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Verdict: Locked outside door as a deprivation of liberty

Verdict: Locked outside door as a deprivation of liberty



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BGH: Court must approve closed accommodation
Karlsruhe (jur). If a locked outer door of a dormitory for the disabled should prevent the residents from running away on their own, this is an accommodation that requires deprivation of liberty and requires approval. The necessary authorization must be granted by a court, however, if otherwise there is a serious and concrete danger to life and limb of the person being cared for, the Federal Court of Justice (BGH) in Karlsruhe decided in a decision published on Tuesday, June 20, 2017 (Az. : XII ZB 577/16).

Specifically, it was about a severely mentally disabled wheelchair user who is suffering from the so-called Coffin-Lowry syndrome. There is also an epilepsy, it is very difficult to express itself linguistically. Since June 1999 it has been housed in a special residential facility. Because of her limitations, she can only be engaged in handicrafts in a support group in her dormitory.

Because of her disability, the woman's sister has been appointed as a caregiver. In August 2015, the petitioner asked the Eckernförde District Court to extend the closed accommodation of those affected in the home. The exterior door of the facility was locked so that the wheelchair user could not drive onto the street on her own.

In order to guarantee the rights of women in the proceedings, the district court appointed a so-called procedural nurse.

However, the latter deemed the deprivation of liberty of closed accommodation to be illegal. The judicial approval of the measure is only permitted if there is a specific danger to the life and limb of those affected. So far, the wheelchair user has made no attempt to leave the facility on her own.

However, experts came to a different conclusion. Afterwards, the mentally handicapped woman could spontaneously form the natural will to change location. There is therefore a concrete danger that she could leave an open facility and be endangered on the road. This also means that there is a "high degree of serious health damage".

After a fruitless attempt to hold a personal interview with the person concerned, the district court finally approved the closed accommodation for two years. The appeal lodged against this was rejected by the district court.

The BGH rejected the legal complaint lodged against it in its decision of May 24, 2017. The outside door locked for the woman represents deprivation of liberty, so that the closed accommodation must be approved. However, the lower courts had rightly ordered this. No acute, imminent danger to the person being cared for was required for the approval of a closed accommodation. Concrete indications for the occurrence of considerable damage to health were sufficient.

This is the case here. Experts have confirmed that the mentally disabled wheelchair user can spontaneously leave an open facility herself and thus endanger herself in traffic. This would require approval of the deprivation of liberty measure to avert the existing danger to life and limb. fle / mwo

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