Forensic care and complaints procedures

What is forensic care?

Forensic care includes treatment and support for mental health problems, addiction or an intellectual disability. This care may form part of a sentence or measure, or be imposed as a condition. Article 1.1(2) of the Forensic Care Act (Wet forensische zorg, Wfz) also covers compulsory care that does not necessarily have a criminal justice background.

Care can be provided without admission, but also in various institutions:

• Forensic psychiatric centre (Forensisch psychiatrisch centrum, FPC): a closed, high-security clinic for patients subject to a hospital order with compulsory treatment (tbs met dwangverpleging).
• Forensic psychiatric clinic (Forensisch psychiatrische kliniek, FPK): a closed mental healthcare institution accommodating patients with different legal care statuses. Security is less strict than in an FPC.
• Forensic psychiatric unit (Forensisch psychiatrische afdeling, FPA): a unit within mental healthcare providing intensive treatment, with less security than an FPK. A forensic addiction unit focuses on addiction problems.
• Prison psychiatric centre (Penitentiair psychiatrisch centrum, PPC): part of the prison system, for detainees with mental health problems.

Separate complaints procedures exist under the Penitentiary Principles Act (Penitentiaire beginselenwet, Pbw), the Principles Act on the Treatment of Persons Subject to Hospital Orders (Beginselenwet verpleging ter beschikking gestelden, Bvt), the Compulsory Mental Healthcare Act (Wet verplichte geestelijke gezondheidszorg, Wvggz) and the Care and Compulsion Act (Wet zorg en dwang, Wzd). The general healthcare complaints procedure applies only as a supplement.

The prison system: care during detention

The Custodial Institutions Agency (Dienst Justitiële Inrichtingen, DJI) is responsible for forensic care within custodial institutions and assesses whether treatment can wait until after detention. During detention, care that cannot be postponed is provided. A person may also receive forensic care during placement in an institution for persistent offenders (ISD-maatregel). A penitentiary programme may include mental healthcare or addiction care (Article 5 of the Penitentiary Order, PM).

When an ordinary detention setting is unsuitable, the selection officer (selectiefunctionaris) may transfer someone to a PPC under Article 15 Pbw. Where nursing care is necessary, Article 15(5) Pbw also allows temporary transfer to a facility covered by the Wvggz or Wzd.

Detainees receiving care in a PPC are covered by the ordinary complaints procedure (beklagprocedure) in Chapter XI Pbw.

Hospital orders (tbs): complaints under the Bvt

A hospital order with compulsory treatment (tbs met dwangverpleging) may be imposed for a serious offence where a mental disorder or impaired mental development existed at the time of the offence, and where protecting safety makes this necessary (Article 37a of the Criminal Code, WvSr). The complaints procedure for patients is set out in Chapter 14 Bvt.

What can you complain about?

Article 56 Bvt allows you to lodge a complaint (beklag) against decisions by the head of the institution concerning:

• a disciplinary punishment;
• placement or continued stay in an intensive care unit;
• restrictions on contact with the outside world;
• refusal or withdrawal of permission for a child to stay in the institution;
• other restrictions on a right;
• withdrawal of leave that, at that point, has lasted for more than one consecutive week;
• withdrawal of trial leave (proefverlof).

For some measures, a waiting period applies first (Article 57 Bvt): one week for restrictions on freedom of movement, one day for seclusion (separatie) and two days for isolation (afzondering). Seclusion and isolation are forms of being placed apart from others. You can also lodge a complaint (beklag) against an extension of seclusion or isolation, and against camera observation.

A decision by a staff member generally counts as a decision by the head of the institution. A refusal to make a decision can also be challenged. However, conduct outside the performance of official duties does not count as a decision that can be challenged through this complaints procedure (beklag).

As a rule, general measures cannot be challenged through a complaint (beklag). An exception may apply where your personal circumstances justify a different assessment or where a request for an exception has been refused. The Council for the Administration of Criminal Justice and Protection of Juveniles (RSJ) confirmed this in cases concerning coronavirus measures (R-20/7098/TA and 21/22515/TA).

Filing a complaint and mediation

Submit your complaint in writing to the secretary of the complaints committee (beklagcommissie) of the institution where the decision was made. Describe exactly which decision you are challenging and why. There is no mandatory form. If your Dutch is insufficient, you may use another language (Article 58 Bvt).

The filing deadline is seven days after you became aware of the decision. Filing late without a valid reason makes the complaint inadmissible: the committee will not then consider its substance. An earlier attempt to resolve the problem yourself may be a valid reason for delay (RSJ 16/1181/TA). Do not wait until you have left the institution to file your complaint.

You can ask the supervisory committee (commissie van toezicht) for mediation about how you are treated or how the institution fulfils its duty of care (Article 55 Bvt). The way a duty of care is carried out, such as the timing of food provision, cannot be challenged through a complaint (beklag) (Article 56(4) Bvt).

If mediation concerns a decision that can be challenged through a complaint (beklag), request mediation within seven days as well. The committee aims to find a solution within four weeks. The member who acted as mediator may not then sit on the complaints committee (beklagcommissie) dealing with that complaint.

Handling the complaint, evidence and suspension

The complaints committee (beklagcommissie) consists of three members of the supervisory committee; straightforward cases may be handled by a single complaints adjudicator (beklagrechter) (Article 59 Bvt). You receive the head's response and can usually explain your position at a hearing held in private. You may receive legal assistance or, with permission, support from a trusted person. An interpreter is arranged if necessary (Articles 60–62 Bvt).

The committee may hear witnesses and view camera footage. If a punishment is based on camera footage, that footage must remain available for the proceedings. In RSJ 07/1466/GA, a decision could not stand because the accusation relied entirely on footage that had gone missing. Not every case requires camera footage: a sufficiently clear written report may be enough.

Do you want the challenged decision to be put on hold temporarily? In addition to your complaint, submit a separate request for suspension to the chair of the appeals committee of the Council for the Administration of Criminal Justice and Protection of Juveniles (RSJ), under Article 64 Bvt.

Decision and appeal

The committee must issue its decision within four weeks of receiving the complaint. In special circumstances, this period may be extended by up to four weeks (Article 65 Bvt).

A complaint may be declared inadmissible, unfounded or well-founded. Well-founded means that the decision breaches the applicable rules or, after weighing the interests involved, is unreasonable or unfair. The committee may overturn or replace the decision, or order a new decision to be made. If the consequences can no longer be remedied, compensation may be awarded, possibly in money (Article 66 Bvt).

You and the head of the institution may appeal to the Council for the Administration of Criminal Justice and Protection of Juveniles (RSJ) within seven days of receiving the decision or being told it orally (Article 67 Bvt). An appeal does not automatically suspend implementation, except in relation to compensation that has been awarded. Suspension may be requested separately. No appeal is available solely against the failure to issue a decision (RSJ 21/24699/TA).

Mental healthcare: the Wvggz

The Wvggz regulates compulsory care for a mental disorder that causes serious harm. Under Article 3:3 Wvggz, voluntary options must be unavailable, there must be no less burdensome effective alternative, the care must be proportionate to its purpose and it must be expected to work.

Compulsory care may be based on a care authorisation (zorgmachtiging) or crisis measure (crisismaatregel). An initial care authorisation lasts no more than six months; a subsequent authorisation lasts no more than one year (Article 6:5 Wvggz). A criminal court may also issue a civil care authorisation, for example when a hospital order (tbs) is not extended (Article 2.3 Wfz).

What can you complain about?

Article 10:3 Wvggz lists the matters the complaints committee (klachtencommissie) may decide on. These include:

• an assessment that you cannot properly judge your own care interests;
• a self-binding declaration (zelfbindingsverklaring), which records agreements about treatment;
• temporary compulsory care before a crisis measure, except for complaints about the police officer;
• management of records and confidentiality;
• implementation of compulsory care and the conditions for it;
• additional temporary compulsory care, its duration and the related procedural requirements;
• searches for prohibited or dangerous items and house rules;
• transfer of responsibility for care;
• temporary interruption, conditions on termination and evaluation of compulsory care;
• designation of a person responsible for care, the care plan and treatment conditions;
• emergency measures outside the care plan and restrictions on visits.

The complaints procedure is not intended to challenge the content of the care authorisation or crisis measure itself. Such a complaint is inadmissible (Article 10:6(2) Wvggz).

Intellectual disabilities and psychogeriatric conditions: the Wzd

The Wzd regulates involuntary care for people with an intellectual disability or a psychogeriatric condition, such as dementia. This may involve care to which a client who can make their own decisions does not consent, but also resistance by a client who cannot do so, or a lack of consent from their representative.

Compulsory admission may take place under a court authorisation or, in a crisis, an emergency detention order (beschikking tot inbewaringstelling). Admission must be necessary and suitable to prevent serious harm; there must be no less intrusive options (Articles 26 and 27 Wzd).

Article 55 Wzd allows complaints about:

• the assessment of whether you can weigh up your own interests;
• involuntary care in the care plan and its implementation;
• care in unforeseen situations;
• management of records concerning involuntary care;
• leave and discharge.

A complaint about the admission decision, the court authorisation for admission and stay, or the emergency detention order itself will not be considered on its substance (Article 56b(2) Wzd).

Complaints procedure under the Wvggz and Wzd

You, your representative or a surviving relative may submit a written complaint, giving reasons, to the independent complaints committee (klachtencommissie). It has at least three members, an odd number of members and no members who work for the care provider. Neither Act sets a filing deadline.

Both parties may be heard and bring someone to support them. The proceedings must take place at a location that is easily accessible to the client, with privacy protected.

The committee issues a written decision with reasons within fourteen days. If the challenged decision no longer has any effects when the complaint is filed, the deadline is four weeks (Article 10:5 Wvggz and Article 56a Wzd). The committee may suspend or overturn the decision and order a new decision to be made. It may also award damages on request.

After the decision, or if it is not issued on time, you may submit a reasoned application to the court within six weeks. The court decides within four weeks; no appeal to a higher court is available (Articles 10:7 and 10:9 Wvggz; Articles 56c and 56e Wzd).

Staying in the same clinic as patients subject to hospital orders (tbs) does not change this route. The Council for the Administration of Criminal Justice and Protection of Juveniles (RSJ) confirmed that the Bvt complaints committee (beklagcommissie) had no jurisdiction over complaints by a patient whose care was based on the Wvggz (11 December 2020, R-20/7920/TA and R-20/7926/TA).

General healthcare complaints: the Wkkgz

The Healthcare Quality, Complaints and Disputes Act (Wet kwaliteit, klachten en geschillen zorg, Wkkgz) applies only where the special complaints procedures do not apply. You therefore cannot use it to bypass the Pbw, Bvt, Wvggz or Wzd.

A client, representative or surviving relative may complain in writing about conduct during the provision of care. A refusal to recognise someone as a representative may also be the subject of a complaint (Article 14 Wkkgz). The complaints officer (klachtenfunctionaris) provides free advice and can help start a discussion.

The care provider must investigate carefully and communicate its findings, any measures to be taken and the timeframe for implementing them within six weeks (Articles 16 and 17 Wkkgz).

You may then approach a recognised dispute resolution body if the complaints procedure is not followed, the outcome does not adequately resolve the issue, or you cannot reasonably be expected to complain to the care provider first. It issues a binding decision and can award damages up to a limit of at least €25,000. As a rule, the decision is issued within six months (Articles 20 and 22 Wkkgz).

What does this mean for you?

First check the legal basis for your care (zorgtitel) and the decision you want to complain about. Note when you learned of it and keep the decision and correspondence. Deadlines are particularly short under the Bvt.

Describe specifically what happened, why you disagree and what solution you are asking for. If the effects are continuing, also consider requesting suspension. Family members can help organise documents; under the Wvggz, Wzd and Wkkgz, representatives and surviving relatives also have their own rights to complain.

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)
• Compulsory treatment