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Forensic psychiatry in the Netherlands: Positioning and functioning of Dutch forensic psychiatrists
International Journal of Law and Psychiat/y, Vol. 6, 443-455, 1983 Printed in the U.S.A. All rights reserved.
0160-2527/83 $3.00 + .00
Copyright © 1984 Pergamon Press Ltd
Forensic Psychiatry in The Netherlands: Positioning and Functioning of Dutch Forensic Psychiatrists Johan G. Schnitzler*
One definition of forensic psychiatry - and my own - is "any type of psychiatric advice and/or reporting to any kind of court." Many others consider all psychiatric involvements with delinquents, including their treatment and aftercare, to be forensic psychiatry. In The Netherlands, psychiatrists in general have to deal with four forms of legislation: (a) Social Security Jurisdiction; (b) Civil Jurisdiction; (c) Criminal Jurisdiction; (d) Jurisdiction of the Insane. Dutch psychiatrists are also involved in assisting and treating "normal" prisoners, treating mentally disturbed delinquents and providing after-care for former prisoners and mentally disturbed delinquents on their return to society.
Social Security Jurisdiction The Social Security system in The Netherlands got underway at the beginning of the century with an Employers Liability Act (1901), followed by an Industrial Injuries Act (1919), and a Health Insurance Act (1913), all of these for wageearners only. Especially since World War II, the Social Security system has expanded considerably. From a medical (psychiatric) point of view, the following acts are of particular importance: Health Insurance Act. This act covers the risk of loss of wages due to incapacity to work due to illness; in 1967, handicaps and accidents causing incapacity to work were considered equivalent to illness. Wage-Earners Disability Insurance Act. This Act, implemented in 1967, replaced a fairly number of lesser laws governing accidents and disability.
* Professor of Forensic Psychiatry, Law-Institute, University of Nijmegen, DeHofkamp 8, Hummelo 6999 AK, The Netherlands. 443
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General National Disability Act. This created a disability insurance for the general population, including the self-employed and other non wage earners. This Act became effective in 1976. It applies in particular to all of those who are independent professionals. Briefly, the procedures are as follows: wage earners who cannot continue working due to a disease, handicap or accident, will receive for a m a x i m u m period of 52 weeks disability benefits, amounting to 80% of daily wages (with a certain daily maximum). In many cases, the employer makes up the remainder of the benefits during that year to 100% of the last-earned wages. Those eligible for this insurance must be between the ages of 16 and 65. If the disability of wage earners continues beyond 52 weeks, the WageEarners Disability Insurance Act goes into effect. The most important features of this Act are as follows: * • • •
it applies only to wage earners it only takes effect after 52 weeks of disability the m i n i m u m disability must be 15% the m a x i m u m benefits for disability of 80% and over are 70% of the lastearned daily wage • there are several classifications of disability, ranging from 15-25%, with proportionate benefit percentages (10% to 70% of wages) • a wage earner may, in contrast to the period of one year in which the Health Insurance Act applies, now be compelled to perform other work than on his original job, on the condition that this other work be considered "suitable". To be "suitable", a given type of work must comply with various definitions and conditions. The benefits resulting from this Act may be revised at any time and are frequently reviewed. For this insurance, also, age limits have been set. The General National Disability Act (1976) applies to all Dutch people, regardless of whether they are wage earners or self-employed or have never been part of the work force. The benefit percentages are lower than for the Wage Earners Disability Insurance Act and only disabilities of 25% or more persisting beyond one year qualify. Benefit payments may begin at the age of 17 and may not continue past the age of 65. Within the framework of this Act, additional benefits may be paid in connection with provisions made to maintain, restore and further the capacity to work. The administration of these various Acts lies with a total of 26 public organizations, operating for various sectors of industry or kinds of professions. These public organizations issue the benefits, which are financed out of premiums paid by employers and employees, citizens and the government. A total of 10 special courts deal with conflicts arising out of the implementation and execution of these Acts. These are the Social Security Courts. There is one Court of Appeal, superior to the Social Security Courts, wherein decisions made by lower courts may be appealed. These 10 courts and the Court of Appeal deal predominately with the evaluation of medical aspects of a case (disability caused by diseases, handicaps or accidents). To that end, these courts need to have a large number of experts on any kind of medical specialty at their disposal.
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In addition, they need to be able to consult labor experts and wage experts. A m o n g the medical experts, psychiatrists are of primary importance. The number of reports made by psychiatrists in this branch of jurisdiction exceeds the number of reports made in criminal cases. For five out of these 10 courts, I have gathered some figures for 1981 and 1982. 1981 - a total of 6700 cases involving medical advice, with 1350 psychiatric reports 1982-a total of 6500 cases involving medical advice, with 1300 psychiatric reports; on an average, therefore, in one-fifth of the cases involving medical advice a psychiatric advice is requested. The psychiatrists submitting reports to these courts always do so on an individual basis, and not on behalf of any institution or governmental body (although some of them may be affiliated with hospitals). The examinations usually take place on an out-patient basis, though occasional!y clinical observation may be required, in which case, the psychiatrist may need the assistance of a psychologist. A special training for this type of work is rare or non-existent. (I will return to this subject later on, since efforts are in the offing to create such a training.) Fees are determined per case and are based on the number of hours involved in examination and reporting. The Netherlands is said to be among the countries with the most highly developed social security systems. At the same time, at least in the Netherlands, it appears that we have gone too far. The social security system is proving to be unaffordable, particularly in this period of economic depression. The total benefits paid have reached gigantic proportions. On a total population of 14 million people, some 800,000 people currently receive disability benefits based on more than one year of disability. Furthermore, a relatively high percentage of unemployed workers appears to have crept into this number of the disabled, partly due to the fact that the disability benefits are considerably higher, especially over a longer period of time, than the u n e m p l o y m e n t benefits.
Civil Jurisdiction The Dutch Civil Code contains several clauses which relate to persons with mental disorders. In those cases, one of the parties involved in a lawsuit may put in a psychiatric assessment, the court itself also may order a psychiatric report to be made in connection with a given psychiatric problem. The most c o m m o n of these cases are: -the question of whether a guardianship should be created if the person in question is incapable or insufficiently capable of properly looking after his own interests due to the existence of a mental disorder; -the validity of a will; the legal capacity while making or revoking a will may be contested if the person, at the same time of making or revoking such will, suffered from a mental disorder which prevented him from properly performing this task; -this applies also to signing an agreement or contracting a marriage;
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-the question may arise, particularly in divorce cases, whether a given parent, due to the existence of a mental disorder must be considered incapable of taking on the care and education of one or more minor children. In such cases, the judge will call on a practising psychiatrist or on a psychiatrist affiliated with an institution.
Criminal Jurisdiction In 1886, the French Code P~nal, dating back to the time of French rule, was replaced by the Dutch Penal Code. Article 37 of this Code, which is still in effect, allows for someone who is pronounced irresponsible on grounds of a defective development or of an impairment of his mental faculties to be discharged from prosecution (in other words, not to be punished) and, as a preventive measure, to be placed in a mental institution for a maximum period of one year. This is the so-called penal commitment to a mental institution, in contrast to the civil commitment discussed under 'Jurisdiction of the Insane'. For a long period of time - up to 1928, to be exact - this special measure was permissible only if an entire lack of mental competency was involved. The judge could recognize a partial lack of mental competency, i.e., a diminished responsibility due to mental deviations, only by means of a reduced sentence. In 1928, after many years of debate, the so-called "Psychopaths Acts" came into being. These contained four important features: 1. First, the concept of 'diminished responsibility' was introduced in a roundabout way. 2. Second, mentally disturbed delinquents, who were considered a danger to society, could now be placed in so-called "psychopaths institutions", not as a punishment, but as a protective measure. This measure was called "detention by government's order", in Dutch abbreviated as T.B.R. In addition, a punishment also had to be imposed, which is not possible for the fully mentally incompetent. 3. Third, it was determined that this new measure (T.B.R.) could also be applied to those with an entire lack of mental competency, in addition to or instead of placement in a mental institution. The T.B.R. measure is imposed for a duration of two years, with the possibility to renew this by another one or two years after a new judicial decision. During the term of the T.B.R. measure, the Minister of Justice may terminate this measure mid-term if grounds exist to justify this. 4. In the fourth place, it was decided that a conditional T.B.R. measure could also be imposed, with the definition of certain conditions that the party involved must comply with; if these conditions are violated, the T.B.R. measure can still be executed. In practice, this mostly happened and happens only after a new crime has been committed. Between 1928 and the end of World War II, there was only one state institution for T.B.R. cases for men, as well as one private institution for men and women. The T.B.R. measure in this period was feared for two particular
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reasons: (a) it could be renewed indefinitely (each time for one or two years); and (b) until after World War II, treatment in T.B.R. institutions was all but nonexistent; treatment was either by means of medication (and applied, if necessary, by force), or by means of occupational therapy; consequently, the T.B.R. institutions functioned primarily as centers for custodial care and for the protection of society. The T.B.R. measure was and is generally experienced as a punishment, and, moreover, as a punishment of indefinite duration. As regards to the appearance and functioning of forensic psychiatrists, it can be said that not until the turn of the century did psychiatrists in The Netherlands begin to play a more active part in the implementation of justice. In this period, psychiatrists usually performed forensic-psychiatric examinations on an out-patient basis, although, exceptionally, a psychiatric examination might take place clinically in a designated institution for a m a x i m u m period of six weeks. Psychiatric experts were generally asked three questions: • one question as to the presence of mental disorder(s) and the possible connection between these disorders and the crime(s) committed • a question about the person's mental competency • and, in addition, since 1928: a question as to the possibility of danger to society as a result of the delinquent's mental disorder (this in view of a possible T.B.R. measure). Schematically, therefore, there were three scenarios for the perpetration of a crime together with the existence of a mental disorder: • normal mental competency with, consequently, normal prosecution • diminished mental competency, with eventually a resulting shorter sentence and possibly a T.B.R. measure (this, if danger to the public order was established) • total lack of mental competency: no punishment at all and no special measure needed; or placement in a psychiatric institution alone, or placement in a mental institution followed by T.B.R. In addition to questions about the mental condition and degree of responsibility at the time of perpetration of a crime, a psychiatric expert could also, based on an article of law, be asked for advice if a person begins to exhibit mental disorders after having committed a punishable offence and prior to being sentenced. If there are indications of insanity, the judge is obligated to suspend prosecution and sentenc!ng. After sufficient improvement of the suspect, prosecution may be resumed. In by far the majority of cases, it is the judge who calls on a psychiatrist to institute a psychiatric examination. In principle, however, the Public Prosecutor also may demand such an examination, while the suspect or his legal counsel may request it. The suspect may also ask for counter-assessment, although, in practice, very few people avail themselves of this right, one reason being that they would have to pay for the expense of this counterassessment themselves. Up to World War II in The Netherlands, there were very few actual forensic psychiatrists involved in criminal jurisdiction; that is to say, there were very few psychiatrists who were involved in this type of work on a fairly regular
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basis and who thereby had gained some experience. This was due to the fact that the number of practising psychiatrists in the Netherlands at that time was small and those few were often unavailable for forensic tasks, since they lacked the time. Another factor was that forensic work was paid very poorly up to the fifties. A forensic-psychiatric examination was often hastily and superficially performed (examinations of 20 to 25 minutes were quite normal then, and the reports issued often consisted of a mere two or three pages). This practice obviously did not contribute to inspiring great confidence in forensic psychiatrists with judges and suspects, the more so because judges could impose a T.B.R. judgement based on such a brief examination. There was, moreover, no specific training in forensic psychiatry, so those interested in this field had to find their own way. Rather far-fetched conclusions frequently seemed to appear out of nowhere in reports and were not properly accounted for. The period after World War II in The Netherlands is characterized by a fairly explosive development and great flourishing of forensic psychiatry. The development of psychodynamic psychiatry, in particular, with its concomitant new choice of therapies in the period before World War II, along with the development of social psychiatry with its more system-oriented therapeutical approach after World War II, have given strong momentum to forensic psychiatry in criminal law. In our country, people such as Baan and Meyers in psychiatry and Pompe in Criminal Law have played an important, stimulating part in this development. So often the services (i.e., expert-report and advice) of psychiatrists were called for in criminal cases that psychiatrists developed a strong influence in the process of criminal law. This influence was not, however, always in proportion to the quality and soundness of their findings. The annual number of T.B.R. decisions, in particular, grew steadily, probably under the influence of the much higher expectations of the prognosis for treatment of and the therapeutical possibilities for delinquents: the number grew from 50 to 100 persons per year in the period from 1932 to 1945 to an increasingly faster growth of between 100 and 200 persons per year in the period from 1946 to 1968. This in itself immediately led to serious capacity problems in the T.B.R. institutions. The number of T.B.R. institutions had to be increased at a high rate, on the one hand by building new institutions, and on the other hand by expanding the existing ones. For a period of time, therefore, five state institutions and some five private institutions existed simultaneously. The total capacity of the T.B.R. institutions in this period was approximately 650 places, while another 75 to 100 T.B.R. cases were treated in civil mental institutions (nowadays this latter number has become very small). Several other institutions that were established in the period shortly after World War II deserve mentioning: 1. The Selection Institute for T.B.R. cases in the city of Utrecht with some 50 places, essential for the selection and differentiation of the T.B.R. cases since the various treatment centers showed fairly significant differences in population and in therapeutical approach. One institute for example, geared towards mentally deficient patients, would have a predominantly ortho-
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pedagogic approach; another would have a more clearly sociotherapeutic climate and emphasize a psychoanalytic approach. 2. A Psychiatric observation clinic for delinquents, (now called the Pieter Baan Centrum), also in Utrecht, aiming at a more thorough and prolonged clinical and multidisciplinary observation of delinquents. Due to the relatively small number of available places and the usual waiting list, this clinic has usually been forced to limit itself to the admission and observation of persons who have committed fairly serious crimes. The creation of this clinic also had the intention to reduce the appalling increase in the number of T.B.R. cases, because of the persistent shortage of capacity in the T.B.R. institutions despite the increase in the number of available places. 3. The institution of so-called judicial district-psychiatric sePcices, comprising one (sometimes two) psychiatrist(s) with administrative support in each judicial district, primarily with a three-fold task: • counsel to the judicial powers, for example, with regard to the need for or desirability of psychiatric reporting; • consultation for and treatment of the prisoners in penal institutions within the district; recently, a state commission made a detailed report on the need for psychiatric services within the penal system; • advisory counsel to the rehabilitation services, who apart from this had their own staff psychiatrists and psychologists at their disposal. Again, due to a shortage of available psychiatrists, it has taken a long time before all district psychiatric services were properly staffed. These district psychiatrists sometimes also participate in forensic-psychiatric reporting, although this is not and should not be one of their formal duties. After the stormy development in the fifties and early sixties a decline took place in various areas of forensic psychiatry in the late sixties and in the seventies. Both the number of court-requested psychiatric reports and the number of T.B.R. decisions declined (the total number of T.B.R. population decreased fairly rapidly to under 400 people; the number of psychiatric reports decreased from about 1300 in 1964 to under 600 in the late seventies). There were a number of reasons for this development: 1. The concept of "danger to the public order" (one of the pillars of the T.B.R. judgements) was given a different and clearly more limited interpretation due to changing attitudes in society. Whereas between 1928 and the early 70s such danger implied: the continued recidivism of property crimes and repetition of exhibitionism, since then the criterion has been switched to: immediate danger to persons (the more serious forms of crimes of violence and sexual offences) or to property (arson and the like). The concept of "danger to the public order" must of course always remain linked to the existence of mental disorders in the imposition of T.B.R. decisions. 2. A diminished confidence on the part of judges in the effectiveness of T.B.R. of which the manner of execution is mostly outside the field of view and supervision of the judges who impose this measure. In fact, judges can only exercise influence in continuing or terminating this measure, not, however, in the way of execution.
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In the last 10 to 12 years judges have tended to impose a long prison sentence rather than a T.B.R. judgement, as they would have in the past, based on two thoughts: • this safeguards the delinquent' s removal from society for a longer period of time. • the prison code allows for prisoners to be transferred to treatment centers (such as T.B.R. institutions) in certain cases when this is necessary, so that mentally ill delinquents can have treatment anyhow. This, however, applies only within the framework of penal execution, not within that of the T.B.R. measure; in other words, limited to the length of the prison term as set by the judge. For some time this latter train of thought prevailed, in particular when space became available in T.B.R. institutions as a result of fewer T.B.R. decisions. This made it possible to treat other categories of people, such as those on probation, conditional T.B.R. cases and the aforementioned group of mentally disturbed delinquents, who found themselves in prison, often with long prison terms, and who did need psychiatric treatment. Now that some T.B.R. institutions, due to the economic depression and for other reasons, have been compelled to reduce the number of available places, the number of places for these particular categories of delinquents has become strongly limited. 3. Changes in attitudes have occurred within psychiatry such as on the one hand presented by the anti-psychiatric movement, in affiliation with psychiatrists such as Laing and Sasz, and on the other hand by action within the field of psychiatric patients. As a result of these changes a gathering of forces began to occur within the forensic-psychiatric domain against the strongly increased and possibly excessive influence and power of psychiatrists in the field of jurisdiction and against the occurrence of forced psychiatric treatment within a judicial framework. Nowadays the fights of the delinquent in criminal jurisdiction and in forensic psychiatry are being regulated more clearly and more precisely, both at the time of adjudication (I mention the possibility to refuse an examination; codes of conduct for forensic reporters, who more than formerly have to guarantee the greatest possible impartiality and independence) and during the execution of an eventually imposed T.B.R. in designated institutions (for example the fight to refuse treatment, limitation of constraining measures, impermissibility of certain methods of treatment, etc. ). 4. Changes taking place within the law and jurisdiction itself. Some of the trends mentioned before are reflected in proposed changes in the current criminal legislation and especially in the T.B .R. legislation, which forms part of it. The following changes should be noted: • in the future T.B.R. may only be imposed after clinical or at least multidisciplinary forensic reporting and then only in cases in which the general public safety of persons and property is at stake. • a proposed limitation in the sense of maximizing the measure. After its imposition (for two years) and two renewals (each of two years, so six years altogether), it can only be renewed in case of certain types of serious
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crimes for which the measure has been pronounced originally (such as violent and sexual crimes) and then only after new, independent reporting by a psychiatrist and a psychologist, preferably performed clinically. assistance of a lawyer in the renewal procedure is provided for. appealing the renewal decision will be made possible. T.B.R. may be imposed without being executed. T.B.R. no longer needs to be coupled with a prison term.
A committee is currently composing a report about the legal status of T.B.R. cases within the respective institutions, with the purport, that this legal status will be formulated separately in an Act. The above-mentioned proposed changes have among other things led to a reduction in the number of T.B.R. cases remaining in the various institutions (this number has decreased to well below 400) and, consequently, to the cutting down of some of these institutions whereas some other ones will perhaps have to close their doors entirely and definitively. The higher demands made on forensic psychiatrists have now led to a revision of the training requirements these psychiatrists will have to meet. Up till now, any physician who has taken the prescribed training to be a psychiatrist was allowed to practice forensic psychiatry immediately and with no limitations. The forensic aspect of this training, however, was minimal: it consisted of performing some forensic examinations and making a few forensic reports under supervision. Some training institutes do not even comply with this minimum requirement or cannot comply with it for lack of an experienced forensic member in the staff of these institutes. Therefore, a combined committee, consisting of lawyers and physicians, is designing a training plan and training requirements for psychiatrists interested in working in the forensic field. This is all the more necessary since The Netherlands are on the verge of having an excess of psychiatrists in the near future, which might lead to a greater number of psychiatrists getting involved in forensic psychiatry, although this would perhaps be due more to economic considerations than to a genuine interest and experience in this field of psychiatry. Furthermore, the committee strives to have psychiatrists with forensic interest trained in the total forensicpsychiatric field, i.e., for the various aspects of forensic psychiatry and not only in the criminal branch of it. In the last few years, forensic psychiatry has been confronted with several additional problems, of which four are important enough to be mentioned here: . Seriously mentally disturbed persons are sometimes not admitted and other times more or less expelled from the normal, civil mental institutions, because they are considered difficult, and hard to treat, and because they do not fit in with the sociotherapeutical treatment concept of these institutions. These people, who are incapable of fitting in and adjusting to society, drop out easily by way of addictionto alcohol and other drugs, and many times erid up in the penal law system, where they do not belong and where they cause much trouble, especially in prisons; to such an extent,
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that made it necessary to create a special institute for them, at least for their temporary accomodation. This is the so-called FOBA-institute, which means department for forensic observation and treatment. Perhaps, as a result of the regionalization principle that has now been introduced in civil mental health, these people will in the not-so-far future have to be admitted in the civil psychiatric institutions in the region from which they originate; admission duty for these hospitals will be tied in with subsidy-conditions. 2. Many of the just mentioned seriously disturbed people will, through dangerous behavior, end up in the T.B.R. institutions, where they make up a group of "atypical patients" (atypical in view of the regime and therapeutical goals of these institutions) and take away places that are needed and intended for the real, "typical", T.B.R. patients. Apart from this the T.B.R. institutions are confronted with a number of cases that do not respond to any treatment, remain dangerous, are very expensive and really only need custodial care in an environment that can supply some form of psychiatric care. To complete the difficulties the number of T.B.R. judgements is growing again lately, whereas the economic crisis had led to diminishing of places and discharge of personnel. 3. The economic crisis has seriously affected the rehabilitation services in The Netherlands also, particularly in the degree to which they can render psychiatric and other behavioral assistance; the subsidies for ___ 50% of all existing psychiatrical and psychological personnel have been cancelled. This means that the remaining psychiatrical and psychological staff can merely fulfill advisory and consulting functions, but can no longer perform therapy. In view of the fact that clients have nowhere else to go, this means that these patients will receive no treatment and will easily fall prey to recidivism, which will lead to an even greater overcrowding of the prisons and T.B.R. institutions than is presently the case. 4. Due to economic factors and the above mentioned changes in attitude towards forensic psychiatry and compulsory treatment, the T.B.R. institutes have been compelled to cut down their places and their numbers of staff. Thus, in connection with the fact that quite recently the number of T.B.R. judgements shows a tendency to increase again, there is a rapidly growing shortage in vacant places for T.B.R. cases, with the result that these mentally ill people have to be confined in ordinary prisons for a much longer time than is intended and than is good for them. From the preceding, it will be clear that for various reasons mentioned, forensic psychiatry in criminal jurisdiction and the psychiatric care of delinquents in The Netherlands are currently experiencing a most serious crisis, and that much of what has been carefully and painfully accomplished in the past 30 to 35 years threatens to be lost.
Jurisdiction of the Insane As regards this branch of forensic tasks of Dutch psychiatrists~I will confine myself to describe them as they were in the past, as they are at present, and as they will be, perhaps, in future.
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I shall not go into the details of the Lunacy Act that is operative at this moment, nor into the various aspects of the new Lunacy Act, which is to replace the old one before long. I shall not do so for the following reason: in Volume 2, Number 4 (1979), of this journal, Mr. G. V. C. Dekker, legal advisor to the Chief Medical Inspector of Public Mental Health, gave a detailed description of the New Lunacy Act that was then already in preparation for some years and which is called B.O.P.Z., which (translated in English) stands for "Act on Formal Admissions to Mental Hospitals". Since Mr. Dekker's paper appeared there have been several further changes in the Bill that had to be presented to Parliament. Last year, more than 10 years after the first draft of this Bill appeared, it was presented to Parliament at last, where it is under discussion at this moment. More than 90 amendments on the Bill have been put forward! So it is not very well possible to foretell what the Bill will look like when it passes Parliament and becomes an Act. The afore indicated amendments refer to minor details as well as to important and fairly fundamental matters. Therefore it seems wiser to dedicate a separate paper in this journal to the new Dutch legislation on the insane when the Bill, now being in discussion, has become an Act good and proper. In the past the share of the psychiatrist (or physician) in the frame of the Dutch legislation on the insane was modest: in section 16 of the present Lunacy Act is laid down that for a formal admission to a lunatic asylum a certification, providing the need for admission, completed by a psychiatrist or, in certain cases, any physician, who is not involved in a treatment relationship with the patient, must be presented to the competent judge. Oddly enough in such an important matter, this medical certificate is strikingly brief and in fact in many cases supplies little information (the certification has to be written on a printed form containing a number of preformed questions). This is a situation which I consider unsatisfactory since it can hardly guarantee a careful legal procedure; on the other hand, the judge can always personally interrogate the psychiatrist, who has made up the certification, if he wants more information. Furthermore, the attending psychiatrist of the asylum where the patient is going to be admitted, is due to keep a record of the medical findings about the patient, daily during the first two weeks, then weekly for six months, and after that at least monthly. To prolong the stay in a lunatic asylum of a patient who has been formally admitted, after one year has passed, the attending psychiatrist of that asylum has to provide for a certificate, proving the further staying of the patient in the asylum as necessary. For some time it has become customary, as a result of a judgment of the European Court of Justice in Strassbourg, that the judge sees and hears the patient personally before prolonging a formal admission after a period of one year has passed. When the patient objects to the prolongation of his formal stay in the asylum, the court can order an expert assessment by an independent psychiatrist (i.e., in any case not being a Staff member of the asylum). The same applies when a patient requests his discharge from the asylum during the term of his formal admission. When the Board of the Asylum refuses the discharge, this negative recommendation together with the patient's
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request must be sent to the Public Prosecutor, who in turn generally asks for a decision by the Court. In that case the Court can also order an expert assessment by an independent psychiatrist. At present the Court uses its authority in this respect much more frequently than was the case in former years, so that a " n e w " task has presented itself for the forensic psychiatrist as a result of this. It must be said that these assessments (in the case of objection of the patient to prolongation of his formal stay or in the case of a refusal to his request for discharge) are much more detailed and thorough in comparison with the certification required for a formal admission. The Bill for the proposed new Lunacy Act will further hold some more points upon which the Court can require the expert opinion of a forensic psychiatrist. In particular this will be the case in regard to certain proposed rights of patients formally staying in a lunatic asylum, rights that, in contrast with the present Act, will be mentioned and laid down in detail in the proposed new Act. When these rights would be denied to the patient or if they would not be effected to his satisfaction, the patient may complain to the Board of the Asylum. In that case the Board can submit the complaint of the patient to a special committee or decide itself. When this decision has not been made within two weeks after receiving the complaint or when the decision rejects the complaint, the patient has the possibility to appeal to the Court, which in that case can again ask for an expert advise from a psychiatrist. To complete this section about forensic tasks of psychiatrists in the frame of the legislation of the insane it should be mentioned that under the present Lunacy Act as well as in the Bill now presented to Parliament, there is a section relating to the procedure of emergency admissions (at present called "custody"). In cases of emergency, when a patient is providing a direct danger to himself, to others or to "the public order" (under the present Act) respectively when he provides "immediate imminent danger" (under the proposed new Act) the burgomaster of the municipality where the patient finds himself at that moment, can order his custody (under the present Act) respectively his admission to a mental hospital or, when this is not possible, to a general hospital (under the proposed new Act) after which the suitable procedure for a formal admission has to be set into motion. In these cases, now as well as in the future, the burgomaster needs a certification by - possibly - a psychiatrist. At present this can be a written certification or, if this is not possible, a verbal or telephone statement. Under the proposed new Act this always has to be a written certification by - possibly a psychiatrist. To conclude it can be said that the field of forensic psychiatry in The Netherlands is now fairly strongly on the move and has been so in the past years. The developments in the field of criminal forensic psychiatry are, unfortunately, not satisfactory and favorable in every respect, partly due to the consequences of the economic crisis, partly due to other reasons. -
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A positive development lies in the fact that more than was the case in the past, young Dutch psychiatrists are showing an interest in forensic psychiatry and are willing to fulfill tasks in this field. However, that makes it even more necessary to provide for a more thorough training in this field of the psychiatric profession that lies between psychiatry and law.
0160-2527/83 $3.00 + .00
Copyright © 1984 Pergamon Press Ltd
Forensic Psychiatry in The Netherlands: Positioning and Functioning of Dutch Forensic Psychiatrists Johan G. Schnitzler*
One definition of forensic psychiatry - and my own - is "any type of psychiatric advice and/or reporting to any kind of court." Many others consider all psychiatric involvements with delinquents, including their treatment and aftercare, to be forensic psychiatry. In The Netherlands, psychiatrists in general have to deal with four forms of legislation: (a) Social Security Jurisdiction; (b) Civil Jurisdiction; (c) Criminal Jurisdiction; (d) Jurisdiction of the Insane. Dutch psychiatrists are also involved in assisting and treating "normal" prisoners, treating mentally disturbed delinquents and providing after-care for former prisoners and mentally disturbed delinquents on their return to society.
Social Security Jurisdiction The Social Security system in The Netherlands got underway at the beginning of the century with an Employers Liability Act (1901), followed by an Industrial Injuries Act (1919), and a Health Insurance Act (1913), all of these for wageearners only. Especially since World War II, the Social Security system has expanded considerably. From a medical (psychiatric) point of view, the following acts are of particular importance: Health Insurance Act. This act covers the risk of loss of wages due to incapacity to work due to illness; in 1967, handicaps and accidents causing incapacity to work were considered equivalent to illness. Wage-Earners Disability Insurance Act. This Act, implemented in 1967, replaced a fairly number of lesser laws governing accidents and disability.
* Professor of Forensic Psychiatry, Law-Institute, University of Nijmegen, DeHofkamp 8, Hummelo 6999 AK, The Netherlands. 443
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General National Disability Act. This created a disability insurance for the general population, including the self-employed and other non wage earners. This Act became effective in 1976. It applies in particular to all of those who are independent professionals. Briefly, the procedures are as follows: wage earners who cannot continue working due to a disease, handicap or accident, will receive for a m a x i m u m period of 52 weeks disability benefits, amounting to 80% of daily wages (with a certain daily maximum). In many cases, the employer makes up the remainder of the benefits during that year to 100% of the last-earned wages. Those eligible for this insurance must be between the ages of 16 and 65. If the disability of wage earners continues beyond 52 weeks, the WageEarners Disability Insurance Act goes into effect. The most important features of this Act are as follows: * • • •
it applies only to wage earners it only takes effect after 52 weeks of disability the m i n i m u m disability must be 15% the m a x i m u m benefits for disability of 80% and over are 70% of the lastearned daily wage • there are several classifications of disability, ranging from 15-25%, with proportionate benefit percentages (10% to 70% of wages) • a wage earner may, in contrast to the period of one year in which the Health Insurance Act applies, now be compelled to perform other work than on his original job, on the condition that this other work be considered "suitable". To be "suitable", a given type of work must comply with various definitions and conditions. The benefits resulting from this Act may be revised at any time and are frequently reviewed. For this insurance, also, age limits have been set. The General National Disability Act (1976) applies to all Dutch people, regardless of whether they are wage earners or self-employed or have never been part of the work force. The benefit percentages are lower than for the Wage Earners Disability Insurance Act and only disabilities of 25% or more persisting beyond one year qualify. Benefit payments may begin at the age of 17 and may not continue past the age of 65. Within the framework of this Act, additional benefits may be paid in connection with provisions made to maintain, restore and further the capacity to work. The administration of these various Acts lies with a total of 26 public organizations, operating for various sectors of industry or kinds of professions. These public organizations issue the benefits, which are financed out of premiums paid by employers and employees, citizens and the government. A total of 10 special courts deal with conflicts arising out of the implementation and execution of these Acts. These are the Social Security Courts. There is one Court of Appeal, superior to the Social Security Courts, wherein decisions made by lower courts may be appealed. These 10 courts and the Court of Appeal deal predominately with the evaluation of medical aspects of a case (disability caused by diseases, handicaps or accidents). To that end, these courts need to have a large number of experts on any kind of medical specialty at their disposal.
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In addition, they need to be able to consult labor experts and wage experts. A m o n g the medical experts, psychiatrists are of primary importance. The number of reports made by psychiatrists in this branch of jurisdiction exceeds the number of reports made in criminal cases. For five out of these 10 courts, I have gathered some figures for 1981 and 1982. 1981 - a total of 6700 cases involving medical advice, with 1350 psychiatric reports 1982-a total of 6500 cases involving medical advice, with 1300 psychiatric reports; on an average, therefore, in one-fifth of the cases involving medical advice a psychiatric advice is requested. The psychiatrists submitting reports to these courts always do so on an individual basis, and not on behalf of any institution or governmental body (although some of them may be affiliated with hospitals). The examinations usually take place on an out-patient basis, though occasional!y clinical observation may be required, in which case, the psychiatrist may need the assistance of a psychologist. A special training for this type of work is rare or non-existent. (I will return to this subject later on, since efforts are in the offing to create such a training.) Fees are determined per case and are based on the number of hours involved in examination and reporting. The Netherlands is said to be among the countries with the most highly developed social security systems. At the same time, at least in the Netherlands, it appears that we have gone too far. The social security system is proving to be unaffordable, particularly in this period of economic depression. The total benefits paid have reached gigantic proportions. On a total population of 14 million people, some 800,000 people currently receive disability benefits based on more than one year of disability. Furthermore, a relatively high percentage of unemployed workers appears to have crept into this number of the disabled, partly due to the fact that the disability benefits are considerably higher, especially over a longer period of time, than the u n e m p l o y m e n t benefits.
Civil Jurisdiction The Dutch Civil Code contains several clauses which relate to persons with mental disorders. In those cases, one of the parties involved in a lawsuit may put in a psychiatric assessment, the court itself also may order a psychiatric report to be made in connection with a given psychiatric problem. The most c o m m o n of these cases are: -the question of whether a guardianship should be created if the person in question is incapable or insufficiently capable of properly looking after his own interests due to the existence of a mental disorder; -the validity of a will; the legal capacity while making or revoking a will may be contested if the person, at the same time of making or revoking such will, suffered from a mental disorder which prevented him from properly performing this task; -this applies also to signing an agreement or contracting a marriage;
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-the question may arise, particularly in divorce cases, whether a given parent, due to the existence of a mental disorder must be considered incapable of taking on the care and education of one or more minor children. In such cases, the judge will call on a practising psychiatrist or on a psychiatrist affiliated with an institution.
Criminal Jurisdiction In 1886, the French Code P~nal, dating back to the time of French rule, was replaced by the Dutch Penal Code. Article 37 of this Code, which is still in effect, allows for someone who is pronounced irresponsible on grounds of a defective development or of an impairment of his mental faculties to be discharged from prosecution (in other words, not to be punished) and, as a preventive measure, to be placed in a mental institution for a maximum period of one year. This is the so-called penal commitment to a mental institution, in contrast to the civil commitment discussed under 'Jurisdiction of the Insane'. For a long period of time - up to 1928, to be exact - this special measure was permissible only if an entire lack of mental competency was involved. The judge could recognize a partial lack of mental competency, i.e., a diminished responsibility due to mental deviations, only by means of a reduced sentence. In 1928, after many years of debate, the so-called "Psychopaths Acts" came into being. These contained four important features: 1. First, the concept of 'diminished responsibility' was introduced in a roundabout way. 2. Second, mentally disturbed delinquents, who were considered a danger to society, could now be placed in so-called "psychopaths institutions", not as a punishment, but as a protective measure. This measure was called "detention by government's order", in Dutch abbreviated as T.B.R. In addition, a punishment also had to be imposed, which is not possible for the fully mentally incompetent. 3. Third, it was determined that this new measure (T.B.R.) could also be applied to those with an entire lack of mental competency, in addition to or instead of placement in a mental institution. The T.B.R. measure is imposed for a duration of two years, with the possibility to renew this by another one or two years after a new judicial decision. During the term of the T.B.R. measure, the Minister of Justice may terminate this measure mid-term if grounds exist to justify this. 4. In the fourth place, it was decided that a conditional T.B.R. measure could also be imposed, with the definition of certain conditions that the party involved must comply with; if these conditions are violated, the T.B.R. measure can still be executed. In practice, this mostly happened and happens only after a new crime has been committed. Between 1928 and the end of World War II, there was only one state institution for T.B.R. cases for men, as well as one private institution for men and women. The T.B.R. measure in this period was feared for two particular
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reasons: (a) it could be renewed indefinitely (each time for one or two years); and (b) until after World War II, treatment in T.B.R. institutions was all but nonexistent; treatment was either by means of medication (and applied, if necessary, by force), or by means of occupational therapy; consequently, the T.B.R. institutions functioned primarily as centers for custodial care and for the protection of society. The T.B.R. measure was and is generally experienced as a punishment, and, moreover, as a punishment of indefinite duration. As regards to the appearance and functioning of forensic psychiatrists, it can be said that not until the turn of the century did psychiatrists in The Netherlands begin to play a more active part in the implementation of justice. In this period, psychiatrists usually performed forensic-psychiatric examinations on an out-patient basis, although, exceptionally, a psychiatric examination might take place clinically in a designated institution for a m a x i m u m period of six weeks. Psychiatric experts were generally asked three questions: • one question as to the presence of mental disorder(s) and the possible connection between these disorders and the crime(s) committed • a question about the person's mental competency • and, in addition, since 1928: a question as to the possibility of danger to society as a result of the delinquent's mental disorder (this in view of a possible T.B.R. measure). Schematically, therefore, there were three scenarios for the perpetration of a crime together with the existence of a mental disorder: • normal mental competency with, consequently, normal prosecution • diminished mental competency, with eventually a resulting shorter sentence and possibly a T.B.R. measure (this, if danger to the public order was established) • total lack of mental competency: no punishment at all and no special measure needed; or placement in a psychiatric institution alone, or placement in a mental institution followed by T.B.R. In addition to questions about the mental condition and degree of responsibility at the time of perpetration of a crime, a psychiatric expert could also, based on an article of law, be asked for advice if a person begins to exhibit mental disorders after having committed a punishable offence and prior to being sentenced. If there are indications of insanity, the judge is obligated to suspend prosecution and sentenc!ng. After sufficient improvement of the suspect, prosecution may be resumed. In by far the majority of cases, it is the judge who calls on a psychiatrist to institute a psychiatric examination. In principle, however, the Public Prosecutor also may demand such an examination, while the suspect or his legal counsel may request it. The suspect may also ask for counter-assessment, although, in practice, very few people avail themselves of this right, one reason being that they would have to pay for the expense of this counterassessment themselves. Up to World War II in The Netherlands, there were very few actual forensic psychiatrists involved in criminal jurisdiction; that is to say, there were very few psychiatrists who were involved in this type of work on a fairly regular
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basis and who thereby had gained some experience. This was due to the fact that the number of practising psychiatrists in the Netherlands at that time was small and those few were often unavailable for forensic tasks, since they lacked the time. Another factor was that forensic work was paid very poorly up to the fifties. A forensic-psychiatric examination was often hastily and superficially performed (examinations of 20 to 25 minutes were quite normal then, and the reports issued often consisted of a mere two or three pages). This practice obviously did not contribute to inspiring great confidence in forensic psychiatrists with judges and suspects, the more so because judges could impose a T.B.R. judgement based on such a brief examination. There was, moreover, no specific training in forensic psychiatry, so those interested in this field had to find their own way. Rather far-fetched conclusions frequently seemed to appear out of nowhere in reports and were not properly accounted for. The period after World War II in The Netherlands is characterized by a fairly explosive development and great flourishing of forensic psychiatry. The development of psychodynamic psychiatry, in particular, with its concomitant new choice of therapies in the period before World War II, along with the development of social psychiatry with its more system-oriented therapeutical approach after World War II, have given strong momentum to forensic psychiatry in criminal law. In our country, people such as Baan and Meyers in psychiatry and Pompe in Criminal Law have played an important, stimulating part in this development. So often the services (i.e., expert-report and advice) of psychiatrists were called for in criminal cases that psychiatrists developed a strong influence in the process of criminal law. This influence was not, however, always in proportion to the quality and soundness of their findings. The annual number of T.B.R. decisions, in particular, grew steadily, probably under the influence of the much higher expectations of the prognosis for treatment of and the therapeutical possibilities for delinquents: the number grew from 50 to 100 persons per year in the period from 1932 to 1945 to an increasingly faster growth of between 100 and 200 persons per year in the period from 1946 to 1968. This in itself immediately led to serious capacity problems in the T.B.R. institutions. The number of T.B.R. institutions had to be increased at a high rate, on the one hand by building new institutions, and on the other hand by expanding the existing ones. For a period of time, therefore, five state institutions and some five private institutions existed simultaneously. The total capacity of the T.B.R. institutions in this period was approximately 650 places, while another 75 to 100 T.B.R. cases were treated in civil mental institutions (nowadays this latter number has become very small). Several other institutions that were established in the period shortly after World War II deserve mentioning: 1. The Selection Institute for T.B.R. cases in the city of Utrecht with some 50 places, essential for the selection and differentiation of the T.B.R. cases since the various treatment centers showed fairly significant differences in population and in therapeutical approach. One institute for example, geared towards mentally deficient patients, would have a predominantly ortho-
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pedagogic approach; another would have a more clearly sociotherapeutic climate and emphasize a psychoanalytic approach. 2. A Psychiatric observation clinic for delinquents, (now called the Pieter Baan Centrum), also in Utrecht, aiming at a more thorough and prolonged clinical and multidisciplinary observation of delinquents. Due to the relatively small number of available places and the usual waiting list, this clinic has usually been forced to limit itself to the admission and observation of persons who have committed fairly serious crimes. The creation of this clinic also had the intention to reduce the appalling increase in the number of T.B.R. cases, because of the persistent shortage of capacity in the T.B.R. institutions despite the increase in the number of available places. 3. The institution of so-called judicial district-psychiatric sePcices, comprising one (sometimes two) psychiatrist(s) with administrative support in each judicial district, primarily with a three-fold task: • counsel to the judicial powers, for example, with regard to the need for or desirability of psychiatric reporting; • consultation for and treatment of the prisoners in penal institutions within the district; recently, a state commission made a detailed report on the need for psychiatric services within the penal system; • advisory counsel to the rehabilitation services, who apart from this had their own staff psychiatrists and psychologists at their disposal. Again, due to a shortage of available psychiatrists, it has taken a long time before all district psychiatric services were properly staffed. These district psychiatrists sometimes also participate in forensic-psychiatric reporting, although this is not and should not be one of their formal duties. After the stormy development in the fifties and early sixties a decline took place in various areas of forensic psychiatry in the late sixties and in the seventies. Both the number of court-requested psychiatric reports and the number of T.B.R. decisions declined (the total number of T.B.R. population decreased fairly rapidly to under 400 people; the number of psychiatric reports decreased from about 1300 in 1964 to under 600 in the late seventies). There were a number of reasons for this development: 1. The concept of "danger to the public order" (one of the pillars of the T.B.R. judgements) was given a different and clearly more limited interpretation due to changing attitudes in society. Whereas between 1928 and the early 70s such danger implied: the continued recidivism of property crimes and repetition of exhibitionism, since then the criterion has been switched to: immediate danger to persons (the more serious forms of crimes of violence and sexual offences) or to property (arson and the like). The concept of "danger to the public order" must of course always remain linked to the existence of mental disorders in the imposition of T.B.R. decisions. 2. A diminished confidence on the part of judges in the effectiveness of T.B.R. of which the manner of execution is mostly outside the field of view and supervision of the judges who impose this measure. In fact, judges can only exercise influence in continuing or terminating this measure, not, however, in the way of execution.
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In the last 10 to 12 years judges have tended to impose a long prison sentence rather than a T.B.R. judgement, as they would have in the past, based on two thoughts: • this safeguards the delinquent' s removal from society for a longer period of time. • the prison code allows for prisoners to be transferred to treatment centers (such as T.B.R. institutions) in certain cases when this is necessary, so that mentally ill delinquents can have treatment anyhow. This, however, applies only within the framework of penal execution, not within that of the T.B.R. measure; in other words, limited to the length of the prison term as set by the judge. For some time this latter train of thought prevailed, in particular when space became available in T.B.R. institutions as a result of fewer T.B.R. decisions. This made it possible to treat other categories of people, such as those on probation, conditional T.B.R. cases and the aforementioned group of mentally disturbed delinquents, who found themselves in prison, often with long prison terms, and who did need psychiatric treatment. Now that some T.B.R. institutions, due to the economic depression and for other reasons, have been compelled to reduce the number of available places, the number of places for these particular categories of delinquents has become strongly limited. 3. Changes in attitudes have occurred within psychiatry such as on the one hand presented by the anti-psychiatric movement, in affiliation with psychiatrists such as Laing and Sasz, and on the other hand by action within the field of psychiatric patients. As a result of these changes a gathering of forces began to occur within the forensic-psychiatric domain against the strongly increased and possibly excessive influence and power of psychiatrists in the field of jurisdiction and against the occurrence of forced psychiatric treatment within a judicial framework. Nowadays the fights of the delinquent in criminal jurisdiction and in forensic psychiatry are being regulated more clearly and more precisely, both at the time of adjudication (I mention the possibility to refuse an examination; codes of conduct for forensic reporters, who more than formerly have to guarantee the greatest possible impartiality and independence) and during the execution of an eventually imposed T.B.R. in designated institutions (for example the fight to refuse treatment, limitation of constraining measures, impermissibility of certain methods of treatment, etc. ). 4. Changes taking place within the law and jurisdiction itself. Some of the trends mentioned before are reflected in proposed changes in the current criminal legislation and especially in the T.B .R. legislation, which forms part of it. The following changes should be noted: • in the future T.B.R. may only be imposed after clinical or at least multidisciplinary forensic reporting and then only in cases in which the general public safety of persons and property is at stake. • a proposed limitation in the sense of maximizing the measure. After its imposition (for two years) and two renewals (each of two years, so six years altogether), it can only be renewed in case of certain types of serious
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crimes for which the measure has been pronounced originally (such as violent and sexual crimes) and then only after new, independent reporting by a psychiatrist and a psychologist, preferably performed clinically. assistance of a lawyer in the renewal procedure is provided for. appealing the renewal decision will be made possible. T.B.R. may be imposed without being executed. T.B.R. no longer needs to be coupled with a prison term.
A committee is currently composing a report about the legal status of T.B.R. cases within the respective institutions, with the purport, that this legal status will be formulated separately in an Act. The above-mentioned proposed changes have among other things led to a reduction in the number of T.B.R. cases remaining in the various institutions (this number has decreased to well below 400) and, consequently, to the cutting down of some of these institutions whereas some other ones will perhaps have to close their doors entirely and definitively. The higher demands made on forensic psychiatrists have now led to a revision of the training requirements these psychiatrists will have to meet. Up till now, any physician who has taken the prescribed training to be a psychiatrist was allowed to practice forensic psychiatry immediately and with no limitations. The forensic aspect of this training, however, was minimal: it consisted of performing some forensic examinations and making a few forensic reports under supervision. Some training institutes do not even comply with this minimum requirement or cannot comply with it for lack of an experienced forensic member in the staff of these institutes. Therefore, a combined committee, consisting of lawyers and physicians, is designing a training plan and training requirements for psychiatrists interested in working in the forensic field. This is all the more necessary since The Netherlands are on the verge of having an excess of psychiatrists in the near future, which might lead to a greater number of psychiatrists getting involved in forensic psychiatry, although this would perhaps be due more to economic considerations than to a genuine interest and experience in this field of psychiatry. Furthermore, the committee strives to have psychiatrists with forensic interest trained in the total forensicpsychiatric field, i.e., for the various aspects of forensic psychiatry and not only in the criminal branch of it. In the last few years, forensic psychiatry has been confronted with several additional problems, of which four are important enough to be mentioned here: . Seriously mentally disturbed persons are sometimes not admitted and other times more or less expelled from the normal, civil mental institutions, because they are considered difficult, and hard to treat, and because they do not fit in with the sociotherapeutical treatment concept of these institutions. These people, who are incapable of fitting in and adjusting to society, drop out easily by way of addictionto alcohol and other drugs, and many times erid up in the penal law system, where they do not belong and where they cause much trouble, especially in prisons; to such an extent,
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that made it necessary to create a special institute for them, at least for their temporary accomodation. This is the so-called FOBA-institute, which means department for forensic observation and treatment. Perhaps, as a result of the regionalization principle that has now been introduced in civil mental health, these people will in the not-so-far future have to be admitted in the civil psychiatric institutions in the region from which they originate; admission duty for these hospitals will be tied in with subsidy-conditions. 2. Many of the just mentioned seriously disturbed people will, through dangerous behavior, end up in the T.B.R. institutions, where they make up a group of "atypical patients" (atypical in view of the regime and therapeutical goals of these institutions) and take away places that are needed and intended for the real, "typical", T.B.R. patients. Apart from this the T.B.R. institutions are confronted with a number of cases that do not respond to any treatment, remain dangerous, are very expensive and really only need custodial care in an environment that can supply some form of psychiatric care. To complete the difficulties the number of T.B.R. judgements is growing again lately, whereas the economic crisis had led to diminishing of places and discharge of personnel. 3. The economic crisis has seriously affected the rehabilitation services in The Netherlands also, particularly in the degree to which they can render psychiatric and other behavioral assistance; the subsidies for ___ 50% of all existing psychiatrical and psychological personnel have been cancelled. This means that the remaining psychiatrical and psychological staff can merely fulfill advisory and consulting functions, but can no longer perform therapy. In view of the fact that clients have nowhere else to go, this means that these patients will receive no treatment and will easily fall prey to recidivism, which will lead to an even greater overcrowding of the prisons and T.B.R. institutions than is presently the case. 4. Due to economic factors and the above mentioned changes in attitude towards forensic psychiatry and compulsory treatment, the T.B.R. institutes have been compelled to cut down their places and their numbers of staff. Thus, in connection with the fact that quite recently the number of T.B.R. judgements shows a tendency to increase again, there is a rapidly growing shortage in vacant places for T.B.R. cases, with the result that these mentally ill people have to be confined in ordinary prisons for a much longer time than is intended and than is good for them. From the preceding, it will be clear that for various reasons mentioned, forensic psychiatry in criminal jurisdiction and the psychiatric care of delinquents in The Netherlands are currently experiencing a most serious crisis, and that much of what has been carefully and painfully accomplished in the past 30 to 35 years threatens to be lost.
Jurisdiction of the Insane As regards this branch of forensic tasks of Dutch psychiatrists~I will confine myself to describe them as they were in the past, as they are at present, and as they will be, perhaps, in future.
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I shall not go into the details of the Lunacy Act that is operative at this moment, nor into the various aspects of the new Lunacy Act, which is to replace the old one before long. I shall not do so for the following reason: in Volume 2, Number 4 (1979), of this journal, Mr. G. V. C. Dekker, legal advisor to the Chief Medical Inspector of Public Mental Health, gave a detailed description of the New Lunacy Act that was then already in preparation for some years and which is called B.O.P.Z., which (translated in English) stands for "Act on Formal Admissions to Mental Hospitals". Since Mr. Dekker's paper appeared there have been several further changes in the Bill that had to be presented to Parliament. Last year, more than 10 years after the first draft of this Bill appeared, it was presented to Parliament at last, where it is under discussion at this moment. More than 90 amendments on the Bill have been put forward! So it is not very well possible to foretell what the Bill will look like when it passes Parliament and becomes an Act. The afore indicated amendments refer to minor details as well as to important and fairly fundamental matters. Therefore it seems wiser to dedicate a separate paper in this journal to the new Dutch legislation on the insane when the Bill, now being in discussion, has become an Act good and proper. In the past the share of the psychiatrist (or physician) in the frame of the Dutch legislation on the insane was modest: in section 16 of the present Lunacy Act is laid down that for a formal admission to a lunatic asylum a certification, providing the need for admission, completed by a psychiatrist or, in certain cases, any physician, who is not involved in a treatment relationship with the patient, must be presented to the competent judge. Oddly enough in such an important matter, this medical certificate is strikingly brief and in fact in many cases supplies little information (the certification has to be written on a printed form containing a number of preformed questions). This is a situation which I consider unsatisfactory since it can hardly guarantee a careful legal procedure; on the other hand, the judge can always personally interrogate the psychiatrist, who has made up the certification, if he wants more information. Furthermore, the attending psychiatrist of the asylum where the patient is going to be admitted, is due to keep a record of the medical findings about the patient, daily during the first two weeks, then weekly for six months, and after that at least monthly. To prolong the stay in a lunatic asylum of a patient who has been formally admitted, after one year has passed, the attending psychiatrist of that asylum has to provide for a certificate, proving the further staying of the patient in the asylum as necessary. For some time it has become customary, as a result of a judgment of the European Court of Justice in Strassbourg, that the judge sees and hears the patient personally before prolonging a formal admission after a period of one year has passed. When the patient objects to the prolongation of his formal stay in the asylum, the court can order an expert assessment by an independent psychiatrist (i.e., in any case not being a Staff member of the asylum). The same applies when a patient requests his discharge from the asylum during the term of his formal admission. When the Board of the Asylum refuses the discharge, this negative recommendation together with the patient's
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request must be sent to the Public Prosecutor, who in turn generally asks for a decision by the Court. In that case the Court can also order an expert assessment by an independent psychiatrist. At present the Court uses its authority in this respect much more frequently than was the case in former years, so that a " n e w " task has presented itself for the forensic psychiatrist as a result of this. It must be said that these assessments (in the case of objection of the patient to prolongation of his formal stay or in the case of a refusal to his request for discharge) are much more detailed and thorough in comparison with the certification required for a formal admission. The Bill for the proposed new Lunacy Act will further hold some more points upon which the Court can require the expert opinion of a forensic psychiatrist. In particular this will be the case in regard to certain proposed rights of patients formally staying in a lunatic asylum, rights that, in contrast with the present Act, will be mentioned and laid down in detail in the proposed new Act. When these rights would be denied to the patient or if they would not be effected to his satisfaction, the patient may complain to the Board of the Asylum. In that case the Board can submit the complaint of the patient to a special committee or decide itself. When this decision has not been made within two weeks after receiving the complaint or when the decision rejects the complaint, the patient has the possibility to appeal to the Court, which in that case can again ask for an expert advise from a psychiatrist. To complete this section about forensic tasks of psychiatrists in the frame of the legislation of the insane it should be mentioned that under the present Lunacy Act as well as in the Bill now presented to Parliament, there is a section relating to the procedure of emergency admissions (at present called "custody"). In cases of emergency, when a patient is providing a direct danger to himself, to others or to "the public order" (under the present Act) respectively when he provides "immediate imminent danger" (under the proposed new Act) the burgomaster of the municipality where the patient finds himself at that moment, can order his custody (under the present Act) respectively his admission to a mental hospital or, when this is not possible, to a general hospital (under the proposed new Act) after which the suitable procedure for a formal admission has to be set into motion. In these cases, now as well as in the future, the burgomaster needs a certification by - possibly - a psychiatrist. At present this can be a written certification or, if this is not possible, a verbal or telephone statement. Under the proposed new Act this always has to be a written certification by - possibly a psychiatrist. To conclude it can be said that the field of forensic psychiatry in The Netherlands is now fairly strongly on the move and has been so in the past years. The developments in the field of criminal forensic psychiatry are, unfortunately, not satisfactory and favorable in every respect, partly due to the consequences of the economic crisis, partly due to other reasons. -
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A positive development lies in the fact that more than was the case in the past, young Dutch psychiatrists are showing an interest in forensic psychiatry and are willing to fulfill tasks in this field. However, that makes it even more necessary to provide for a more thorough training in this field of the psychiatric profession that lies between psychiatry and law.