Table 2.
Legislative frameworks related to involuntary hospitalisation, by country
|
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).