Incapacity principles in mental health laws in Europe.

Abstract

Many North American jurisdictions permit involuntary psychiatric treatment to proceed only when a person lacks the capacity (or competence) to consent or when an emergency exists, even following lawful civil commitment. This may prevent the rapid commencement of treatment, but it shows considerable respect for personal autonomy, and it brings mental health law more into line with other branches of health care law. The authors examine how these issues are handled within European human rights law and within the civil codes and involuntary hospitalization laws of selected European nations. This material reveals that many different approaches are taken to the inclusion of incapacity principles within European civil commitment regimes. Reliance on incapacity criteria may lead to greater professional involvement by psychologists in involuntary treatment decisions.

French lay people's views regarding the acceptability of involuntary hospitalization of patients suffering from psychiatric illness

“…The involuntary hospitalization of psychiatric patients has a long 43 tradition in Western countries. It is legal under circumstances that 44 vary from one country to another (Dawson & Kämpf, 2006; 45 Habermeyer, Rachvoll, Felthous, Bukhanowsky, & Gleyzer, 2007; 46 Kallert, Rymaszewska, & Torres-Gonzalez, 2007;Q2 Steinert & Lepping, fundamental freedoms for all persons with disabilities without discrimination of any kind on the basis of disability" (Article 4) and, in particular, to ensure that persons with disabilities "are not deprived of their liberty unlawfully or arbitrarily, and that any deprivation of liberty is in conformity with the law, and that the existence of a disability shall in no case justify a deprivation of liberty" (Article 14) (United Nations, 2006). It provides strong support for limiting the involuntary institutionalization and treatment of people with mental illness and other disabilities (Lee, 2011…”

“…In France, legislation in 1990 established that patients with capacity must give their consent to be admitted to a hospital ( Q3 Dawson & Kämpf, 2006;Loi no 90-527 du 27 juin, 1990). The patient's family (or another person acting in the patient's interest) can, however, obtain involuntary hospitalization under two conditions: if, as confirmed by two psychiatrists, the patient's mental illness renders him or her incapable of "consent" (and, by implication, of the capacity to make decisions) and if his or her condition requires immediate care under constant supervision in the hospital.…”

Mental Health in South Asia: Ethics, Resources, Programs and Legislation

“…In some jurisdictions, where decisions about detention and treatment are not separated, the patient's inability to consent (usually vaguely specified) may still be an implicit criterion for involuntary treatment, but it is nearly always the risk of harm that is determinative (Dawson and Kampf 2006). Major international instruments-the UN Principles for the Protection of Persons with Mental Illness, the European Convention on Human Rights, and the 2004 Council of Europe Recommendations-concerning the human rights and dignity of persons with mental disorder, affirm the primacy of risk in relation to involuntary hospitalisation.…”

Involuntary admission and treatment of patients with mental disorder

“…The basic requirement in all countries is that the patient suffers from a mental disorder [4][5][6] , but the type and severity of mental disorder that qualify a person for involuntary admission vary across jurisdictions. Some countries allow involuntary admission only for "severe mental disorder (illness)"; others stipulate specific mental disorders, such as "psychotic illness"; while the remaining countries use a broader definition of mental disorder.…”