The Law in the Netherlands and Other Countries
Discussion regarding legally sanctioned coercion in psychiatry has in the Netherlands been almost totally dominated by the drafting, ratification, and implementation of a new law regarding involuntary commitment. A long period of preparation preceded it. The first steps were taken already shortly after WWII. At that time an atmosphere of distaste hovered over anything coercive. During the war, many fine and honorable citizens were incarcerated for a period in jails and concentration camps, experiencing in the flesh how terrible it is to be detained. In the ensuing years, views about how such a law should look changed rather radically. Several drafts were made.
The most important elements of the new law, called “Special Admissions to Psychiatric Hospitals,” can be summarized as follows. As illness in itself cannot justify coercion, a condition is made that there is a danger present to others, the self, or public order. This puts safeguarding society at the center of concern. Psychiatry is assigned a place adjacent to the social institution of justice, as an instrument of social control, and for the purpose of enforcing social order. This was also the case in the previous law, but an important difference is that involuntary commitment on grounds of the person’s best interests is no longer possible. The only exception to this, is that danger to oneself is included. What is meant is suicide, auto-mutilation, self-starvation, and such. These types of dangers could also be deemed best interests. That is not unimportant, as the majority of involuntary commitments are effectuated on grounds of danger to self. (See Chapter VII, 3.2.2).
The new law greatly improves the legal position of the involuntarily committed person, partly under the influence of the patients’ movement, which is gaining power. For instance, it is specifically stipulated that the final arbiter is the judge, every patient is assigned a lawyer to represent him, etc. An important aspect is that a principal distinction is made between involuntary commitment and involuntary treatment. As the decisive factor regarding involuntary commitment is danger, and involuntary treatment is looked upon as a more serious human rights issue than involuntary commitment in itself, the committed persons retains the right to refuse treatment.*
High hopes were hinged on the new law. The number of involuntary commitments were expected to drastically decline, thanks to, on the one hand, stricter criteria, and other the other, legal guarantees for the patients. Alas, this turned out not to be the case. In the past ten years, the number of involuntary commitments has tripled, from about 2000 to 6000 per year, on a population of 16 million. This increase is partly ascribable to the concept of “danger” gradually being interpreted more broadly, and partly to several additions to the law. At this moment psychiatrists are lobbying to have the law fundamentally changed, so that involuntary treatments will again be automatically included with involuntary commitments.
The law also stipulates that involuntary patients are committed ahead of voluntary patients. While the number of involuntary commitments is rising, the number of available beds is declining due to deinstitutionalization. When the cutting of funds for voluntary treatments is figured in, it becomes obvious that psychiatry is inclining more and more towards coercion, as it was a century ago in this country. So a century of emancipating interventions is gradually going down the drain. This has not happened completely yet, but it obviously will.
A recently published study investigates the contribution of various experts involved in the procedures. One conclusion is that the state has almost totally retired from the procedure, and that psychiatrists have filled the void. This indicates that psychiatry heavily endorses both involuntary commitment and involuntary treatment, no matter how unmedical the content and circumstances.
No doubt the more repressive atmosphere in society as a whole has contributed to the rise in the number of involuntary commitments during recent years. We are moving away from tolerance, towards “law and order.” Recent laws criminalize increasingly many behaviors, making them punishable. The penalties are becoming more severe. Every year the clamor mounts for building more cells and jails. Feelings of insecurity are on the increase, apparently fueled in particular by 9/11 and other terrorist attacks. Governments and the media powerfully stimulate these feelings by evoking an atmosphere of fear.
Another factor in advancing the case for involuntary commitment are several incidents in which a violent crime was committed by a psychiatrically disordered person. One such incident, which has come to be called the “the madman on Vrolik Street” involved a psychiatric patient who fatally struck a neighborhood child outside of his home in Amsterdam. Afterwards, an upsurge in involuntary commitments was observed. (See also Chapter VII). Also in England such incidents have prompted calls for more involuntary commitments. There the government refers to “a crisis in mental health law.”
Every country has some kind of provision for involuntary commitment, although these provisions differ very much from each other. In Germany, for instance, correct and careful legal procedures with little influence from psychiatrists and other professions are much emphasized. In contrast, in England much more emphasis is placed on the opinions of professionals and kin. In England the assumption is that experts and family have the interests of the patient at heart, whereas in Germany the experiences of WWII have given rise to great caution in these matters.** France occupies an intermediate position. In most countries, one or more of the following criteria have to be met:
There are extreme differences from country to country in the percentage of involuntary commitments as compared to admissions in general, as well as in the absolute number of involuntary commitments per 100,000 residents. However, these numbers are in reality difficult to compare, and there are insufficient reliable studies that could make accurate comparisons possible.
*Regarding the regulations about involuntary treatment, these are quite complicated. In short, the idea is that immediately upon involuntary commitment, the psychiatrist is required to set up a treatment plan and present it to the patient. If the patient refuses, there remain two possibilities. If he is competent, that is to say, is capable of protecting his own interests in this respect, the treatment plan remains invalid. If he is incompetent, the person who represents his interests can consent to the treatment plan in the patient’s stead. However, active resistance by an incompetent patient can still invalidate the treatment plan.
In addition, if the patient refuses treatment, and also inside the hospital forms a danger to himself or others (such as staff or other patients) , involuntary measures may be administered for maximally one week. These may be forced medication, forced feeding, and solitary confinement in an isolation cell. These involuntary measures are to be registered.
Psychiatrists object to these stipulations, as they are said to “paralyze” treatment. It is unclear to what extent actual practice conforms to the stipulations of the law. – J.P.
**Before and during WWII German physicians and psychiatrists actively participated in the “euthanasia” programs. These entailed the murder and gassing of thousands of psychiatric patients on grounds of a completely out of hand, absurd theory about degeneration and “inferior” life. This development later also included the mass murders of the Jews and other groups labeled “inferior” such as Gypsies. Although not all psychiatrists participated, in today’s Germany there is reluctance to grant power to such professionals. For more information, see Mitscherlich A, & Mielke F., Medizin ohne Menschlichkeit, Frankfurt: Fischer Buecherei, 1960; Mueller-Hill B., Toedliche Wissenschaft. Reinbek: Rowohlt, 1984; or Shorter E., A History of Psychiatry: From the Era of the Asylum to the Age of Prozac, New York: John Wiley, 1997. – J.P.
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