There are basically three types of placement: Placement under public law (placement under the PsychKG), placement under civil law (placement under guardianship law) and placement under criminal law.
I. Public-law accommodation
Accommodation under public law is regulated differently in the individual federal states, i.e. in state laws.
In North Rhine-Westphalia, placement under public law is regulated in the Act on Assistance and Protective Measures for Mental Illness (PsychKG).
§ Section 1 of the PsychKG NRW defines the scope of application of the law. According to this, the PsychKG NRW regulates
1. help for people who show signs of mental illness, who are mentally ill or who continue to suffer the consequences of a mental illness (affected persons),
2. the ordering of protective measures by the lower health authority if there are strong indications of a risk to oneself or a risk to significant legal interests of others due to a mental illness, and
3. the placement of those affected who are mentally ill and thereby significantly jeopardise themselves or significant legal interests of others.
According to Section 1 (2) PsychKG NRW, psychoses requiring treatment and other mental disorders and dependency disorders requiring treatment are of comparable severity.
§ Section 11 PsychKG NRW regulates the requirements for placement. According to this, the placement of those affected is only permissible if and for as long as their illness-related behaviour currently poses a significant risk to themselves or a significant risk to the legal interests of others that cannot be averted in any other way.
A present danger within the meaning of paragraph 1 shall be assumed if a damaging event is imminent or if its occurrence is unforeseeable but can be expected at any time due to special circumstances.
II Civil law accommodation
Placement under civil law is regulated in the German Civil Code, i.e. in a federal law. In this respect, the placement must be carried out by the legal guardian of the person concerned.
According to Section 1906 (1), placement of the person under guardianship by the guardian involving deprivation of liberty is only permitted as long as it is necessary for the well-being of the person under guardianship because
1. due to a mental illness or mental or psychological disability of the person being cared for, there is a risk that he/she will kill him/herself or cause considerable damage to his/her health, or
2. an examination of the state of health, medical treatment or a medical intervention is necessary, cannot be carried out without the placement of the person being cared for and the person being cared for is unable to recognise the necessity of the placement due to a mental illness or mental or psychological disability or is unable to act in accordance with this understanding.
The competent guardianship court must give its approval in this respect.
III Accommodation procedure:
The procedure for placement is governed by the Act on Proceedings in Family Matters and in Matters of Non-Contentious Jurisdiction (FamFG), both for placement under public law and for placement under civil law.
Pursuant to Section 319 (1) FamFG, the court must hear the person concerned in person before taking a placement measure and obtain a personal impression of them. Where necessary, the court shall gain a personal impression of the person concerned in their usual surroundings.
Pursuant to Section 317 (1) FamFG, the court must appoint a guardian ad litem to the person concerned if this is necessary to protect the interests of the person concerned. The appointment is particularly necessary if the person concerned is not to be heard.
Pursuant to Section 321 (1) FamFG, a formal taking of evidence must take place before a placement measure is taken by obtaining an expert opinion on the necessity of the measure. The expert must personally examine or question the person concerned before drawing up the expert opinion. The expert opinion should also cover the probable duration of the placement. The expert should be a doctor of psychiatry; he or she must be a doctor with experience in the field of psychiatry.
Pursuant to Section 330 FamFG, the authorisation or order of the placement measure must be revoked if its requirements no longer apply. Before cancelling a placement measure in accordance with Section 312 No. 3, the court should hear the competent authority unless this would lead to more than a minor delay in the proceedings.
IV. Appeals against the placement
An appeal against the placement is admissible, §§ 58 ff FamFG.
Pursuant to Section 58 (1) FamFG, an appeal may be lodged against the final decisions of the local courts and regional courts issued at first instance in matters under this Act, unless otherwise provided by law.
Important Note: The content of this article has been prepared to the best of our knowledge and belief. However, due to the complexity and constant evolution of the subject matter, we must exclude liability and warranty. Important Notice: The content of this article has been created to the best of our knowledge and understanding. However, due to the complexity and constant changes in the subject matter, we must exclude any liability and warranty.
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