JUSTICE FOR ALL
Disabilities has also strengthened the right
to self-determination of persons in forensic psychiatric detention.5 1 3 In sec 8, the
person's right to self-determination is highlighted by involving them in the planning of
treatment. The treatment and rehabilitation
plan should be an offer towards the detainee
and must consider alternative possibilities of
inpatient stay (sec 8 para 2). When issuing
the treatment plan, the principle of regionalisation must be considered. This provides the
possibility of treatment and accommodation
close to the residence (sec 55).
The StrUG is oriented towards social rehabilitation and assigns a more significant role to
the Forensic Outpatient Unit in treating the
persons concerned (sec 16). These units will
support detainees from the very beginning
of their detention and are intended to
ensure the treatment, care and supervision
of detainees staying outside the inpatient
area in preparation for release. Moreover,
they will provide the treatment of persons
concerned after the release.
Night confinement is a regular practice in
many facilities and is, among other things,
a result of staff shortages and staff cuts.514
Night confinement can have negative consequences for the therapeutic process. It is
therefore a good sign that night confinement
is considered a special security measure (sec
32 para 1 No. 4). Therefore, a reasoned caseby-case decision is needed. When night
confinement is ordered, the legal guardian,
the legal representative and, at the request
of the detainee, another trusted person must
be informed immediately (sec 32 para 4).
Nevertheless, night confinement is a regular
practice in some facilities and is, among
other things, a result of staff shortages and
staff cuts.515
judgement of the FCC, restraining a person
for more than 30 minutes is a deprivation
of liberty that needs a judicial decision, the
monitoring of a medical doctor as well as
personal observation.516 Regarding the use
of physical restraint, sec 33 para 6 states
that uninterrupted, direct, personal oneon-one supervision has to be provided.
The legislature thus followed the case-law
of the FCC and the recommendation of
the National Agency for the Prevention of
Torture.517 According to sec 33, restraint
is defined as a measure that deprives the
person of their freedom of movement. The
National Agency criticises that sec 33 lacks
a definition of a 3-point-restraint: the lack
of a clear definition can lead to the use of
such restraint, even though it might not
represent the milder means (in an individual
case) and which is seemingly not covered by
the procedural safeguards.518
According to sec 50, the house rules should
contain detailed information on the personal
rights and obligations of the detainees in
easy-to-understand language. However,
this has not yet been implemented by all
facilities. Translations in other languages are
also lacking.519
In conclusion, the success of the reform and
the changes it will bring to the detainees
will depend heavily on employees' attitudes
toward those detained and on the quality of
therapy services provided on-site.520 Innovative legal terms and regulations may enhance
changes of attitude and practice, but they
should however not be equated with them.
Furthermore, it is worth emphasising that the
protection of the general public is still at the
forefront of the law while rehabilitation and
the empowerment of the person's self-determination are only mentioned after that.
According to Sec 33 para 2, restraint
(Fixierung) may only be ordered as a
measure of last resort if it is indispensable
to avert a current significant danger to
the person or a significant danger to the
legal interests of others, and if, based on
the person's behaviour or condition, other
less severe measures to avert the danger
do not appear to be sufficient. Following a
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