sou · GMB332d1 · 1999-01-01 00:00:00 — Denna regel har vållat problem, särskilt i LRV-mål när åklagare skall höras. Vi föreslår därför att den tid inom vilken länsrätt skall ta upp ett mål till avgörande förlängs såvitt gäller mål beträffande patienter som överlämnats till LRV-vård med särskild utskrivningsprövning. I övrigt föreslår vi ingen förändring. Vi föreslår därutöver vissa förtydliganden när det gäller åklagares skyldighet att anmäla att domstolens beslut kan komma att överklagas. Vidare föreslår vi att beslut om permission beträffande intagna i kriminalvårdsanstalt som genomgår rättspyskiatrisk vård skall kunna överklagas till allmän förvaltningsdomstol, dvs. länsrätt som första instans och att prövningstillstånd skall krävas vid överklagan- de till kammarrätt. The Committees terms of reference require it primarily to address the question of whether the legislation has achieved its basic purpose that is to say, whether the use of involuntary care, coercive measures and transition to involuntary care has declined as intended and whether legal protection of the patient has been strengthened. In addition, the Committee is to analyse and evaluate the existing rules and their implementation with regard to public safety or the personal safety or physical or mental health of other persons, including the rules relating to discharge, parole and probation. is also to study the conflict which can occur, and its consequences for the individual patient, when, owing to the prosecutors assessment of public safety and the senior consultants assessment of the need for care, patients whose treatment is deemed to have been completed cannot be discharged. Furthermore, the Committee is to observe possible problems relating to implementation of the legislation in the broad sense, investigate ways in which the supply of information by advisory boards and health and services generally to supportive persons could be improved, and carry out an editorial review of the legislation, aimed at enhancing its lucidity. The development of involuntary care has conducted a survey of cases in all county administrative courts, with reference to all psychiatry cases decided by these courts between 4th and 22nd inclusive. In addition, , acting on behalf of the Committee, has collected particulars of all LPT (the Compulsory Mental Care Act) placements concluded between 1st October 1996 and 31st 1997 and has compiled an inventory of patients on parole under LPT and LRV (the Forensic Mental Care Act) on 30th . The total number of psychiatry cases coming before the county administrative courts fell from 12,222 in 1993 to 11,589 in 1996. The actual decline concerns LPT cases only, whereas the number of LRV cases has increased somewhat. The survey of county administrative court cases focused on a number of specific questions, such as the questions of fact that were dealt with, the appointment or otherwise of public counsel and expert adviser, the proportion of applications allowed, the outcome of the case and the role of the prosecutor. The inventories by show the number of LPT in-patients to have declined steeply since LPT came into force. Thus it was 1,933 on a given day in 1991, falling to 1,114 on a given day in 1994 and 931 on a given day in 1997. The number of LPT placements also fell steeply between 1988 and 1993, namely from 10,259 to 7,730. This, however, has been followed by a certain increase. Thus in 1996 there were 8,771 LPT placements. But the number appears to have declined somewhat during the first two quarters of 1997. The number of LRV in-patients also shows something of a decline between 1991 and 1994, namely from 817 to 736. This, however, has been followed by a resurgence, and an inventory in 1997 showed 770 LRV in-patients. Effects of the new legislation points of departure for the review It is our opinion that, since the new legislation came into force, involuntary care has diminished to the extent appropriate and possible in the present situation. A further reduction is desirable per se but is contingent on measures being taken to improve the overall quality of psychiatric care and on out-patient psychiatric care and municipal social services being given resources and possibilities for variously helping and supporting persons with mental disorders. Our contacts have given us the impression that the new legislation is quite generally considered to have strengthened legal protection. This is not to say that more cannot be done to improve legal safeguards, especially in those areas where the new legislation has effect. The legal protection of the patient must of course be a crucial consideration in the framing of coercive psychiatric legislation, but it is also important that legislation of this kind should include rules making provision for public safety. The LRV rules concerning the role of the prosecutor and the adjudication by the county administrative court of paroles and discharge for patients committed by the courts subject to special discharge assessment have, in our opinion, also resulted in additional protection for society. But, since the rules catering for public safety are liable to come into conflict with the legal protection of the patient, it is important to achieve a judicious balance between these two interests. However, it is not only juridical or formal legal protection that Great importance also attaches to the availability of care, the content of care and the response which the patient meets with. New rules added recently to the Health and Act (HSL) imply greater insistence on care being provided with respect for human equality and for the dignity of the individual. Lately, the legal protection of the patient and his or her status in care have been points of growing emphasis in care generally. We wish to underline that these viewpoints obviously also apply to patients receiving involuntary psychiatric care. Given the vulnerable position of these patients, it is especially important that they should receive the help and support they need, in both personal and legal matters. Special attention must therefore be paid to the situation of involuntary patients in the framing of psychiatric quality systems and care programmes. Special attention should also be devoted to the situation of these patients by , acting in a supervisory capacity. Neither LPT nor LRV provides any statutory support for involuntary treatment or the use of any other coercive measures before a involuntary care order can be made. Thus personnel can only resort to coercive measures with reference to the provisions of the Penal Code concerning non-liability when an action normally constituting a crime is performed in an emergency or in self-defence. Once a detention order has been made, however, it becomes possible for personnel to intervene in order to prevent the patient from leaving the or that part of the where the patient is to be placed. On the other hand, there is no statutory definition of the measures which may be taken by personnel in order to prevent the patient from leaving the . We realise that coercive measures sometimes have to be taken before a placement order for involuntary care has been made. It is unsatisfac- tory that measures of this kind can only be taken with reference to the provisions of the Penal Code concerning exemption from criminal liability, and LPT ought therefore, in our view, to be made to include provisions permitting involuntary treatment and other coercive measures to be resorted to in acute situations occurring before a placement order has been made by an authorised physician. We therefore propose that the rules concerning restraint, isolation, intimate body search and superficial body search applicable during involuntary care also be made to apply pending a placement order, and that it be possible for decisions of this kind to be made by a physician on duty. Needless to say, this faculty must be very restrictively applied. we also propose that treatment prior to the placement order be made permissible if there is an imminent danger to the life or health of the patient. we wish to emphasise that the rules thus proposed do not imply any additional scope for the use of coercion: they merely serve to elucidate the rules at present in force. It is also our opinion that the measures permissible in order to prevent the patient from leaving the precincts of the should be defined as closely as possible, and we recommend the inclusion in LPT of a rule to the effect that such force may be used as is defensible in order to prevent the patient from leaving the precincts of the or in order to make due provision for security in the care. This provision too is merely an elucidation and does not imply any additional scope for the use of coercion in care. Care certificates can be issued by both public and private practitioners. Private practitioners, however, may carry out a certification examination only where possible with the patients informed consent, whereas a physician in public practice is entitled to take the patient in charge and to obtain assistance if the patient does not consent to the examination. It is quite common nowadays for authorities to conclude agreements with private care providers, whereby the latter are to be responsible for offering care to the population of a geographical area, e.g. by running a health centre or an out-patient psychiatric reception. At present, tasks implying the exercise of public authority may not be entrusted to private care providers. If, then, a certification examination cannot be performed with the patients informed consent, a private practitioner can enlist the aid of a physician in public practice in order to bring about an examination or obtain assistance. We find this an unsatisfactory state of affairs, and we therefore recommend that authorised physicians who, by agreement with a authority, are to carry out certification examination also be empowered to order detention for certification examination and to request assistance. General prerequisites of involuntary care under LPT It is above all relatives of persons with mental disorders who have stated that, in their opinion, the threshold for involuntary placement in psychiatric care is too high. In our view, however, the problems described are to a great extent connected with deficiencies in the effect given to the legislation, and we wish to recall that, in cases of explicit threats to or harassment of next-of-kin or other persons, the existing legislation already includes a special provision whereby an order can be made for involuntary placement. As regards the term serious mental disorder, there do not, where LPT is concerned, appear to be any direct problems of implementation connected with the technical construction of this legal concept, and so there is no reason why a new pathological term should be introduced. As regards the expression admitted to a for whole-day care, one finds that a different term, namely qualified 24- hour psychiatric care, is employed in the Care (Financial Liability of ) Act. It is important that legislation should as far as possible employ uniform terminology for identical matters. For this and other reasons, it is our opinion that the term qualified 24-hour care should also be employed in LPT. The criterion that involuntary care may only be provided if the patient opposes the care or is manifestly incapable of expressing an informed standpoint in the matter has proved to entail problems of legal implementation. It is above all the question of when the patient can be deemed manifestly incapable of expressing an informed standpoint that causes problems, especially in cases where the patients attitude to the care is ambivalent. Thus the existing provision refers to the patients condition and means that, in particularly severe pathological states, the patients wishes can be disregarded. One may ask whether such a gradation of patients in the assessment of consent is necessary and appropriate. The most important thing is for the patient to receive the necessary care, and whether the patients consent at the time of assessment means that such care can be provided. We therefore recommend framing the rule of consent in such a way that involuntary care may be provided if the patient opposes the care or if, as a consequence of his mental state, care presumably cannot be provided with his consent. Transition from voluntary to involuntary care The question of transition from voluntary to involuntary care, has been and remains much debated. With the passing of LPT, a danger requisite was introduced as a precondition for transition being permissible. Thus, over and above the other prerequisites of involuntary care, transition is conditional on the patient, as a consequence of his mental disorder, being liable to inflict serious injury on himself or another person. No care certificate is issued in connection with transition to involuntary care, which accordingly is not subject to assessment by two physicians, though on the other hand the senior consultant must apply to the county administrative court within four days for permission for involuntary care to continue. The new danger requisite has not entailed any significant decline in the number of transitions, and it is found difficult to apply. There has been criticism both of the faculty of transition as such and of the restriction on the scope for transition which the danger requisite implies. There are strong arguments both for and against transition to involuntary care. As an objection to transition one can argue that it is wrong, in terms of principle. for a subsequent involuntary care order to be possible in the case of a person who has requested voluntary care. Then again, the of voluntary care being made involuntary may deter people with mental disorders from seeking help, for fear of being subjected to involuntary care later on. On the other hand it is unsatisfactory, from a humanitarian viewpoint, when a voluntary patient who is severely ill and meets the general criteria for involuntary care has to be discharged and in this way perhaps deprived of all care. If transition is an option, this can also facilitate the handling of placement decisions in cases where, owing to the patients hesitancy, it is doubtful whether he is willing to receive necessary care. Failing the possibility of transition in cases of this kind, involuntary care is liable to be ordered right from the beginning, to be on the safe side, instead of first investigating the possibility of care being provided on a voluntary basis. Most considerations, in our view, argue in favour of transition as an option. But a transition provision must guarantee a high standard of legal protection. The existing statutory rule, laying down a danger requisite in order for transition to be permissible, has been found wanting, and the existing rules are therefore in need of amendment. One way of strengthening legal protection and preventing abuse is for the decision-making process itself to be hedged about with stronger guarantees of legal protection than at present. This can be done by introducing examination by two physicians and tightening up the requirement of adjudication by a court of law. we therefore recommend that the special danger requisite be abolished and that the possibility be introduced of issuing a care certificate at the . The care certificate should be promptly examined by the senior consultant, whereupon the placement order shall be submitted, not later than the following day, to the county administrative court for adjudication. If the senior consultant finds cause for continuing involuntary care, he shall file an application to this end with the county administrative court within four days. In that the order has to be submitted immediately for adjudication by the county administrative court, all transitions from voluntary to involuntary care will be made subject to judicial appraisal. Patients who come to be considered for involuntary psychiatric care are in a highly vulnerable position and often bereft of viable social networks, and so it is very important that they should have access to a supportive person a supportive person who can assist them in their everyday contacts with the world outside the hospital. Thus it is essential for the patient to be offered the services of a supportive person. The latest follow-up by of concluded cases shows that supportive persons are still only being appointed for a limited proportion of persons placed in involuntary care. The number of patients not offered supportive persons has declined considerably since the Boards previous evaluation, but there are still very few patients in involuntary care for whom supportive persons are appointed. This may be partly due to many patients being placed in care for such a short time that they see no point in having a supportive person or time does not permit a supportive person to be appointed for them, but the available material shows the number of involuntary patients receiving supportive persons to be so small as to suggest that the opportunity is not given to all patients who would like to have it. We therefore propose that the information supplied to senior consul- tants concerning the patients entitlement to a supportive person be intensified through the agency of . In our contacts with the advisory boards we have found their routines for the appointment of supportive persons to vary, and we therefore recommend that the advisory boards be informed, through the , of the importance of co-ordinating their routines in this respect. In his report, as part of his duty of notifying the advisory board, the senior consultant shall also indicate the patients attitude in the matter of appointing a supportive person. The patients attitude shall also be entered in his record. If it has not been possible for the patients attitude to be stated in the report to the advisory board, the latter shall contact the patient or his representative to inquire concerning the patients attitude. We also recommend that it be made possible for the appointment of supportive person to continue for a month after the patient has been discharged, after which, though subject to the consent of patient and supportive person, the advisory board shall be duty bound to inform the social services. The social services, acting in consultation with the patient and supportive person, shall then decide whether the supportive person is to be appointed as representative. The supportive person shall retain his appointment after care in the has given way to the kind of out-patient care on special conditions which we propose in Chap. We further propose that LRV be made to include a provision to the effect that, where special considerations of the supportive persons safety so demand, the senior consultant shall disclose necessary information to the supportive person or the advisory board. Treatment during involuntary care Various follow-ups have revealed shortcomings in the planning of treatment in connection with involuntary psychiatric care. A treatment plan is not always drawn up as prescribed in LPT. There are also serious shortcomings with regard to both the quality and the documentation of treatment planning. That which is now termed a treatment plan ought in our opinion to contain not only purely treatment measures but also measures which include nursing and measures by social services. We therefore recommend that the term care plan be substituted for treatment plan. In view of the present shortcomings, we propose that the purpose of the care plan should be made clear in LPT and LRV. It should be stipulated that a care plan is to be drawn up, showing the treatment and other measures judged necessary in order for the purpose of involuntary care to be achieved and in order for the patient to be capable of living in the community after the involuntary care is concluded. It should also be stipulated that a care plan is to be recurrently reappraised and when necessary revised. The legislation ought in our opinion to include certain basic require- ments concerning the content of a care plan. Exact requirements, on the other hand, are by nature unamenable to statutory regulation, and should therefore be defined by means of an Ordinance or official regulations instead. The follow-up by of placements concluded in 1996 and 1997 shows the use of coercive measures to have increased in connection with care pursuant to LPT. Above all, it is involuntary medication that is being used in a greater proportion of cases. It is hard to tell, however, whether these figures point to an actual growth in the use of coercive measures or whether the increase is due to differing views in psychiatry concerning what is to be reported as involuntary medication. The increase can also be put down to differing cultures, attitudes and approaches in psychiatry concerning the use of coercive measures, but there is also much to suggest that resource deployment, organisational and other conditions in care generally are of importance. We see no cause for a statutory proposal entirely prohibiting any particular form of treatment, and it is difficult to achieve a more precise statutory definition of the occasions when different coercive measures may be resorted to. On the other hand, we do feel that a general provision should be enacted whereby coercive measures may be used only if the patient cannot be induced, through individualised information, to participate of his own free will, coercive measures may not be used to a greater extent than is necessary in order to render the patient capable of voluntarily participating in the requisite care and of receiving the support which he needs, the use of coercive measures shall be reasonable in proportion to what should be achieved through the measure taken, less intrusive measures are to be employed if sufficient, and coercive measures shall be exercised as gently as possible and with the greatest possible consideration towards the patient, so that he will not be subjected to any unnecessary infringement of his dignity and privacy. We also feel that there is cause for authorities to carry out an internal audits of psychiatric activity and, on the basis of these audits, to take measures of qualitative improvement aimed at counteracting the use of involuntary care and reducing the use of coercive measures. Among other things, the authorities should ensure that the activities concerned have the personnel necessary for the provision of good care to be possible, and that the activities have in-built quality management systems of such a kind that the care is of the highest possible quality and that legal safeguards and public safety are duly provided for. We are further of the opinion that the authorities should ensure that the care of persons with serious mental disorders receives the highest priority. should lay down national guidelines for equivalent, scientifically based care of persons with serious mental disorders and should actively promote the introduction of quality management systems for the effective self-control and development of coercive psychiatric care activities. Parole out-patient care on special conditions Parole for the residue of placement time is a phenomenon specific to involuntary psychiatric care. It does not occur in any other form of health care or treatment. The possibility of this kind of parole has been introduced in order to ease the transition from involuntary care to care on a voluntary basis. The provision concerning parole for the residue of placement time, however, does not tally well with the provisions indicating the conditions which have to be met in order for involuntary care to be permissible.