Restrictions of liberty in a care home: court review under the HeimAufG

§ 2 HeimAufG defines the scope of the Act to cover restrictions of liberty in residential and nursing homes and other care settings as defined by the legislation. The Act governs the conditions for those restrictions and their review. It does not determine every issue concerning admission, treatment or care. Psychiatric hospitals and departments are expressly excluded; the separate Unterbringungsgesetz (UbG) must be considered there.

The HeimAufG applies in a general hospital only if the person requires ongoing care or support due to mental illness or intellectual disability; a lengthy stay alone does not suffice. On 19 March 2025, the Austrian Supreme Court ruled in 7 Ob 21/25a that the law does not apply to a patient in a rehabilitation centre whose medical treatment remains incomplete. Consequently, the legal assessment must account for both the person’s condition and the specific institution.

§ 3 HeimAufG defines a restriction of liberty as occurring when physical means or the threat of such means stop a resident from changing location against or without their will. This definition can encompass mechanical, electronic, and medication-based measures. When evaluating bed rails, belts, or locked doors, the assessment must establish how these specific items prevent the person from moving. A resident with decision-making capacity can change the classification through personal consent, but only that resident may provide it.

Assessing medication requires examining both the purpose of administration and its observable effect on movement. In 7 Ob 137/26m on 17 September 2026, the Supreme Court held that an intended restriction of movement must actually occur to an ascertainable extent. Consequently, the name of a sedating drug alone does not answer the question. Professional assessment considers dosage, combinations, administration times, and observed mobility. Relatives should neither stop nor alter medication themselves.

The conditions in § 4 HeimAufG must all be met. The resident must have a mental illness or intellectual disability and, in connection with it, seriously and substantially endanger their own life or health or that of others. The restriction must be indispensable and suitable to avert that danger, and its duration and intensity must be proportionate to the danger. A diagnosis alone cannot justify the measure, nor can a general reference to a risk of falling.

The danger must also be impossible to avert through other measures, particularly less restrictive care or support. Therefore, the legal assessment requires the specific danger, previous incidents, and a reasoned evaluation of alternatives. Organisational convenience cannot replace these conditions. The institution must lift the restriction immediately once its conditions cease to exist, and that duty applies even where a court previously declared the measure permissible.

An authorised person must order the restriction. § 5 HeimAufG requires a doctor to order medication-based measures, and separate rules determine which nursing professional may order a measure within nursing care. Should a restriction continue for more than 48 hours or be repeated beyond that period, the institution’s director must promptly obtain the prescribed medical documents on the condition and the danger, and those documents must be current when the restriction is applied. The 48-hour threshold is not a general permission to impose an unexamined restriction.

§§ 6 and 7 HeimAufG mandate written documentation of the reason, type, start, and duration, along with the required explanations and notifications. The institution’s director must promptly notify the representative and the resident’s person of trust about the restriction and its lifting, and must give them an opportunity to comment. The residents’ representative may inspect care and medical records to the extent necessary for their work. A family relationship alone does not grant relatives an equivalent comprehensive right of access. The order, danger assessment, medication chart, progress notes, and notification records are particularly important for legal advice.

As soon as a restriction is imposed or contemplated, the locally competent association becomes the resident’s representative by law under § 8 HeimAufG. Its designated residents’ representatives may visit without notice and speak privately with the resident. Any additional authority to represent the right to personal liberty must be granted in writing and expressly cover that right. The authorised representative must not be dependent on the institution or otherwise closely connected with it.

Under § 11 HeimAufG, the resident, their representative, their person of trust, and the institution’s director may apply for court review. Relatives do not automatically qualify merely because they are family members. One must establish, for example, whether they serve as the person of trust or hold appropriate representative authority. Anyone lacking that role can report observations to the residents’ representative and request an assessment. This enables access to legal protection without assuming that family members possess powers they do not hold.

The district court for the area where the institution is located has jurisdiction. Under § 12 HeimAufG, the court must form a personal impression of the resident at the institution within seven days of receiving the application. It hears the relevant people and inspects the necessary records. It may combine this initial hearing with the oral hearing. If it does not combine them, it first decides on provisional permissibility. If it provisionally permits the restriction, the oral hearing must occur within 14 days after the initial hearing, and a party cannot challenge that provisional decision separately.

An independent expert unaffiliated with the institution must participate in the oral hearing, and the parties may question this expert. If the court permits a restriction, it must specify the circumstances and extent of that restriction and set a period not exceeding six months. This requirement limits the order; it does not generally authorize continuation until the period expires. Before that time, the resident, their representative, or their person of trust may request a fresh decision under § 18 HeimAufG if needed.

The resident, their representative, and their person of trust may lodge a Rekurs within 14 days of service under § 16 HeimAufG to appeal an order permitting a restriction after the oral hearing. The complete order and evidence of service should therefore be checked immediately. If the court declares an ongoing restriction impermissible, it must generally stop at once. An exception exists only if the institution’s director announces an appeal during the initial or oral hearing and the court grants suspensive effect immediately. The subsequent appeal deadline depends on the particular decision.

§ 19a HeimAufG permits a retrospective review upon application by the resident or their representative if the measure ended before the review application, yet the person of trust holds no separate right to apply under that provision. Ordinary review proceedings continue if the measure ends only after an application under § 11. The Supreme Court confirmed this distinction on 17 September 2026 in 7 Ob 131/26d. The start, end, and receipt of the application must therefore be established precisely. A message to the law firm neither replaces a court application nor preserves an appeal deadline.