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The Netherlands: "Going Dutch" – taking care of forensic mental healthcare

Michiel van der Wolf, psychologist and a lawyer, discusses the Dutch approach for dealing with those considered as mentally disordered offenders.

ICPR and Prison Insider asked several experts worldwide to share their insights in the framework of the project Understanding and reducing the use of imprisonment in 10 countries. Read Michiel van der Wolf’s insights.

As the expression “going Dutch” suggests, we are not particularly known for our financial generosity in the Netherlands. However, contrary to what the saying implies, it is not “every man for himself” in our country. We do pride ourselves in a long history as a welfare state – and also as a frontrunner in investing in and developing forensic mental health services.

Since 1928, Dutch criminal law has included a unique safety measure for the care of mentally disordered offenders considered a danger to society: the TBS order, a court-ordered detention in a clinical treatment setting, the duration of which is “at the government’s disposal” (“terbeschikkingstelling“).

Throughout its history, this TBS order has been aimed at both the legally insane (who bear no criminal responsibility) and offenders deemed to have diminished responsibility for their crime, by reason of a mental health condition. The TBS order has led many offenders diagnosed with personality disorders to have been treated in high security forensic mental health settings, alongside patients with major mental illnesses, for indeterminate duration. It has often been argued that labelling these offenders as “mentally disordered” and having “diminished responsibility” places an obligation on the State to take their treatment seriously.

It is not uncommon, as ICPR’s recent sentencing research has also shown, for a person convicted of murder or some other serious offence of violence, to receive a comparatively short prison sentence, followed by a TBS order commencing immediately afterwards, and potentially lasting far longer than the period spent in custody.

"Give me the money, and I will cure all delinquents"

The TBS order – a brief history

After the second World War, a spirit of humanism and therapeutic optimism1 led to enormous investments in this TBS system. These treatment facilities were financially supported by the Ministry of Justice.

“Give me the money, and I will cure all delinquents”, is a famous quote from those early days, attributed to the forensic psychiatrist Pieter Baan. New, state of the art, facilities were built and many offenders were entrusted to the State’s care. In the late 1950’s, almost 1,500 TBS patients were treated in these facilities. This number dropped to under 400 in the 1980’s, mainly due to a shift in focus during the two previous decades on legal protections and safeguards against excessive restrictions on liberty.

At that time, the Ministry of Health covered up to 80% of the budget. The cost of treatment was estimated at 80% of the budget, while security accounted for the remaining 20%, which was covered by the Ministry of Justice.

In those years, TBS facilities often welcomed international visitors interested in this unique way of dealing with dangerous mentally disordered offenders. The English were especially interested, as we can see in academic articles: “… the much-envied TBS-provision in the Netherlands…” (Conor Duggan) or “… the feeling that the Dutch, just across the North Sea, were doing things so much better…” (Tony Maden). The idea of successfully treating dangerous, personality-disordered offenders was one of the arguments underlying the English DSPD units2, although the system as a whole could never be adopted without also importing the corresponding and unique features of Dutch criminal law.

  1. This therapeutic optimism reflected both a move away from the horrors of the war and advancements in psychiatry, psychotropic medication and group therapy. ↩

  2. Dangerous and Severe Personality Disorder units, operational in UK prisons and high security hospitals from around 2005. ↩

The barrier between forensic care and community care seems simply to have shifted, rather than being removed, contrary to the intention of this change of policy.

From "care" to "security" – a shift in approach

From the late 1980s, harsher penal policies and the increase of multi-problematic and drug abuse-related patients led to a new growth in the TBS population. Money became an issue, mainly due to a shortage of facilities and longer treatment durations.

In 2008, the TBS population peaked at 2,100 and a new funding model was introduced: the Ministry of Justice would now take financial responsibility for all forensic care, including that provided in general (non-TBS) mental health facilities.

The argument for this new system was that “he who pays the piper calls the tune”, and it aimed at the outflow towards less secure facilities, while the Ministry could place demands for increased security in general mental health facilities. This latter aspect had its roots in a few cases of high-profile re-offenses. These cases had led to the introduction of more safety regulations within the execution of the TBS order. As a result, the average length of in-patient treatment increased to over ten years. The TBS order became less popular among defendants, who increasingly refused to undergo forensic assessment (which is necessary before a criminal court can make a TBS order), often on the advice of their lawyers. It was also less popular with judges, who had to impose the order. Ten years later, in 2018, the TBS population had dropped to around 1,300.

A contagious labelling effect was observed after the policy change made forensic patients more recognizable: they bore the double stigma of being deemed dangerous and disordered.

This might explain the reluctance of community-based treatment facilities to take these patients in. The barrier between forensic care and community care seems simply to have shifted, rather than being removed, contrary to the intention of this change of policy.

In a nation of merchants and accountants, money is indeed an issue, including when it comes to forensic mental health.

Reassessing priorities

In 2019, the Forensic Care Act codified the financial model introduced in 2008.

The TBS population is currently rising again and the budget is under severe pressure. TBS facilities have brought legal claims against the Ministry of Justice, which is slowly turning off the financial tap. Academia has voiced its support for shifting part of the budget back to the Ministry of Health, as the much-needed investment in TBS services will be increasingly prone to cuts if Justice remains in charge of the budget.

In a nation of merchants and accountants, money is indeed an issue, including when it comes to forensic mental health.

In the case of the TBS system, we should “go Dutch” if we really care about forensic mental healthcare.

By splitting the budget between the Ministries of Justice and Healthcare, we can put offenders’ care and treatment on a sustainable footing. Society will have the protection it needs, provided in the most cost-effective way.

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Michiel van der Wolf

Professor at Leiden University and Associate professor at the University of Groningen.

Michiel van der Wolf is a psychologist and a lawyer. He started his career in 2003 as a trainee psychologist in Dutch forensic mental healthcare units, known as “TBS clinics”. His doctoral thesis explored the historical background of the current treatment bottlenecks in the TBS system.
Michiel van der Wolf is currently Professor of Forensic Psychiatry, at Leiden University and Associate professor of Criminal Law, at the University of Groningen.

About the project

Understanding and reducing the use of imprisonment in ten countries

This comparative research and policy project is led by the Institute for Crime & Justice Policy Research (ICPR), based at Birkbeck, University of London. To understand the causes and consequences of over-incarceration worldwide, ICPR has worked with a large network of NGOs, academic researchers and practitioners spanning this diverse selection of countries. ICPR partnered with Prison Insider in the latter stages of the project to shed light on aspects of prisoners’ lived experience in custody before and during the COVID-19 pandemic. The project team collaborated to gather national experts’ insights, and to facilitate a continuing global conversation around the key research findings.
The project focuses on five main themes that can be found in the drop-down menu.
This content is the sole responsibility of the author.

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