Residents struggling with addiction who cause public nuisance are a significant problem for many municipalities. Mayors, therefore, regularly call for more tools to intervene more quickly, for instance, through compulsory care. However, according to André den Exter, Associate Professor of Health Law at Erasmus School of Law, current legislation already provides significant options that are often insufficiently exploited. Speaking to Omroep Gelderland, he notes that the current law allows for more than many mayors realise.
Compulsory admission as a restriction of liberty
Den Exter stresses that compulsory admission is a far-reaching measure: “Compulsory care, including enforced admission to a psychiatric institution, is a form of deprivation of liberty, but it is grounded in the Compulsory Mental Health Care Act (Wvggz). If the legal conditions are met - a serious suspicion or serious harm resulting from a mental disorder - the mayor can order an emergency admission, which may be followed by a care authorisation granted by the court.”
However, not every addiction justifies a compulsory admission. “According to established case law, a psychiatric disorder exists if another disorder accompanies the addiction, or if the addiction is so severe that the individual cannot be held responsible for the danger. If that is not the case, compulsory admission is not permitted,” Den Exter explains.
Broader application of existing law
Mayors such as Ahmed Marcouch of Arnhem and Ton Heerts of Apeldoorn have previously argued for more legal tools to tackle nuisance. Den Exter takes a different view: “You do have to make the risk or harm plausible, but I suspect they are applying this criterion too rigidly. Harm can mean many things.” According to him, mayors could interpret the law more broadly and, if necessary, let the court decide: “Let the judge draw the line.”
Consequences of being overruled by the court
What happens if a court overrules a mayor? Den Exter explains: “The court can clarify the conditions under which people with addictions can be admitted under an emergency measure. That clarity then gives mayors guidance in cases of nuisance.” The consequences are otherwise limited if a mayor goes too far. According to Den Exter, the person involved might claim damages for unlawful admission, but there are no other sanctions. For a mayor, therefore, the stakes are relatively low.
Because the limits of the law are rarely tested, there are hardly any court cases on compulsory admissions. Den Exter argues this should change: “It would provide clarity.”
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Read the article from Omroep Gelderland here (in Dutch).
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