forensic psychiatric services in the netherlands

International Journal of Law and Psychiatry, Vol. 23, No. 5–6, pp. 515–531, 2000Copyright © 2000 Elsevier Science LtdPrinted in the USA. All rights reserved

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515

Forensic Psychiatric Services in the Netherlands

Hjalmar van Marle*

Introduction

Forensic psychiatric services within the legal system in the Netherlands play anincreasing role in the care and treatment of persons involved in judicial mat-ters. Although it is not exactly clear how many mentally disturbed persons canbe found in the remand centers and prisons, the percentages of mentally dis-turbed persons remain constant, so that they are becoming increasingly visible.It is estimated that 3% of all prisoners suffer from a psychiatric disorder tosuch a degree that they should not be in a penitentiary institution but rather ina general psychiatric hospital, and about 9% of all prisoners are said to requireacute psychiatric treatment without there being any direct need for transfer toa psychiatric hospital.

1

These percentages are based on information from the1980s, so it should be kept in mind that the prison population has doubled dur-ing the last 12 years, from approximately 6,000 to 12,000 cells, so that the num-ber of prisoners who are mentally disturbed has also likely doubled. The num-ber of judicial psychiatric reports continues to demonstrate an upward trend,currently almost 5,000 per year.

2

It also appears that increasingly often suspi-cions that a psychiatric disorder played a role in the crime with which the pre-ventatively detained person is being charged turn out to be confirmed.

The number of Terbeschikkingstelling sentences (detention by the Govern-ment’s pleasure in a maximum security hospital) being passed has more thandoubled in the past few years.

3

It has become necessary to create separate de-

*Professor of Forensic Psychiatry, Catholic University, Nijmegen, The Netherlands.

Address correspondence and reprint requests to Prof. Dr. Hjalmar J. C. van Marle, Department ofForensic Psychiatry, Catholic University Nijmegen, Th. Van Aquinostraat 6, Room 6.02.38, 6525 GDNijmegen, The Netherlands; E-mail: [email protected]

1

Ministry of Justice,

EFFECTIVE

DETENTION

NOTICE

(1994). I. Dhondt & J.J.L.M. Verhagen,

PsychicDisorders in Prisons

,

in

T

HE

A

UTHORITY

AND

THE

P

ATIENT

259–266 (J. Fokkens et al. eds., 1993). (inDutch)

2

Bureau of Psychiatric/Psychological Advisors, Ministry of Justice,

ANNUAL

REPORTS

DISTRICTS

PSYCHIATRIC

SERVICES

. (in Dutch)

3

Ministry of Justice, A

NNUAL

R

EPORT

ON

C

ONDITIONALLY

S

USPENDED

S

ENTENCES

1990–1995. (in Dutch).

516 H. VAN MARLE

partments in the penitentiary institutions for mentally disturbed prisoners, inaddition to the Forensic Observation and Guidance Department (FOBA), be-cause they would otherwise create too much disturbance in the social climatedue to the severity of their psychiatric disorder. This once again shows the in-crease in the number of disorders among the prison population.

It is a matter of tradition that psychiatric care in penitentiary institutions iscarried out by forensic psychiatrists from the Ministry of Justice. Due to thegreat demand for psychiatric expertise, the number of psychiatrists has beenincreased considerably. The following section discusses organizational struc-ture and the indications for certain procedures and placements. As far as thejudicial psychiatric reports are concerned, after discussing the request for suchreports, attention is paid to diminished responsibility.

Organization

Forensic Psychiatric Services

Each district has its own Forensic Psychiatric Services (FPD), therefore atotal of 19 FPDs. Approximately 54 forensic psychiatrists work part-time forthem. Each FPD with more than one psychiatrist has one who is chief for partof his or her working hours. In view of the fact that the various districts havebeen combined into five courts of justice, there are five area coordinators forall districts. These coordinators ensure harmonization of the FPD activities ineach area and distribute the requests for judicial psychiatric reports over thepsychiatrists in its area. They form the link between the FPDs and the Ministryof Justice, both with the psychiatric advisor, as regards content, and hierarchi-cally with the director of the national district psychiatric services.

Although forensic psychiatrists were originally organized under the MedicalInspectorate of the Ministry of Justice, after only a few years, in 1956, an inde-pendent Psychiatric Advisor appeared on the scene. The professional auton-omy of the psychiatrists required functional, that is, fraternal, supervision;their methods of working and procedures were, after all, strongly influencedby the possibilities and the limitations of the penitentiary environment, by leg-islation and the organization of the prison system, and the “present state of theart” within psychiatry as a profession. Professional autonomy means that thedistrict psychiatrists remain responsible for decisions in their field of work, butwhen they wish to depart from existing rules and agreements, they need toconsult the management of the institution or the psychiatric advisor at theMinistry. The staffing and the financial side of the Services is in the hands ofthe Ministry of Justice itself, via the National Agency for Correctional Institu-tions.

Many district psychiatrists work part-time and also have other activitieswithin mental health care, such as a private practice or employment in a gen-eral hospital. Such a part-time function is important because it allows psychia-trists to work in two spheres that can provide enrichment of their knowledgeand abilities. Another advantage is that working in both a penitentiary institu-tion and in general mental health care provides the psychiatrist with the op-portunity to create a liaison function between the two fields and can support

FORENSIC PSYCHIATRIC SERVICES IN THE NETHERLANDS 517

referrals from one field to another. Another forensic psychiatric activity that iscarried out is drawing up psychiatric judicial reports under personal title. Theorder to do this usually comes from the examining magistrate; the psychiatricarea coordinators and the psychiatric advisor of the Ministry of Justice moni-tor its quality. To avoid a confusion of roles for the court of law, a behavioralcode has been created that ensures that forensic psychiatrists may not draw upreports under their personal title within their own district without the inter-vention of the FPD.

Tasks of Forensic Psychiatrists.

Psychiatrists have a multitude of activities inpenitentiary institutions. They can be consulted for psychiatric diagnostics, as-sessment, and advice. There are also responsibilities regarding individual care,treatment, and reporting in a number of areas:

1.

Consultation for the benefit of other penitentiary care, in particular for thebenefit of members of the Psycho-Medical Team and the medical services.

Forensic psychiatrists enter into consultation with the other members inan attempt to find solutions involving psychiatric interventions for psy-chiatric problems involving mentally disturbed prisoners that occurwithin the institution. The idea is not that forensic psychiatrists take overthe treatment themselves, but that they use their professional knowledgeas much as possible to help think things through and to advise. Apartfrom a clear demarcation of one’s own medical responsibility, working inthe Psycho-Medical Team requires understanding and empathy for theknowledge, expertise, and the responsibilities of the other members. Psy-chiatrists can be consulted not only regarding problems surrounding dis-turbed prisoners in the institutions, but also regarding the diagnosis of in-dications for further, specifically defined treatment. This means that theyare not only (jointly) involved in examination and diagnosis regardingpsychotherapy or guidance that is provided in the institution, but alsothat they take care in indicating and initiating treatments carried out byexternal therapists. They then monitor its coordination, progress, termi-nation, and problems that may develop.

2.

Advising the management, the law courts, and the Ministry of Justiceabout the state of mentally disturbed prisoners.

This advice is often at therequest of the institutional doctor or psychologist, or the examining mag-istrate or the psychiatric advisor. The forensic psychiatrist can also supplythem with unsolicited information. These questions may be about thestate of health and the method for approaching a certain person, his orher suitability for detention, about the presence of a possible psychiatricdisorder in relation to the crime, and about the desirability of issuing ajudicial psychiatric report and other forms of application of the law, suchas pardon and extradition. The law court can also request, by way of theexamining magistrate, a point of view on questions surrounding the refusalof a suspect to cooperate in drawing up a judicial psychiatric report withinthe framework of procedures for appeal, article 196 of Criminal Law.

The evaluation of suitability for detention is particularly importantwhen it involves a possible transfer to special facilities, such as the

518 H. VAN MARLE

FOBA or a general psychiatric hospital. When a patient is unsuitable fordetention, the nature of the case would suggest transfer to a different sit-uation that is more treatment-oriented, but that is obviously less strictlyguarded than a penitentiary institution. This is the reason why such atransfer should not take place rashly, but only when there is a real case of(mental) illness and a medical urgency to intervene. Unsuitability for de-tention should thus be defined as having a mental capacity that is incapa-ble of coping with a detention situation to such an extent that a mentaldisorder will develop or an existing mental state will deteriorate and thiscannot be counteracted with the available means, resulting in irreparablenegative effects and danger. Transfer to an environment where treat-ment can be given is then medically indicated. Of course, being detainedis a distressing situation for any individual.

3.

Treatment.

Even after transfer, the forensic psychiatrist can still play arole in treating a mentally disordered prisoner. This is especially the casefor persons with a mental disorder who were detained after they hadcommitted a crime and for persons in the penitentiary institution itself(whether or not suffering from a current mental disorder) who some-times undergo acute decompensation and develop a severe mental disor-der. Treatment will be mostly medicinal in nature, with advice to theinstitution psychologist regarding the best way to treat the patient in theplace in which he or she is being kept. In practice, due to the limited ex-tent to which they can be made use of, psychiatrists will have to limitthemselves to acute and manifest psychiatric conditions, such as a psy-chosis, depressions that can be treated with drugs, and anxiety conditions.

4.

Liaison function.

The evaluation of suitability for detention plays a largerole both prior to and during treatment. At a certain stage, patients candevelop such a severe mental clinical picture that it is no longer responsi-ble to continue treating them in a penitentiary institution. Firstly, a trans-fer to the FOBA, the forensic observation and guidance department, canbe undertaken, while an urgent transfer is also a possibility. The first aimis not to keep patients in the FOBA, but to return them to the remandcenter or prison after they have reached a stable state. However, theFOBA can also transfer patients after some time to a general psychiatrichospital or a forensic psychiatric hospital. Psychiatrists can also use a sec-tional clause (art. 41 Penitentiary Measures [PM] or art. 15.5 Peniten-tiary Principles Act [PBW]) to place them directly in a psychiatric hospi-tal or a TBS institution. The latter does not often occur today due to theshortage of beds in TBS institutions. In such cases it is of the utmost im-portance that the district psychiatrist maintain good relations with all theother mental health organizations within the district. Exchange of knowl-edge and expertise can sometimes be used so that the penitentiary fieldalso finds a place in the regionalization of health care.

Psycho-Medical Consultation

Forensic psychiatrists have, within the Psycho-Medical Team (PMT), fixedpoints of contact with the other therapeutic workers in the institutions. They


remain independently responsible for their actions, just as do the other mem-bers of the Psycho-Medical Consultation (PMO), the institution’s doctor, psy-chologist, social workers, and the nurse.

4

These responsibilities were laid downin 1997 based upon the Individual Health Care Professions Act, the MedicalTreatment Contracts Act, and the Quality of Care (Institutions) Act.

Currently, almost all closed penitentiary institutions have a PMO. ThePMO generally meets on a weekly basis and sometimes more often during cri-ses. Its chairperson is the institution’s psychologist. The institution psycholo-gists, unlike the psychiatrists who work in the same penitentiary institution,fall under the hierarchy of the director of the penitentiary institution. Similarlyto the psychiatrists, the institution psychologists are coached and guided bythe psychological advisor of the Ministry of Justice, and they also have theirprofessional autonomy. There is a need for effective harmonization betweenthe penitentiary regime and the psychological standard of working if the insti-tution psychologist’s contribution is to pay off. Psychologists must remain trueto their behavioral code and use their professional knowledge in advising themanagement of the institution, and therefore do not necessarily have to iden-tify with the policy of the institution.

The aim of the PMT is harmonizing the aid and guidance of prisoners. Ad-vice is given to prison wardens over the way in which they should approach de-tained persons, apart from further diagnostics and symptom definition, crisisintervention, and the involvement of care workers from outside the institution.It should also keep an eye open for signs that suggest any deterioration in thepsychosocial climate within the institution, and pass on such information tothe necessary authorities.

5

The effectiveness of the PMT is extremely depen-dent upon the mutual cooperation between its members, who often have atendency to allow their own field of work to prevail. The term

Psycho-MedicalTeam

is, in fact, incorrect, in view of the fact that there is no suggestion ofteamwork due to the individual professional autonomy. From an organiza-tional point of view, the PMT should be imbedded within and committed tothe procedures of the institution. The preferred title is Psycho-Medical Con-sultation; the mutual consultation is binding with retention of personal respon-sibility.

The PMO should have a fixed place in the penitentiary organization with allguarantees for achieving its aims. It should become an organized consultationbetween partners in the field of penitentiary care.

Apart from coordinating care, the aim of the PMO is the realization of inte-gral care to the prisoners by means of multidisciplinary diagnostics and symp-tom definition for the benefit of the subsequent approach (the “care plan”),advising the institutional personnel and organizing the care. In addition, thePMO is responsible for giving advice on the detention plan and the selectionand placing of prisoners who need more or less specialized care and may be el-igible for sectional clause placement.

4

W.F. van Kordelaar,

The Psychosocial Team, A Form of Special Care in the Penitentiary Institution

,

in

FORENSICHE

PSYCHOLOGIE

, 171–194 (F. Koenraadt & S.J. Steenstra, eds., 1994).

5

Id

note 4, at 181.

520 H. VAN MARLE

Specific Care Departments

Over the years, various types of care departments have developed withinthe prison system due to the flood of mental disorders among prisoners.

6

These departments came into existence because the presence of one or a num-ber of prisoners with disorders could thoroughly disrupt a normal penitentiaryinstitution. Communication problems, unpredictability, and aggressive out-bursts put a great deal of pressure on the staff and became an increasing threatto order and safety, while failing to care for these patients, apart from the nor-mal running of business, became an ever-increasing threat.

Forensic Observation and Guidance Department.

In 1981, the first specialdepartment to be set up was the FOBA, the Forensic Observation and Guid-ance Department, in the remand center “Het Veer,” in the penitentiary com-plex Over-Amstel in Amsterdam.

7

The most important task of this depart-ment, which has grown to 54 beds, is taking care of psychiatric crisisintervention for other penitentiary institutions and, if possible, transferringprisoners with severe mental disorders, who need a long and intensive treat-ment, to a psychiatric facility. Problem cases, mostly psychotic psychiatric pa-tients who can no longer be controlled in an ordinary residential department,are transferred for a short while to the FOBA, where they are taken care of byexperienced staff and given any medicine that may be necessary. After this,the aim is, in principle, to achieve a return to the original penitentiary or to adifferent penitentiary institution, or to transfer to a forensic psychiatric hospi-tal or a general psychiatric hospital. The admissions usually last for somemonths up to more than a year, but in principle all patients are eventually re-turned or transferred.

It is thus of the utmost importance that the FOBA remains a station of pas-sage and does not become clogged up with long-term residents. Finding theright place for these patients in general health care is, however, difficult andsometimes impossible, because the knowledge and means for proper treat-ment are often lacking—an undesirable situation.

Management is in the hands of a unit-manager; one or more psychiatristsand general doctors are attached to this department for the psychiatric careand treatment. The staff is partly made up of wardens and forensic supervi-sors, that is, wardens who have had special training in contact with prisonerssuffering from a mental disorder.

Individual Guidance Departments.

The stagnation that occurred as a resultof FOBA-patients not being returned or transferred and thus continuing to oc-cupy beds, and the general increase in numbers of prisoners with a mental dis-order led to the setting up of the IBAs (Individual Guidance Departments)and the BIBAs (Guarded IBA’s for aggressive and psychiatric patients requir-

6

B.H. Bulten &, J.M.T. van Rijn,

Is Something Wrong with the Interface Between Justice and MentalHealth Care?

, S

ANCIES

333–343 (1992). (in Dutch)

7

J. Gerrits & S. Turnster, T

HE

FOBA P

ROCESS

. R

EPORT

OF

THE

C

OMMITTEE

ON

PSYCHIATRIC

/

THERAPUTIC

FACIITIES

FOR

THE

PRISON

WORLD

. (1989). (in Dutch)


ing maximum security). The IBA is a nation-wide facility to which referral cantake place from other institutions. Characteristic of the IBA is the large de-gree of care that is offered for prisoners with severe mental disorders.

8

Thestaff is made up entirely of penitentiary institution workers, and the districtpsychiatrists and institution psychologists hold regular consultations there.The care is as individual as possible; each patient has his or her own circum-scribed treatment plan.

There are five IBAs with a total of 115 places in detention centers and 52 inprisons. The BIBAs have a total of 48 places. Although from the very begin-ning a Selection Advice Committee (SAC-IBA) was set up for regulating re-ferrals to these departments, after some time it was necessary to create a dif-ferent sort of department, in particular for the cases which involved lessintensive care.

Special Care Departments.

The BZAs (Special Care Departments) were thenset up that are present in most penitentiary institutions. Referral to an IBA orthe FOBA only takes place when care in the BZA is insufficient for providingsomeone with adequate care or medicine; the patient is said to be “too care-intensive.” A stay in the BZA is aimed at improving the psychiatric state of apatient by providing intensive guidance and, if necessary (medicinal) treat-ment, or reversing a deterioration in disturbed behavior when this cannot beachieved under the usual standard regimen. It is preeminently suitable as aplace for care during a crisis, where the patient can regain his equilibriumwithout the necessity of being transferred outside the institution, and return-ing can take place relatively easily.

The indication for these departments concerns not only the severity of thepsychiatric state but also the vulnerability of certain persons within the peni-tentiary population and the danger of suicide. This also involves those prison-ers thus who, because of their serious crimes, often sexual offenses, and a poormental defense system, including mental retardation and psychoses, becomethe victim of aggression on the part of other prisoners. However, not only arethey put apart, but, in view of the prevalence of psychic complaints amongthem, a special caring environment is created. It should come as no surprisethat these BZAs are well-filled; worse still, because such transfers can be maderelatively easy by simply moving from one department to another within an in-stitution, the BZAs are full at the moment, while gradually less intensive use isbeing made of the IBAs due to the more complicated transfer procedure.Referral to the BZA is usually carried out by the director of the penitentiaryinstitution instead of the nationally organized penitentiary consultants inthe SAC.

Addiction Guidance Departments.

The increasing number of drug addictsin penitentiary institutions has led to the setting up of VBAs (Addiction Guid-ance Departments), with 333 places in the detention centers and 49 in the pris-ons. Although they were originally called drug-free departments, it soon

8

J. Mertens,

Criminals with mental disorders, delinquent patients

, Sancties 8–20 (1993). (in Dutch)

522 H. VAN MARLE

turned out that keeping these departments drug-free was an illusion; in oneway or another it seemed that it was always possible to smuggle in soft drugsand hard drugs, thus disturbing the counseling atmosphere. Nevertheless, theset up of the department has remained the same: providing a caring atmo-sphere so that prisoners will want to refrain from their use of drugs and con-quer their addiction. Referral takes place on a voluntary basis. A special activ-ity program has been set up that provides guidance interviews and eventuallyoffers the possibility of admission to an addiction clinic. During their stay in aVBA, intensive urine tests are carried out on prisoners for monitoring the useof drugs. When someone proves consistently positive for drug use then theyare removed from this department and put back into the standard regime. In-dication for VBA is made directly at the entry department via the PMO.

Psychiatric Treatment Within the Prison System

The penitentiary situation has severe disadvantages for the treatment ofmental indications due to its being closed off from the world, having nonmedi-cal staff, and the limited extent to which use can be made of the social workers.The monotony of the daily routine and the activities provided offer psychiatricpatients who suffer from psychoses or personality disorders no opportunitiesfor developing alternative behavior and provide no distraction from their ste-reotypical way of thinking, feeling, and behaving. In particular, the longamounts of time that a prisoner spends in his or her cell can be monotonous,numbing, and terrifying. The personal pathological perception of the environ-ment then comes to the forefront and the disorder will become exacerbated.Even if a mentally disturbed person is “sitting quietly in a cell” and is there-fore not being a nuisance to the staff, this does not mean that the disorder isimproving or that this disorder will remain constant. It is a semblance of ad-justment that leads to the patient’s not being registered as a “handling prob-lem.” After an initial protest, fear of loneliness leads to lack of activity, de-pression, and a pathological tendency to keep to oneself. Detention also has anegative effect on normal people, but their mental resistance is greater andmore flexible. Nevertheless, even they will develop psychiatric or psychoso-matic symptoms that should be regarded as adjustment disorders; they will dis-appear once the detention has ended.

It is not possible to force a person to undergo treatment unless there aresigns of acute danger or the threat of danger to themselves or others. From thepoint of view of the legal position, compulsory treatment as such is not possi-ble in a penitentiary institution. When intervention in the form of treatment isnevertheless called for (e.g., with forced medication), then detention in a hos-pital should be requested by an independent psychiatrist within the frameworkof the BOPZ Act (Psychiatric Hospital [Special Admissions] Act). Legally, thepatient should then be transferred to a psychiatric hospital within 1 day. Inpractice, use is not often made of this regulation because a psychiatric hospitalis not equipped for taking adequate care of these patients with their dangerousand disturbed behavior, due to a lack of relevant requirements of the buildingand the necessary expertise. Taking action within the penitentiary institutionitself is then necessary one way or the other.


Restraint and isolation do not in themselves promote recovery from psy-chological decompensation; they are only useful in that they provide a solutionto acute and physical violence by rendering the person concerned physicallypowerless. Afterwards, structural long-term solutions will have to be found asquickly as possible. The most obvious is, if medically indicated, the administra-tion of psychotropic medication. This is particularly the case for psychotic pa-tients, that is, patients with disorders involving delusions, mania, agitation, orpathological aggression, in view of the fact that medication can usually bringabout a considerable improvement in such patients. Urgent medical treatmentis all the more important in view of the fact that a postponement of this formof treatment of psychoses only exacerbates the duration and severity of theprogress of the illness. It is therefore important that every patient with such anindication should be informed about the medication and motivated towardtaking it as quickly as possible.

However, when the patient refuses to accept medication, the problem arisesas to whether it can be administered against his or her wishes. From a legalpoint of view, compulsory treatment in the prison world is only permitted whenstaving off danger to the person or to others. The bill on the PBW

9

refers to a“medical action,” thus avoiding even the suggestion of treatment. One is merelytaking action, and it can be repeated as long as the danger continues to exist.

10

Quite apart from the fact that this ignores the severe mental suffering thatdoes not fail to have its effects on both the patients and the persons treatingthem, effective treatment is being withheld from the patient. The use of coer-cion, allowing the patient to choose between the two evils of isolation or med-ication, is then the only possibility for forcing a solution.

11

A broad, multidisci-plinary discussion, involving the medical-ethical sides of the individual case,then becomes necessary.

The crucial discussion here surrounds the question as to when the acutedanger can be said to have been reduced to such an extent that treatment withanti-psychotic medication should be terminated. There is, after all, a consider-able risk that when the medication is stopped the mental state will again dete-riorate so that a dangerous situation will re-occur, after which treatment willhave to be re-started. In these cases it is preferable to continue the treatment.When the acute danger dates from some time past, however, and the personconcerned is still uncooperative, then the indication “danger” will steadily loseits credibility. A thorough knowledge of the case history regarding previousdanger and previous treatment indications is indispensable in such cases.

Specific Care Outside the Penitentiary Institutions

Apart from individual care and treatment within the penitentiary institu-tions, there are also possibilities for the caring of convicts outside the prison

9

Bill on Penitentiary Principles Act

, art. 26. (in Dutch)

10

Penitentiary information

, 74 S

ANCITION

(1995). (in Dutch)

11

M. Moerings,

Isolation: Necessary or Policy?

,

in

P

SYCHIATRIC

J

UDICIAL

C

OMPANY

, T

REATMENT

OR

P

UNISHMENT

? 169–176, 6 New Series (1994). (in Dutch)

524 H. VAN MARLE

system. According to the principles of subsidiary, these are even to be pre-ferred when there is a good chance of success, for example, in the case of awell-motivated defaulter or when a treatment that was previously undergonecan be continued, while the danger of further crimes being committed isthought to be acceptably small.

Special Conditions.

First, placement should be based upon a special condi-tion within a partly conditional sentence. A conditional sentence can be im-posed when the prison sentence is no longer than 3 years; the conditional por-tion can then be a maximum of 1 year. This is not to say that this specialcondition is limited to 1 year, after all, it is possible to lengthen the conditionalpart once with a probationary period of 1 year. When the person concernedfails to comply with the special condition, then the conditional part of the pun-ishment can still be carried out. This provides the authorities with some lever-age (a so-called “big stick”), so that the convict will, it is thought, decide not tocontravene the condition. In general, this special condition is reserved for con-victs who themselves are willing to cooperate with a certain type of treatment.In principle, this special condition, which can be imposed by the judge on theadvice of a judicial psychiatric report, can cover all forms of psychiatric treat-ment, as well as compulsory rehabilitation guidance. It is possible, for exam-ple, that the person concerned continues to take anti-psychotic medication“voluntarily” under this condition, while it will be necessary to check intakevia means of the general practitioner and the probation services. Other possi-bilities are voluntary admission to a general psychiatric hospital, a neurosishospital or an addiction clinic, or alternatively, psychotherapy and attendingan outpatients’ clinic. When these treatments are interrupted contrary to ad-vice, then a return to prison will take place; monitoring by the Public Prosecu-tor is necessary after receiving such a report from rehabilitation, however, ifthe authorities are to make any real use of their “big stick.”

TBS with Conditions.

Since the introduction of the revised TBS-Act (Janu-ary 1, 1997), there is a form of TBS with conditions that is very similar to theconditional TBS that was abolished in 1988. At that time there were in partic-ular objections to the automatic conversion of conditional TBS into uncondi-tional TBS, which involved compulsory admission to a TBS institution whenone failed to comply with the conditions. The next regulation, however, TBSwithout detention (in other words: with indications), was particularly unpopu-lar.

12

This was a result of the fact that there was no sanction for violating theconditions in cases where it did not involve a repeat of an earlier crime.

TBS with conditions requires that the convict complies with the criteria ap-plicable to TBS (inadequate development and/or pathological disorder, dan-ger to others and the general safety of persons and property, a serious crime,and/or crimes in the case history), while the sanction does not necessarily leadto admission to a TBS institution. This is, therefore, only possible when there

12

Ministry of Justice, S

ANCTIONS

M

ADE

TO

M

EASURE

: F

INAL

R

EPORT

FROM

THE

TBS

AND

S

ANCTION

A

PPLICATION

C

OMMITTEE

, M

ENTALLY

D

ISTURBED

D

ELINQUENTS

29067 and appendices (1993). (inDutch)


is no serious and immediate danger of a crime and the person concerned reallywants to cooperate with the conditions. These data need, therefore, to be in-cluded in the judicial psychiatric report or to be researched by the rehabilita-tion department. The cooperation and the effort of persons involved in treat-ment in general mental health care, such as addiction clinics or generalambulatory psychiatric services, is indispensable.

Placement According to Sectional Clauses. In cases involving a severe mentaldisorder, acute or otherwise, based upon article 15.5 Penitentiary PrinciplesAct or article 41 PM, the patient can be transferred to a psychiatric hospital ora TBS institution after receiving advice from the district psychiatrist and onthe recommendation of the director of the penitentiary institution con-cerned.13 When recommending the indication, the director of the institutioninforms the coordinators of the penitentiary advisors. They add their opinionto the advice drawn up by the director and then send it on to the chief of thePenitentiary Selection Centre, who can then decide to carry out an additionalexamination of the prisoner concerned before sending a recommendation tothe Ministry of Justice. This is where permission will either be granted or re-fused due to the intervention of the Commission for Mentally Disordered Pris-oners. In making such a decision, it is particularly important to know whetherthe patient will be sufficiently cooperative during treatment, or whether theremaining sentence is not so long that he or she might be occupying a treat-ment place earlier than is necessary; whether placement outside the peniten-tiary environment is not contrary to the nature of his or her punishment; andwhether treatment could not better be provided elsewhere. Another impor-tant indication is formed by the manageability problems involved in having aseverely mentally disturbed and aggressive patient (with or without the possi-bility of a future TBS) in a penitentiary institution for a long time.

Placement according to article 15.5 is particularly important for treatingthose patients who show signs of requiring treatment in the last months oftheir sentence. The aim of such treatment is preventing a possible relapse andrecidivism. Possibilities at the moment include both admission to a clinic andtreatment in an outpatient department or part-time treatment. The last two re-quire the simultaneous organization of accommodation and/or a return to theperson’s own family. The possibilities for treatment in the outpatient clinics ofthe TBS institutions are extremely suitable for this. Placement can also takeplace in a forensic psychiatric clinic that is attached to a general psychiatrichospital or a different category of treatment institute, such as, Groot Batelaarin Lunteren.

Judicial Psychiatric Reporting and Assessment

The pretrial assessment for the court is of particular importance because itenables both the court and the Public Prosecutor and lawyers to be able to

13The So-Called Step-By-Step Procedure for Long-Term Prisoners. 133/378 CIRCULAIRE 7 June 1978. (inDutch)

526 H. VAN MARLE

form an idea about the state of mind of the suspect at the time of the crimewith which he is charged. Although in the past, monodisciplinary research wasdone by the psychiatrist, the arrival of the psychologist, reporting to the court,together with or separately from the psychiatrist, heralded the arrival of multi-disciplinary reporting.14 Other experts, such as remedial educators, who havetaken over the field of psychological discussions and test diagnostics as a sepa-rate section, can also take on the role of examiner and reporter. The psychia-trist often first issues, at the request of the examining judge, a short report con-cerning the desirability of having a judicial psychiatric assessment. It is alsopossible for this psychiatrist to inform the examining judge of the necessity ofsuch a report without having been asked in advance. The examining judgethen issues an order for ambulant or clinical research.

The questions asked of the experts, including the psychiatrist, can vary inthe way in which they are stated, but in principle will cover the following fivequestions:

1. Does the suspect show any signs of inadequate development and/orpathological disorder of the mind?

2. If so, is there a relationship between this inadequate development and/orpathological disorder and the crime of which he or she is accused?

3. If so, what is the nature of the relationship and to what extent does it ex-ist?

4. To what degree can the suspect be said to be accountable for his or heractions?

5. Do you have any advice concerning the choice of treatment that mayprevent a repeat of the crime of which he or she is accused?

These questions as such form an elaboration for the benefit of diminishedresponsibility for evaluating the (absence of) accountability.15

The examination is thus intended in the first place to look at the presence orabsence of inadequate development and a pathological disorder. These termsappear in various places in the law books and have an evident meaning bothfor the lawyer and for the behavioral expert, so that specific psychiatric diag-noses do not need to be stated in the law itself. They can be referred to and ex-plained in the individual report. Inadequate development means that certainmental functions, such as the conscience, or the emotional inner life, or intel-lectual powers have not grown to full capacity. The term pathological disorderpoints to the presence of psychiatric symptoms, that is, symptoms of mental ill-ness. Psychiatric and psychological examination supplement each other. Ingeneral, one could say that the psychiatrists makes statements about the pres-ence or absence of psychiatric illnesses with their symptoms and the resultinglimitations, and the psychologist makes statements about the defined devia-tions in character structure and behavior.

14H.J.C. van marle, The Psychiatric Expert’s Research, in PSYCHIATRY IN DUTCH LAW 95–107 (J. Krul-Steketee & M. Zeegers, eds., 2nd ed., 1993). (in Dutch)

15J. Remmelink, Mr. D. Hazewinkel-Suringa’s Inleiding tot de Studie van het Nederlands Shrafrecht,14th ed., Deveuter, Gouda Quint, 1993


Central to the judicial psychiatric report, which can be both ambulant andclinical in implementation, is the degree of responsibility of the person beingexamined. Forensic psychiatrists have written a great deal, even recently,about accountability, that is, the degree to which there is a relationship be-tween the disorder and the (charged) crime so that the person involved canbear less responsibility for his crime due to the influence of the disorder.16

Nevertheless, this concept is difficult to standardize, so that evaluations proba-bly differ in practice. When judges have the idea that they are not able to fullyassign the responsibility, they ask a forensic behavioral expert for advice con-cerning the extent to which the suspect is amenable to the judge’s assignment.

In the Netherlands, five grades of accountability have been assumed for themoment. This division into five levels does not, of course, do real justice to thecomplex intensity in the relationship between the crime and the disorder thatis behaviorally possible. The behavioral personality model works after all viacontinuity and not via categories. But the fact that these five categories areused and not, for example, 8 or 10 has to do with the fact that they providejudges with a very practical division for the benefit of accountability. A dis-tinction is drawn between undiminished responsibility, somewhat diminishedresponsibility, diminished responsibility, severely diminished responsibility,and irresponsibility. As can be expected, most unanimity exists regarding thetwo extremes, which are the ones that occur relatively least frequently. Undi-minished responsibility means that the person concerned had complete accessto his or her free will at the time of the crime with which he or she is chargedand could therefore have chosen not to do it. Irresponsibility means that theperson concerned had no free will at all with which to choose at the time of thecrime with which he or she is charged. Important here is determining the mo-ment when aspects of the disorder become manifest in the situation (“thescene of the crime”) that will eventually lead to the perpetration. The earlierthey play a role, the more inevitable will be the (disastrous) sequence ofevents, and the stronger will be the eventual limitation of free will.

Criminal law makes no distinction in the degree of diminished responsibility.Nevertheless, a behavioral three-sided division takes place in order to justify thepolymorphousness of psychopathology and its influence on behavior, wherebyslightly diminished and severely diminished responsibility can be found on ei-ther side of diminished responsibility. Severely diminished responsibility entailsa further reduction in free will as a result of a severe psychiatric illness or a situ-ationally determined exacerbation in the mental clinical picture because certainstimuli from the scene of the crime have a specific effect on the state of mind ofthe perpetrator, often resulting in a reality disorder that spontaneously dies offagain after some time (psychotic episode), or which provokes a psychosis.

Detainment by the Government’s Pleasure: The Terbeschikkingstelling

As soon as the legislation took effect in 1928, the maximum security hospi-tal order in the Penal Law (The Terbeschikkingstelling [TBS], formerly called

16Id note15, at 280–284. (in Dutch)

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TBR) enjoyed immense popularity. Particularly in the early days, this was notsurprising since the judiciary had long awaited such a measure. Over the yearsthree periods of bloom can be distinguished: the first one was due to the needfor a social preventive order lasting an indefinite period which would limit therisk to public order, the second one on account of a wave of optimism aboutpsychiatric treatment after the Second World War, while the third one, thepresent one, is due to the good quality of treatment facilities. Hospital ordershave continually, even today, given rise to much discussion, since psychiatrictreatment and criminal law, in principle, have nothing to do with each other; acomparison with the advantages and disadvantages of punishment by impris-onment is quickly made and makes it necessary to reconsider this measure.Hospital orders are today once again the subject of discussion, but now, be-cause they have proved so popular, there are waiting lists and the costs can nolonger be controlled. A renewed definition seems inevitable.

When the legislation was amended in 1988, the maximum period of 4 yearsfor a hospital order was introduced. Violent crimes against persons formed anexception to this: in such a case an indefinite duration continued to apply.However, the number of those detained under the maximum duration of hos-pital placement orders has remained low because, as just mentioned above,nonviolent property crimes accounted for only some 4% of the hospital or-ders. It was attempted to further limit the number of impositions by only al-lowing hospital orders for crimes in which the maximum sentence was 4 yearsor longer and for specifically named crimes.

With the introduction of new legislation in 1988, for the first time the legalposition of a person under a hospital order was regulated in the TemporaryRegulation for the Legal Status of People under a Hospital order. After all,cooperation in the treatment could not be extracted by, for example, limiting aperson’s freedom of movement. Placement on an intensive care ward requiredthat there be an inherent danger and was of limited duration, the term immi-nent risk was more closely defined.

More and more, hospital orders were ended by “contrary termination.”They were not extended by the courts against the advice of the treating institu-tion, because reasons of treatment were no longer the only reasons acceptedfor an extension. However, figures published in 1989 showed that repeat of-fenses were twice as high in cases when the hospital order was terminatedagainst the advice of the clinic as when the recommendation of the clinic wasfollowed. This point was regularly on the agenda at conferences attended byjudicial authorities and health-care workers from the hospitals.

There are currently nine TBS-maximum security hospitals, two forensicpsychiatric hospitals, and a psychiatric hospital for mentally retarded delin-quents. Their total capacity in beds is about 1,150 (on the population in theNetherlands of 16.8 million people there are also 12,000 prison cells). From1991 on, about 170 TBS-verdicts are imposed each year, while every yearabout 80 are finished by the courts. So the number of TBS-detainees hasgrown excessively these years. An increasing number (140) are waiting in thejail for a place in a TBS-hospital. Others are treated on a day hospital basis af-ter intensive treatment in the maximum-security hospital.


The reasons why the number of people under hospital orders (TBR andTBS) has increased are not entirely clear. A number of factors play a role, asappears from a study by the Research and Documentation Centre (WODC) ofthe Ministry of Justice.17 The route to general mental health care becomes ob-structed when people under hospital orders have been treated sufficiently in aTBS-hospital so as not to pose a risk in the short-term, but are still in need oflong-term intramural care so that they do not slip back into old ways. As thepsychiatric hospitals have quite rightly brought forward, they are simply notequipped to handle some members of this difficult, unpredictable, and life-threatening group of patients. Furthermore, societal influences have led to anincreased number of TBS-hospital orders. For example, more mentally dis-turbed people, sometimes even after having been admitted to a psychiatrichospital, have returned to society simply because the psychiatric hospitals areno longer expected to act as shelters or refuges. Furthermore, there is morewidespread abuse of alcohol and drugs, so that mental derailment and vio-lence, especially among the mentally disturbed, have increased. In itself, crimehas also risen without it being possible to point out an immediate cause, andthe number of TBS-hospital orders follows that development. The toleranceof society for crime has decreased. Moreover, more and more criminal and dis-turbed youths are admitted to youth detention centers, large numbers ofwhom wind up (sometimes only much later) under hospital orders because ofrepeated offenses.

The quality of care, the treatment and the after-care at forensic outpatientclinics, and day treatment centers, is high and is based on modern treatmentprinciples. Since 1968 the hospital detention clinics have had the same statusas hospitals under the National Exceptional Medical Expenses Act, so thatthey must meet the criteria named in the legislation. This is offset by the factthat the clinics receive 80% of their financing from the National ExceptionalMedical Expenses Fund. The approach used by the TBS-hospitals has its foun-dations in their many years of experience; however, it has not been tested, norcan it be tested. Comparative (international) studies and scientific researchare not available, so that there are no terms of reference for treatment dura-tion and intensity, and they can only be inferred from the hospital orders thathave been executed. Forensic psychiatry ought to perform more validated re-search of the short-term and long-term effects of treatment interventions(which are determined in advance).

It cannot be said that the possibilities to transfer patients to general psychi-atric facilities are limited on the part of the Ministry of Justice. Thanks to ex-tensive legislation and regulations in this field, at each stage of criminal prose-cution or implementation it is possible for an individual to be transferred to anadequate treatment setting, if necessary outside of judicial institutions. Thegeneral psychiatric hospitals though are often insufficiently equipped to dealwith this disturbed group, although the problem is recognized as such. For ex-ample, in 1997, the number of beds in forensic psychiatric wards in general

17Ed. Leuw, Instroom en Capaciteit in de tbs-Sector, WODC 168 (Ministry of Justice, 1998).;

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psychiatric hospitals was considerably expanded for mentally disordered of-fenders in particular (including people under a hospital order). Although it is amere drop in the bucket in view of the numbers, this development is hopeful; adivision between the judicial and the health-care system is undesirable, be-cause both of them work with the same difficult population and must developthe same types of care.

The waiting lists and the increasing numbers of mentally disordered in thepenitentiary institutions evoke discussion about the efficiency of the TBS.Other factors play also a role. First of all, in the experience of people subjectto them, TBS-hospital orders of indefinite duration are unfair because somepeople who have committed the same types of crimes undergo their punish-ment in prison. For some people under TBS, specifically sexual delinquents,their hospital detention period lasts longer than the time that they would havespent in prison if they had not been sentenced to hospital detention. Second, itis still very difficult to estimate how dangerous a criminal is, so that despite themeasure or, worse yet, during its implementation, repeated offenses can occur.Third, the costs of TBS-hospital orders, in comparison to the prison systemand general psychiatry, are high and readily evoke associations with a stay in“luxury hotels.” The average hospital detention bed costs around twice asmuch as a prison cell and this is primarily because much more personnel isneeded for one person under hospital order (80% of the costs go toward staff).In the fourth place, a number of parties are involved in the procedures aroundhospital orders; all of them have their own field of expertise and thus a certainautonomy. For example, there was a huge tumult a few years ago when thecourts terminated hospital orders against the advice of the institution. Fifth,the number of psychotic patients, previously the largest target group of psychi-atric hospitals, who are under a hospital order has considerably increased tonearly one third of the total. There is great dissatisfaction with this develop-ment because it is felt to be inappropriate.

However, transfers to general health care and to treatment prisons do notalter the problems of those under hospital orders. They continue to need high-quality and labor-intensive nursing to keep them from deteriorating into de-rangement and violence. That much the efforts in recent decades in this fieldhave shown: This group is difficult to treat; its members have quite substantialbehavioral problems and, despite all efforts, they continue to exhibit limita-tions in their mental functions and in their relations with others, in how theylive, work, and spend their leisure time. The rate of recidivism has been ratherconstant since 1979, when the first study on recidivism began.18 Severe violentoffenses with and without a sexual component are stabilized on the level of15–20%.19

The hospital detention clinics are actively looking for ways to differentiateand specify activities and interventions, particularly in the treatment they of-fer. Attempts are being made to define categories of nursing and care, and todraw up a new financing system based on rates as set by the Central Health

18J.L. van Emmerik, TBR en Recidive, WODC 61 (Ministry of Justice, The Hague, 1985).19Ed. Leuw, Recidive na de tbs, WODC 182 (Ministry of Justice, The Hague, 1999).


Charges Board, possibly also in combination with well-defined treatment du-rations. This discussion, which is still in full swing, primarily stems from theministerial need for control, both financial and administrative. One result isthat an increasing number of departments are being planned for the nursing ofpersistently dangerous people under hospital detention, where it is hoped tosave on costs by reducing treatment facilities offered. In a serious attempt todo something about the long waiting times, “preclinical interventions” are be-ing organized in the penitentiary institutions where detainees are being heldwhile on the waiting list. This is one attempt to involve detainees under hospi-tal orders in their treatment at an earlier stage. Whether this idea will bearfruit, in the form of shorter intramural treatment, must be demonstrated bymeans of follow-up study.

On another front, attempts are being made to reduce the treatment dura-tion. More effective therapies are sought for certain behavioral disorders. In-terventions aimed at the reasons leading up to the crime, repeat offense pre-vention programs, and learning techniques with a resocializing effect arespringing up and seem to have a good chance of success. Attempts are beingmade to find ways to increase efficiency in the chain of events from arrest torelease from hospital detention. Procedures could be shortened, and overlapsin diagnosis and treatment avoided. Financial incentives for the hospital de-tention clinics might be created if the various types of detention (maximum se-curity, security, semi-open, rehabilitation) and the various forms of treatmentwere not only funded differently, but if the duration was restricted as well. Forthose patients who cannot be reduced in their risk for society there is a long-term stay in an adapted environment in the special long-stay departments inthe TBS-hospitals.

In combining administrative and therapeutic tasks, however, it must be en-sured that all interventions can be adequately monitored and evaluated; other-wise it will not be possible to carry out hospital orders quickly and efficiently.Empirical research has become a standard component in the TBS-activities.

forensic psychiatric services in the netherlands

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