Reducing the chance to avoid a hospital order via investment in expertise and clarification of legislation

Minister for Legal Protection Sander Dekker is taking additional measures in an effort to tackle the issue of criminal suspects who deliberately refuse to participate in pre-trial forensic assessments of psychiatric disorders. Such non-cooperative suspects often avoid a hospital order, which places society at unnecessary risk. As treating suspects and prisoners who have psychiatric issues is highly desirable, the Minister is submitting a legislative proposal to clarify the requirements for imposing detention under a hospital order. A concomitant improvement in the knowledge and skill on the part of judges, public prosecutors and behavioural experts is also of the essence. This message is the crux of the letter that Minister Dekker submitted to the House of Representatives today.

'I am adamant that we must protect society as best we can, which is the exact aim of treatment under a hospital order. People with severe disorders cannot be allowed to avoid treatment by their refusal to participate. When it serves the interests of the convicted offender and society at large, detention under a hospital order should be imposed more regularly.'

says Minister Dekker.
It has emerged from studies by the WODC and Erasmus University Rotterdam that insufficient use is made of the legal possibilities to report on non-cooperative suspects and to impose a hospital order. Such detention can be imposed if the judge is reasonably convinced of the likelihood that a disorder is present, without requiring the disorder to be established on medical grounds. This possibility has not been embraced fully by judges and public prosecutors. Another important consideration for a judge is to see beyond the disorder that a suspect suffered when committing a past offence. Imposing a hospital order actually requires an assessment of the future safety risks to society. Before year-end, Minister Dekker will submit a legislative proposal to clarify the requirements for imposing detention under a hospital order.

The commitment by the Public Prosecution Service, the Council for the Judiciary and the NIFP has pleased the Minister, as these authorities endorse the need for action and emphasise an increase in knowledge as well as expertise. Criminal court judges should be supported by internal guidelines when imposing or extending a hospital order, with special attention to non-cooperative suspects. These judges are additionally developing an e-learning module on detention under a hospital order. The Public Prosecution Service aims to raise awareness of the legal possibilities in applying a hospital order. Legal professionals have also stressed the importance of specialist knowledge on detention under a hospital order as a separate branch of criminal law.

The behavioural experts reporting for pro Justitia are requested by the NIFP to draft even clearer reports and to include more data from environmental research or file search. This process improves the chances for judges and public prosecutors to establish the presence of a psychiatric disorder and the suitability of a hospital order. The quality standards for behavioural experts were previously refined as a result of a report on 'Weighted Risk' by the National Rapporteur on Trafficking in Human Beings and Sexual Violence against Children. Public prosecutors and judges who have a risk assessment of recidivism are better able to decide on the danger to society.

Extension of observation period and previous measures

This new approach constitutes a supplement to the measures previously taken by Minister Dekker.
The regulation on non-cooperative suspects enshrined in the Forensic Care Act (Wet forensische zorg) enables a specially appointed advisory committee to authorise the retrieval of existing medical data for use in drafting a behavioural report on such suspects. This committee will commence operations in 2019.

The maximum term for observing a suspect in the Pieter Baan Centre (PBC) has been extended from seven to fourteen weeks as from 1 July 2018. A pilot has also been launched in which the PBC stimulates non-cooperative suspects to show their true colours by placing them in a different department or environment. The WODC is supervising this pilot and expecting its results to emerge by the end of the year. In the framework of assessing the Forensic Care Act, the Minister has commissioned research for 2022 on the way that this approach affects the percentage of non-cooperative suspects.

Suspects who refuse to participate should not return to society without having received treatment. Possible treatments are available to this end during and following detention, even if the judge did not impose a hospital order on the prisoner. For example, prisoners who have a psychiatric disorder can be placed in a penitentiary psychiatric centre. Compulsory treatment or admittance to a clinic can be imposed as a requirement during conditional release. Moreover, an independent supervision order pursuant to the Long-Term Supervision Act (Wet langdurig toezicht) can be imposed on sex offenders and serious violent offenders as from this year. This measure has as an advantage that a disorder need not be present during the adjudication. Finally, the termination of detention on criminal-law grounds does not necessarily equate the termination of treatment. Criminal court judges can impose a care authorisation under the Forensic Care Act and the Compulsory Mental Health Care Act (Wet verplichte geestelijke gezondheidszorg), which entails compulsory treatment following detention. Where required, care providers (including penitentiary institutions) must prepare for follow-up care six weeks prior to the termination of detention.

Ministry responsible