Simone Efkemann, Photo source: ResearchGate
As a PhD candidate from Germany, currently finishing her thesis on the role of staff attitudes in the decision-making process around the use of coercion, I was very happy to be able to visit Professor Tonje Lossius Husum at the Oslo Metropolitan University this May. Furthermore, I had the opportunity to visit several psychiatric hospitals around the area of Oslo, being addressed as best practice models in the Compendium Report on Good Practices in the Council of Europe to promote voluntary measures in mental health services. My visit was a very interesting experience, especially enabling a comparison of the situation in both countries and reflecting on familiar procedures. Therefore, I gladly agreed to write this newsletter article describing the situation on the use of coercion in German mental health care system as well as outlining some differences in comparison to the Norwegian situation, which arose during my stay in Oslo.
Text by: Simone Efkemann
The German mental health care system is characterized by an ongoing focus on inpatient treatment. There has been a substantial decrease of inpatient psychiatric beds between 1991 and 2014 (from 084.048 to 54.916) and the length of inpatient stays has also decreased from 66.5 to 22.5 days in this period. Still, with a rate of 126 inpatient psychiatric beds per 100.000 inhabitants, Germany is ranked as the European country with the second highest amount of psychiatric beds. On the other side, outreaching forms of treatment are not regularly implemented yet.
Legal framework regarding coercion in general psychiatry. In general psychiatry, the legal basis for the use of coercion is provided by the Guardianship Law and the Mental Health Laws. The guardianship law is a federal law and applicable in situations of considerable danger to a person oneself. For involuntary commitment on this basis the person has to lack mental capacity due to a psychiatric condition and a legal guardian has to be involved. Furthermore, the guardianship law provides the only legal basis for compulsory medication. This is ranked as the strongest form of coercive intervention in Germany due to the violation of physical integrity. It can only be applied to increase the well-being of patients or restore mental capacity. The Mental Health Laws are federal state laws and applicable in situations of acute, considerable danger either to a person oneself or to others due to a mental disorder. In these cases, for involuntary commitment no legal guardian has to be involved and the lack for mental capacity is not mandatory. In this context, patients can further be mechanically restrained (or less frequent secluded) to prevent further harm. Furthermore, the Constitutional Court (the highest court in Germany) has decided in 2013 and 2018 that an additional judge’s decision is required for involuntary commitment, compulsory medication or mechanical restraint, when they are expected to last longer than a set period of time. Importantly, no kind of community treatment orders are available in Germany. (Kallert et al., 2016; Brieger et al., 2019; Deister et al., 2019; DGPPN, 2021; OCED, 2021)
Current numbers of coercion in general psychiatry.
As in Germany no common or nationwide recording system regarding coercion in psychiatric hospitals exist, current numbers can only be estimated from regional case register studies and (national) surveys. The results of those studies assume a rate of 7.5-10 involuntary commitments per 100.000 inhabitants. An increase of these numbers could be observed over the last years. Due to the high number of psychiatric beds, those numbers correspond with an amount of approximately 10% of all inpatients in psychiatric hospital being involuntarily committed. Of those involuntarily committed patients, about 5-7% are affected by further freedom restrictive measures, with mechanical restraint being the most common form used. A decrease in the numbers of those freedom restrictive measures could be observed after the decisions of the Constitutional Court mentioned above. (Efkemann et al., 2021; Flammer et al., 2021; Efkemann et al., 2022)
Legal framework regarding coercion in forensic psychiatry.
In forensic psychiatry the legal basis is represented by the German Criminal Code, which is a federal law, and federal state laws regulating the conditions of forensic psychiatric treatment. Due to the German Criminal Code a person, who has committed a crime, can be acquitted from this if he lacks capacity due to a psychiatric condition. Instead, the judge can pose an order for treatment in forensic psychiatry, which most often has no set maximum duration. Patients shall be discharged, when they do not longer pose a threat to general society due to their mental disorder. The prevailing risk and the necessity of forensic treatment has to be checked regularly by independent expert reviews from specialised psychiatrists. In the context of forensic treatment, further freedom-restrictive measures can be used in cases of acute risk. Compulsory medication can be used in certain cases, especially for patients with psychotic disorders, to reduce the risk associated with the disorder and thus enable patients to be discharged.
Current numbers of coercion in forensic psychiatry.
In 2014, approximately 12.000 patients were in forensic treatment. A relevant problem is the long duration of treatment. The amount of patients with a treatment duration of over 10 years has increased from 26.2% to 32.3% from 2010 to 2015). Results from a current nationwide survey on the use of coercive measures could show that 22-25 % of patients were affected by seclusion and about 3-4% affected by mechanical restraint. Unfortunately, the use of coercion in forensic psychiatry has been under researched so far. (Jaschke et al., 2017; Leygraf, 2018; Flammer et al., 2021; Reinwald et al., 2021)
Comparison to situation in Norway – report from visit.
What appeared to me most during my visit, was the different focus on ethical values regarding the use of coercion, especially the value of patient’s autonomy. During several exchanges it seemed as if in Germany there would be a much stronger focus on autonomy, at least considering the respective jurisdiction specifically focuses to enhance patient’s right and autonomy within psychiatric care. This of course starts with the fact of not having the for a community treatment order as those a judged as being to invasive regarding patient’s rights. Furthermore, I got the impression that patients advance directives, enabling to reject at least compulsory medication aiming to enhance patient’s well-being, as well as joint treatment agreements might be implemented further in Germany. Then again I was very interested in the successful implementation of open-door policies. This approach has been developed in German psychiatric hospitals to increase autonomy, especially considering that on most ward a high amount of patients might not even be involuntarily committed. Still, I experienced that the aspect of autonomy played a key role in all interventions implemented by the best practice models hospitals, which I was able to visit. Whether it was the Basal Exposition Therapy ward at Blakstad, the Open Dialogue model in Akershus or the implementation of open-door policies at the Lovisenberg Diaconal Hospital. Even though using different approaches all those interventions seemed to promote involvement of patients in their own treatment and thus, increasing autonomy and procedural justice.