frsrdg · GR04JO1 · 2004-01-01 00:00:00 — on 9 January to the isolation section, where he remained together with two mental nurses until 10.45 a.m. on the following day. During this period the duty physician was informed of his condition and the head of the unit, , had been notified of the segregation. The legal basis for segregation Section 26 of the Act on the Treatment of Detainees and Those under Arrest etc. (1976:371) (the Detention Act) lays down, among other things, that Section 20 of the Compulsory Mental Care Act (1991:1128) applies to detainees who have been transferred to a unit for forensic psychiatric examination. The stipulations of Section 20 of the Compulsory Mental Care Act permit the segregation of patients if this is required because their aggressive or disturbing behaviour poses a grave threat to the treatment of other patients. From the travaux préliminaires relating to Section 26 of the Detention Act (Government 1990/91:58 p. 520 ff.) it can be seen that the scope for the use of coercive measures against those detained or admitted to a unit for forensic psychiatric examination should be the same as for those who are detained and undergoing forensic psychiatric treatment. In the opinion of , the provisions of the Compulsory Mental Care Act referred to in Section 26 of the Detention Act can be applied for various purposes. For those admitted to the National Boards units for examination who are subject to treatment in accordance with the Forensic Care Act the provisions of Sections 18-24 of the Compulsory Mental Care Act are applied for treatment purposes. For those admitted as detainees but who are not undergoing treatment, the same pro-visions can be applied for the sake of order and security. The attached "Memorandum on Coercive Measures" (omitted here, Parliamentary Ombudsmans comment) dated , presents the National Boards interpretation of which regulations apply to the application of coercive measures in accordance with Sections 18-24 of the Compulsory Mental Care Act in the Forensic Psychiatric Examination Units. The attached memorandum on coercive measures reveals that interprets the statutory regulations in this area as allowing the head of a unit (or any other official to whom the head of the unit has delegated this authority) to make a decision on the invocation of Section 20 of the Compulsory Mental Care Act, for instance, in order to maintain order and security. In the situation in this particular case, as in other similar situations, it is of course always important for a physician to judge whether the criteria for treatment according to the Forensic Mental Care Act apply to an inmate. In view of this, one of the National Boards routines is to require a physician to undertake a examination of those admitted. Documents previously submitted in this case (the journal sheet, file card, treatment specification and the forensic psychiatric opinion) depict another version of the events leading up to the segregation than that suggested by H.Z. It is the view of that H.Zs assertions about what gave rise to the segregation and the context in which it took place are therefore misleading and are the outcome of the personality problems he suffers from when faced with setbacks and disappointments as described in the forensic psychiatric opinion. submitted a rejoinder to this response. The adjudication of 5 February 2003 by the Parliamentary Ombudsman, . , included the following. According to the journal entries submitted, H.Z. was isolated/segregated "pursuant to the Detention Act" as the result of a "struggle" with a warder. This segregation lasted for almost a day. To avoid misunderstanding, I would like to begin by pointing out that my appraisal of this case does not cover the issue of whether or not there was any justification for the segregation of H.Z. Expressing an opinion of this kind would involve the appraisal of issues about which the Parliamentary Ombudsmen are circumspect. My appraisal focuses exclusively on the formal conditions that applied to the decision to segregate him. Before 1 January 1992, the Act on the Treatment of Detainees and those under Arrest (1976:371) (the Detention Act) applied to everybody who had been detained, irrespective of where they were held. Therefore, in forensic psychiatric clinics the provisions of the Detention Act on, for instance, the use of various coercive measures applied to those detained for forensic psychi-atric examination. On the other hand, the regulations in the Act on the Provision of Institutional Psychiatric Care in Certain Cases (1966:293), which remained in force until 1992, were not applicable at these clinics (cf. Section 2 of the Act on the Provision of Institutional Psychiatric Care in Certain When the Compulsory Mental Care Act (1991:1128), the Forensic Mental Care Act (1991:1129) and the Forensic Psychiatric Examination Act (1991:1137) came into force on 1 January 1992, the Detention Act was also amended with regard, for instance, to detainees who had been transferred to a unit for forensic psychiatric examination. For this group the Detention Act continued to apply only to what are referred to as restrictions imposed by prosecutors in Section 16 (first paragraph of Section 26 in the Detention Act). Section 16 of the Detention Act stipulates that a prosecutor may determine, for instance, if and to what extent a detainee may be kept with other detainees in view of the risk this may pose of evidence being eliminated or investi-gation of the crime complicated in some other way. Insofar as such restrictions have been imposed, it is the responsibility of the staff at the examination unit to ensure that they are maintained. No such situation applied in the case in question. The entitlement of the staff of a unit for forensic psychiatric examination to make decisions about coercive measures for detainees who are not receiv-ing forensic psychiatric treatment therefore derives from the provisions in Sections 18-24 of the Compulsory Mental Care Act and the second paragraph of Section 8 of the Forensic Psychiatric Examination Act (the second paragraph of Section 26 of the Detention Act). It therefore follows that it was not possible for the staff of the Forensic Psychiatric Unit at to segregate H.Z. by virtue of the Detention Act. Instead the staff had to comply with the provisions of Section 20 of the Compulsory Mental Care Act. The first paragraph of Section 20 lays down that a patient may be segregated from other patients only if this is required to deal with aggressive or disturbing behaviour that constitutes a grave threat to the treatment of other patients. A decision to segregate may apply for no more than eight hours. This period may be extended by a new decision for no more than eight additional hours. The second paragraph states that a decision on segregation for a specified period exceeding eight hours may be made if there are exceptional reasons for doing so. The third paragraph stipulates that is to be notified without delay if a patient is segregated for more than eight hours at one time. An additional stipulation is that during the period of segregation continual surveillance of the patient is to be maintained by the nursing staff. Section 20 of the Compulsory Mental Care Act also lays down that the decision to invoke coercive measures is to be made by the Chief Physician. According to Section 39 of the Act, the Chief Physician may delegate the authority to make such a decision to an experienced physician with specialist qualifications in some area of psychiatry. If there are special reasons for doing so, the Chief Physician may also delegate the authority to make such a decision to another physician, but not, for instance, decisions on segregation pursuant to the second paragraph of Section 20. I have been able to determine that neither the journal entries nor the official response clearly indicate who made the decision to segregate H.Z. The National Boards response makes a distinction between the application of the regulations concerning coercive measures discussed here on the basis of whether they are invoked in the course of treatment or for the sake of order and security. With regard to its interpretation of the regulations, has cited an attachment to its response entitled "Memorandum on Coercive Measures". This contains the following statement about detainees who are not undergoing forensic psychiatric treatments on page 2 under the heading Authority to decide. Section 16 of the Ordinance on the Treatment of Detainees and those under Arrest etc. (1976:376) states that decisions, with certain specific exceptions, are to be made by the agency responsible for the detention facilities. This means that decisions concerning application of the Detention Act are made by the head of a unit or those to whom the head of the unit has delegated this authority. This authority also includes the decisions regarding detainees who are not undergoing treatment pursuant to the Forensic Mental Care Act made by virtue of Sections 18-24 of the Compulsory Mental Care Act. In its official response, states that a decision involving the application, for instance, of Section 20 of the Compulsory Mental Care Act intended to maintain order and security, may be made by the head of a unit or another official to whom the head of the unit has delegated this authority. standpoint here does not ap-pear to be totally unobjectionable. In my opinion, the regulations leave no scope for this interpretation. Even in compulsory psychiatric care, decisions invoking Section 20 of the Compulsory Mental Care Act are probably not based primarily on considerations. Coercive measures of this nature are always taken for the sake of order, constraint or safety even though this is obviously to enable the provision of compulsory treatment. Moreover, Section 16 of the Ordinance on the Treatment of Detainees and those under Arrest etc. (1976:376) (the Detention Ordinance) cannot be in-voked to provide any authority for decisions on coercive measures at the forensic psychiatric examination units to which the provisions of the Detention Act do not apply. A decision on segregation must, according to Section 20 of the Compul-sory Mental Care Act, be made by a Chief Physician or the physician to whom, by virtue of Section 39 of the Compulsory Mental Care Act, this authority has been delegated. There are no other provisions that provide authority to make decisions on the kind of coercive measures invoked in this case. Indeed, there is a great deal to suggest that the legislators did not intend to permit any decision making process other than the one described above. In the travaux préliminaires it is clearly stated that the regulations governing the use of coercive measures are to apply to everyone detained or admitted to a forensic psychiatric examination unit irrespective of whether they are undergoing compulsory or voluntary psychiatric treatment at these units or receiving no treatment at all. The regulations that apply for compulsory mental care in general are to apply to all of these groups as well (see Government 1990/91:58 p. 520 f.). Decision on issues concerning the Detention Act are made, with certain specific exceptions, according to Section 16 of the Detention Ordinance, by the agency responsible for the detention facility. In an earlier wording, these decisions were made by the superintendent of the detention facility. During the period in which the provisions on coercive measures laid down by the Detention Act also applied to the forensic psychiatric clinics, the third paragraph of section 1 of the Detention Ordinance placed the Head of a Forensic Psychiatric Clinic or the official appointed by the Head of the Clinic to fulfil the duties entrusted to him by the ordinance on the same footing as the superintendent of a detention facility. This provision was amended when the Compulsory Mental Care Act, the Forensic Mental Care Act and the Forensic Psychiatric Examination Act came into force. References in the Ordinance to the superintendent of a detention facility or the responsibilities of an agency were also to apply to the Chief Physicians at forensic psychiatric examinations units or the individuals they appointed to fulfil their duties according the ordinance. This provision was repealed on 15 1992. The repeal of the provision suggests that it was considered superfluous as no decisions on coercive measures could be made at forensic psychiatric examination units on the basis of the Detention Act. This development may provide further support for the assumption that it was not the intention of the legislators to permit decisions on coercive measures for those detained for forensic psychiatric examination to continue to be made by anyone other than the Chief Physicians or the physicians to whom they had delegated this responsibility. The segregation of H.Z. was not dealt with correctly from a formal point of view. In an emergency, it is obvious that a warder at a forensic psychiatric examination unit may, on the grounds of urgency, isolate an aggressive or violent inmate for safetys sake. Subsequently an authorised official must make a decision about segregation without delay. Here, the regulations governing the use of segregation laid down in Section 20 of the Compulsory Mental Care Act must be complied with. A documentary record must be kept in accordance with Section 8.2 of the Ordinance on Coercive Mental Care and Forensic Psychiatric Care (1991:1472). It is the responsibility of to determine whether amendment is required of the regulations on how decisions are to be made on coercive measures for detainees in Forensic Psychiatric Examination Units who are not undergoing forensic psychiatric care. This is also one of the issues raised by in the application submitted to the on for review of the legislation relating to the treatment of detainees admitted to Forensic Psychiatric Examination Units (registration number X01-9012905). As information has been received (at the time of this adjudication) that the has not yet concluded its review of this issue (Ju2001/8690), I consider that there are grounds for forwarding a copy of this adjudication to the Ministry. - - - - The case is concluded with the criticism implied in what has been expressed. A question concerning the conditions on which a residential treatment centre for abusers of narcotic substances could confiscate post, order forms, that an inmate intended to send, etc. (Registration number 3764-2001) submitted a written complaint to the Parliamentary Ombudsmen about the confiscation by the acting superintendent of outgoing and incoming post without notifying the inmates. The complaint was referred to for an enquiry and the expression of an opinion. After having requested a statement from , the acting superintendent (which is not included here), the Boards Director General, , submitted the following response. Confiscation pursuant to Section 31 of the Care of Abusers (Special Provisions) Act Section 31 of the Care of Abusers (Special Provisions) Act (1988:870) prohibits those undergoing treatment to possess alcoholic beverages, narcotic substances, liquid solvents, substances of the kind referred to in the Act Prohibiting Certain Doping Substances (1991:1969), products covered by the (1999:42) together with hypodermic sy-ringes, injection needles or other objects specially intended for the use or processing of narcotic substances. may they possess anything else which is detrimental to the treatment or the orderly operation of the centre. If such property is discovered, it may be confiscated. In accordance with Section 31 of the Care of Abusers (Special Provisions) Act, the acting superintendent confiscated order forms, after concluding that the order placed by P.P. would be detrimental to the treatment or the orderly operation of the centre. The issue is whether this confiscation of order forms complies with the statute. The travaux préliminaires to Section 31 of the Care of Abusers (Special Provisions) Act state that the phrasing objects that can be detrimental to the treatment or orderly operation of the centre is intended to refer primarily to weapons and offensive objects that could injure the staff or other inmates (Government 1981/82:8 p. 93 f. and 1987/88:147 p. In an earlier adjudication the Parliamentary Ombudsmen have also asserted that even large sums of money in the possession of inmates may be confiscated by virtue of Section 31 of the Care of Abusers (Special Provisions) Act, when this is intended for instance to prevent blackmail situations from arising and also to avoid the introduction of narcotic substances into the centre (Parliamentary Ombudsmen 1995/96 p. 294 f.). The statement from reveals that 53 order forms for goods costing a total of were confiscated. If these forms had been posted, they would have caused P.P. a great deal of inconvenience in the form of considerable expenditure, for instance. It is obvious that this would have been detrimental for him personally, and this would probably also have been to the detriment of his treatment. The decision to confiscate the order forms was therefore taken with P.Ps own best interest in mind. It is, however, the opinion of , that the provisions of Section 31 of the Care of Abusers (Special Provisions) Act do not provide support for confiscation of the order forms. These can be considered the kind of object that can be detrimental to the treatment offered at the centre or its orderly operation. The order forms should, therefore, have been forwarded to the appropriate recipients. If delivery to P.P. taken place, the superintendent could possibly have made a decision - depending on the nature of the goods involved - to confiscate them pursuant to Section 31 of the Care of Abusers (Special Provisions) Act if they could be detrimental to the treatment. It should be emphasised that "open" order forms are probably not covered by the protection afforded by the constitution to letters and other confidential post. The staff of the centre therefore committed no offence in reading these order forms. Both in the treatment of abusers and of young people, at times it is discovered that clients are no longer in control of their own financial affairs - often as a result of psychiatric problems. When this involves adult abusers, the boards of social welfare are obliged in such situations to submit notification that a trustee or administrator is needed (cf. the second paragraph of Section 42 of the Ordinance [1981:750]). This is therefore the concern of the boards of social welfare and not the residential treatment centres. However, often it is the staff at a centre who become aware of the problem. The question then arises of whether the centres staff are permitted to inform the social services of the problem or if information of this kind is subject to confidentiality. In the social services, secrecy with regard to information about individuals is covered by Section 4 of Chapter 7 of the Secrecy Act (1980:100). This secrecy also applies between agencies. Information subject to secrecy may not therefore be disclosed to another agency in cases other than those laid down in the Secrecy Act or in the acts or ordinances to which it refers. Section 3 of the Care of Abusers (Special Provisions) Act lays down that the purpose of coercive measures is to encourage abusers to consent voluntarily to continued treatment and to accept help in freeing themselves of their abuse. Superintendents must, according to Section 26 of the Act, continually inform the appropriate board of social welfare of the progress of the treatment and consult it on all important issues. It is more than likely that the stipulation in Section 26 of the Care of Abusers (Special Provisions) Act that superintendents are to ensure that boards of social welfare receive information about the progress of the treatment can be seen as an information requirement that transcends secrecy (Secrecy Act 14.1). This provision, however, merely comprises questions relating to the treatment of the abuser and it would appear doubtful whether it entitles a residential treatment centre to inform a board of social welfare of the possible need of a trustee or administrator except in cases where this need is related to the individuals abuse. A clarification on this point from the Parliamentary Ombudsmen is desirable. Inspection of post pursuant to Section 35 of the Care of Abusers (Special Provisions) Act Section 35 of the Care of Abusers (Special Provisions) Act permits particularly thorough examination of post sent to those undergoing treatment in a residential treatment centre as laid down in the act if this is required for the sake of the orderly operation of the centre or in view of an inmates particular circumstances. If an item of incoming post contains property prohibited by Section 31, the property may be confiscated. general operational guidelines for residential treatment centres (1997:1) state that inspection of items of post is intended to prevent abuse at the centre and only applies to incoming post. This inspection should be restricted to post that could in each case contain intoxicants or items of the kind inmates are prohibited from possessing according to Section 31 of the Care of Abusers (Special Provisions) Act. The post inspected is to be opened in the presence of the inmate. As a rule this inspection should be conducted so that no letters or any other communications are read. It is clear, also, from the response of the acting superintendent that the centre follows the guidelines that have been issued. The postal items themsel ves are neither confiscated nor seized, as provided in Sections 31 and 36 of the Care of Abusers (Special Provisions) Act. Finally, it should be pointed out that it is the National Boards intention during the spring of 2002 to review the internal general guidelines relating to the Care of Abusers (Special Provisions) Act and that it will then clarify when and how special powers may be used. was invited to comment on this response. In her adjudication of , the Parliamentary Ombudsman, . , included the following. Confiscation pursuant to Section 31 of the Care of Abusers (Special Provisions) Act According to Section 31 of the Care of Abusers (Special Provisions) Act those undergoing treatment in a special residential treatment centre may not possess alcoholic beverages, narcotic substances, liquid solvents, substances of the kind referred to in the Act Prohibiting Certain Doping Substances (1991:1969), products covered by the (1999:42) together with hypodermic syringes, injection needles or other objects specially intended for the use or processing of narcotic substances. may they possess anything else which is detrimental to their treatment or the orderly operation of the centre. If such property is discovered, it may be confiscated. The enquiry reveals that the acting superintendent invoked this provision in deciding on the confiscation of a large number of orders for products that P.P. intended to post. From the decision, made on 15 October 2001, it can be seen that the quantities ordered and the high costs involved could be considered detrimental to P.Ps treatment. Article 6 of Chapter 2 of the Instrument of Government guarantees every citizen protection from official inspection of letters or any other confidential items of post. In the response from it is stated that "open" order forms are probably not covered by the protection afforded by the Instrument of Government to letters and other confidential post. In view of this, I should like to point out that even unsealed items of post, such as post cards, are in principle covered by the protection stipulated in Article 6 of Chapter 2 of the Instrument of Government.