Prof. Yaakov Bazak
Deputy President, District Court, Jerusalem
The Treatment of Mental Patients Act - Is the Balance Being Maintained?
The Rights of Society vs. the Rights of the Individual
In April 1991, the Treatment of Mental Patients Act came into effect aiming at bringing comprehensive order to the subject of forced hospitalization of mental patients in Israel. The law represents the product of thirty-six years of experience since the passing of the original Treatment of Mental Patients Act of 1955. The new Act reflects trends prevailing throughout the world, and particularly in the United States, concerning the rights of individual mental patients.
The Act tries to protect people from unjustified involuntary hospitalization and, at the same time, determines the rights (and duties!) of patients who were hospitalized, whether voluntarily or involuntarily. There can be no doubt that these aims are important and necessary, and from that point of view we welcome the new law and praise all those who participated in its preparation and passing.
However, the question remains: has the positive and desirable concern for the rights of the individual mental patient not perhaps led to an attitude of carelessness regarding the protection of the rights of society faced with a dangerous mental patient? In short, has the appropriate balance between these two legitimate aims (rights of the individual mental patient on one hand, and the right of society to protection and peace on the other) been maintained?
At the Start it is worth mentioning that in a situation where the choice has to be made whether to uphold the rights of the individual or those of society, the rights of society to peace, quiet and calm take precedence. After all, society is composed of many individuals, and there is no reason for the rights of one individual - in this case a mental patient - to take precedence over the rights of many other individuals of whom society is comprised.
It is important to remember that no change has been implemented as regards this principle, despite the new trends which I mentioned previously and which aim for maximal protection of the individual mental patient. The principle remains, and will remain forever: in a situation where the rights of one side must take precedence, it will always be the rights of society which take precedence. Bearing this in mind, what the new Act is trying to achieve - together with all those activists on behalf of the rights of the individual - is to minimize as far as possible the limitations put on mental patients as long as society is not endangered. As soon as upholding the rights of the individual endangers society, those rights must make way for those of society.
Let us now examine how the law achieves its aim of protecting the individual mental patient's rights, and to what extent the balance between protection of his rights and those on society is maintained.
The Act protects the rights of the individual in two ways:
a) Qualitatively: The Act stipulates explicitly and precisely the purposes which justify involuntary hospitalization and differentiates in this regard between emergency and cases which are less urgent.
b) Administratively: Clear and precise procedures are laid down for the use of authority to force admission, and there is a differentiation between the various stages of hospitalization according to a fixed hierarchy:
1) The first authority is that of the hospital director, who may force admission for a period of 48 hours once he has examined the patient and found that the pre-conditions required by law to justify this course of action do in fact exist.
2) Above him is the District Psychiatrist, who may issue instructions for an admission of 7 days, and following that for another 7 days, if the required conditions exist.
3) At the head of the pyramid stands the Regional Psychiatric Council, which is authorized to extend the period of hospitalization first for three months and then for renewable periods of six months each. All this is subject to a mutual supervisory system and the possibility of appeal to the District Court.
According to Israeli law - and that of most civilized countries - a person may be forcibly admitted to hospital in one of two main ways. One is through criminal procedures; the second is through civil procedures. The former involves indictment of a crime. The court may, at either the beginning or the end of the hearing, instruct that the accused be hospitalized. (We shall not involve ourselves right now with the details and the distinction between hospitalization based on the determination that the accused is not fit to stand trial owing to his mental illness, and hospitalization based on the determination that the accused does not bear responsibility for the crime because of mental illness.)
The latter route for forced hospitalization is via administrative procedures. In order to hospitalize a patient in this way two conditions must exist. Firstly, a psychiatric examination must prove that this person is mentally ill and, in addition, that as a result of his illness his faculty of judgment, or ability to assess reality, is considerably impaired. All of these concepts - "faculty of judgment," "ability to assess reality," and "ill" - are psychiatric concepts, and therefore it is the task of the psychiatrist to determine whether these conditions exist.
But this alone is not sufficient. Secondly, further conditions must exist; those which I call social conditions. Before an instruction for hospitalization can be issued, one of the following conditions must also exist:
a) Is the patient likely to endanger himself or others physically?
b) Is the patient's ability to take care of his basic needs severely impaired as a result of his illness?
c) Does the mental patient cause severe mental suffering to others, such that their normal lifestyle is disturbed?
d) Does the mental patient cause serious damage to property?
We see clearly that where physical danger is concerned, it is enough that there is a possibility of danger, and there is no need to demonstrate that the patient has already committed some act that caused physical harm to someone. Moreover, any type of physical danger is sufficient. The law does not use expressions such as "serious" or "severe," etc. Any physical harm justifies hospitalization of the patient., and not only actual harm: it is enough that the likelihood of the patient causing such harm exists.
The assumption underlying these instructions is that where physical danger is involved, the rights of society take precedence over those of the individual. However, when it comes to causing mental suffering - for instance a patient who wails and groans all night disturbing his neighbors' peace, or who causes damage to property that is not classified as being serious - then the patient's rights take precedence over those of society.
Obviously, the intention is not that society has to accept low-level damage to property or disturbance of the peace with patience and self-control. This is certainly not so. Every person has the right to live his life without harm being caused to his property, whether serious or slight, and without disturbance of his sleep and his peace of mind.
prepared to hold back and suffer some damage to his property or disturbance of his peace, taking into consideration that the trouble maker is mentally ill, is worthy of praise. But this is beyond the requirements of the law. Legally speaking a person is under no obligation to suffer damage to his property, even if it is slight, and
no one is obligated to put up with disturbance of his peace and quiet simply because the trouble maker is mentally ill.
All that the law stipulates is that forced hospitalization via administrative procedures cannot be applied if the damage to property, or to the peace, etc. is not serious. The remedy for such cases is the same as the remedy against normal wrongdoers - legal action, criminal or civil.
The law authorizes the District Psychiatrist to force a person to undergo a psychiatric examination if apparent proof exists that this person is mentally ill and that as a result of his illness his faculty of judgment is impaired. The same conditions apply to a forced examination as mentioned above with regard to forced hospitalization, except that in order to force such an examination it is sufficient that apparent proof be brought since no examination has yet taken place and it is impossible to say with certainty whether this person is indeed mentally ill.
Forced Hospitalization - Who Decides?
The authority to decide on forced hospitalization rests principally with the District Psychiatrist. As mentioned, he is entitled to order hospitalization for seven days. Prior to this the director of the psychiatric hospital is authorized to order a two-day admission, and thereafter the Psychiatric Council decides. This council does not have the original authority to instruct that the patient be hospitalized; the council may only extend the hospitalization of a patient who was already admitted by the director or by the District Psychiatrist. The council is not even authorized to extend the hospitalization unless they receive a written application from the hospital director, and only if the required conditions justifying hospitalization exist.
Thus the possibility of a mistaken, unjustified, or unnecessary forced hospitalization is minimized since there is no single person who determines the need for hospitalization and at least two decisions are required. The hospital director has to decide independently, and thereafter the Psychiatric Council must issue their independent decision.
The problem is whether this solution is the optimal one. The law gives the authority for forced hospitalization for extended periods to the District Psychiatric Council. However, the main task of this Council is to serve as a supervisory and controlling body, to ensure that mistakes are not made by others. If the supervisory body is given the authority to order extended hospitalization, then who will supervise them? The two authorities should really be separated - the original authority calling for hospitalization, and the authority above that, supervising and controlling. It is not proper that supervisory and executive authority be both invested in the same body.
There is an additional problem with regard to the Psychiatric Council. This council is made up of three people: A jurist who serves as chairman, a psychiatrist from the public services, and a psychiatrist from the private sector. This is a clumsy body which is difficult to assemble and operate while admissions sometimes need to be carried out quickly and urgently. I believe that the legislators, full of good will and with the best of intentions to protect the individual from being mistakenly hospitalized, made an error that could ultimately achieve the opposite of what they wanted, for it could lead to the council recommending a forced admission without any possibility of outside control. After all, there is no body that stands above the council except for the District Court, presided over by a judge who is trained and able to judge only the legal aspect without having any ability to evaluate psychiatric elements of the case.
The Mental Patient - Rights vs. Obligations
The law gives the mental patient a number of rights, both qualitative and procedural. The first qualitative right is not to be forcibly hospitalized unless certain conditions exist, and only for the purposes determined by the law. The second right is that of appeal following such a decision, and the right to be present at the hearing of the appeal unless his mental condition renders his presence impossible.
The law also determines a number of basic rights to which the hospitalized patient is entitled: the right to send and receive mail, the right to receive visitors, the right to maintain contact with the outside world, the right to wear personal clothing, and the right to receive standard medical treatment (both mental and physical). According to the law, we may not simply lock up the patient in a safe place in order to protect society. We are obligated to use the time which the patient spends there to provide treatment - particularly mental therapy, but also physical treatment as required.
Obviously, the patient cannot demand therapy which cannot be provided. If his illness - mental or physical - is such that no treatment exists, then even if he insists upon it, nothing can be done. The law refers to standard mental and physical treatment, which exists and which can be provided with the financial means available to the hospital or to the State.
The law also stipulates procedures that will protect these rights. A patient accepted to a hospital must receive a document listing his rights and obligations. The law makes the doctor responsible for explaining the patient's rights to him orally at the time of his admission. A third instruction stipulates that a copy of the patient's list of rights and obligations must be prominently displayed in every psychiatric department. But what are his obligations? This is not entirely clear; we are accustomed only to speaking of his rights. It may be that the concept of "obligations" refers to the limitations which may be placed on the patient's rights, including inter alia medical treatment. As I interpret the law, medical treatment may be forced upon a patient who is forcibly hospitalized. He cannot refuse to accept medication or injections with the claim that he does not agree to it. Since he was forcibly hospitalized, the treatment can also be administered against his will. (Obviously, this refers to the treatment required for his mental illness.)
With regard to forcible physical medical treatment - for instance in the case of a patient requiring amputation of a limb owing to necrosis - and a permit must be obtained from the court via the legal procedure determining the patient's fitness.
Among the innovations of the new Act is the possibility of obligating a mental patient to receive treatment at a clinic. Not every mental patient requires hospitalization. There are those for whom ambulatory treatment at a clinic is sufficient. Such a patient will live at home and visit the clinic from time to time in order to receive the required treatment.
The same applies to a mental patient accused of a crime and who is found by the court not to be held responsible for his actions as a result of his illness. Here, too, the court may choose between hospitalization of the accused or treatment at a clinic. The court is authorized to stipulate that the accused should receive treatment at a clinic in place of hospitalization on condition that the court is convinced that this course of action will not present a threat to society.
Again, we see that in a conflict between the rights of the individual and those of society, the latter take precedence. If there is a possibility of some danger to society, the court will not choose treatment at a clinic, but will rather instruct that the accused be hospitalized.
Issuing the Instruction for Hospitalization - Permission or Obligation?
I would like to conclude by discussing the obligation of the District Psychiatrist to order hospitalization of the accused. According to the law, the district psychiatrist may issue such an instruction if all the conditions stipulated by law are present, i.e. a mental patient whose illness impairs his faculty of judgment and who, as a result, presents a threat to society (either mental or physical). But even if the psychiatrist finds all these conditions to be fulfilled, the law determines that he is authorized to order hospitalization - authorized, not obligated. I find myself asking whether this is justified. Is the balance between the rights of the individual and those of society not being overstepped here? If all the severe conditions stipulated by law are found to be present, why is the psychiatrist not obligated to order hospitalization? I believe that this is very important because it is quite natural that when the psychiatrist has to decide whether or not to instruct that the patient be hospitalized, he sees first and foremost the patient standing before him, and his opposition to being hospitalized. Society is an abstract body, far away and vague, while the patient is tangible and close. It is only natural that he inclines more towards the interests of the patient than towards those of society. The District Psychiatrist may also fear that if he orders hospitalization, he may be faced at some later stage with a lawsuit with the patient claiming that he was unnecessarily hospitalized.
And so there is a possibility that for the above reasons the District Psychiatrist will allow the rights of the patient to take precedence over those of society thereby endangering the
latter. Remember, we are speaking here only of a patient whose illness is clear; it is affecting his faculty of judgment, it has harmed his ability to understand, and it makes him dangerous. In such cases I would say that the psychiatrist should be obligated to hospitalize him. Following the hospitalization, the Psychiatric Council may release him if they find that the danger has lessened or that the problem may be solved in a different way.
I have attempted to present a survey of the rights and obligations laid down in the new Act. There can be no doubt that this law has made considerable progress in the direction of protecting the rights of the individual mental patient, and for this it deserves our praise. However, I have the feeling that the law treats the balance between the individual's rights and those of society in a way that leans in favor of the individual, and attention must be paid to this point too.