Valdas Benkunskas


The article analyzes peculiarities of legal regulation of involuntary hospitalization of people with mental disorders in the context of Lithuania and other states. The analysis is based on jurisprudence of the European Court of Human Rights and, especially, the criteria of legal involuntary hospitalization framed in the case Winterwerp v. Netherlands in 1979. Article 5 of the Convention for the Protection of Human Rights and Fundamental Freedoms anchors that no one can be deprived of freedom, unless (among other cases) in case when “mentally ill” persons are detained. The judgement in the case Winterwerp v. Netherlands was the first to frame the three criteria, based on which it is stated that a person can be legally hospitalized by force under the Section (e) Part 1 Article 5 of the Convention. The first criterion is identification of the objective medical information on the impairment of mental health of a person. The criterion requires duly averment of that the person is “mentally ill” (has a mental disorder). If the event of mental disorder is confirmed, there is a formal possibility (in case of the aggregate of all preconditions) to hospitalize such person by force thus restricting his/her freedom and personal immunity and if, on the contrary, the fact of mental disorder is not confirmed, the person cannot formally be considered “mentally ill” or be hospitalized by force. The second criterion is gravity of a mental disorder, which means exacerbation of mental health of a person to the extent justifying the necessity to isolate the person by force. The precedent law of the ECHR directly relates gravity of a mental disorder to signs of hazard at self and others. Legal acts usually do not regulate the signs, based on which one could assess hazard of actions of a person. The duty to prove gravity of exacerbation of mental condition of a person, i.e. hazard of his/her actions, falls on psychiatrists. The third criterion guarantees restoration of the personal right for freedom in case restriction of such freedom becomes disproportionate to gravity of exacerbation of mental health of the person. A person hospitalized by force can be kept in a medical institution by force as long as his/her mental disorder and gravity of the mental disorder necessarily requires doing so. The requirement establishes the right for the person hospitalized by force to undergo periodical revisions of legality of such restriction of his/her freedom.

Article in Lithuanian

Keyword(s): involuntary hospitalization; mental patient; mental disorder; mental illness; mental health law
DOI: 10.5200/sm-hs.2013.127
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