Psychiatry.
2.2.2.4.
De facto compulsory admission by locking the door of a ward
During a visit to the Department for Neurology and Psychiatry of
Children and Adolescents of the Clinic Klagenfurt, Commission 3 found
that the door of the ward was locked when an adolescent was
admitted and this resulted in a de facto compulsory admission of all
other adolescents. If they wish to leave the ward, they must ask the
staff to unlock the door and they are asked repeatedly why they want
to go out.
In legal proceedings on comparable cases, it was already clarified
that locking ward doors must always be considered a restriction of
freedom. The possibility of asking staff for help doesn’t change that
fact. Constant dependence on the will of third parties when wishing to
change one’s whereabouts is a not insignificant intervention in the
right to personal freedom.
Case law
The grounds set out in case law are that all forms of restrictions (of
freedom) mentioned in Section 33 of the Hospitalisation Act also result
in the presence of an admission within the meaning of Section 2 of the
Hospitalisation Act, whereby no particular materiality threshold with
regard to duration and extent of the restrictions is provided for. The
Hospitalisation Act does not provide any basis for voluntary
confinement or care of a patient in a closed ward of a facility without
admission within the meaning of Section 2 of the Hospitalisation Act.
This is necessary in light of international law and constitutional law
with regard to the right to personal freedom and also in order to
maintain human dignity.
In this context, the facility argued vis-à-vis Commission 3 that at the
time of admission to the ward all of the adolescents and their legal
guardians were asked in written form to provide their consent to have
the door to the ward locked.
Declaration of consent
is not sufficient
Declarations of consent, which are intended to legitimise an unlawful
situation, are deemed invalid and unenforceable by the NPM. Besides,
in the declaration of consent available to the NPM reference is made
only to an occasional locking of the entry door to the ward. This
creates the impression that the ward is only locked in exceptional
cases, although this can in actuality be continuous for lengthy periods.
From a professional standpoint, the hospital justifies this practice with
the reasoning that complete isolation of individual minors must be
avoided in order to prevent stigmatisation and marginalisation.
Furthermore, such measures are met with a complete lack of
understanding on the part of the adolescents who are being treated
Problematic care
concept
55
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