The protection of a person with a psychiatric disorder.

Why was the original Act of 26 June 1990 amended?

Several reasons led to the amendment of the Act of 26 June 1990:

• Prevent trauma and stigmatization: use coercive measures as little as possible and prioritise voluntary alternative solutions;
• Clarify the concept of a psychiatric disorder: adapt the definition and align it with the new vision of mental health care;
• Reduce the use of the emergency procedure: introduce a prior clinical assessment period to limit the use of the protected observation measure;
• Use a standard model for medical reports: a model based on seven criteria for drafting the detailed medical report.

The conditions for imposing a protection measure have remained unchanged

As a general rule, a protection measure can only be imposed (1) on a person with a psychiatric disorder (2) if their condition requires it, either because they seriously endanger their own health and safety, or because they pose a serious threat to the life or physical integrity of others, and (3) if no other appropriate care is available.

The new 2024 Act did not change the substance of these conditions, but it did adjust the terminology.

Updated terminology

Where the former Act referred to a “mentally ill person”, the new Act refers to a “person with a psychiatric disorder”.

A “psychiatric disorder” means: a disorder described as such according to the current state of scientific knowledge, capable of seriously disrupting the perception of reality, the capacity for judgement, thought processes, mood or control of one’s actions. Maladjustment to moral, social, religious, political or other values is not considered a psychiatric disorder (Article 1/1 of the Act of 16.05.2024).

This definition does not exclude an addiction-related problem. In its judgment of 12.01.2023, the Constitutional Court pointed out that such a disorder can concern a person suffering from an addiction to alcohol, drugs or medicines, at least where the addiction is severe.

In addition, the term “forced hospitalisation” is no longer used; instead the law refers to a “protected observation measure”. Likewise, the law no longer refers to an “approved psychiatric service” but to a “(residential) facility”.

Two types of protection measures

Following the legislative amendment, there are two types of protection measures: a protected observation measure and a (new) voluntary care arrangement subject to conditions.

A protected observation measure

The protected observation measure forms part of a coercive care framework, in the sense that the person with a psychiatric disorder does not voluntarily choose this framework.

The measure takes place in a residential facility, or in a facility approved for that purpose by the authorities competent for health policy on the basis of Articles 128, 130 and 135 of the Constitution, offering sufficient safety guarantees for the person concerned and for society, and allowing observation, if necessary with the involvement of external services (Art. 4/1 of the Act of 16.05.2024).

Voluntary care subject to conditions

Voluntary care subject to conditions is a new measure that forms part of a voluntary care pathway, since the person with a psychiatric disorder consents to it.

Voluntary care subject to conditions can only be ordered if the person meets the conditions for imposing a psychiatric measure and accepts all conditions, and if it can reasonably be expected that those conditions will be complied with (Art. 4/2 of the Act of 16.05.2024).

The consent of the person with a psychiatric disorder is essential here.

In addition, the person concerned and the treating physician (the physician responsible for the treatment) must jointly draw up a treatment plan according to a model determined by the King.

The plan contains the following elements:

• A section showing that the consultation led to consent and stating on what basis the physician responsible for the treatment concludes that it is reasonable to believe that the person with a psychiatric disorder will comply with the proposed voluntary care subject to conditions;
• The therapeutic means that will be implemented in order to eliminate the danger as far as possible.

A standardised detailed medical report

Any interested person may file an application with the judge for a protected observation measure or a voluntary care arrangement subject to conditions (Art. 5 of the Act of 16.05.2024).

On pain of inadmissibility, the application must be accompanied by a detailed medical report which, on the basis of an examination carried out no more than fifteen days earlier, describes the health condition of the person for whom the protection measure is requested as well as the symptoms of the psychiatric disorder, and confirms that the conditions for imposing a measure are met.

This report must be drawn up by a physician who may be neither the applicant’s physician nor a relative by blood or marriage up to the fourth degree of the applicant or of the person with a psychiatric disorder.

The possibility of a clinical assessment for a maximum of 48 hours

The Act also introduces the possibility of a clinical assessment for a maximum period of 48 hours (Art. 9 of the Act of 16.05.2024).

This possibility applies only in the context of the emergency procedure, before deciding whether or not to impose a protection measure, and allows the Public Prosecutor to take an informed decision.

During the clinical assessment period, the person is monitored and subjected to an in-depth evaluation. Based on that evaluation, the physician draws up a detailed medical report.

This assessment may only be decided if the three above conditions are cumulatively met, and its maximum duration is forty-eight hours, starting from the moment the person is deprived of their liberty.

At the end of that period, on the basis of the medical report, the Public Prosecutor may decide to take a protected observation measure, to propose voluntary care subject to conditions, or to close the file without further measures.

When does the new Act enter into force?

The new Act enters into force on 1 January 2025.