Hospitals and psychiatric institutions
admission to the respective hospital, the Nursing and Residential Homes
Residences Act becomes applicable to patients who develop a continuous need
for care during their hospital stay. Correct handling is only guaranteed with
knowledge of the legal provisions and complete documentation.
Medication-based restrictions of freedom represent a particularly sensitive
human rights area. Careful consideration is required in every individual
case as to whether administering medication implies a measure that restricts
freedom. In this context, the diagnosis and the therapy being pursued with the
medication shall be considered along with the concrete effect the medication
will have on the personal freedom of those involved. Even a therapeutically
indicated medication-based treatment shall be considered a measure that
restricts freedom if it primarily serves to suppress restlessness and to calm the
patient down, i.e. “immobilize” them (cf. Supreme Court of 29.5.2008, 2 Ob
77/08z and Supreme Court of 26.2.2009, 1 Ob 21/09h).
In order to be able to take the right decision in any case, it is absolutely
necessary to accurately document all of the circumstances. Notes such as
“restlessness” or “sleeplessness” are not helpful in determining whether the
patient’s behaviour was a danger to themselves or to others.
Both medication-based and mechanical measures that restrict freedom were
used on a patient at the facility visited. The mechanical restrictions were
not documented in the care plan or the documentation of execution. They
were (as were the medication-based measures) not reported to the residents’
representatives. As far as the commission is concerned, alternative care
measures that would have impinged less on the patient’s right of freedom (e.g.
low bed, fall mat) would have been possible as well.
Informing staff
and improving
documentation
XX
In its statement of opinion, the Land Upper Austria conceded that there is an
urgent need for action both with regard to improved information of the staff
about the legal framework (applicability of the Nursing and Residential Homes
Residence Act) and the necessity of complete and traceable documentation.
It shall be ensured that the staff is sufficiently informed about the legal conditions and
the resulting (documentation) obligations concerning measures that restrict freedom.
2.2.5
Violation of the right to wear private clothes
The objective of the Hospitalisation Act is “to cover the limitations to the
restriction of personal rights in a constitutional, proper form” during detention
(Kopetzki, Grundriss des Unterbringungsrechts, paragraph 721). The restriction
of the patient’s other rights during hospitalisation is only permissible under
Section 34a of the Hospitalisation Act if it is unavoidable for averting risk or
53
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