Placement procedure

from Wikipedia, the free encyclopedia

Placement proceedings relate to the judicial approval or ordering of custodial placement or coercive medical measures . Legal basis may face adult assisted § 1906 , § 1906a BGB, with minors in the exercise of parental authority § 1631b BGB and the public regardless of age and for every person Mentally-ill-law be the federal states.

Placement procedures, including those based on public law ( Section 312 No. 4 FamFG), are procedures of voluntary jurisdiction according to Sections 312 ff. FamFG (until September 1, 2009 Sections 70 ff. FGG). Therefore there are neither plaintiffs nor defendants , only parties to the proceedings . For adults, the responsibility lies with the supervisory court .

The placement of minors is a matter of parenthood ( § 151 No. 6 and 7 FamFG), the family court is responsible for the approval . For the accommodation of minors, the procedural regulations for adults apply accordingly ( Section 167 FamFG).

The care and family courts are each part of the local district court ( Section 23b, Paragraph 1, Section 23c, Paragraph 1 of the GVG ).

Legal facts

In 2004, placements were approved as follows in the Federal Republic of Germany (previous year in brackets):

  • Section 1906 (2) BGB (civil law placement by supervisor): 46,381 (43,383)
  • Section 1906 (4) BGB (measures similar to accommodation, e.g. restraints , bed rails): 79,391 (74,783)

In the case of the placement of minors and the placement under the Mental Health Acts , according to the judicial statistics, the approval decisions are not counted, but the ongoing court proceedings at the end of the year. Here are the figures as of December 31, 2004:

  • Approval procedure for minors ( § 1631b BGB): 4,757 (including extension procedure: 702)
  • Approval procedure according to § 1906 (including Paragraph 4) BGB: 127,470 (i.e. extension: 25,438)
  • Approval procedure according to the mentally ill laws: 62,981
  • Approval procedure according to § 1846 BGB (urgent procedure): 17,240 (including extension orders: 1010)
(Sources: Federal Ministry of Justice; special survey procedure according to the Care Act or GÜ2 of the local courts)

Material jurisdiction

According to Art. 104 Paragraph 2 of the Basic Law, only the judge may decide on the admissibility and continuation of a deprivation of liberty. A judicial decision must be brought about immediately for any detention that is not based on a judicial order.

The placement measures must be approved by the competent local court (custodian), as it is a matter of deprivation of liberty . The judge's reservation for acts according to § 1906 BGB in § 14 RPflG old version was not adopted by the FGG-RG in the new § 15 RPflG. Placement according to state laws would be a matter for the administrative courts because of the danger to public safety , which was also the case before 1992. Because of the overlap between the two types of court, there were disputes over jurisdiction; each court pushed the decision on to the other, so that today, according to the law, only the care court for adults or the family court for minors decides.

Local jurisdiction

The local jurisdiction is determined by § 313 FamFG. The competent court can also hand over the proceedings to the court at the place of residence of the person requiring care if the placement is to be carried out in his / her district. In the case of placements according to the Mentally Ill Act , the court at whose location the placement is to be arranged is always responsible ( Section 313 (3) FamFG).

Procedural principles

The procedural principles can be found in § 315 ff FamFG. They are similar to the principles of the supervision procedure , but differ from them in some details. The procedure begins with an application for approval from the respective legal representative or authorized representative (if the latter has been expressly authorized to deprive of liberty in accordance with Section 1906 (5) of the German Civil Code). In the case of accommodation under public law, the body responsible under this law (usually the health department or public order office ) submits the accommodation application. Acting ex officio is also possible, but in practice this is an exception.

Procedural ability of the person concerned

The person concerned is independent of its legal capacity legal capacity in the accommodation process, so it can make requests, express themselves, appeal insert, hire a lawyer ( § 316 FamFG).

Appointment of a guardian ad litem

Among the procedural guarantees in the housing method also mandatory order is part of a process caregiver ( § 317 FamFG). If, in exceptional cases, the court does not appoint a nurse for the proceedings, this must be justified in the decision through which an accommodation measure is taken.

The appointment of a guardian ad litem should be omitted or canceled if the person concerned is already represented by a lawyer or another suitable authorized representative.

Hearing the person concerned

The court must support those affected personally listen . If necessary, the court creates the immediate impression in the usual surroundings of the person concerned, which is usually their own home. The court informs him about the possible course of the proceedings ( § 319 FamFG).

In practice, however, the hearing usually takes place within the clinic, because the court has already provisionally approved the placement because of the particular urgency. For the above-mentioned process steps, including the appointment of a method curator and expert evidence heard can not take place because of the urgency of accommodation often initially.

Demonstration for the hearing

If the person concerned refuses to take part in the hearing, the care authority or the competent authority under psychiatric health law has him or her for a personal hearing ( Section 319 (5) FamFG) and for an examination by the expert ( Section 322 in conjunction with § 283 and § 284 FamFG).

The compulsory presentation of those affected for hearings and investigations represents a serious encroachment on the personal rights of those affected ( Art. 2 Basic Law ). Therefore, the principle of proportionality must be strictly observed here.

Hearing of other people and bodies

Other persons, for example close family members, a person of trust, the care authority (or the body responsible under mental health law, usually the social-psychiatric service of the health department) and, if applicable, the home manager of the facility in which the person concerned lives, must be heard ( § 320 FamFG). These procedural steps can take several weeks.

Expert opinion

An expert opinion is always required for the approval of a custodial placement by the supervisor according to § 1906 BGB ( § 321 FamFG). The expert must personally examine or question the person concerned. He must be a doctor with experience in the field of psychiatry when assessing a detention, if he is to be a specialist in psychiatry.

The expert settles his fee directly with the supervising court in accordance with the provisions of the Judicial Remuneration and Compensation Act ( JVEG ).

Depending on the expert opinion for the supervisory court, a certificate of admission (ordinance for in-patient treatment) is required for the hospital and, as a rule, an ambulance certificate for transport to the clinic.

Demonstration and accommodation for assessment

If the person being cared for refuses to take part in the examination, the supervision court can order a deprivation of liberty for a period of up to 6 weeks in order to reimburse the expert opinion ( Section 284 FamFG). This detention can be extended up to 3 months.

Provisional Placement - Provisional Order

Although it is referred to as an exception in the legal text, in practice it is almost the normal case that the placement permit is issued as a temporary injunction ( Section 331 FamFG). With this temporary injunction, the placement can be approved for a maximum of 6 weeks. This period can be extended to a total of 3 months after hearing the expert ( Section 333 FamFG).

The same deadlines also apply if a supervisor has not yet been appointed and the family court itself decides on accommodation in accordance with § 1846 BGB.

In the case of imminent danger, hearing the person concerned and hearing and appointing the guardian ad litem can be waived before the interim order is issued. The hearings must be made up for immediately.

The court must weigh up whether the endangerment of the legal interests of others or the health risk of the person concerned is justified and proportionate to placement and thus a restriction of the person’s right to freedom, including the person’s right to illness (principle of proportionality ).

Final placement

The actual “final” accommodation permit is issued after the procedural steps mentioned have taken place. As a rule, it must not exceed 1 year. Approval can only be granted for 2 years if it is already evident that the accommodation is necessary in the long term. This must then be specifically justified by the court. In the case of extensions, acc. According to Section 329 (2) FamFG, the same procedural steps as described above must be repeated. After 4 years of placement at the latest, someone other than the previous expert should be heard.

Regulation of the accommodation implementation

In the case of placements under public law, individual enforcement measures can be regulated by a court ( Section 327 FamFG). More details can be found in the respective state law for the mentally ill. Appeals against such measures can also be lodged .

Interruption, leave of absence

Public law placements can be suspended (interrupted) for up to 6 months by a court order ( Section 328 FamFG). This suspension can be extended to a total of 1 year. To this end, the party concerned may obligations be granted, for example, to move into outpatient specialist psychiatric treatment. Such is not provided for in the BGB accommodation; the legal validity of the accommodation permit itself ends with the release of the person being cared for. If there is a renewed need for accommodation, the carer must submit a new application for a permit in accordance with Section 1906 (2) BGB.

Suspension of placement

The placement permit must also be revoked before the approval period has expired, as soon as the conditions for compulsory placement are no longer met ( Section 330 FamFG). The overriding principle in care law is the well-being of the person being cared for. If the forced placement no longer corresponds to the welfare of the person in care, it must be ended. If this duty is violated, there may be U. the criminal offense of deprivation of liberty ( § 239 StGB).

Appeal

A complaint ( Sections 58 to 69 FamFG) can be lodged as an appeal against decisions on placement within one month. A complaint against a temporary injunction must be lodged within 14 days. In addition to the person concerned, the group of people specified in Section 329 FamFG (close relatives, authority, home manager) is also entitled to complain .

costs

The costs of legal placement in a facility under public law and the costs for the necessary examinations and treatments are borne by the detainee, unless a social security agency or another third party, such as a person liable for maintenance, is obliged to bear the costs, otherwise the state.

See also

literature

Books

  • Cornelia Bohnert: Right of placement. Short legal textbook for study and practice. Beck, Munich 2000, ISBN 3-406-47174-9 .
  • Rolf Coeppicus: Factual questions of care and placement law. Kohlhammer, Stuttgart et al. 2000, ISBN 3-17-016333-7 .
  • Horst Deinert , Wolfgang Jegust (Ed.): The right of the mentally ill. Collection of federal and state regulations. 2nd, completely revised new edition. Bundesanzeiger-Verlag, Cologne 2006, ISBN 3-89817-477-8 .
  • Friedhelm Henke: Fixations in nursing. Legal aspects and practical implementation. Kohlhammer, Stuttgart 2006, ISBN 3-17-018771-6 .
  • Birgit Hoffmann, Thomas Klie: Imprisonment measures in child care and child rights. CF Müller, Heidelberg / Munich 2012, ISBN 978-3-8114-3706-7 . (on-line)
  • Christian Kopetzki: Outline of the right of accommodation. Springer, Vienna et al. 1997, ISBN 3-211-82890-7 (for Austria).
  • Günther Labuhn, Dirk Veldtrup, Achim Labuhn: Family Court and Guardianship Court. Approval and procedure in practice. Formerly approved by the Guardianship Court. Comprehensive, systematic presentation of parental, guardianship, guardianship, family and divorce law for practice and training, sorted by subject area. Bundesanzeiger-Verlag, Bonn 1999, ISBN 3-88784-919-1 .
  • Rolf Marschner, Wolfgang Lesting, Erwin Saage, Horst Göppinger, Bernd Volckart : Deprivation of liberty and accommodation. Substantive law and procedural law (=  Beck's short comments. Volume 32). 5th, completely revised edition. C. H. Beck, Munich 2010, ISBN 978-3-406-60554-3 .
  • Martin Probst: care and accommodation procedures. For the practice of courts, lawyers, authorities and guardians. Schmidt, Berlin 2005, ISBN 3-503-08745-1 .
  • Rudolf Winzen: Compulsion. What can be done about care and accommodation? 2nd, expanded and updated edition. Zenit-Verlag, Munich 1999, ISBN 3-928316-08-7 .

Magazine articles

  • Rolf Marschner: Placement under civil and public law. In: Care Law Practice . 2006, p. 125 ff.
  • Peter Müller: On the law and practice of childcare placement. In: Care Law Practice. 2006, p. 123 ff.
  • Andrea Tietze: Forced treatment in the accommodation. In: Care Law Practice. 2006, p. 135 ff.

Web links

Individual evidence

  1. ↑ Martin Jung: Closed accommodation with children and adolescents February 24, 2017