2011: Restrictions of freedom
According to article 434 of the Penal Code, anybody who unlawfully arrests or detains another person without authorisation is guilty of an offence and liable to a prison sentence (please see sub-section on coercive measures for more details).
However, the Law of 10 December 2009 on the placement of people suffering from mental disorders provides the legal justification to detain people with dementia in the psychiatric departments of hospitals or in specialized psychiatric establishments. It does apply to placement or the deprivation of liberty in day care centres or other establishments.
The conditions for involuntary internment
The procedure for involuntary internment involves two stages. First, there is a procedure to detain a person for the purposes of observation and second, there is a procedure for the involuntary placement of the person in question.
Article 3 states that a person who is suffering from a mental disorder should be treated in the locality in which s/he lives to the extent that this is possible. The person can be interned in a closed psychiatric establishment or department according to the provisions of this law only if s/he:
- is suffering from a mental disorder and
- this makes him/her a danger to him/herself or other people.
A diminution of mental faculties due to ageing is not, in itself, sufficient grounds for a placement.
The procedure for involuntary internment
The following people can request internment: the curator or tutor of an incapable adult, a member of the family or another interested person. If a person represents a threat to public order or safety, the request may be made by the mayor of the commune, the deputy mayor, the chief of the police brigade or station or his/her replacement appointed by the mayor or the State Prosecutor.
The person making the request must explain his/her reasons and provide a medical certificate (not more than three days old) from a doctor who has examined the patient on the day it was written. The doctor cannot be the person's spouse, a relative or a future inheritor. Neither can s/he belong to the establishment where the person would be interned. In cases of urgency, the medical certificate is not demanded at the time of the patient's placement, but must be produced within 24 hours.
The director of the establishment then receives the person and must notify the State Prosecutor and Chairman of the Supervisory Commission within 48 hours. The patient is placed under observation for a period of 15 days, during which the doctor observes the patient and carries out the relevant examinations in order to determine whether or not s/he should remain in care and in order to make the diagnosis. After this period, the doctor decides whether the patient should be kept in hospital or released and informs the State Prosecutor and the Chairman of the Supervisory Commission. S/he informs the patient of the decision, as well as the person who made the request for internment.
The right to appeal and review process
After one year has passed since the decision to intern the patient was made, a commission composed of a judicial magistrate, a doctor specialised in psychiatry or neurology and a community health worker or health visitor (not attached to the establishment) consult with the treating doctor and gather the necessary information in order to decide whether the patient's detention remains justified. If it is decided to maintain the patient in hospital, the committee meets again in two years' time and then every two years.
The patient may at any time apply to the court of the district in which the establishment is located in order to request that s/he be discharged. Any other interested party may also make such a request. However, once an appeal has been rejected, it is necessary to wait a year until making another appeal, as otherwise it will not be considered.
Confinement at home
An alternative to internment in a psychiatric establishment is the possibility to sequestrate a person who is suffering from a mental disorder at home. The person who proposes this must obtain a medical certificate and make the request to the tutelary judge. The judge then arranges for a medical examination of the person to be guarded by a specialist in psychiatry or neurology. Authorisation can only be given if both doctors agree on the necessity of this protective measure and that the person can be cared for at home. If this is the case, the judge fixes the conditions and informs the State Prosecutor of the decision.
The two magistrates can then visit the person whenever they see fit, although the judge must make a visit whenever the designated doctor considers it necessary and at least once every three months. The doctor must inform the judge if at any time s/he considers it necessary for the person to be interned due to a deterioration of the latter's condition or if the person responsible for care and lodging has not observed the conditions previously agreed upon.
According to article 30 of the Law of 26th May 1998 on the placement of people suffering from mental disorders in closed psychiatric establishments or departments, the Ministry of Health designates a civil servant in each establishment who is responsible for informing patients of their rights, notably in connection with the said law. This civil servant can also advise them in legal or general matters which concern them.
Deprivation of freedom
The illegal deprivation of a person’s liberty carries a prison sentence of between 3 months and 2 years and a fine of between EUR 251 and EUR 2,000 for the person responsible for such act (art.434 of the Penal Code). The duration of imprisonment and the amount of the fine are considerably higher if the duration of illegal and arbitrary deprivation of liberty was over 10 days or 1 month (articles 435 and 436 of the Penal Code) i.e. up to a maximum of EUR 5,000 and of 5 years’ imprisonment.
According to article 398 of the Penal Code, whoever voluntarily injures or strikes another person will be punished with a prison sentence and a fine or just one of these punishments. If the act was carried out with premeditation, the sentences can be increased to a maximum of one year’s imprisonment and a fine of EUR 2,000.
A person who voluntarily injures or hits another person may be fined between EUR 251 and EUR 5,000 and receive a prison sentence of between 6 months and 5 years if that person is, for example, his/her partner, parent, sibling or someone who is particularly vulnerable due to their age, an illness, a physical or mental deficiency of which the perpetrator is aware (article 409 of the Penal Code). If the violence is carried out by a person who lives with the victim, the former may be ordered to maintain a certain distance from the home and from the victim and to refrain from contacting the victim.
Article 77 of the Road Traffic Regulations with amendments up to 6 May 2010 (Arrêté grand-ducal du 23 novembre 1955 portant règlement de la circulation sur toutes les voies publiques)stipulates that in order to obtain or renew a driving licence, a person must have a medical test to ensure that s/he is not suffering from an infirmity or disorder liable to affect his/her ability or capacity to drive. A person who is already in possession of a valid driving licence may be requested at any time by the Ministry of Transport to have a medical examination if there is a doubt concerning his/her ability and capacity to drive. One of the aims of the medical examination is to determine whether or not the person is suffering from a mental disorder. Concerning mental disorder, subsection 6 of article 77 states:
"If the interested party is affected by mental disorder due t o illness, trauma or an operation on the central nervous system or obvious mental retardation, or if s/he is suffering from a serious psychotic disorder, the driving licence is only issued or renewed on the advice of the Medical Commission. The same applies to candidates presenting serious behavioural disorders due to ageing or a major disorder in the capacity of judgement, behaviour or adaptation linked to the personality."
Last Updated: Wednesday 14 March 2012