Werdenfelser way
The Werdenfelser Weg is a procedural approach within the framework of the applicable care law , in order to reduce the use of restraints and freedom-restricting measures (FEM) such as the use of medication, waist belts , bed rails , trick locks on doors, attachment tables in care facilities . It starts with the judicial approval procedure in accordance with Section 1906 (4) of the German Civil Code ( BGB) , with the common goal of improving the decision-making process on the necessity of measures depriving one's liberty and reducing restraints to an inevitable minimum in order to avoid endangering oneself or others. It is named after the region in which various parties involved initially tried out steps for a consensual approval process under the supervision law.
Contents of the Werdenfelser Weg
The Werdenfelser Weg strives to turn away from rigid security thinking and towards a responsible weighing of all aspects. It unfolds its effect by relying on conscious, responsible changes in the care culture and in doing so, courts and authorities approach inpatient care. The knowledge that the supervisory court and the supervisory authorities each expressly commit to the common goal of largely avoiding restraint together with the carers leads to an opening up of all professions, to an exchange of knowledge and also to a joint assumption of responsibility in each individual case. It was developed without funding and without a budget in the district of Garmisch-Partenkirchen by the head of the local care authority Josef Wassermann and district judge Sebastian Kirsch.
The Werdenfelser Weg is also a way of nationwide networking of the professions involved. There are currently around 180 supervisory judges from all parts of Germany, around 80 employees from supervisory authorities and home supervision, around 600 trained specialist advisor advisor, and other nursing specialists and lawyers via the Garmisch-Partenkirchen District Court, which is still in charge, and they regularly exchange briefings Intervals factual information. The Werdenfelser Weg has developed into an information platform for all participating professions nationwide.
The approval of measures involving deprivation of liberty according to Section 1906 (4) BGB reveals a fundamental problem in the judiciary. Where legal remedies exist in mass proceedings with around 90,000 approvals per year, but are only lodged to a small extent, legal practitioners lack a classic corrective under the rule of law: the assessment of the legal interpretation by higher authorities. In the case of approval rates, which in the past few decades were often close to 100% in relation to the applications, there was no cause or effect of higher-level corrections. The e-mail distributor counteracts this deficiency with its networking of a large number of first instance supervisory judges. A very unorthodox, closed forum for the exchange of legal knowledge and practical experience has formed.
The former Bavarian Justice Minister Beate Merk ensured that the Werdenfelser Weg was the subject of the Justice Ministers' Conference on November 9, 2011 and that a resolution was passed by all Justice Ministers in support of the approach. Bavaria's Justice Minister Winfried Bausback on October 16, 2013: "The Werdenfelser Weg shows how an initiative that has arisen in practice on site - on a small scale - can develop a role model and lead to a lasting change in practice". “I would like to thank all the courts and institutions that have taken the Werdenfelser Weg, and I would like to encourage them to continue on this path. You can be sure that with your commitment you are making an important contribution to improving the quality of life of old and sick people! ”On November 6, 2014, the 85th Justice Ministers' Conference again dealt with the Werdenfelser Weg, this time on the initiative of the North Rhine-Westphalian one Minister of Justice The following decision was taken: 1. The Ministers of Justice welcome the report by the North Rhine-Westphalian Minister of Justice on the interim dissemination and effectiveness of strategies to avoid fixation, which are being discussed in the specialist public on the basis of the “Werdenfelser Weg” and “ReduFix” projects. 2. They support the change in awareness that is becoming increasingly apparent in care and justice and advocate reducing freedom-restricting measures to an inevitable level in accordance with Section 1906, Paragraph 4 of the German Civil Code for the benefit and quality of life of people in need of care. 3. To promote this development, the Justice Ministers are in favor of providing specific, if necessary also transnational, advanced training courses for the judiciary as well as opportunities to exchange experiences. 4. The Conference of Justice Ministers instructs its chairperson to forward the decision and report to the Conference of Health Ministers.
Role of the guardian ad litem
Crux of the Werdenfelser way is the training of specialized procedures nurses , which have in the field of custodial measures both on legal and on nursing expertise. As before, lawyers are not employed, but rather people who have learned a nursing profession and have relevant professional experience.
The appointment of a guardian ad litem serves to effectively protect the resident through procedural law. Mostly it is about his right to freedom, his human dignity and on the other hand his right to physical integrity of physical and mental health, i.e. the highest legal interests that our constitution knows. A curator ad litem is of particular importance for the decision-making process because the person concerned is often no longer able to express his or her will or to even form free will. That is why the law also makes the appointment mandatory before Section 317 of the FamFG. It is also not dispensable if the court conducts its own further investigations by commissioning an expert.
The curator ad litem is appointed by the court, but is then only obliged to provide appropriate legal representation to the person concerned. He is neither bound by the instructions of the court nor by a court assistant. He does not investigate for the court, but has to form his own professional opinion in his own role.
This requires that a curator ad litem must be specially qualified to identify and represent the interests of the person concerned. The curator ad litem must, on the one hand, put himself in the position of the person concerned subjectively, and, on the other hand, weigh up all the facts and represent the objective interests of realizing his fundamental rights in the proceedings. He is not even tied to purely subjective expressions of will that are formulated by the person concerned in misunderstanding of the situation. The curator ad litem is thus obliged to identify and represent the objective interests in the context of his own role. However, if the person concerned is able to exercise his or her rights, then the person concerned has priority.
A central problem of the previous decision-making process is that the facilities (mostly unfounded) fear of later liability claims from health insurers for treatment costs in the event of non-fixation existed. All technical considerations of the nursing staff were overlaid.
In fact, these fears are mostly unfounded, since, according to recent rulings by the BGH, care facilities are not liable for fall-related injuries if they are carefully assessed by experts. The BGH has laid down clear principles for the liability risk, which strengthen the legal security of the nursing staff and the rights of the residents.
On this basis, people with nursing experience are employed as guardians on the Werdenfelser Weg. Specialized guardian ad litem with basic nursing knowledge are trained for the judicial approval procedure for restraints so that, in addition to their professional nursing knowledge about avoidance strategies, they also have a high level of legal information on the legal criteria. On behalf of the court, these guard advisor discuss each restraint case individually and over a period of several weeks go through alternative considerations together with the nursing management, the relatives and the legal guardian. In individual cases, they also encourage testing of alternative measures.
The focus is on optimizing the communication process. The guardian ad litem after Werdenfelser Weg makes it easier for the supervisor to make a decision about the necessity of the measures and the risks to be taken. He thereby strengthens the role of the supervisor as the first decision-maker (Section 1906 Paragraphs 1 and 4 BGB).
As representatives of the interests of the individual resident, they clarify with all those involved whether all avoidance strategies for restraint have been exhausted and work towards a joint assessment of the risks in order to avoid restraint as far as possible and to give caregivers confidence in liability. This is done in the awareness that in balancing human dignity and self-determination, acceptable risks remain. The aim is to arrive at a jointly supported assessment of how the risk of injury in the event of a fall on the one hand and the other consequences of an applied restraint on the other hand are to be assessed in a specific case. In this way, in addition to short-term safety aspects, other consequences that are otherwise not sufficiently considered should also be included, i.e. the loss of quality of life and physical and psychological impairments resulting from restraints or even a risk of death from strangulation, head depression or chest compression, even with correct handling .
Model function
The Werdenfelser Weg initiative has led to a considerable reduction in restraint measures in many regions. Based on the initiative of the Garmisch-Partenkirchen District Court in Werdenfelser Land in 2007, this approach has been increasingly spread nationwide since 2010. Around 175 districts or cities nationwide (as of December 2014) have adjusted their working methods to the model since summer 2010 or made the decision to adapt their working methods in accordance with the Werdenfelser Weg. A current interest in information is known from around 100 other regions.
Awards
The initiators of the Werdenfelser Weg, Sebastian Kirsch and Josef Wassermann, were awarded the Janssen Future Prize 2012 on September 11, 2012 as a nationwide future-oriented project in the health sector. The jury was of the opinion that the Werdenfelser Weg “offers the first legal basis throughout Germany for avoiding restraint measures for people in need of care”. On the occasion of the 13th National Supervision Court Day from November 12th to 14th, 2012 in Erkner, the Supervision Court Day sponsorship award was awarded for the first time. The award was given to the project of the Cloppenburg care association, which has been successfully implementing the idea of the Werdenfelser Weg in the Cloppenburg district since 2010 as the first district outside of Bavaria.
criticism
The legislature has not provided for the guardian ad litem to act in accordance with the Werdenfelser Weg. According to § 8 BtrBG, the competent authority is responsible for the investigation. The curator ad litem, on the other hand, is only responsible for reviewing the decision of the court until the end of the proceedings regarding the approval of an accommodation-like measure applied for by the supervisor, since the person concerned cannot be granted a fair hearing. The curator ad litem is not an expert or assistant to the judge. It is not his job to prepare the court's decision. I have this. d. R. To deal with specialists in psychiatry with a suitable expert report and the supervision authority. In particular, it is questionable how the curator ad litem can still independently make the decision of the court, cf. Section 335 (2) FamFG, as he prepared it himself. A long-term review of the court-approved placement measure by the curator ad litem contradicts Section 317 (5) FamFG.
Individual evidence
- ^ Bavarian State Ministry of Justice: Press release from October 16, 2013
- ↑ BGH III ZR 399/04 (BGHZ 163, 53 of April 28, 2005, = NJW 2005, 1937 = FamRZ 2005, 1074 = VersR 2005, 984)
- ↑ BGH III ZR 391/04 of July 14, 2005 (NJW 2005, 2613 = FamRZ 2005, 1560 VersR 2005, 1443)
- ↑ http://m.faz.net/aktuell/gesellschaft/pflegeheime-ans-bett-gefesselt-11640246.html
- ↑ Garmisch-Partenkirchen District Court to Werdenfelser Weg
- ↑ Justiz Bayern overview, Werdenfelser Weg ( page no longer available , search in web archives ) Info: The link was automatically marked as defective. Please check the link according to the instructions and then remove this notice.
- ↑ Dresden District Court, decision of May 4, 2016, Az .: 407 XVII 220/16; Bienwald, RPflStud. 2013, pp. 4, 7.
