Table 2.
Criteria for involuntary hospitalisation |
Person able to issue an order* |
Legal requirements |
Treatment while hospitalised |
|||||||
---|---|---|---|---|---|---|---|---|---|---|
Which conditions (diagnoses) are eligible? | Does the person need to pose a risk to themselves or others? | Does the person need to not have capacity? | Does the condition need to be treatable? | Legal representative must be present or consulted? | Right to repeal or tribunal? | Next of kin or nearest relative must be consulted? | Separate assessment and treatment orders? | Is treatment required? | ||
Australia† | Mental illness (three states reviewed) or mental disorder (five states reviewed) | Yes (eight states reviewed) | NA (two states reviewed); yes (six states reviewed) | For assessment or treatment orders (three states reviewed); yes (five states reviewed) | Police (four), clinician (two), and legal authority (two; emergency order); clinician (six) and legal authority (two; assessments of short-term orders); clinician (three) and legal authority (five; treatment or long-term order) | No (eight states reviewed) | Yes (eight states reviewed) | No (five states reviewed); right to be consulted (three states reviewed) | Yes (eight states reviewed) | No (one state reviewed); yes (seven states reviewed) |
Austria | Mental illness | Yes | NA | No | Police (emergency order); clinician (assessments or short-term order); and legal authority (treatment or long-term order) | No, but judge must visit the patient in hospital within 4 days | Yes | No | No | No |
Belgium | Mental illness | Yes | NA | No | Police (emergency order); legal authority (assessments or short-term order); legal authority (treatment or long-term order) | No, but within 10 days of the prosecutor's decision to detain, the judge visits the patient to make a final decision | Only if manifestly ill founded | Right to be informed throughout the process; right to request and end detention, and right to appeal | No | Yes, if reason for detention was treatment |
Cyprus | Severe mental disorder | Only in relation to detention by police | NA | NA | Police (emergency order); legal authority (assessments or short-term order); legal authority (treatment or long-term order) | No | Yes | No | No | No |
Denmark | ‘Insanity’ or similar condition | No | NA | Yes, if reason for detention is treatment | Police and clinician (emergency order); clinician (assessment or short-term order); clinician (treatment or long-term order) | No | Yes | Patient is consulted on whether to involve the next of kin or family | No | Yes, if reason for detention was treatment |
England and Wales (as part of one legal jurisdiction) | Mental disorder | Yes | No | Yes, but does not apply to assessment or emergency orders | Police and clinician (emergency order); clinician (assessment or short-term order); clinician (treatment or long-term order) | No | Yes | Yes, can object and can be consulted | Yes | Yes, unless admitted for assessment |
Finland | Mental illness | Yes | NA | Yes | Clinician (assessment of short-term order); clinician and legal authority (treatment or long-term order) | No | Yes | No | No | No |
France | No | Yes | No | No | Clinician (assessment or short-term order); clinician and legal authority (treatment or long-term order) | Judge interviews patient after admission (between days 10 and 12) | Yes | Relative can be consulted only on request | No | No |
Germany‡ | Mental illness or mental or psychological disability (federal law); mental illness (state laws) | Yes | Yes | Yes, if reason for detention is treatment (federal law) | Police (state law in six states), clinician, and legal authority (state law in 16 states and federal law; emergency order); legal authority (federal law; assessments or short-term order); legal authority (federal law; treatment or long-term order) | Yes, in federal law; no, in state law (16 states reviewed) | Yes | Relatives can be involved in court procedure; they can also block hospitalisation if they have legal authority, through power of attorney or court order (federal law) | Yes (federal law) | No (16 states reviewed), has to be offered |
Greece | Mental disorder | No, if patient lacks capacity; yes, otherwise | Yes, unless risk is present | Yes | Legal authority (emergency order); legal authority (assessment or short-term order); legal authority (treatment or long-term order) | No | Yes | No | Yes | Yes |
Italy | No specific diagnosis | None | No | Yes | Legal authority (emergency order); legal authority (assessment or short-term order); legal authority (treatment or long-term order) | No | Yes | No | No | No |
New Zealand | Mental disorder | Yes | No | No, but detention can be ordered on the basis of need for treatment | Clinician (assessment or short-term order); clinician and legal authority (treatment or long-term order) | Yes, a judge meets the patient | Yes | Yes, must be consulted if practicable | No | No |
Northern Ireland | Mental disorder | Yes | No | No | Clinician (assessment or short-term order); clinician (treatment or long-term order) | No | Yes | Yes | Yes | Yes, if reason for detention was treatment |
Norway | Serious mental health illness but, in practice, occurs when the ability to perceive and consider reality is affected (eg, severe eating disorders) | No, if patient lacks capacity; yes, otherwise | Yes, unless risk is present | No | Clinician (assessment or short-term order); clinician (treatment or long-term order) | No | Yes | No | Yes | No |
Portugal | Severe mental anomaly | Yes | No | Yes | Police, legal authority (emergency order); legal authority (assessment or short-term order); legal authority (treatment or long-term order) | No | Yes | No, but can participate in court proceedings | No | Yes |
Ireland | Mental disorder | Yes (either risk or capacity criterion must be met) | Yes (either risk or capacity criterion must be met) | Yes, but applies only to detention based on impaired judgement and need for treatment, and not detention based solely on risk | Police and clinician (emergency order); clinician (assessment or short-term order); clinician (treatment or long-term order) | No | Yes | No | No | Yes, if reason for detention was treatment |
Scotland | Mental disorder | Yes | Yes | Yes, unless it is an emergency detention | Clinician (emergency order); clinician (assessment or short-term order); legal authority (treatment or long-term order) | No | Yes | Yes, to consult and appeal | Yes | No |
Spain | Mental disorder (which is not defined by law) | Yes | Yes, no capacity to make own decisions | Yes | Clinician (emergency order); legal authority (assessment or short-term order); legal authority (treatment or long-term order) | No | Yes | No | No | Yes |
Sweden | Serious mental disorder | Yes | No | Yes | Police (emergency order); clinician (assessment or short-term order); clinician and legal authority (treatment or long-term order) | No | Yes | Yes, consulted about care plan | No | Yes |
Switzerland | Mental disorder or disability or severe neglect | Yes | No | Yes, in emergency for the patient's protection | Clinician (emergency order); clinician (assessment or short-term order); clinician (treatment or long-term order) | No | Yes | Yes, involved in all treatment decisions but cannot block detention or treatment | No | No |
The Netherlands | Psychiatric disorder or intellectual disability, dementia, or memory issues | Yes | No | Yes | Police and legal authority (emergency order); legal authority (assessment or short-term order); clinician and legal authority (treatment or long-term order) | Following emergency detention authorised by mayor, the judge visits the patient to decide whether detention should continue | Yes, but the mayor's decision is not appealable | No | Yes | Yes |
NA=not applicable.
The people authorised to issue emergency orders (typically until they can be assessed), assessment or short-term orders (eg, until a court decision is made), and treatment or long-term orders, respectively.
Numbers in brackets represent the number of states or federal territories (six states and two territories reviewed).
Indicated where federal law applies, otherwise numbers in brackets represent number of states (total of 16 states).