2011: Restrictions of freedom
Confinement of mentally disordered person is governed by the Law of 26 June 1990 on the personal protection of mentally disordered persons.
The conditions for the confinement of a mentally disordered person
According to Article 2 of Chapter 1 of the above-mentioned law:
"Failing any other suitable treatment, confinement measures may be taken in respect of a person with a mental disorder only if his or her condition so requires, either because he or she seriously endangers his or her own health and safety, or because he or she constitutes a serious threat to the life or integrity of others.
Lack of adaptation to moral, social, religious or political or other values cannot of itself be considered as a mental disorder."
Placing under observation
Any interested party may file a petition for someone to be placed under observation with a view to possible confinement. A written petition must be filed with the Justice of the Peace of the place of residence of the mentally disordered person, failing which, the place of domicile of that person. If neither of these are possible, the petition can be filed with the Justice of the Peace of the place where the patient is present.
The petition must be signed by the petitioner or by his or her lawyer and must include the following details:
- The date (day, month and year);
- The surname, first name, occupation and domicile of the petitioner and the degree of kinship or the nature of the relationship which exists between the petitioner and the patient;
- The subject of the request and a summary of the reasons;
- The surname, first name, residence or domicile of the patient or, if not possible, the place where he or she is present;
- The designation of the judge who is to be made aware of the matter.
Wherever possible the petition should also include information on the place and date of birth of the patient and, where necessary, the surname, first name, domicile and status of his or her legal representative.
A detailed medical report must be attached to the petition. In order to be valid, this must provide a description of the state of health and symptoms of the patient, as well as confirmation that the conditions for confinement have been met. This must be based on a medical examination performed no more than fifteen days prior to the lodging of the petition.
This report cannot be prepared by a doctor who is a relation of, or related by marriage to, the patient or the petitioner, or attached in any way whatsoever to a psychiatric service where the patient is staying.
As soon as the petition is received, the Chairman of the Bar or the Bureau of Legal Aid must arrange for a lawyer to be appointed. Within 24 hours the Justice of the Peace must arrange an appointment to visit the patient and also the date and time of the hearing.
Within the same period, the clerk of the court must serve the petition on the patient and on his or her legal representative, if any. The patient is also informed that s/he has the right to choose another lawyer, a doctor-psychiatrist and a personal confidant.
On the date and time fixed, the Justice of the Peace hears the patient and all other people whom s/he considers it appropriate to hear. These hearings take place in the presence of the patient's lawyer and in court, unless the patient or his/her lawyer request otherwise.
The Justice of the Peace also collects all useful information of a medical or social nature and, may visit the patient at the place where he or she is staying. The latter could be useful in order to compare the findings of the medical report with the situation “on the ground”.
After hearing all the parties, the Justice of the Peace publicly delivers a decision within ten days following the filing of the petition. The clerk of the court then serves a copy of the judgment on the parties concerned and informs them of the rights of appeal which are available to them. If the decision is taken in favour of confinement, it will also be notified to the director of the psychiatric institution in which the patient will be placed under observation. An unsigned copy of the judgment is also sent to the Attorney General and the patient’s legal representative, doctor-psychiatrist and personal confidant.
Confinement for observation purposes may not exceed forty days. During that period, the patient is monitored and examined in depth.
Section 2 of the Law of 26 June 1990 deals with the further confinement of a patient who is already under observation. If the condition of the patient justifies his/her being retained in hospital at the end of the period of observation, the director of the institution must send a detailed report, at least 15 days before expiry of the observation period, to the Justice of the Peace certifying the necessity of maintaining hospitalisation. The Justice of the Peace then takes a decision.
The duration of further confinement
If the Judge of the Peace decides to further confine the patient, s/he sets the duration of the further confinement period, which cannot exceed two years.
At the end of this period of further confinement, the director of the institution must allow the patient to leave unless it is judged that confinement should be extended for a further period, which again cannot exceed two years.
Revision of the Justice of the Peace’s ruling
The Justice of the Peace may at any time revise his/her decision. The patient or any interested person may make a request for such revision, but the request must be supported by the opinion of a doctor. The person who made the original request is then notified. The Justice of the Peace takes the advice of the head doctor of the department and makes a decision once s/he has heard all interested parties.
The appeal procedure
The Justice of the Peace’s ruling can be appealed pursuant to Article 30 of the Law of 26 June 1990. The appeal must be filed within fifteen days following the Justice of the Peace’s decision and addressed to the President of the Court of First Instance. The effect of filing the appeal will be to suspend the measure taken by the Justice of the Peace with effect from one month after filing the appeal unless the Court of First Instance has already taken a decision by then. In any event, the Court of First Instance must reach a decision within three months of the filing of the appeal. Moreover, the measures taken by the Justice of the Peace will be suspended if the Court of First Instance does not come to a decision within one month following the filing of the appeal.
Article 9 of the Law of 26 June 1990 contains provisions for emergency confinement. The Attorney General of the place where the patient is staying has power to decide that s/he should be placed under observation in a psychiatric clinic.
The Attorney General can act only after obtaining the written opinion of a doctor designated for the patient or at the written request of an interested person accompanied by a report of the same kind as required for non-emergency confinement. The opinion or report must conclude that there is an emergency. The Attorney General notifies his/her decision to the director of the institution.
Within 24 hours of his/her decision, the Attorney General notifies the Justice of the Peace, the patient, his/her legal representative and the person who made the original request of his/her decision and of the petition. The same process is then followed as for non-emergency confinement.
However, if the Attorney General does not send the petition to the Justice of the Peace within 24 hours or if he does so but the Justice of the Peace does not reach a decision within ten days, the measure taken by the Attorney General comes to an end.
Confinement within the family environment
Chapter III of the Law of 26 June 1990 allows for a patient to be cared for in the family if his/her condition permits this. The issue is investigated by the Justice of the Peace in the same way as with a request for placing under observation.
A patient can be cared for in this way by a designated person and a doctor for a maximum period of forty days.
As with further confinement, the doctor sends a report to the Justice of the Peace 15 days before expiry of the period stating the necessity for maintaining the protective measure. The Justice of the Peace may then extend the period of care within the family for a maximum of two years, which can be extended by subsequent periods of maximum two years each.
Alzheimer’s patients who intend to drive must in any event inform the local police of their infirmity.
The Belgian Highway Code requires that every driver must be physically capable of driving his/her vehicle. If a doctor diagnoses that someone suffers from Alzheimer’s s/he can decide that the patient must be tested for his/her driving capabilities by CARA, an organisation under the authority of the Belgian Institute for Traffic Safety.
 “en chambre du conseil”/”in raadkamer”
 “Le procureur du roi”/”de procureur des Konings”
Last Updated: Wednesday 14 March 2012