example, in regard to the use of a sensor
wristband that triggers a signal to employees
when the wearer leaves the facility so that the
employees can return the resident to the facility
immediately.
A measure involving deprivation of liberty
within the meaning of section 1906 (4) of the
German Civil Code [Bürgerliches Gesetzbuch,
BGB] is deemed to exist if, inter alia, the physical
freedom of movement of the person concerned
is restricted by the measure in question. “This is
the case if it cannot be ruled out that the person
concerned would be capable of a voluntary
change in their location, but would be prevented
from making such a change by the measures in
40
question.” A person who is at risk of falling and
injuring themselves when making voluntary
movements cannot be considered immobile.
In response to repeated applications for
authorisation to use bed rails, the custodianship
judges of Köthen Local Court issued a joint
letter with the general statement that “the
protective measures used in the homes of the
court district to prevent persons from falling out
[of a bed] do not constitute measures requiring
authorisation, since they merely offer protection
against falling out without restricting the
freedom of the persons concerned.” One facility
that the National Agency visited in October
2018 had also received this general statement of
7/07/2014. The facility stated that, as a result of
the letter, it had ceased to apply for
authorisation from a court in such cases, and had
since then applied measures such as the use of
bed rails without judicial authorisation or
consent from the person concerned. The local
court’s legal assessment disregards the fact that
even bed rails can constitute a measure involving
39
deprivation of liberty. It also goes against the
statutory obligation not to decide on measures in
a generalised manner, but rather to ensure a
case-by-case assessment. The National Agency
considers the court's action in this regard to be
highly questionable.
In many cases, the court decisions were not
based on a medical certificate proving the
person’s state of immobility. In addition, it
appeared that, contrary to section 319 (1) of the
Act on Proceedings in Family Matters and in
Matters of Non-contentious Jurisdiction
[Familienverfahrensgesetz – FamFG], the courts
had not obtained a personal impression of the
local situation in each individual case. The
justification for the decisions merely referred to
information or statements provided by third
parties, such as a guardian. In the justification
given for one decision, it was stated that
authorisation for mounting a bed rail was no
longer necessary because the guardian had stated
that the mother in question no longer moved.
Unlawful and contradictory judicial decisions
lead to legal uncertainty in the facilities
concerned. It would therefore be desirable to
have a consistent approach in place that is in line
with the relevant law. Equally, clear justifications
should be provided.
The competent court repeatedly ruled that
there was no obligation to acquire authorisation
to apply a measure involving deprivation of
liberty due to the presumed immobility of the
persons concerned.
40
Federal Court of Justice, order of 27/06/2012, file no.: XII
ZB 24 / 12, margin no. 10
39
Palandt/Götz, “BGB-Kommentar” [Commentary on the
German Civil Code], 76th ed., sections 1906 margin no. 35
36
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