In many cases, the facilities did not recognise
that preventing residents from leaving an area
could constitute a deprivation of liberty.
Deprivation of liberty does not only arise where
there are absolute obstacles such as locked
44
doors. Covering a door in the manner outlined
above has the result that residents are unable to
recognise the exit due to their reduced cognitive
abilities. If the act of concealing the exit has the
effect that an individual is under the impression
that it is physically impossible to leave the area
they find themselves in, then this constitutes a
deprivation of liberty within the meaning of
section 1906 of the German Civil Code
45
[Bürgerliches Gesetzbuch, BGB].
The same
applies to complicated locking mechanisms or
any other method whereby staff prevent
46
individuals from leaving a particular area.
were in use in certain cases without court
permits or consent from the persons concerned.
When asked about this, the facility replied in a
particular case that the person concerned was
immobile. However, there was no medical
certificate to confirm this. Nor was the facility
able to provide any explanations for the other
cases. A further case was observed where a bed
rail was still in use even after the relevant court
order had been annulled. The facility had
continued to use the bed rails for a period of
more than two years before consent was
obtained from the person concerned.
As a fundamental principle, every human being
has a right to personal freedom. In accordance
with section 1906 of the German Civil Code
[Bürgerliches Gesetzbuch, BGB], the placement of
a person in a closed living area against his or her
will and the application of measures involving
deprivation of liberty require judicial
authorisation, unless there are exceptional
circumstances in the particular case that would
justify such a measure, or the person concerned
has expressly given consent.
It must be ensured that measures involving the
deprivation of liberty are applied in accordance
with legal requirements at all times.
Procedure instructions for deprivation of liberty
In one facility, the procedure instructions on
measures for the deprivation of liberty did not
comply with legal requirements in several
respects. As a consequence, there was a danger
that legal provisions might not be observed when
residents were being deprived of their liberty.
Preventing residents from leaving a living area
In several facilities, measures were found that
were designed to prevent residents (in particular
those with dementia) from leaving a living area
or facility without the exit door having to be
locked.
In order to prevent violations of residents’
rights of personality, procedural instructions for
employees must comply with the relevant laws.
Such measures included, for example, number
code locking mechanisms on exit doors or lifts.
It was also seen in many facilities that the exit
doors were covered with curtains, colourful
blinds or printed wallpaper so that they would
not be immediately recognisable as exits. In
other facilities, certain residents were equipped
with transponders, which would set off a ring
tone whenever the resident opened the door of
the living area. The facilities explained that
when a ring tone is activated, the employees run
to the door to prevent the residents from leaving
the living area or the facility.
2.2.11 – Violence prevention
In some facilities, it appeared that the topic of
violence had not been sufficiently addressed. No
central record was kept to document violent
incidents between residents or between
residents and staff. Furthermore, some facilities
had no violence prevention strategy.
The topic of violence should be discussed
openly in order to raise awareness among
44
Walther, “Freiheitsentziehende Maßnahmen nach § 1906 Abs.
4 BGB”, BtPrax 6/2005, p. 215; Jacobs, “Freiheitsentziehende
Maßnahmen nach § 1906 Abs. 4 BGB durch optische oder verbale
Täuschung”, BtPrax 2012, vol. 3, p. 99; Stalinski,
“Unterbringungsähnliche Maßnahmen - § 1906 Abs. 4 BGB”,
BtPrax 2/2014, p. 58
45
Ibid.
46
Palandt/Götz, “BGB-Kommentar” [Commentary on the
German Civil Code], 76th ed., sections 1906 margin no. 35
Generally in these cases, no placement orders
or orders for measures involving deprivation of
liberty had been issued by the courts.
The National Agency sees this as a threat to
the civil liberties of the persons concerned.
42
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