Page 59 - Reduction of coercive measures

the case”, and page 14: “there is no simple definition of deprivation of liberty”. The content of the DOLS Code of Practice is mainly based on the Bournewood case (HL v. the United Kingdom, 2005) in which the European Court of Human Rights said that “to determine whether there has been a deprivation of liberty, the starting-point must be the specific situation of the individual concerned and account must be taken of a whole range of factors arising in a particular case such as the type, the duration, effects and manner of implementation of the measure in question. The distinction between a deprivation of, and restriction upon, liberty is merely one of degree or intensity and not one of nature or substance”.
Since 2008, the Dutch Health Care Inspectorate has applied a very broad definition of restrictions on freedom, being “all physical and verbal measures that restrict the freedom of clients”. This definition was designed to promote greater awareness in practice of all the possible ways in which freedom can be restricted; in other words, not only the forms of restraint and seclusion as referred to in the Psychiatric Hospitals (Compulsory Admissions) Act, but also lesser forms of restriction (i.e. those not specified in this Act), such as not being allowed to drink coffee, having to hand in cigarettes, or not being allowed to go outside. The Care and Coercion Act, by contrast, refers to “involuntary care”, which, according to the legislation, should be taken to mean “care resisted by the client or his representative”. Involuntary care is thus used as an umbrella term for all major and minor restrictions on freedom, both those currently covered by the Psychiatric Hospitals (Compulsory Admissions) Act and those that now, strictly speaking, fall outside the scope of the legislation. Involuntary care is subdivided in the Care and Coercion Act into nine categories (see “Nine forms of involuntary care, as referred to in the Care and Coercion Act”). These nine categories can be interpreted very broadly. In the explanatory notes the legislator states the difference between “locking a person in” and “restricting a person’s freedom of movement” to be that the former involves the person being secluded or separated in an appropriate space. It was consciously decided not to specify the other categories of involuntary care in any further detail and to leave this to the sector to interpret (Parliamentary Papers,
Reporting coercive measures
57
3