human rights and legislation who resource book on mental health

13.1 Judicial or quasi-judicial oversight of involuntary admission/treatment <strong>and</strong> other
restrictions of <strong>rights</strong>
Most countries employ an independent authority such as a review body, tribunal or court to
sanction involuntary admission <strong>and</strong> treatment based on medical/psychiatric/professional
expertise. This is an important function since, although the examining accredited health
professional decides whether a person meets the criteria for involuntary admission/treatment, it
is generally the prerogative of a judicial or quasi-judicial authority to rule on whether persons can
be admitted/treated against their will. In many jurisdictions, courts are the preferred option to
carry out this function due to their easy accessibility <strong>and</strong> unambiguous legal status. However,
the position of the courts in a number of countries has been questioned, as some have merely
become a “rubber stamp” for the medical decision. Judges or magistrates often make their
decisions in the absence of the patient, their representative or witnesses, <strong>and</strong> confirm the
medical recommendation without applying independent thought <strong>and</strong> analysis to the process.
An alternative to a court procedure is the establishment of an independent <strong>and</strong> impartial courtlike
body with a judicial function. Such a body is established by law to determine matters within
its competence <strong>and</strong> to make binding decisions on such matters. The fact that it is specifically
established for this purpose, <strong>and</strong> is comprised of specially selected members with expertise, is
believed, in certain countries, to make this a more competent body for the purpose than a court.
The exact functions of this judicial or quasi-judicial body with regard to involuntary admission <strong>and</strong>
treatment are likely to vary from country to country <strong>and</strong> may, in some jurisdictions, complement
rather than replace the role of the court. The following, however, are important roles for such a
body:
Assess each involuntary admission/treatment – Many legislative frameworks are categorical that
every case of a person recommended for involuntary admission/treatment should appear before
the review body. The persons concerned should be represented by a legal counsel <strong>and</strong> should
be allowed the opportunity to state their position. They, as well as the authorities seeking
involuntary admission/treatment, should call witnesses as required. The review body has the
power to endorse or override, after careful consideration, any involuntary committal/treatment.
It has been argued that in countries with fewer <strong>resource</strong>s it may not be possible for a review
body to consider each case in person, <strong>and</strong> that a “paper review” may be conducted for some
of the more straightforward cases. However, the review body would conduct hearings on all the
more contentious cases, or where there is a particular reason for holding a full hearing.
Entertain appeals against involuntary admission <strong>and</strong>/or involuntary treatment from patients,
families <strong>and</strong>/or personal representatives. As a basic <strong>human</strong> right, even in countries with fewer
<strong>resource</strong>s, all patients must be informed of their right to appeal, <strong>and</strong> all appeals must be heard
within reasonable time frames (see Annex 8 for an example of an appeal form). The review body
must have the right to overturn involuntary admission <strong>and</strong> treatment decisions that have come
to it on appeal.
Review the cases of patients admitted on an involuntary basis (<strong>and</strong> long-term voluntary patients)
at periodic intervals to ensure that patients are not held in hospital for longer than is necessary
for their protection <strong>and</strong> treatment. Review bodies may also be given the power to discharge a
patient if they deem the patient to be wrongly held.
Regularly monitor patients receiving treatments against their will. Except in emergency situations,
the review body should implement a procedure for authorizing or disallowing continued
treatment of involuntary patients without their consent. The review body should also monitor
involuntary treatment given in the community (for example, community supervision <strong>and</strong>
treatment orders).
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