Protection of mentally handicapped persons Belgian law follows the general international trend

In: European Review of Private Law, Band 2, Heft 1, S. 1-30

Abstract

Abstract. 1. This article focuses on two recent Belgian Laws regarding the protection of mentally handicapped persons. The first one, of June 26,1990 deals with the involuntary hospitalization of mentally handicapped persons. A year later, the Law of July 18, 1991 regulates the protection of property of adults who are unable to look afther their own affairs. These legislative initiatives attempt to bring the Belgian law in these particular matters in accordance with the idea of recognizing and protecting the human rights of mentally handicapped persons. This has been a general international trend in mental health law. A number of international declarations and conventions, and the European Court on Human Rights, play a major role in this process. Several countries have adapted their legislation to this new perspective.
2. In the first paragraph this international perspective is briefly described, firstly in the field of involuntary hospitalization. One finds that the emphasis on human rights strongly influences the procedure of hospitalization as well as the internal legal position of the patient. Where the concept of involuntary placement used to be considered as a measure for the patient's own well-being in order to protect him against himself, it now is looked at from the perspective of a deprivation of freedom, which is only justified if it is strictly necessary. Recognizing the patient's right to an appriopriate treatment and care during his hospitalization, several countries have developed a coherent set of rules organizing and safeguarding the internal legal position of the involuntarily hospitalized patient. Secondly, the international evolution regarding guardianship over adults is discussed. Here, the trend clearly is that the law must offer a graded system of care, limiting the capacity of the mentally handicapped person only if and to the extent that it seems necessary to protect him. The least restrictive alternative must be applied. Legal control through the courts with strict procedural guarantees is essential, as is a periodic review of the necessity of the measure, and time limits.
3. In the second paragraph, the new Belgian law regarding involuntary placement is analyzed. Although this law follows the general international trend of emphasizing the patient's human rights and provides for several procedural safeguards in compliance with international documents and the case law of the European Court on Human Rights, it has been widely criticized, mainly because of the complex and often unclear procedure it entails. Moreover, unlike several foreign laws in this field, the Belgian law does not deal coherently with the internal legal position of the patient. It only regulates the involuntary hospitalization, without explicitly guaranteeing the patient's right to an appropriate treatment or his right to refuse treatment.
4. The third paragraph deals with the Belgian law of 1991 concerning the protection of property of adults who are unable to look after their own affairs. According to this law, which has been integrated into the Belgian civil code as article 488bis, a provisional administrator may be appointed for every adult person who is not able because of his health to manage his property, and who has no legal representative. The law complies with the international trend towards a graded system of care. It delivers to the justice of the peace a flexible instrument which he can apply to achieve the most equitable result according to the specific circumstances of each case. However, it is regrettable that the Belgian legislature limited itself to a partial reform and did not take this chan