2011: Restrictions of freedom
Involuntary internment is covered by article 397a-f of the Civil Code (part of the guardianship measures). In the revised law on guardianship measures (droit de la protection de l’adulte) which was adopted by the Parliament in December 2008 and comes into force on 1 January 2013, it is covered by the articles 426 to 439 of the Civil Code. There have been some amendments of the terms, the procedure and competences.
The conditions for involuntary internment
According to article 397a, a person can be placed or retained in an appropriate establishment against his/her will if due to a mental disorder, weakness of the mind (“faiblesse d’esprit”), alcoholism, drug addiction or serious neglect the necessary personal assistance cannot be provided in any other way. The burden of the individual on his/her entourage can also be taken into consideration.
There is no definition of what is an appropriate establishment. According to one part of the doctrine the involuntary admission of people with dementia into residential care has to respect the rules governing involuntary internment. Others say that in this case, this person must have a guardian (i.e. a tuteur ou curateur) who decides for him or her. The new law uses the term institution, which also means residential care. There should no longer be any doubt about the applicability of the rules of involuntary internment.
The procedure for involuntary internment
Involuntary internment is determined by cantonal law. The new law stipulates more regulations at federal (Confederation) level. The decision regarding internment is taken by a tutelary authority in the place of residence of the person concerned or in case of emergency by a tutelary authority in the place where the person is currently staying. In case of emergency or mental disorder, the cantons can appoint other appropriate authorities (i.e. doctors) to take care of the involuntary placement (art. 397b). According to the new law, the Cantons can appoint doctors to order involuntary internment but only for less than 6 weeks (new art. 429 of the Civil Code).
The tutelary authorities of the place where the person is situated and other offices designated by cantonal law must inform the tutelary authorities of the person’s place of residence whenever a person who has been declared legally incompetent is placed or retained in an establishment (art. 397c).
The person for whom the measure is intended must be informed of the reasons for the measure and informed in writing of the possibility to appeal to a judge against being retained or the rejection of a request for liberation. Decisions concerning adults with mental disorders can only be taken after experts have been consulted. If expert opinions were already requested during the first court hearing, the higher courts are not obliged to obtain them again (art. 397e).
Judges follow a simple and rapid procedure. If necessary, they provide the person for whom the measure is intended with legal assistance. This person must also be heard by the judge (le juge de première instance) (art. 397f).
The duration of involuntary internment
The person who has been placed or retained against their will must be released as soon as the reasons for placement/retention cease to exist (art. 397a).
If the decision for placement or retention in an establishment was made by a tutelary authority, that authority can end the measure. In other cases, the decision to end involuntary placement/retention is made by the establishment (art. 397b).
The right to appeal and suspension of the ruling
The person concerned or a person who is close to him/her can appeal to the judge within 10 days after having being informed of the decision (art. 397d).
In the new law on guardianship measures there are rules at confederation level covering the deprivation of liberty. Until now, there have only been cantonal laws regulating these measures (e.g. in the Canton of Bern) which nevertheless respect limits stipulated in the Swiss Constitution. There are also guidelines written by the Swiss Academy of Medical Sciences (www.samw.ch).
In the new law on guardianship, coercive measures (measures restricting liberty/mobility) are covered by art. 383 to 385 of the Civil Code. It concerns people who stay for a long period of time in “Wohn-oder Pflegeeinrichtungen” (i.e. in medico-social establishments or homes).
The term “limitation de la liberté de movement” (measures restricting liberty/mobility) is broad and concerns also locking doors, electronic surveillance, bed rails to prevent falls etc. The use of sedation is not covered by this law as that would be covered by rules governing the use of medication.
According to article 383 of the new law, a person’s freedom of movement can only be restricted if less restrictive measures have failed or seem insufficient and provided that this restriction serves to prevent a serious danger or threat to the life or physical integrity of the person concerned or of a third party. Such measures can also be used in order to stop a disruption to community life. The person concerned must be informed beforehand of the nature of the measure, the reasons for its use, its probable duration and the name of the person who will be responsible for his/her care during its use. The measure must be stopped as soon as possible and its continued use assessed at regular intervals.
Article 384 of the new law stipulates that a protocol must be established in which the name of the person who ordered the measure is indicated as well as the purpose, type and duration of the it.
According to article 385 of the new law, the person concerned or somebody who has his/her close interests at heart, can at any time make a written appeal against the measure to the authorities for the protection of the adult of the institution concerned. If the said authority finds that the measure does not correspond to the law, it may lift the measure or order another measure.
There are several articles in the Swiss Penal Code of 21 December 1937 RS 311.0 which address the issue of abuse.
Article 1223 of the Penal Code covers serious bodily harm whereby a person intentionally injures a person to the extent that that person’s life is in danger. It also includes intentional actions which result in serious harm to the victim’s bodily integrity or his/her physical or mental health.
Article 1233 covers other harm to a person’s physical integrity or health. It is further stated that the sentence would be more severe in cases where the victim was unable to defend him/herself (e.g. a child for whom the person was responsible) and/or where the perpetrator was the victim’s spouse or partner. Presumably, this would also apply in the case of a person with dementia for whom the spouse was the guardian.
Assault which does not result in bodily harm or damage to the victim’s health may result in a fine if reported (art.1263). Legal proceedings may be taken automatically if the perpetrator is the victim’s spouse or partner.
Physical harm or damage to a person’s health caused by another person’s negligence may be punished by a fine and up to 3 years’ imprisonment if reported. If the damage/harm is severe, legal proceedings are automatically taken (art. 125).
Endangering someone’s life or health is covered by article 1274 of the Penal Code. It states that anyone who, whilst being responsible for the care of another person who cannot protect him/herself, puts that person’s life in danger, seriously endangers his/her health or abandons him/her to such a risk, can be sentenced to five or more years’ imprisonment or a fine. If a person unscrupulously endangers another person’s life, the possible sentence is the same but it is covered by article 1294.
There are no specific rules for people with dementia with regard to driving. All drivers over 70 years old have to have a check every two years. If a doctor has doubts about a person’s capacity, s/he has to inform the administration. Then the driver has to take a test. However, there are no common rules for this test that are applicable in all Cantons.
The legal basis for this can be found in the Federal Law on Road Traffic of 19 December 1958 RS 741.01 (article 14.4 was introduced in 1975) and in the “Ordonnance du 27 octobre 1976 réglant l’admission des personnes et des véhicules à la circulation routière (Ordonnance réglant l’admission à la circulation routière, OAC”.
Art. 14 par. 4: Any doctor can report to the medical surveillance authorities, as well as the authorities responsible for issuing and withdrawing driving licences, any person who is not capable of safely driving a motorised vehicle due to a physical or mental illness or infirmity or due to drug addiction.
According to article 16c, it is considered an offence for person to drive a motorised vehicle if s/he is incapable of driving because of drugs, medication or other reasons. Article 16d further states that a driving license can be withdrawn for an indefinite period of time if a person, due to his/her mental or physical aptitudes, is unable or no longer able to drive a vehicle safely.
Article 271 (lit. b of the OAC) further states that the subsequent medical control carried out by a "médecin-conseil" concerns people over the age of 70 and those who have been seriously injured in an accident or who are suffering from a serious illness.
 This is a doctor who is employed by the State and has certain powers of supervision/control which include that related to the assessment of driving capacity. However, it can also be the family doctor, which can be a problem because of their long-lasting relation.
Last Updated: Wednesday 14 March 2012