Fundamental Rights situation of persons with mental health problems and persons with intellectual disabilities: desk report The Netherlands

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Fundamental Rights situation of persons

with mental health problems and

persons with intellectual disabilities:

desk report The Netherlands

Authors: Anna van der Zwan, José Smits

Stichting Perspectief, resource centre for

self-determination and inclusion, the Netherlands

august 2012

This report was commissioned by the European Union Agency for Fundamental Rights (FRA) as part of the background material for the Agency’s publications on the fundamental rights of persons with mental health problems and persons with intellectual disabilities. The information, opinions and views in this report are those of its author(s) and the FRA does not bear any responsibility for either the reliability of the information or the views expressed therein.

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Acknowledgement

We would like to acknowledge the following persons and organisations for their contribution to the drafting of this report: Mr. dr. B.J.M. Frederiks, assistant professor health law, EMGO Instituut – Vumc, Amsterdam., E. Noorthoorn, Kenniscentrum GG Net, Warnsveld., Hattem van den Burg, Ministry of Health, welfare and sports, directorate longterm care, The Hague., Trimbos instituut, Utrecht., Agnes van Wijnen, Visie in Uitvoering, Eexterveen., and C. van der Hoeven-Molenaar, Landelijk Platform GGZ, Utrecht.

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EXECUTIVE SUMMARY

There is a contrast between living conditions of people with a disability or mental health problem living more or less independently in society and people with a disability or mental health problem living in institutional, residential settings, albeit in a community.

People with a minor disability or mental health problem living in society are mostly free to live where they like. They are provided with income, care and support. Government policy is to include people with disabilities "as much as possible" into society. The responsibility for inclusion is mainly laid on the shoulders of local municipalities.

Participating more in society is thought to be possible only for people with minor disabilities or mental health problems. Especially where people with intellectual disabilities are concerned, this is the dominant view of organisations of the parents and family of people with disabilities.

People with moderate and severe disabilities and severe mental health problems are considered unable to be included. They are offered a place to live in residential care. This residential care can be provided in large residential settings where people are used to living in groups, but is also provided in smaller group homes in the community. Living in small group homes in the community does not mean people can control their life or choose their own companions.

The introduction of personal care budgets in 1995 has stimulated more self-controlled smaller group homes and has enabled individuals with more severe disabilities to lead an independent life in the community. Yet people with severe disabilities face difficulties living independently as they receive care and support based on the presumption that they live in groups. Those who want to live on their own do not receive enough financial support to do so.

People living in institutional settings can be subjected to restrictive measures. Involuntary admission and restrictive measures are limited by law for people to whom a court order is given or who have consented to undergo such restrictive measures and enforced treatments under certain conditions. Theoretically, such involuntary treatment and restrictive measures can be given only in appointed institutions.

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In reality, many people dependent on long-term care are submitted to involuntary treatment and restrictive measures without a court order or prior consent. The use of restraints has become part of daily routine in certain institutions. The use of restraints is sometimes so extreme that people can live separated and chained for long periods of time. Some 151 people were separated for over a year between 2004 and 2008.

Available statistics on involuntary admission for people with mental health problems show a considerable increase in such admissions. Between 2002 and 2009, the number of people who were involuntarily admitted by court order grew by 40%. There is no clear explanation of this increase.

Two proposed acts – the Forced Care Act and Obligatory Mental Health Care Act – are meant to strengthen the rights of people receiving involuntary care. However, there is concern that procedures in these proposed acts will lead to more people being institutionalised.

People living in large or small homes provided by care providers have the legal status of patient. A doctor or other professional decides the individual care plan. When conflicts arise about the individual care plan, there is no guarantee of access to an independent complaints procedure. The Health Care Inspectorate does not handle individual complaints. The Equal Treatment Commission cannot advise in matters of care or living arrangements. There is no general awareness-raising campaign about rights for people with intellectual disabilities or mental health problems. The Dutch Government has not yet ratified the United Nations convention. A law to ratify the convention has been announced for 2012. There is a general lack of statistics and research on care, support, detention, living conditions, and access to justice for people with intellectual disabilities and mental health problems.

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2.

COMMUNITY LIVING

There are no data available, nor surveys planned, on the number of people with intellectual disabilities or mental health problems living in the community independently or with their families as compared with living in residential settings. It is not known how many people with disabilities live in residential care institutions, hospitals, large or small group homes or how many people with intellectual disabilities or mental health problems live independently. Only estimates are available.

Statistics are available on the financing of care or the number of people eligible for care. As the financing of care does not, as a rule, take into account the type of disability or age of a person, the statistics on financing care do not differentiate on these criteria. Eligibility criteria do take age and type of disability into account to a certain extent, but people may be entitled to temporary care, to different functions or to care provided by care providers and municipality combined, and may appear as care receivers twice or more in statistics. Moreover, different definitions of handicaps are used in various large-scale research and trend reports. It is for those reasons that researchers work with estimates and, in a number of cases, even cannot differentiate between intellectual disability, mental health problems or age groups. 1

Another difficulty in trying to assess how people with intellectual disabilities and mental health problems actually live in the community is that residential care takes many forms in the Netherlands. It can mean living in psychiatric hospitals or large residential institutions, usually at the boundaries of cities or villages. In these large residential settings, people usually have their own bedroom and share living accommodation. Residential care may be small group homes within the community and it can also take the form of providing enough support and care to live in a home of one’s own, although that is exceptional.

1

Among others, Kwartel (2010) poses recently: “we don’t know how many people we have to consider as belonging to the target group, we even don’t know how many persons with a disability are clients of these services.” Kwartel, A.J.J. van der (2011). Brancherapport gehandicaptenzorg 2010. Utrecht, KIWA Prismant.

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The national government does not endorse a formal policy or use specific measures to promote community or independent living for people with disabilities. The policy aim is to make it possible for people with disabilities to live at home and within their communities “for as long as possible”.2

In 2009, a policy measure granted 300,000 Euro to each care provider who would develop smaller group homes for a maximum number of elderly people with mental health problems instead of larger residential institutions. Smaller group homes would in this case accommodate groups of a maximum of 24 people. The government stated that these smaller group homes were not to be considered the preferred option: “It is not an obligatory concept to build small group homes. Diversity should remain”.3

The responsibility for inclusion of people with disabilities is mainly laid on the shoulders of local municipalities. There are no guidelines or directives by the national government. In 2006, local municipalities were provided with a brochure containing non-committal guidelines to include the interests of people with disabilities in local policies.4

The main care and support systems for people who need long-term care are based on the 1967 General Act on Extraordinary Healthcare Costs (AWBZ)5 and the 2006 Social Support Act (WMO)6. Both acts serve people with all kinds of disability and chronic illness.

The General Act on Extraordinary Healthcare Costs is meant to provide care for people with more severe disabilities who are regarded as being dependent on residential care, whereas the Social Support Act is meant to provide for people with less severe disabilities who can be included in society. This distinction is not formal. People with severe disabilities can receive support based on both acts and can choose to live outside residential settings.

People with intellectual disabilities and mental health problems are usually entitled to receive care based on the AWBZ.

2

Schoonheim, J. (2009) ANED country report on the implementation of policies supporting independent living. Academic Network of European Disability Experts (ANED).

3

Letter to Parliament: 25424, nr 94, 2009.

4

VWS (2006). Aan iedereen gedacht? handreiking voor inclusief beleid. (Everybody taken into account? Guidelines for inclusive policy), VWS, Den Haag.

5

1967: Algemene Wet Bijzondere Ziektekosten AWBZ

http://wetten.overheid.nl/BWBR0002614

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The eligibility and financial criteria of this act are based on the assumption that people with intellectual disabilities and mental health problems live in groups in residential care.

National policy sees living in a group of a maximum of six people as being fit for people with intellectual disabilities because this is an imitation of “family life”. However, it allows for groups of up to seven or eight people and up to 10 in older buildings.7 Another argument for group residences is the costs. Living in a group is cheaper. When people with disabilities behave in a way that is disturbing or injurious to themselves or others, budgets may be raised temporarily and with special permission in order to make living outside group arrangements possible. National policy in 2003 was to provide every person living in groups in a residential setting or group homes with a private bedroom and to ensure a maximum of seven to eight group members, requiring improvements to be made for 10,250 places or people. In 2010, the improvement programme was half on its way. The improvements still have to be realised for 4,445 places or people.8

In 1995, the introduction in the Netherlands of personal budgets9 has proven itself to be an instrument that extends the choice to people with disabilities to choose their own living arrangements. The more innovative independent living arrangements and smaller group homes are usually financed with personal budgets. The personal budget system has so far enabled around 200 initiatives by the parents of people with severe disabilities to organise private parent-controlled group homes.10 These 200 private parent-controlled group homes are supported by a private national organisation, the landelijk steunpunt wonen (LSW).11 These parent-controlled group homes are different from other group homes because they were initiated by parents, are controlled by a board of parents and are financed through personal budgets. Financing through personal budgets allows for more flexibility in spending and in choice of personnel.

7 _{College Bouw Zorg 2003: Monitoring Gebouw kwaliteit in de gehandicaptenzorg}_(monitor

quality of buildings in care for people with disabilities). The College is now part of a new organisation: Centrum Zorg en Bouw/ TNO.

http://www.bouwcollege.nl/Pdf/CBZ%20Website/Publicaties/Uitvoeringstoetsen/Gehandicapt enzorg/ut555.pdf

8

Letter to Parliament , Minister Klink of Health Welfare and Sport, 30597, nr 158.

9

Persoonsgebonden Budget PGB: see Schoonheim, J. (2009) ANED country report on the implementation of policies supporting independent living. Academic Network of European Disability Experts (ANED).

10

National organisation of private group homes (landelijk steunpunt wonen) :www.woonzelf.nl

11

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2.1.

Freedom to Choose where to Live

(a) Extent of choice as compared with that of others and trends since 2005

•

People with Intellectual Disabilities or mental health problems

Approximately 152,000 people with disabilities (elderly people who acquired a disability at old age are excluded) receive long-term care. Of this group, approximately 5,000 to 6,000 people have a physical disability. The rest have an intellectual disability and/or behavioural disorder. Of this group, almost 70,000 are entitled to residential care.12 The procedure and criteria for entitlement for long-term care are set out in the 1997 Zorgindicatiebesluit13 (care indication decision) and in the 2011 Beleidsregels AWBZ (policy rules).

Being entitled to residential care does not necessarily mean that people actually live in residential settings. They may have chosen personal budgets, live in larger group homes, small group homes or rent their own apartments and receive intensive care at home provided by care providers.14

Being entitled to residential care may result in lower care budgets than when people are assessed as able to live independently. This is a result of new financial arrangements for residential care under the 2008 Zorgzwaartepakketten (ZZP) (weighed care packages).

Residential care is based on the assumption of living in groups and sharing care budgets. Thus, the resulting care packages and personal budgets based on these care packages can be lower than personal budgets based on individual care assessments.

There is some jurisprudence in cases in which people living independently received lower budgets than before this rule applied.

12

Kwartel, Brancherapport gehandicaptenzorg 2009, Utrecht, Prismant.

13

See for criteria paragraph 2.3 under (b) “Eligibility and Take Up”.

14

Klerk 2007 Meedoen met beperkingen, rapportage Gehandicapten 2007. (Participating with handicaps), Den Haag, Sociaal Cultureel Planbureau (SCP).

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In 2008, the College voor Zorgverzekeringen (College for care insurances) (CVZ) ruled15 that “… a ZZP indication usually means less care at home than would be possible with the same indication in a residential setting”. In 2009, a high court16 decided that in the case of a young girl, an individual assessment of need and support had to be carried out because her right to a residential care package was in this case inadequate to provide her with enough care in her living situation.

People with severe disabilities are more likely to be assessed as being in need of residential care and may receive a lower budget than if they were thought able to live in their own home.

A 2002 study17 revealed that of the 1,000 adults with an intellectual disability included in the study, 40% are living in large residential settings, 30% in smaller residential settings (this may be in the form of residential group homes in society), and 30% at home with parents or other family members.

Of all the people with minor to moderate intellectual disabilities, 92% live in the community. Of this group, 30% lives in a group of four people, 30% with more then four people, 13% live alone, 5% with a partner and 8% live with family.18

As regards people with mental health problems, no comparable data about choosing living conditions are available.

In a pilot of five service providers at 14 locations, most of the people living in group homes in society were told they were not allowed to choose their housemates or where they could live.

15_{CVZ February 2008, 27088373 (28015027}

http://www.cvz.nl/binaries/live/cvzinternet/hst_content/nl/documenten/standpunten/2008/sp0 802+zzp-indicatie+en+extramurale+indicatie.pdf

16

October 2009, Centrale Raad van Beroep (The Central Appeal Court): LJN: BK4423, Centrale Raad van Beroep , 09/4232 AWBZ-VV

17

Klerk 2002, Rapportage Gehandicapten, (Disability Report known as the PSV study), Sociaal Cultureel Planbureau (SCP) in: Aned Country Report on the implementation of policies supporting independent living for disabled people, Academic Network of European Disability Experts (ANED).

18

Cardol, M., Speet, M. & Rijken, M. (2007). Anders of toch niet? Deelname aan de

samenleving van mensen met een lichte of matige verstandelijke beperking. (Different or not really? Participation in community for people with minor or moderate disabilities) Participatiemonitor 2006. Utrecht: NIVEL.

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This concerned people with minor to moderate intellectual disabilities or mental health problems.19

2.2.

Access to Services and Facilities

Offered to the General Population

(a) Extent of Access and any Relevant Trends

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People with Intellectual Disabilities

Most people with severe intellectual disabilities and mental health problems have difficulty accessing services and facilities available to the general population. According to a participation monitoring survey by Nivel20 92% of people with minor or moderate intellectual disabilities live outside large residential settings, but only 27% of people in this group use public transport. Three quarters of people with minor or moderate intellectual disabilities have “daily activities”. This could either be paid, unpaid work or activities in a day-care centre. Of the people in this group who have daily activities, 80% do so in the company of other people with intellectual disabilities. Most of the people in this survey had regular activities in their spare time, and 76% do this in organised groups of people with intellectual disabilities. For 31% of them, the regular activities do not really fit their interests.

19_{Zwan, Anna van der en Eline Noorman (2010),}

Samen werken aan een goed leven.

Eindrapport Project Zeggenschap. (Working together to a good life. Final report project Self-determination) Utrecht, Perspectief (www.perspectief.org)

20

Hoogen, P. van den, Cardol, M., Speet, M., Spreeuwenberg, P. & Rijken, M. (2010). Deelname aan de samenleving van mensen met een beperking.(Participation in society by people with a disability).Participatiemonitor 2006-2008. ISBN 978-90-6905-991-Utrecht: NIVEL.

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Service providers are now offering more and more segregated facilities in the community, which makes people with disabilities more or less out of sight but also brings with it that people with intellectual disabilities hardly really meet people without disabilities - in their homes, their jobs, during leisure activities 21 - , and takes away any need to participate in society.22

People with severe disabilities or severe mental health problems are left out of the above-mentioned survey by Nivel, so no data are available for these groups. It is likely that their participation in society and use of general facilities is lesser as they are more dependent on segregated care in residential institutional settings.23

Other research corresponds with these findings and the mentioned assumptions. People living in the community who receive care report that they have few friends and have a relationship with neighbours that extends only to greeting them. The most important person in their life is the professional who coaches and accompanies them.24

An evaluation cycle at one service provider three times during a period of three years, performed by Perspectief, of people living in five group homes in the community, showed that people with disabilities want to have more friends. Staff members regularly tried but failed to support them in their desires. This failure is attributed to lack of time, but also to the focus on providing care and protection instead of focusing on supporting a person in all aspects of living in and with the community.25

21

Perspectief (2007). Jaarverslag 2006. Utrecht: Perspectief. Perspectief (2008). Jaarverslag 2007.

(Annual reports Perspectief 2006, 2007). Utrecht, Perspectief, kenniscentrum voor Inclusie en Zeggenschap.

22

Schuurman, M., Mensen met verstandelijke beperking in de samenleving. Een analyse van bestaande kennis en aanwijzingen voor praktijk en verdere kennisverwerving. (People with intellectual disabilities in the community. An analysis of existing knowledge and indices for practice and acquiring knowledge). Utrecht, LKNG.

23

Schoonheim J, J. Smits (2010) ANED report in social inclusion and social protection in the Netherlands, nov 2009 www.disability-europe.net

24

Kwekkeboom (red). (2006). Een eigen huis……ervaringen van mensen met verstandelijke beperkingen of psychiatrische problemen met zelfstandig wonen en deelname aan de samenleving. (A home of your own . . . experiences of People with Intellectual Disabilities and with Mental Health Problems) Den Haag: SCP/Avans Hogeschool/PON.

Zwan, Anna van der en Eline Noorman (2010), Samen werken aan een goed leven.

Eindrapport Project Zeggenschap. (Working together to a good life. Final report project Self-determination) Utrecht, Perspectief (www.perspectief.org)

25

Perspectief, overall report of evaluations at provider X, in: Schuurman & Zwan ( 2009) Inclusie, Zeggenschap Support, Garant. (Inclusion, Self-determination, Support: on our route to a welcoming community. Antwerpen-Apeldoorn: Garant.

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The educational system in the Netherlands is largely segregated. Of all pupils with severe learning disabilities, 20% are included in mainstream settings and this percentage is declining. Of all pupils with severe behavioural disorders, a third are included in mainstream settings. Some mainstream schools never admit pupils with an intellectual disability or behavioural disorder. Of those that do, the percentage is not higher than 1.5% in primary education and 0.6% in secondary education.26

Children or their parents can choose between special education and mainstream education. Parents stated in a survey that, in reality, the choice is unfair because mainstream schools can refuse pupils and school and parents share the view that mainstream schools lack support and knowledge to support pupils with disabilities.27

Until 2003, special education could lawfully exclude children with severe intellectual disabilities. It was up to schools to interpret the children’s ability to be educated. Usually schools required a level of understanding that could be observed in children over 24 to 30 months of age.28

The 2003 Pupil-linked Financing Act 29 introduced obligatory central admission criteria to be used by special schools without this minimal requirement.

Until now, the 1969 Obligatory Education Act (Leerplichtwet) 30 relieved parents of their legal duty to send their children to school if their child was unfit to receive education due to physical or psychiatric reasons. A medical doctor, psychologist or pedagogue may give such a statement. An estimated group of 2,500 children with severe intellectual and physical disabilities are still not in school but receive care in residential settings or day-care centres.31

A number of conflicts between schools and parents were brought before the Dutch courts, usually after mediation by independent consultants.32

26

Smits, J. (2010) ANED report on equality of educational and training opportunities for young disabled people in the Netherlands, www.disability-europe.net.

27

Groeneweg, in Federatie van Ouderverenigingen (2006). Inclusief onderwijs: samen naar school. (Inclusive education: together to school) FvO Special, eerste jaargang nr 2, juni 2006. Utrecht, FvO.

28_{Tadema, A. C.}_(2007).

From policy to practice : developments in the education of children with profound intellectual and multiple disabilities, Groningen, proefschrift RUG.

29

In Dutch: Wet Leerling Gebonden Financiering (LGF)

30

Leerplichtwet http://wetten.overheid.nl/BWBR0002628

31

Veen. D. van (2009). Onderwijs en zorg voor ernstig meervoudig of complex gehandicapte kinderen/jongeren van cluster 3-scholen. WEC-Raad / VGN. Utrecht

32

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Courts in the Netherlands do not usually order access to schools in such conflicts, but this attitude seems to be changing. In August 2010, the Equal Treatment Commission33 judged that the refusal of a pupil with a disability should be reviewed as the school had refused a pupil with an intellectual disability without proper investigation. In September 2010, a court in Den Bosch ordered a secondary school to accept a pupil with a mental health problem (PDD-NOS).34

A recent survey by the Coalition for Inclusion states that the educational system in the Netherlands does not meet the requirements of the UN convention on the rights of persons with disabilities as the dual system of special and mainstream schools is willfully maintained by government and school boards.35 The author of the survey, Dr M Schuurman, states that the requirement of participation is not met since 80% of children with a learning disability are educated in special schools. The requirement of accessibility is met only on an individual level – provisions are made for individual students – not on a general level. According to Schuurman, the requirement of non-discrimination is not met since students and parents of students feel they have no real free choice between regular or special schools. A second study36 by the Coalition for Inclusion confirms these conclusions and provides more detailed information on the history of segregated education in the Netherlands and the effects of upcoming legislation that keeps the dual system in place.

Of all people with minor or moderate intellectual disabilities, 18% work in a regular company, 40% work in sheltered workplaces among other people with disabilities, and 35% regularly attend a day-care centre.37 There are no labour statistics on people with severe intellectual disabilities.

33

http://www.cgb.nl/node/15203/volledig. Advice nr 2010-124

34

LJN: BN7161,Voorzieningenrechter Rechtbank 's-Hertogenbosch , 216751 KG ZA 10-554

35_{Schuurman M. (2010),}_{Tekenen en dan……? VN-verdrag voor rechten van mensen met een}

beperking, wat betekent dat voor Nederland. (Sign and then . . . .? What does the UN Declarations on the Rights of Persons with Disabilities mean to the Netherlands?)

Coalitie voor Inclusie, Utrecht, 2010.

ISBN 978-90-817042-1-2 http://vnverdragwaarmaken.nl/images/stories/documenten/Studie-stand-van-zaken-VN-Verdrag.pdf.

36_{J. Smits, 2010.}

Het VN verdrag bepaalt: inclusief onderwijs is een recht voor alle kinderen

(UN treaty states: inclusive education is a right for all children) ISBN 978-90-817042-3-6

http://www.vnverdragwaarmaken.nl/images/stories/documenten/het-vnverdrag-bepaalt-inclusief-onderwijs-is-een-recht.pdf

37

Hoogen, P. van den, Cardol, M., Speet, M., Spreeuwenberg, P. & Rijken, M. (2010). Deelname aan de samenleving van mensen met een beperking. (Participation in society by people with a disability).Participatiemonitor 2006-2008. Utrecht: NIVEL.

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It is clear though that for most people living in residential settings there is no effort to help them find work in companies or sheltered workplaces. A sheltered workplace is limited to people who can produce at least a third of what people without disabilities can produce.

•

People with Mental Health Problems

According to a meta-analysis survey of the findings of four different surveys, among 3,000 people with mental health problems,38 at least 35% of them experience unfulfilled wishes when it comes to having friends, a sense of purpose in life, work or useful activities, and intimate relationships. The researchers state that these findings give a representative image of the state of care and support to people with mental health problems in the Dutch population who need professional care.

According to an inaugural speech by Jaap van Weeghel, professor of rehabilitation and participation at the University of Tilburg,39 only 12% of the 110,000 people with mental health problems who receive care in the Netherlands have paid work. Of this group under psychiatric care, 50% have no other structured daily activity. Most are socially isolated. According to van Weeghel, isolation is as much a result of barriers in society as it is of their mental health problem.

Segregation in the Dutch educational system is also visible in statistics for children with mental health problems.40 Of all pupils with severe behavioural disorders, a third are included. Each year, 2,500 to 5,000 pupils are expelled from school without referral to another school. They are called thuiszitters41 when they have to remain at home without schooling for more then two months.42

38

Kroon e.a, 2009. Zorg en leefsituatie van mensen met ernstige psychische stoornissen. Informatie uit regionale monitors. (Care and life situation of people with severe mental problems. Information from regional monitors). Utrecht, Trimbos Instituut.

39_{Prof.dr. J. van Weeghel: Inaugural speech, Sept 2010 University of Tilburg:}

http://www.sozio.nl/haal-mensen-met-ernstige-psychische-aandoeningen-uit-sociaal-isolement/1023736

40

J. Smits, 2010. Het VN verdrag bepaalt: inclusief onderwijs is een recht voor alle kinderen

(UN treaty states: inclusive education is a right for all children) ISBN 978-90-817042-3-6 ; Smits, J. (2010) ANED report on equality of educational and training opportunities for young disabled people in the Netherlands, www.disability-europe.net.

41

“Thuiszitters” is a generally used term for students who are not (or no longer) welcome in school and so forced to stay at home. The term literally means “persons who are sitting at home”.

42

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The majority of this group of expelled pupils is pupils with behavioural disorders, sometimes combined with minor intellectual disorders.

(b) Concerns

Services are, as a rule, open to all people with disabilities. Individual support to help people with disabilities use public services is available for everybody. National and local policies imply that only people with minor to moderate disabilities, intellectual or mental health problems, are able and should be stimulated to be included in mainstream services. Umbrella organisations such as CG-Raad and Platform VG for the families and relatives of people with intellectual disabilities do not challenge this idea. There is no regular monitoring system. Structural barriers in society and general attitude are therefore not addressed. Living arrangements in the community are not offered on the basis of self-chosen homes and self-chosen housemates. People with disabilities lack choice and control in daily living. Care workers seem unable to help people living in group homes to participate more in the local community.43

2.3.

Support for Meaningful Community

Participation

(a) Nature of Support

The General Act on Extraordinary Healthcare Costs (AWBZ)44 was traditionally reserved to finance residential care where it was linked to residential housing arrangements. Over the years, long before 2005, a wide range of care provisions for people with more severe disabilities were financed through the AWBZ. It includes day-care activities, smaller group homes, and long-term care in homes. People with mental health problems, intellectual and/or physical disabilities of every age can all apply for care based on this act, although maximum budgets differ according to type of disability and age group.

43

Perspectief (2006). Metarapportage Inclusie; Perspectief,(2007), metarapportage

Persoonlijke ondersteuning,; Perspectief, jaarverslagen (annual reports) 2006, 2007., Utrecht, Perspectief.

44

1967: Algemene Wet Bijzondere Ziektekosten AWBZ

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The rising demands made of the 1967 AWBZ act and rising costs led to more stricter eligibility criteria combined with the introduction of the Social Support Act. The Social Support Act is financed and governed by local municipalities. The act aims not only to reduce costs of long-term care but also to provide support to enable as much “participation in local society” as reasonably possible. The provisions based on the 2006 Social Support Act45 can be local transport provisions, aid for household activities, day-care activities and adaptations in homes, such as lifts. The Social Support Act states that people with disabilities are entitled to reasonable provisions such that they can lead the life they would be able to lead had they not had their disability.

Anyone eligible for care based on the AWBZ or Social Support Act may apply for a personal budget to organise their own care. These budgets were introduced in 1995 and are mostly used by people with disabilities to organise personal assistance and living arrangements outside residential care. They have proven to be a strong instrument in realising self-governed small group homes and independent living for individuals with high-level care needs.46

The personal budgets are becoming more and more popular. In 2005, 3.9% of people receiving care opted for a budget. In 2008, 6.4% of people eligible for care chose the personal budget. Of all people eligible for AWBZ, 12% have mental health problems and 12% have intellectual disabilities.Of all people eligible for AWBZ, 9% choose a personal care budget.47 It is not known whether people with intellectual disabilities or mental health problems are under- or over- represented within the group opting for personal care budgets.

The personal care budgets for people with severe disabilities and severe mental health problems have been cut by 20% to 30% since 2009 as a result of a reorganisation in financing long-term residential care.48

45_{2006, Wet Maatschappelijke Ondersteuning:}_{http://wetten.overheid.nl/BWBR0020031} 46

Persoons Gebonden Budget (PGB): see Schoonheim, J. (2009) ANED country report on the implementation of policies supporting independent living. Academic Network of European Disability Experts (ANED).

47

CIZ (Centraal Indicatie Orgaan) (2009), Landelijke indicatiestelling AWBZ 2008. Trendrapportage 2008. http://www.ciz.nl/sf.mcgi?5860&cat=962

48

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The growth of personal budgets for people with less severe disabilities is so rapid that national government decided in July 2010 to put a stop on new requests until at least 2011 and to cut every individual budget by 3%.49 As the inflation rate is around 1.5%, the net cut will be 4.5 % to every budget. For pupils and students with disabilities and mental health problems in primary, secondary and vocational education, a personal pupil-linked budget is available for support during school hours.50

This pupil-linked budget may be combined with a personal care budget, although the personal care budget will be reduced when the pupil-linked budget is granted. Pupil-linked budgets are made available through the Ministry of Education after an assessment by independent educational regional commissions. The personal care budgets are made available through care insurers after an assessment procedure by independent indication commissions (CIZ) provided and financed by municipalities. Moving from one area to another usually implies new assessments. The government plans to abolish the pupil-linked budgets from 2012. The national budgets involved with these pupil-linked budgets will be largely transferred to school in a general lump sum. Schools are free to decide on how to spend this money.

(b) Eligibility and Take-Up

•

Criteria

National eligibility criteria for the General Act on Extraordinary Healthcare Costs (AWBZ) are set by the national government. An independent organisation (CIZ)51 makes all assessments for individuals applying for care or support based on either the AWBZ or Social Support Act (WMO)52 for which procedures and criteria are set in the 1997

Zorgindicatiebesluit (care indication decision). The main criteria are that the necessary care exceeds a duration of three months and the usual care of household members.

49

http://www.rijksoverheid.nl/documenten-en-publicaties/persberichten/2010/06/25/vanaf-1-juli-geen-nieuwe-pgb-s-meer-mogelijk.html

50

Wijzigingswet Wet op de expertisecentra, de Wet op het primair onderwijs, de Wet op het voortgezet onderwijs, de Wet educatie en beroepsonderwijs en de Wet op het hoger onderwijs en wetenschappelijk onderzoek inzake de ondersteuning bij het onderwijs aan zieke leerlingen (ondersteuning onderwijs aan zieke leerlingen)

m.b.t. invoering regeling leerlinggebonden financiering. (Expertise Centres Act or Pupil-linked Budget Act (2002) . http://wetten.overheid.nl/BWBR0014350/geldigheidsdatum_05-01-2011#Opschrift

51

Centraal Indicatieorgaan Zorg, www.ciz.nl

52

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If a person needs constant attendance, they are eligible for residential care. Assessments are based on disabilities and only partly based on individual needs. Personal assistance to participate individually in society is not granted.

Local municipalities set their own criteria for the Social Support Act. The independent body, CIZ, will make the assessments. Personal assistance to participate in individual activities in society is not possible.

If a person is assessed as eligible for support either under the AWBZ or Social Support Act, he or she can opt for a personal care budget.

Children with mental health problems will be eligible for youth care, and assessment will be made by special Youth Care Bureaux. AWBZ Care and social support care in combination is also available, and especially take place when children have a severe behavioral disorder or an intellectual disability.

The criteria for the personal budget in education are set by national government and assessments are made by an independent body. Assessment is based on the type of disability. Individual needs or needs in school may not be taken into account. The budgets for types of disabilities are fixed.

•

Variation According to Region or Age (or Other Personal Characteristic)

Criteria for youth care and Social Support Act Care can vary as municipalities can set their own criteria. There is variation between regions in support for children with mental health problems and support for children in the educational system. These variations are attributed to traditional regional views on the desirability of building special schools and residential care institutions. In regions that traditionally have more institutions and special schools, more support based on both acts and more youth care is provided.

•

Trends

The most significant trend in recent years is the rapidly growing demand for personal budgets. It is seen as an instrument to make more independent living possible as people receiving budgets are freer to decide on how to spend the money so that they are more effectively supported in their individual needs.

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When it comes to the pupil-linked budget in education it is seen as an important instrument to facilitate learning in mainstream schools. National government made cuts on all personal care budgets (up to 30%) and will abolish all personal pupil-linked budgets as from 2012.

The national budgets involved with the pupil-linked budgets will be largely transferred to schools in the general lump sum. Schools are free to decide on how to spend this money. They are lawfully obliged to offer education to pupils with disabilities, but schools are free to decide whether this would be education in a mainstream or a special school. There is no telling yet what the effect on community participation would be of either the cuts to personal care budgets or the abolishment of pupil-linked budgets.

(c)Effectiveness

•

Monitoring Mechanisms/Research

National government commissioned a regular monitoring participation survey of people with disabilities by Nivel (see findings at paragraph 2.2.a). This survey only takes into account people with physical and minor intellectual disabilities. The Social Support Act, in force since 2007, instructed by the ministry VWS, is monitored by SCP53 (see findings at paragraph 2.2.a). People with severe intellectual disabilities living in residential settings are not included in this survey.

•

Concerns

The announced cuts to budgets may lead to reduced support for people with intellectual disabilities in communities and mainstream schools. People with severe disabilities and mental health problems who are considered to be dependent on continuous assistance and who choose to live independently with a personal care budget, have experienced cuts of around 25% percent to their care budgets since 2009.54

The lack of regular monitoring of the effects of policies on people with intellectual disabilities and severe mental health problems is consistent with the view of a majority of policy makers and umbrella organisations of the family of people with disabilities that they are not considered able to be included in the community.

53

http://www.scp.nl/content.jsp?objectid=default:19115

54

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There is felt to be no need to monitor meaningful community participation as this is considered an option out of reach for people with severe disabilities living in residential care.

(d) Restrictiveness and Gaps in Support Provision

Municipalities are allowed to take into account offered, or potentially offered, care, when they provide care under the Social Support Act. This means that support may be refused when a segregated special school is considered to provide care or when residential care would theoretically be available. People with more severe disabilities can thus be excluded from support by municipalities.55

People with moderate and severe disabilities receive care based on the assumption that they can live in groups with other people with disabilities. Individualised budgets are maximised according to the level of costs for group living in residential settings.

When it comes to education, the legal right to be educated has not been made explicit anywhere. Parents have an obligation56 to send their children to school, but individual schools, special or regular, have the legal right to refuse when they feel they cannot provide the proper support.57

55_{The Organisation of Parents of Children with Down’s Syndrome (SDS)}

(www.downsyndroom.nl) has supported parents who experienced refusal of support for this reason. The Amsterdam-based lawyer specialising in disability cases, M. Vermaat, (http://www.woudegraaf.nl/advocaten/mrVermaat.html) has also supported people being refused community support for this reason.

56

1969 Obligatory Education Act (leerplichtwet)

57

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2.4.

Involvement in Decision-Making

Regarding the Design and Provision of

Support

2.4.1.

Involvement of Relevant Individuals in the

Assessment Process

•

Primary decision-maker

Care and support based on the AWBZ and the Social Support Act (WMO) are assessed by independent organisations that train their own professionals to assess. Usually medical advice is needed in the assessment process. This can be from a person’s own doctor or an independent physician.

•

Consultation and Involvement

People with a disability, and if need be, family members, can be consulted. Usually people with disabilities ask for support and their initial request serves as consultation.

After people are found to be eligible for support, usually the care provider takes the decisions on what care or support and conditions are needed. The care provider is responsible for individual plans and is permitted to determine the method of client consultation.

People can opt for a personal care budget if conflicts arise with a care provider or if people want full control over the design of support.

•

Opportunity to Challenge and Access to Independent Advocate

A decision can be challenged before a civil court. People who lack sufficient income have a right to compensation for the costs of hiring a lawyer. There are no data available on the number of people from both target groups using this support.

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2.4.2.

Choice and Control of Relevant Individuals over

Delivery of Support

•

Extent of Control

People with disabilities who receive care combined with living arrangements, whether in a residential setting, small group homes or even independent apartments, have the legal status of “patient” under the Medical Treatment Act.58 As such, the care provider will consult the client and their family on the treatment plan. The decisions are made by the care provider.

Complaints about the service supplied can be made. Care providers are obliged to have a complaints procedure. It is up to them to choose their own internal complaints procedure.

In conflicts, people can be asked to choose another care provider, which results automatically in moving to another home. In several cases, people have been asked to leave when conflicts have arisen.59 The Health Care Inspectorate does not handle individual complaints (see paragraph 5.1). People who opted for independent or smaller group homes during the trend to deinstitutionalisation report that their home is more spacious and more comfortable, they control their life more, and they experience more privacy and freedom.60 However, results from the aforementioned pilot of five care providers carried out by Perspectief, show that people who started to live in the community reported that they could only partly choose where to live, they were not allowed to choose between a group home or independent home and most of them were not allowed to choose between potential housemates with whom they were supposed to share their home.61

58_{In Dutch:}_{Wet Geneeskundige BehandelingsOvereenkomst}_(WGBO) 59

Isarin, J. (2008) Zorg en Zeggenschap, van ouder tot activist. (Care and Self-determination, from parent to activist). Amsterdam, uitgeverij Boneschansker ISBN 978.90.9023617-9; Lawyer A. Wijnbeek has dealt with several cases: www.wijnbeekadvocaten.nl.

60

Kwartel, A.J.J. van der (2009). Brancherapport gehandicaptenzorg 2008. Utrecht, Prismant; Perspectief (2007). Jaarverslag 2006. Utrecht, Perspectief; Perspectief (2008). Jaarverslag 2007.

Utrecht, Perspectief.

Wilken, J.P. (2007). Zorg en ondersteuning in de samenleving. Voorwaarden voor succesvolle vermaatschappelijking van de gehandicaptenzorg. (Care and Support in Society. Conditions to successful community living) Amsterdam. SWP.

61

Zwan, Anna van der en Eline Noorman (2010), Samen werken aan een goed leven. Eindrapport Project Zeggenschap. (Working together to a good life. Final report on project Self-determination. Utrecht: Perspectief (www.perspectief.org)

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A survey by Nivel62 shows that people who started to live in the community were fine (not better or worse off than they were in residential setting) but they did complain about the forced sharing of their home. Complaints were: too much noise, not enough privacy and not enough friendly ties with their housemates. Evaluation of newly started group homes initiated by family members of people with disabilities showed the importance of a culture in which the needs of people with disabilities are prioritised by both family members and care providers. Only in such a culture did the people who took the initiative for the group home feel that they kept control. In other cases, control was taken over by the organisation that was contracted to provide care.63

In a recent survey by PWC64, in which 12,000 people with intellectual disabilities were included and could give their answers in a structured questionnaire, the majority stated they could not control everyday decisions in their life.

In 1982, a system of independent advisers/ombudsman was set up for people with mental health problems.65 By 2006, more than 50 of them had been appointed. They work for patients in mental health institutions and can be consulted by people with mental health problems on whom involuntary treatment is imposed.

•

Trends

The policy of the Health Care Inspectorate not to investigate individual complaints has led to criticism by the National Ombudsman.66 Following a debate in Parliament, a temporary hotline for complaints about the inspectorate was set up. National government announced its proposed Rights of Client in Care Act67. In this act, an independent complaints procedure is proposed.

62_{Cardol, M., Speet, M. & Rijken, M. (2007).}_{Anders of toch niet? Deelname aan de}

samenleving van mensen met een lichte of matige verstandelijke beperking. (Different or not really? Participation in community for people with minor or moderate handicaps)

Participatiemonitor 2006. Utrecht: NIVEL.

63

Perspectief, (2008) overzichtsrapport kleinschalig wonen-LSWproject, in: Schuurman & Zwan ( 2009) Inclusie, Zeggenschap Support. (Inclusion, Self-determination, Support:on our route to a welcoming community”. Antwerpen-Apeldoorn: Garant.

64

PriceWaterhouseCoopers (PWC) (2007) Weten voor Beter. Brancherapport benchmark gehandicaptenzorg. Amsterdam, PWC 65 Patiëntenvertrouwenspersoon: http://www.pvp.nl/html/geschiedenis.htm 66 http://www.nationaleombudsman.nl/rapporten/grote_onderzoeken/documents/Rapport2009-250.pdf 67

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•

Concerns

The proposed Rights of Clients in Care Act grants an independent complaints procedure. However, criticism is that people dependent on long-term care do not, have enough rights when it comes to deciding about their own care and support. Care providers decide ultimately on the care plan. In conflicts, the option for clients is to accept the terms of delivery or refuse and choose another care provider. The latter may not be easy as care providers can have a monopoly position within cities or regions. That concern is shared by members of Parliament68 who questioned proposals for mergers between several care providers. The present government announced stricter merge regulations for care providers in 2010.69

2.4.3.

Involvement of Relevant Groups in the Design and

Review of Policies about Support Services

•

Nature and Extent of Involvement and any relevant Trends

In every location that long-term care is provided a representative council of clients is required by the Consultation of Clients in Care Institutions Act70. Such councils have the right to information, the right to be consulted on important policies of the care provider and the right to field a candidate to become a member of the care provider’s supervisory board.

On a national scale, a wide range of organisations for people with mental health problems and intellectual disabilities are consulted on the proposed Rights of Clients in Care Act.71

National government works in cooperation with umbrella organisations for people with intellectual disabilities and mental health problems on a systematic evaluation of the quality of care. This quantitative evaluation, known as CQ-index, leads to data on a website. People dependent on long-term care may use the website to select a care provider.72

68 Kamervraag 932, vergaderjaar 2007-2008 69 Regeerakkoord 2010 70

In Dutch: Wet medezeggenschap cliënten zorginstellingen (Wmcz)

71

Act Proposal (kamerstuk) 32402 32402, nr 2.

72

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CKZ73 has developed guidelines for selection, including and excluding people from participating in the research, and provides strict instructions on interviewing for the purpose of comparing organisations.

•

Concerns

The national system for evaluating quality of care (CQ-index) is an instrument that excludes people with moderate and severe intellectual disabilities and people with challenging behaviour.74 It also evaluates care within given cadres, but does not address experiences and complaints of people with disabilities in the areas of living, work, friendships, education and so on. Through this system, the national government aims to give more information to help choose a provider. This is not so much about improving a provider’s service or the lives of the people involved.

•

Examples of good practice

A number of care providers invest in broader evaluation surveys of their clients through the Perspectief Foundation.75 Perspectief´s external evaluations are based on human rights, by using standards of Quality of Life such as self-determination, inclusion, respect and personalised support and by using a multi-perspective approach. The evaluations are intended to improve the lives of people with disabilities, to empower them and their families, to accomplish changes in values and practice, and to strengthen networking. In partnership with stakeholders, Perspectief promotes the transition process from traditional care from institutions to personal support systems in the community.

73

CKZ = Centrum klantervaring zorg (The Centre for Consumer Experience in Health Care), founded by VWS. “The aim is to develop, implement and protect a national standard for valid and reliable measurements and comparisons of consumer experiences in health care. This standard is called the Consumer Quality Index, or CQ-index or CQI. Consumer Quality Index is a registered trademark and based on American CAHPS®

questionnaires”.www.centrumklantervaringzorg.nl ,

74

CKZ (2011). Werkinstructies voor de CQ-index Gehandicaptenzorg. Richtlijnen voor metingen met de CQ-Gehandicaptenzorg (Work instructions and guidelines for the use of the CQ-Index). Utrecht, CKZ.

75

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2.5.

Forced Treatment and Other ‘Support’ or

Intervention Imposed on People Living in

the Community Against their Will

•

Forced medical treatment – legality, extent, duration, characteristics of

recipients

Based on the 1992 Psychiatric Hospitals Compulsory Admissions Act76, a court can issue an order of enforced treatment, on the request of a public prosecutor. Admission may be requested for people with a mental health problem or intellectual disability on the ground of being a danger to themselves or others. In emergency situations, the mayor of the city can decide to impose treatment. Such a decision should be ratified by a court within a period of days.77

According to this act, enforced treatment should be given in appointed residential care institutions. People living in the community who are considered to be a danger to themselves or others can therefore be taken out of the community and placed in appointed residential institutions or psychiatric hospitals.

People may prevent enforced admission by agreeing voluntarily78 to enforced treatment in specified conditions, for instance, for medication. If they break the agreed conditions, an enforced admission can be imposed.79

No information on the number of people involved and no evaluative data on these voluntary admissions were found.

•

Other forced interventions/services

An image of living conditions of people with disabilities can be found in the mentioned surveys in part 3.

76

The Dutch acronym for Psychiatric Hospitals Compulsory Admissions Act is BOPZ. BOPZ is the acronym for: Wet Bijzondere Opnemingen in Psychiatrische Ziekenhuizen

77

Hendriks. A, J. Leegemaate (2010). Thematic Legal Study on Mental Health and Fundamental Rights. The Netherlands. Wenen, The European Union Agency for Fundamental Rights (FRA).

78

In Dutch: voorwaardelijke machtiging (conditional authorisation).

79

http://www.dwangindezorg.nl/procedures/voorwaardelijke-machtiging/wat-is-een-voorwaardelijke-machtiging-1

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There is no clear distinction in statistics between people who live voluntarily or involuntarily in institutions, or in statistics on people living in congregated residential settings or in residential small group homes in the community.

Since 2002, 10,000 of the 65,000 residents with an intellectual disability have been removed from congregated residential institutional settings to small residential group homes in the community.80 According to the findings from the Health Care Inspectorate’s (IGZ) examination in 200881 (see paragraph 3.1), the most common restrictive measure is an individual agreement limiting the person’s movements, for instance, in relation to friendships and sexuality; use of the telephone and internet; use of food and drink; and how they spend their leisure time. As mentioned above, no data are available about the number of such “appointments” or other more severe restrictions in residential group homes in the community.

•

Concerns

There is concern that, under the present legislation – the 1992 Psychiatric Hospitals Compulsory Admissions Act – it is too difficult to determine whether people pose a danger to society or to themselves until an incident proves it.

As more people with disabilities are living outside large residential settings, there is also growing concern that too many people are left without treatment because they refuse treatment and are not considered so dangerous that they need to be placed in residential settings without their permission.

Care providers are concerned that although their care workers have a legal duty to protect their clients from injuries, at the same time they run a legal risk because they see no other solution but to impose measures such as restraining a person in bed or a wheelchair, or locking people in their bedrooms in order to prevent injuries.82

80_{H.E.Post, E.M.Keuning (2009),}

Nieuwe kleinschalige woonvoorzieningen in de

Gehandicaptenzorg, (New groupshomes to people with intellectual disabilities) TNO, 2009.

81

IGZ, Inspectie voor de Gezondheidszorg (2008). Zorg voor vrijheid: terugdringen van vrijheidsbeperkende maatregelen kan en moet. (Care for freedom: to reduce restrictive measurements can and has to be done), Den Haag, IGZ

82

Bescherming of Vrijheidsbeperking bij dementerenden, Algemene Rekenkamer 2003 (Protection or restricting freedom, National Audit Chamber, 2003)

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All these concerns combined have led to two new proposed acts that will make possible enforced treatment outside appointed residential care. The proposed acts are: the Obligatory Mental Health Care Act83 (meant for people with mental health problems) and the Forced Care Act84 (meant for people with intellectual disabilities).85 The proposed acts will also make it possible to give involuntary treatment to people who do not consent or who resist enforced treatment.

The new proposals are viewed by organisations for people with mental health problems as acts that will improve the rights of people with disabilities because the law regulates the illegal daily routine of involuntary care. Under the proposed acts, people with disabilities or their representatives will have a better chance of being informed about enforced treatment and will have a better opportunity to resist or complain.

It is viewed as an improvement that the new act will introduce restrictions on the freedom for making decisions on enforced treatment.

At the same time, there is major concern that the proposed laws are contradictory to article 14 of the UN Convention on the Rights of Persons with Disabilities, the Dutch Constitution and the European Convention for the Protection of Human Rights and Fundamental Freedoms.86 The CG-raad, a major federation of organisations for people with disabilities and the Dutch Coalition for Inclusion87 warned that the proposed act gives such a broad definition of disability and/or situations in which enforced treatment can be imposed, that the simple fact of having a disability can lead to enforced treatment or enforced admission in residential settings. The organisation for people with mental health problems, Pandora88, shares these concerns.

83

Act Proposal (kamerstuk) 32399

84_{Act Proposal (kamerstuk) 31996.} 85

In Dutch: wetsvoorstel verplichte GGZ (Tweede Kamer 32399, and Wetsvoorstel Zorg en Dwang (Tweede Kamer, 31996).

86

Letter to Parliament by Cg-raad, September 2009, 09-0804

87

Schuurman, 2010. Tekenen en dan ……? VN-verdrag voor rechten van mensen met een beperking, wat betekent dat voor Nederland. (Sign and then . . . .? What does the UN Declarations on the Rights of people with disabilities mean to the Netherlands.)

Coalition for Inclusion; http://www.coalitievoorinclusie.nl/werkconferentie/Verslag-Werkconferentie-Tekenen-en-dan20100208.pdf

88

Bos, Knuttel, Magazine MGV 2009, Dwang tot achter de voordeur (Forced care behind the front door) 2009-12MGV-64-1068-1079

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Several authors have concluded89 that the proposed Forced Care Act may lead to more restrictive measures being imposed on people with intellectual disabilities. They find inadequate the legal protection in this proposed legislation as there will be no guarantee that a medical doctor will be consulted on the use of restraints within institutions or in private homes and because there will be no legal right for people in institutions to consult an independent adviser on the use of restrictive measures.

89

B. Frederiks: wetsvoorstel Zorg en dwang: een eerste verkenning in Journaal GGZ en recht.

http://www.sdu.nl/catalogus/JGGZR;

B. Frederiks, J. Legemaate, K. Blankman, C. Hertogh: wetsvoorstel Zorg en dwang: een verantwoorde verbetering voor de rechtspositie van mensen met een verstandelijke beperking en dementie? Tijdschrift voor gezondheidsrecht, April 2010.

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3.

FUNDAMENTAL RIGHTS IN

INSTITUTIONS

3.1.

Involuntary Placements

(a) When Involuntary Detention is Permitted

An overview of national legislation on involuntary detention is given in the Thematic Legal Study on Mental Health and Fundamental Rights: The Netherlands, Wenen. 90 Involuntary detention in a psychiatric hospital is detention following a court order based on the BOPZ Act91. A psychiatric hospital can be, according to the BOPZ, a psychiatric hospital for people with mental health problems; an appointed institution for people with intellectual disabilities; or a nursing home for people with dementia.

People convicted of a crime may also be sentenced to receive enforced treatment in special psychiatric hospitals. This is called Ter Beschikking Stelling (TBS), which translates as “at governmental disposal”. In 2010, more than 2,100 people were detained on this ground.92 TBS detention is reviewed every two years by a court.

Under the 1992 Psychiatric Hospitals Compulsory Admissions Act, the public prosecutor can ask for a court order for enforced admission in such cases. A doctor or psychiatrist will assess the risks. Enforced admission is only possible in appointed residential care institutions. Enforced admission implies enforced treatment. The patient or his or her representative may ask for release at any time. The public prosecutor may ask for a continuation of the original court order. The act does not make a distinction between the two types of disability.

90

Hendriks H., J. Legemaate (2009) Thematic Legal Study on Mental Health and Fundamental Rights: The Netherlands, Wenen, FRA

91

BOPZ (Wet bijzondere opnemingen in psychiatrische ziekenhuizen, in English: Psychiatric Hospitals Compulsory Admissions Act).

92

WODC, the scientific research centre of the Ministry of Justice: Inzicht in de verblijfsduur van tbs-gestelden, 2011, ISBN: 978-90-8974-431-9

http://www.wodc.nl/onderzoeksdatabase/toename-van-de-behandelduur-in-de-tbs.aspx?cp=44&cs=6796#project-informatie

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A multidisciplinary team of professionals including a psychiatrist and a public prosecutor undertakes the evaluation.93

The duration of the enforced admission is initially for a period of six months. No appeal other then a request for cassation before the High Council of the Netherlands is possible against this initial decision of the court. The patient or his or her representative may ask for earlier release however, even from day 1 of the admission, if circumstances change or treatment shows positive results.

A decision to enforce admission may be prolonged for a year. Further prolongation after that year may be sought through a renewed request. If enforced admission has been ordered to last longer than two years, the next prolongation may last two years.

Following enforced admission, an individual treatment plan should be made. The plan is made in consultation with the person involved or their representative. The consent of the person or his or her representative is not required. The treatment plan should contain the proposed measures of enforced treatment.

Enforced treatment can be enforced medication, the use of restraints, isolation, forced feeding and forced drinking. Treatment should be aimed at the improvement of health and to prevent or avoid immediate danger for patients or others. Enforced treatment can be imposed on people with intellectual di

Fundamental Rights situation of persons with mental health problems and persons with intellectual disabilities: desk report The Netherlands