Compulsory treatment

Three forms of medical intervention against your will

The law provides for three options: a compulsory medical procedure (gedwongen geneeskundige handeling), type A compulsory treatment (a-dwangbehandeling) and type B compulsory treatment (b-dwangbehandeling). The distinction determines, among other things, what preparation is required and how you can challenge the decision.

Compulsory medical procedure: urgent intervention

This is intended for an urgent situation in which a doctor considers intervention absolutely necessary to avert a serious danger to your health or safety, or that of others. The danger does not have to arise from a mental disorder.

It may involve a physical examination or treatment, such as examining an area of the body, an X-ray, an ultrasound scan or testing for tuberculosis. It can also include the forced administration of psychiatric medication. Before deciding on compulsory medication, the director must consult a doctor, who in turn consults a psychiatrist.

A treatment plan does not have to be ready in advance for a compulsory psychiatric procedure. However, a plan must be drawn up as soon as possible afterwards to improve your condition and end the compulsory intervention. This becomes part of the medical treatment plan.

Type A compulsory treatment: longer-term danger

Type A compulsory treatment is possible if there are reasonable grounds to believe that the danger will not disappear within a reasonable period without treatment. There must be a direct link between that danger and a diagnosed mental disorder.

An immediate threat is not required. Nor does the danger have to occur within the institution. This treatment may aim to prevent someone from having to remain in the institution or a specialist care unit for a long time.

Type A compulsory treatment may be imposed for three months and then extended. Because prolonged intervention without an immediate threat is particularly intrusive, the following must be assessed both when treatment is imposed and when it is continued:

• whether the treatment is necessary;
• whether it can achieve the intended result: effectiveness;
• whether a less intrusive alternative is available: subsidiarity;
• whether the severity of the treatment is proportionate to the danger: proportionality.

The Council for the Administration of Criminal Justice and Protection of Juveniles (Raad voor Strafrechtstoepassing en Jeugdbescherming, RSJ) has recommended that, in prolonged compulsory treatment, an independent psychiatrist assess the necessity and implementation of treatment every six months. This follows from decisions of 28 August 2019 and 11 June 2020.

Type B compulsory treatment: danger within the institution

Type B compulsory treatment concerns danger within the institution caused by a mental disorder. A doctor must consider treatment absolutely necessary to avert that danger. The situation does not allow treatment to be delayed for a prior procedure.

This treatment may be imposed for two weeks. If it lasts longer, a team must be formed consisting of a head of unit, doctor, psychologist and psychiatrist. This is set out in Article 23 Pm, Article 35 Rvt and Article 50 Rjj.

Even for this urgent treatment, the methods used must be included in the treatment plan, even if there is no agreement about them.

Safeguards during treatment

Before the director decides on a compulsory medical procedure or type B compulsory treatment, they must consult the doctor and the head of your unit. This follows from Article 22a Pm, Article 34 Rvt and Article 49a Rjj.

The procedure or treatment is carried out by a doctor or a nurse acting on a doctor's instructions. A compulsory medical procedure must take place in a suitable room. The least intrusive procedure must always be chosen.

During compulsory medical intervention, a doctor or nurse must visit you as often as possible. Their findings must be recorded in your medical file, along with details of the procedure and the outcomes of consultations between the healthcare professionals involved. These recording requirements are set out in Article 22f Pm, Article 34e Rvt and Article 49f Rjj.

The treatment plan and your preferences

As a general rule, ordinary medical treatment is subject to three conditions: the treatment is included in the treatment plan, there is agreement on that plan, and there is no opposition to the treatment. For someone under sixteen, opposition from their parents, stepparents, foster parents or guardian also plays a role. This is regulated in Article 46c Pbw, Article 16a Bvt and Article 51c Bjj.

Type A and type B compulsory treatment are exceptions to this general rule and may only be used as a last resort. Only treatment methods included in the plan may be used.

The treatment plan must describe:

• which mental disorder has been diagnosed;
• which treatment is intended to reduce the danger caused by that disorder;
• whether there is agreement on the plan;
• which less burdensome methods have already been tried;
• what your preferences are and how they are taken into account.

Even if you refuse treatment, you can therefore express preferences about how it is carried out. Where danger can be anticipated, it is advisable to discuss and record possible treatment methods in advance.

A psychiatrist may only decide on the part of the plan on which there is no agreement after consulting several healthcare professionals. This consultation must include at least a psychiatrist, doctor, psychologist and nurse.

Prisons

The Custodial Institutions Act (Penitentiaire beginselenwet, Pbw) applies to prisoners:

• Article 32 Pbw: compulsory medical procedure.
• Article 46d, points a and b, Pbw: type A and type B compulsory treatment.
• Article 46b Pbw and Article 21b Pm: treatment plan.

Further rules are set out in Chapter 5 of the Prisons Decree (Penitentiaire maatregel, Pm). Type A and type B compulsory treatment may only take place in a specialist care unit, such as a prison psychiatric centre (penitentiair psychiatrisch centrum, PPC).

If you need treatment for your mental health after a compulsory medical procedure, you must be transferred to a PPC as soon as possible. The decision is subject to the requirements for a hearing by the director and written notification under Article 57 and Article 58 Pbw.

Youth detention centres

The Youth Custodial Institutions Act (Beginselenwet justitiële jeugdinrichtingen, Bjj) applies to young people:

• Article 37 Bjj: compulsory medical procedure.
• Article 51d, points a and b, Bjj: type A and type B compulsory treatment.
• Article 51b Bjj and Article 48b Rjj: treatment plan.

Chapter 8 of the Youth Custodial Institutions Regulations (Reglement justitiële jeugdinrichtingen, Rjj) sets out the detailed rules. Type A and type B compulsory treatment take place in the forensic observation and treatment unit (forensische observatie- en behandelingsafdeling, FOBA).

If a young person needs further treatment for their mental health after a compulsory medical procedure, transfer to the FOBA must take place as soon as possible. The young person must be heard and receive written notification; Article 61 and Article 62 Bjj apply.

TBS clinics

The Act on the Care of Persons Subject to a TBS Order (Beginselenwet verpleging ter beschikking gestelden, Bvt) applies to people placed under a TBS order:

• Article 26 Bvt: compulsory medical procedure.
• Article 16b, points a and b, Bvt: type A and type B compulsory treatment.
• Article 16 Bvt and Article 25 Rvt: treatment plan.

Further rules are set out in Chapter 10 of the Regulations on the Care of Persons Subject to a TBS Order (Reglement verpleging ter beschikking gestelden, Rvt). Treatment may take place in the forensic psychiatric centre (forensisch psychiatrisch centrum, FPC) where the person is staying. Article 53 and Article 54 Bvt apply to the hearing and written notification.

Notifications and oversight

At the start of any form of compulsory treatment, the director or head of the institution must inform the Minister of Justice and Security and the supervisory committee (commissie van toezicht). For type A and type B compulsory treatment, the responsible healthcare inspector must also be notified. For a compulsory medical procedure, this is only required if the danger arises from a mental disorder.

They receive a copy of the decision. Among other things, it must state what danger makes treatment necessary, which less burdensome methods have been tried, who opposes the treatment and how your preferences are taken into account. If there is opposition, it must also state whether you can exercise your right to lodge a complaint (beklag) or an appeal yourself. For type A and type B compulsory treatment, the attempts to reach agreement on the plan must also be described.

Additional preparation for type A compulsory treatment

The intention to impose type A compulsory treatment must be reported no later than three days before the decision. The chair of the supervisory committee involves the visiting committee member (maandcommissaris): the committee member who visits you, can provide explanations and may help mediate. This member must visit without delay, continue to monitor your situation during treatment and support you where necessary.

The lawyer, personal welfare representative (mentor) and court-appointed guardian (curator) are also informed of the proposed treatment. A further notification follows when treatment starts. Their objections must be included in the decision, along with any objections from the parents or guardian of a minor. The end of treatment must also be reported.

If someone cannot lodge a complaint (beklag) or appeal themselves, the supervisory committee must always investigate whether the decision was made with due care.

Complaints, appeals and suspension

The procedure depends on the decision:

• Initial decision to impose type A compulsory treatment: a direct appeal to the Council for the Administration of Criminal Justice and Protection of Juveniles (RSJ), without first lodging a complaint (beklag) with the supervisory committee. For TBS, this is set out in Article 69, paragraph 1, point g, Bvt.
• Extension of type A compulsory treatment: a complaint (beklag) to the supervisory committee.
• Type B compulsory treatment or a compulsory medical procedure: also a complaint (beklag) to the supervisory committee.

For type A compulsory treatment, an extension of that treatment, and type B compulsory treatment, you can also ask the Council for the Administration of Criminal Justice and Protection of Juveniles (RSJ) for suspension. This means asking for the decision to be temporarily put on hold.

What does case law show?

The danger and alternatives must be explained in concrete terms

In KC 2017/003, 5 January 2017, the nature of the danger and the aggressive behaviour had not been described adequately. As a result, it was impossible to assess whether separation would be sufficient for the time being and whether type A compulsory treatment could wait. The person concerned received € 50 in compensation.

In KC 2017/004, 1 November 2016, the alleged danger under Article 46a Pbw had not been sufficiently substantiated. The complaint about type A compulsory treatment was upheld. An inadequately reasoned extension also led to a complaint being upheld in KC 2017/005, 6 October 2016. In both cases, € 50 was awarded.

Side effects and an independent opinion

In KC 2018/026, 9 July 2018, a person wanted to switch to tablets because of problems with injections. Other medication, a reduced dose and tablets had been tried, but without sufficient results. The committee found that the need for compulsory medication was adequately substantiated and dismissed the complaint.

In KC 2019/019, 7 October 2019, the absence of an independent psychiatric opinion did not lead to a complaint about continued treatment being upheld. The committee noted that there was no statutory requirement and that several psychiatrists were involved. This does not remove the recommendation for independent assessment in prolonged treatment.

A new decision is not required for every administration

In KC 2016/061, 5 September 2016, a new written notification was not required every time medication was administered. The treatment plan and the decision allowed the medication and dosage to be adjusted according to their effects and side effects. The appeal was dismissed.

In KC 2015/014, 18 May 2015, type B compulsory treatment was upheld: the treatment methods had been included in the plan beforehand, each administration was considered necessary, and consultation took place each time. There was no other way to avert the danger.

What does this mean for you?

Ask which form of compulsory intervention is being used and read the written decision with your lawyer or visiting committee member. In particular, check what danger is identified, which alternatives have been tried and what the treatment plan allows.

Discuss side effects and your preferences, even if you remain opposed to treatment. For type A compulsory treatment, advance notification gives you an opportunity to raise objections. Family members can help express those objections and preferences clearly; for minors, parents or a guardian also have an explicit role in the notification procedure.

This page draws on the expertise of Mr. S.P.C. (Stan) Broekmans, a specialist in detention law at Hameleers Antonides Advocaten. Do you have a question about your own situation? Please get in touch; an initial assessment is free.

Other topics

• Arrestant detainees
• Belongings
• Camera surveillance
• Compensation
• Complaints procedure (beklagprocedure)
• Contact between parent and child