Verdict Locked home exterior door as a custodial measure

BGH: Court has to approve closed accommodation
Karlsruhe (jur). If a locked outer door of a home for the disabled is to prevent the unauthorized escape of the residents, this is a release-free accommodation subject to approval. However, the approval required for this must be granted by a court, if otherwise threatens a serious and concrete danger to life and limb of the caregiver, the Federal Court (BGH) ruled in Karlsruhe in a decision published on Tuesday, June 20, 2017 (Az. : XII ZB 577/16).

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Specifically, it was about a severely mentally handicapped wheelchair user, who is suffering from the so-called Coffin-Lowry syndrome. There is also an epilepsy, she is very difficult to express verbally. Since June 1999 she is housed in a special living facility. Because of her limitations, she can only do handicrafts in a support group at her dorm.

Because of her disability, the woman's sister has been appointed as the caregiver. In August 2015, the latter applied to the District Court of Eckernförde for an extension of the closed accommodation of those affected in the housing facility. The exterior door of the facility was closed so that the wheelchair user could not drive on the road on their own.

In order to be able to guarantee the rights of the woman in the procedure, the district court ordered a so-called procedural lawyer.

However, he considered unlawful the custodial measure of closed housing. The judicial approval of the measure is only permissible in the case of a concrete danger to the life and limb of those affected. Here, however, the wheelchair user has made no attempt to leave the facility on his own.

However, appraisers came to another conclusion. Thereafter, the mentally handicapped woman can spontaneously form the natural will to change the location. There was therefore a real danger that they might leave an open facility and endanger themselves on the roads. Thus, there is also the "high-grade risk of significant damage to health".

After a fruitless attempt to have a personal conversation with the person concerned, the district court had finally approved the closed housing for two years. The complaint against it was rejected by the district court.

The Federal Court of Justice dismissed the appeal filed against it in its decision of 24 May 2017. The outside door, which is closed to the woman, constitutes a deprivation of liberty, so that the closed accommodation must be approved. However, the lower courts have rightly ordered this. For the approval of a closed housing no acute, immediately imminent danger of the supervised person is necessary. Specific indications for the occurrence of a significant damage to health were sufficient.

This is the case here. Surveyors had confirmed that the mentally handicapped wheelchair user could leave an open facility spontaneously and endanger himself on the road. Thus, the approval of the deprivation of liberty measure would be necessary to avert the existing danger to life and limb. fle / mwo