Judgments alerting the legislature

Civil Division

Compulsory and involuntary care under the Compulsory Mental Healthcare Act and the Care and Compulsion (Psychogeriatric and Intellectually Disabled Patients) Act
The Compulsory Mental Healthcare Act (WVGGZ) and the Care and Compulsion (Psychogeriatric and Intellectually DisabledPatients) Act (WZD) entered into force on 1 January 2020. They replaced the Psychiatric Hospitals (Committals) Act (BOPZ). A number of cases relating to the new legislation reached the Civil Division of the Supreme Court in 2020. The WVGGZ regulates compulsory care for people with a psychiatric disorder; the WZD is concerned with involuntary care for psychogeriatric patients and patients with an intellectual disability. The WVGGZ provides for a variety of forms of compulsory care, including care given outside an institution. The WZD provides only for care within an institution.

In 2020 the Supreme Court handed down judgments relating to the WVGGZ and the WZD which noted flaws in the legislation. Most of these have already been resolved or are due to be resolved through legislative amendments or proposed amendments. This shows that signals from the Court to the legislature can make a real contribution to productive interaction between the legislative and judicial branches of government in the interests of parties to proceedings and society. The overview below summarises the 2020 judgments that pointed out as yet unresolved issues in the two Acts.

  • HR 5 juni 2020, ECLI:NL:HR:2020:1012 (Supreme Court, 5 June 2020)
    This case was concerned with the procedural law that applies to the WVGGZ. In brief, the Act provides for two procedures when compulsory care is indicated: a compulsory care order can be sought from the court or, if the case is urgent, an emergency mental health order from the mayor. The latter order, which is intended solely for situations in which prompt action must be taken in light of an immediate threat of serious harm, is temporary. If compulsory care continues to be needed, the court can extend the order.

    The question in this case was whether appeal in cassation could be lodged to challenge a court order extending an emergency mental health order. Section 6:1, subsection 10 of the WVGGZ provides for this in respect of a compulsory care order by declaring applicable the rules governing petition procedures laid down in the Code of Civil Procedure, in addition to the provisions of the WVGGZ. No such provision has been made in relation to the emergency mental health order. Partly in light of comments made by the minister in the context of the Act’s legislative history, the Supreme Court concluded that this was an omission and that the legislator’s intention was that the statutory rules governing petition procedures should also be observed when a court orders the extension of an emergency mental health order. This question was later answered in the same way in respect of the emergency mental health order itself. (HR 20 november 2020, ECLI:NL:HR:2020:1806 (Supreme Court, 20 November 2020).
  • HR 10 juli 2020, ECLI:NL:HR:2020:1271 (Supreme Court, 10 July 2020)
    This case concerned a person with dementia whose carers considered it necessary to provide compulsory care in the form of restraints when she was in a wheelchair. Dementia is a psychogeriatric condition to which the WZD in principle applies. However, the person concerned had been voluntarily admitted to an institution providing compulsory care. Cases in which a person falls under both the WVGGZ and WZD are deemed to concern multiple conditions. The question that arises in this situation is which Act applies. Also of relevance is the fact that since the new legislation came into effect, most institutions provide either compulsory care (under the WVGGZ) or involuntary care (under the WZD).

    Two questions arose: compulsory care under the WVGGZ can only be provided if a) the person concerned has a psychiatric condition and b) they are resisting care. With regard to a), it was necessary to establish that the patient’s current care needs resulted from a psychiatric condition. With regard to b), this was difficult to establish as the person was suffering from dementia, was unable to indicate whether she agreed to the measures envisaged and had no representative or guardian to act in her interests.

    With regard to the issue of resisting care, the Supreme Court noted that a medical opinion provided by an independent psychiatrist stated that the person in question was unable to conduct a coherent conversation and could not therefore consent to the measures restricting her liberty. She had no representative. In such cases, the WVGGZ provides for the appointment of a guardian, who can grant or refuse consent to the envisaged care on behalf of the person concerned (section 1:4, subsection 5 in conjunction with section 1:3, subsection 4 of the WVGGZ ). However, the Act did not provide for the situation where no guardian has been appointed, which can frequently occur in the context of granting or extending an emergency mental health order. The Supreme Court accepted that in such a case, a compulsory care order can be applied for and granted, as a precautionary measure. The district court was therefore at liberty to grant the application for the extension of the emergency mental health order, independently of the question of whether the person concerned was resisting care.
  • HR 20 november 2020, ECLI:NL:HR:2020:1806 (Supreme Court, 20 november 2020)
    This case concerned another problem with the application of the WVGGZ. If an application for review of an emergency mental health order is lodged with the district court, accompanied by a claim for damages, different legal remedies are available to challenge the resulting court decisions. The only remedy against the decision on the application for review of the emergency mental health order is appeal in cassation; in the case of the decision on the application for damages, an appeal must first be lodged. This is impractical if the claim for damages relies on the emergency mental health order being unlawfully granted.

    The Supreme Court’s ruling was as follows. If an application for review of an emergency mental health order is lodged with the district court and a claim for damages is also submitted, a situation may arise under the WVGGZ in which an appeal in cassation is lodged with the Supreme Court against the decision on the review of the emergency mental health order, and an appeal against the decision on the claim for damages is lodged with the appeal court. In this situation, the appeal court can delay its decision until the Supreme Court has ruled on the lawfulness of the emergency mental health order, if the Supreme Court’s decision is relevant to the appeal court’s assessment of the claim for damages.