Table 1.
Two models for the protection of human rights through legislation for the regulation of involuntary psychiatric treatment.
| Legal test | WHO guidance | CE recommendations |
|---|---|---|
| Diagnosis | “Qualified mental health professionals… should determine that the person in question has a mental disorder.” Para 3.1.1 | “Applies to persons with mental disorder defined in accordance with internationally accepted medical standards. Lack of adaption to the moral, social, political or other values of a society, of itself, should not be considered a mental disorder.” Art 2. |
| “Evidence of a mental disorder of specified severity as defined by internationally accepted standards.” Para 3.1.4 | ||
| Therapeutic aim | “A person may be subject to involuntary placement only if…the placement includes a therapeutic purpose.” Art 17. | |
| “Therapeutic purposes include prevention, diagnosis, control or cure of the disorder, and rehabilitation… Treatment may include measures to improve the social dimension of a person's life.” Art 2 | ||
| Risk | “They should be convinced [of]… a high probability of immediate or imminent harm to this person or other persons, or, in the case of a person whose mental disorder is severe and whose judgment is impaired, that failure to admit or detain that person would probably lead to a serious deterioration in his or her condition or would prevent appropriate treatment.” Para 3.1.1 | “A significant risk of serious harm to his or her health or to other persons.” Arts 17 & 18 |
| Capacity | “Competence to give consent…refers…to the capacity to understand the purpose, nature and likely effects of a particular treatment” Para 3.1.8 | |
| “Legislation may allow treatment to proceed without informed consent…if a person…is found to be lacking competence.” Para 3.1.3 | ||
| Review process | “Legislative provision for automatic review mechanisms in all cases of involuntary admission and treatment…Reviews should take place at reasonable intervals e.g. no longer than monthly…They should be conducted by an independent regulatory body with legal or quasi-legal status for the enforcement of good practice.” Para 3.1.7 | “Right to appeal against a decision; to have the lawfulness of the measure, or its continuing application, reviewed by a court at reasonable intervals; to be heard in person or through a personal advocate or representative at such reviews or appeals.” Art 25 |