3 months, then after half a year and again after one year. The patient's advocate has to be informed about all procedural steps and all parties have the right to appeal against the court decision.

Patient advisors

The first paragraph of the Internment Law states that the rights of mentally ill patients who have been admitted to a hospital/clinic must be especially protected. It is further stated that the human dignity of mentally ill patients must be observed and maintained in all circumstances. The Federal Law of Organised Guardians, Patients’ Advocates, Residential Advocacy [BGBl I 2006/92] is designed to provide the means to protect these rights and the dignity of people who are involuntarily interned.

The patient is represented by the association that is in charge of naming patient advocates. This association is supposed to name patient advocates that it has trained to the responsible court and the responsible psychiatric ward. These patient advocates have been granted the power of representation. The ward manager must inform this person of the identity of the patient's advocate and provide him/her with the opportunity to meet the latter. A person who has been voluntarily interned can also request a patient's advocate.

The patient's advocate must inform the person of intended actions to be taken on his/her behalf and of any other important matters or measures. S/he should also comply with the person's wishes if this would not be detrimental to his/her wellbeing and if it would be reasonable to expect this.

Apart from this mandatory representation each patient also has the possibility of availing him/herself of general patient representation:

Paragraph 11e of the Federal Hospital Establishment Law (KAKuG) of 1957 and subsequent amendments stipulates that the legislation of each "Land" must,

"lay down that independent bodies representing patients shall be available to examine any complaints and on request to look after the interests of patients (patients' spokesmen, ombudsman institutions or similar representation)".

Internment in Residential Homes and General Hospitals

Many mentally ill and mentally handicapped people, who lived in nursing homes or similar institutions, where there was no legal basis for using coercion, nevertheless suffered restrictions of freedom of movement or other coercive measures as part of the daily routine in most of these institutions. As a consequence, on 1 July 2005 a new law came into force, the Residential Stay Law (Heimaufenthaltsgesetz) [2] ). The new law has two central objectives: The protection of residents in nursing homes or other institutions for handicapped persons against restrictions of free movement as well as the support of staff in these institutions when faced with difficult decisions for or against such restrictive measures by providing them with straightforward legal provisions. This law also pertains to restrictive measures that may be taken in outpatient facilities (day clinics or day care facilities, vocational therapy and workshops for people with mental disabilities).

Residential Advocacy in Austria

To secure the implementation of the law a new profession has been created, that of residential advocates. Currently 53 such residential advocates work within the framework of the associations for Guardianship. Their representation encompasses 1,880 homes with 132,151 residential places (31.12.2009). The residential advocates are social workers, professional nurses, but also psychologists, special pedagogues or lawyers. Within the association they underwent special training and have ongoing continuing education. To make the best use of their various professional backgrounds they work together in multi-professional teams. They represent people whose freedom of movement has been restricted. All measures restricting a person’s freedom of movement have to be brought to the attention of the residential advocate. The residential advocate has to follow up this information, visit the residents in the homes and engage in talks. If they consider it necessary they can call in the court to review whether the measure taken is appropriate.

In addition to representing the rights of residents, the residential advocates attempt to engage in close cooperation with the staff of residential homes. In this way, they can serve as focus for the exchange of experience between institutions. In cooperation between residents and all other persons concerned, residential advocates aim at finding alternative solutions to prevent restrictions of free movement.

Admission into a care establishment or home

No one likes to leave their previous home for a care facility. Those affected often react with depression and confusion when they have to yield to their relatives’ pressure or that of doctors and care personnel and express their consent to being admitted to a care home. The provisions of the Law on Guardianship, which have been in force since 2007, also stipulate in §284a of the General Civil Code that an individual or guardian be appointed and that the person affected decides about his/her residence as long as s/he is capable of understanding and making judgements. This means that an individual must be capable of assessing his/her own life situation independent from an existing guardianship measure (e.g. how much care s/he needs and whether there are sufficient financial and personal resources available). Usually, people in need of assistance also require care in a home and their will is thus “diminished”. Apart from these practical requirements that also exist for mentally healthy people, a guardian can decide on the place of residence (and thus also about admission into a care home) if for psychological reasons a person is not (or no longer) capable of assessing the pros and cons of the matter. The guardian’s decision requires preliminary approval from the responsible guardianship court if the proposed change of place of residence is to be permanent. If, however, the person affected still refuses to leave his/her home and if there is also a danger (as defined by the law on involuntary internment), this person may be brought by force to a psychiatric ward but not to a care facility (see 2.1.1.1). Often it is necessary to spend a long time dealing with the affected person’s case. These long periods of time may, however, as the legislator has stated in the amended law on guardianship, also be of great therapeutic importance as otherwise the legitimacy of coercive measures might result in less effort being made to try to persuade someone to accept the proposed measure. [3]

Search to find a missing person

According to § 24 (3) of the Law on Security Police, the security authorities are responsible for carrying out a search for a person who is unable to help him/herself or if s/he constitutes a serious and considerable risk to the life and health of others due to a mental handicap. According to Margarete Blaha [4] , the existence of a mental handicap must be substantiated, e.g. by proof that the person is subject to trusteeship or by a medical certificate. Although mental handicap is specified in § 24 (3) equal importance is given to the inability to help oneself and the possibility of risk. Consequently, it applies to people with dementia.

Coercive measures

Restriction of personal liberty

Unlawfully depriving a person of his/her freedom or restricting his/her personal freedom in any way constitutes a crime according to § 99 of the Penal Code. The prison sentence can be for up to three years. If, however, the deprivation of freedom lasts for longer than one month, if it is carried out in such a way as to entail particular suffering or in conditions which could be linked to extreme suffering, the prison sentence can be from one to ten years.

The Internment Law [5] also addresses the issue of restriction of freedom or movement in any way. Paragraph 32 states that the nature, extent and duration of the restrictive measure (including medication and care) must be proportionate to the need and is in any case only permissible insofar as it is necessary to prevent danger to the life or health of the person restrained or to another person. A person should not be confined to one room. Without special notification of the patient advocate, s/he can only be restricted to several rooms or to particular spatial areas.

More drastic measures such as restricting the freedom of movement to one room or within a room must be specially ordered by the treating doctor, recorded along with reasons and notified immediately to the patient's representative. Restriction of movement within a room includes confining a person to a safety bed, to a straightjacket, fastening or tying a person to a chair or bed and/or administering strong sedatives to prevent a person from moving about. Such measures can only be used as a last resort. In all cases, both the patient's advocate and the person concerned are entitled to take legal action in order to review a restrictive measure.

According to the Residential Stay Law, in nursing homes and similar institutions, all measures ofwhich involve restricting people in their free movement have to be brought to the attention of the residential advocate, who is entitled to take legal action to review all restrictive measures [6] .

Mistreatment/abuse

If a doctor suspects that someone's actions have brought about the death of another or caused grievous bodily harm or if a person who is incapable of looking after his/her interests is mistreated, tortured, abandoned or sexually abused, s/he is obliged to communicate this to whoever is personally affected or to the relevant authorities (§ 54 (4) of the Physicians Law of 1998). In the case of abuse, neglect, torture or abuse of a legally incompetent adult, the doctor should also report his/her findings to the Court. This obligation does not conflict with the doctor's duty to maintain professional secrecy, provided that the potential benefit to the patient in reporting the facts outweighs that of maintaining secrecy. This obligation to make a report also applies if the perpetrator of the abuse is another doctor.

Paragraph 83 of the Penal Code states that it is an offence to cause bodily injury or to damage a person's health, even if this occurs as a result of negligence. Damage to a person's health or injury caused by neglect and as a result of mistreatment would be equally punishable.

The Second Protection against Violence Act of 2009 has a section on persistent perpetration of violence (Paragraph 107b of the Penal Code concerning continued use of violence) which results in the examination of acts of violence in their entirety over a prolonged period of time (rather than in terms of each isolated act) and also covers various forms of maltreatment not resulting in bodily injury such as slaps in the face (United Division for the Advancement of Women, 2011).

Under the same act, a person who is the victim of violence in his/her own home can apply for a court injunction to order the perpetrator to leave the home and not return and this is not restricted to family members. The violent act could be in the form of physical assault, threat or behaviour which threatens the mental health of the victim (Paragraph 382b of the Enforcement Order).

Driving

A diagnosis of dementia does not automatically lead to the withdrawal of a person's driving licence [7] . Section 5 (§ 24 and 25) of the 120 th Federal Law of 1997 on the Driving Licence deals with the withdrawal of, restrictions on and termination of the entitlement to drive.

According to this law, if a person is found to be lacking the capability which was previously a precondition for entitlement to a driving licence or is found to be unreliable when driving, his/her driving licence can be withdrawn. Alternatively, the validity of the licence can be limited by time and by temporal, spatial or material restrictions. This means that a person could be limited to only drive on certain roads, in a particular area, for a certain amount of time or between certain times.

Before a licence can be withdrawn or restricted on the grounds of insufficient suitability for health reasons, a specialist report issued by an official doctor must be obtained. If it is decided to withdraw or restrict a licence, the period of time for which the measure is to apply must be pronounced. If the withdrawal is due to unreliability in traffic, the period should not be less than three months.

References

The UN Secretary-General’s database on violence against women (2011), Summary of the Second Protection against Violence Act 2009. Accessed on 9 February 2011 at:

http://webapps01.un.org/vawdatabase/searchDetail.action?measureId=33129&baseHREF=country&baseHREFId=164

Barth/Ganner (Hrsg),Handbuch des Sachwalterrechts², Wien (2008)

Barth/Engel,Heimrecht, Wien (2004)

Kopetzki,Grundriss des Unterbringungsrechts², Wien (2005)

Strickmann,Heimaufenthaltsrecht, Wien (2008)

[1] Federal Law Gazette 1990/155 in the version FLG 2010/18 = BGBl 1990/155 idF (in der Fassung)BGBl I 2010/18

[2] Federal Law Gazette 1 2004/11 in the version of FLG 1 2010/18=BGBL I 2004/11 idF BGBl I  2010/18

[3] Regierungsvorlage zum Sachwalterrechts-Änderungsgesetz 2006 1420 BlgNR XXII GP.

[4] Information provided in connection with the Lawnet conference on 11 May 1999

[5] 155 th Federal Law of 1 March 1990 on the Internment of Mentally Ill Patients in Psychiatric Hospitals, Federal Law Gazette 1 2004/11 in the version of FLG 1 2010/18=BGBl 1990/155 idF BGBl I 2010/18

[6] Residential Stay Law, Federal Law Gazette 1 2004/11 in the version of FLG 1 2010/18=BGBl I 2004/11 idF BGBl I 2010/18

[7] Information provided by Margarete Blaha in connection with the Lawnet conference on 11 May 1999

 

 
 

Last Updated: mercredi 14 mars 2012

 

 
  • Acknowledgements

    The above information was published in the 2011 Dementia in Europe Yearbook as part of Alzheimer Europe's 2011 Work Plan which received funding from the European Union in the framework of the Health Programme. AE also gratefully acknowledges the support it received from Fondation Médéric Alzheimer for its project on restrictions of freedom and for the publication of its Yearbook.
  • European Union
  • Fondation Médéric Alzheimer
 
 

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