The Law for Treatment of the Mentally Ill
A mentally ill individual is one who suffers from impaired judgment and sense of reality. This law defines the rights of the mentally ill, as well as the measures that can be taken for them. For example, an individual who suffers from schizophrenia and believes that he is the Messiah and as such, believes that it is permissible for him to do anything that he happens to think of, is defined as mentally ill. On the other hand, someone who suffers from anxiety and is not willing to leave his home, is not defined as having an impaired sense of judgment, and therefore, this law does not apply to him.
Commitment to a Psychiatric Hospital
The pre-condition for committing an individual to a psychiatric hospital, except if he/she has been issued an hospitalization order, is that the individual must have undergone a medical examination (mental and physical) in a hospital, and it was determined that he/she must be hospitalized. If the patient is a minor, he/she must be examined by a child/youth psychiatric expert and only then may the question of his/her consent or lack of consent to being hospitalized be examined.
A patient who requests to be committed to a psychiatric hospital of his/her own free will must sign a consent form for hospitalization and receiving of treatment. Nonetheless, there are special treatments determined according to the statutes of the Law for Treatment of the Mentally Ill, for which the individual will be required to sign a separate consent form in order to receive them (currently, this only refers to one type of treatment – electric shock therapy).
It is important to understand that if an individual agrees to be hospitalized, he/she may not be released immediately; but rather only within 48 hours of his/her request for release. During this period, the hospital may submit a request to the district psychiatrist to issue a compulsory hospitalization order if the psychiatrists treating the patient in the hospital believe that the patient’s situation meets the conditions required for compulsory hospitalization.
Involuntary Commitment by means of a District Psychiatrist
The district psychiatrist is the one appointed to issue orders for compulsory psychiatric testing. In order to issue such an order, the psychiatrist must be convinced that the individual for whom the compulsory testing is being requested is:
- Ill and as a result of the illness, significantly impaired in terms of judgment capabilities or the ability to ascertain reality.
- Liable to endanger him/herself or others and poses an immediate physical danger.
- Has refused to be tested by a psychiatrist.
The courts have repeatedly determined that a compulsory hospitalization order may not be based solely on medical grounds; it must be based on various considerations including the patient’s liberty, treatment of the patient and the public welfare.
A compulsory testing order issued by the district psychiatrist is valid for 10 days from the day it is issued. This type of order is generally carried out by a team of hospitalizing nurses from the hospital with the assistance of police officers. The hospitalizing nurses and the police officers are permitted to use “reasonable force” for purposes of entering the location in which the individual is located and for purposes of performing the testing itself.
After the individual undergoes psychiatric testing (usually in the emergency room of a psychiatric hospital), the hospital is permitted to submit a written rationale to the district psychiatrist, requesting that an urgent hospitalization order be issued. The conditions for issuing an urgent compulsory hospitalization order are identical to the conditions for issuing a compulsory testing order (illness + an immediate physical danger to oneself or to others).
Compulsory hospitalization according to a district psychiatrist’s order is for an initial period of only 7 days. According to the hospital’s rationale, the psychiatrist is permitted to extend the hospitalization period for an additional 7 days. At the conclusion of the 14 days, authority regarding continuation of the hospitalization is transferred to the district psychiatric board, which is then authorized, according to a hospital rationale, to continue the hospitalization by an additional 3 months. Afterwards, the board is authorized to extend the hospitalization for periods of up to 6 months. In every instance, the conditions for extending compulsory hospitalization are identical to the original conditions for compulsory testing and compulsory hospitalization (meaning illness + an immediate physical danger to oneself or to others).
Hospitals are permitted, according to their own discretion, to release someone who is hospitalized under civil compulsory hospitalization, or may grant the individual leaves. If the patient or his/her immediate family member opposes, approval of the district psychiatrist is required for release. The district psychiatrist’s decision may be appealed before the psychiatric board.
It is important to distinguish between civil compulsory hospitalization and “criminal” compulsory hospitalization, which is performed according to a judge’s order as part of criminal proceedings against an individual.
The law determines different and stricter instructions regarding compulsory hospitalization of minors. Only the Juvenile Court has the authority to compulsorily hospitalize a minor above the age of 15 who opposes his/her hospitalization.
Urgent Involuntary Commitment
According to the Law for Treatment of the Mentally Ill, a psychiatric hospital manager may also make a decision regarding the necessity of an urgent compulsory hospitalization in unique cases and under special circumstances by means of an exception, as detailed in the law, such as: the patient was mentally and physically tested and was found to have met all of the conditions for hospitalization according to Section 9a of the law, which determines that the tested individual is mentally ill and, as a result of the illness, has significantly impaired judgment or sense of reality, and as a result of which and because of which, is liable to endanger him/herself or others and poses an immediate physical danger.
The period of urgent compulsory hospitalization of this type may not be more than 48 hours. At the end of this period, the patient will be released unless a hospitalization order was given during that period or the patient consents to his/her hospitalization.
In a case in which a minor is brought to a psychiatric hospital by a welfare officer, the hospital manager is permitted to receive the minor for hospitalization against his/her will after a mental and physical examination, even if the conditions for hospitalization according to Section 9a have not been met, if testing has found there to be a substantial possibility that the minor is mentally ill or is seriously mentally disturbed, and is thus liable to endanger him/herself or pose an immediate physical danger to others.
The period of urgent hospitalization of this type may not be more than 48 hours; at the end of this period, the minor should be released, unless a hospitalization order has been issued during that period, or the minor’s guardian agrees to the minor’s hospitalization or, if a minor who is at least 15 years old consents to his/her own hospitalization, or if a court orders the minor to be hospitalized according to the juvenile law provisions.
Commitment of a Minor
With parent or legal guardian consent
The person responsible for a minor (parent or legal guardian who has custody of the minor) is permitted to request that the minor be hospitalized and may consent in the minor’s name to his/her hospitalization and treatment.
If the minor is at least 15 years old and does not consent to be hospitalized, he/she may not be hospitalized despite the consent of their parent or legal guardian, except with court approval given according to the juvenile law provisions, and according to the prescribed grounds for compulsory hospitalization, which are:
- The minor is mentally ill and there are grounds for his/her hospitalization according to the provision in Section 9 of the Law for Treatment of the Mentally Ill.
- The minor is mentally ill or has been diagnosed as having a severe mental disturbance which is liable to endanger him/herself or pose an immediate physical danger to others or to cause severe developmental mental damage if not treated by means of hospitalization, and provided that the court did not order hospitalization of the minor, unless proven based on the opinion of a district psychiatric board for children and youth that examined the minor and concluded that he/she may only be treated through hospitalization.
If the hospital manager, psychiatrist or any other individual treating the minor in the psychiatric hospital notices that a minor hospitalized with parent or legal guardian consent does not agree to the hospitalization, that individual must report this as soon as possible to a welfare officer. If the minor is at least 15 years old, the welfare officer must bring the issue for a court ruling; if the minor is younger than 15 years old, the issue must be brought before a district psychiatric board for children and youth, which will examine if the minor may only be treated through hospitalization and, based on its findings, will instruct either to continue the minor’s hospitalization or to release him/her.
Hospitalization of a minor with the consent of his/her parent or legal guardian, except for hospitalization which does not include residing in the hospital, may not be for a period longer than 2 months. In order to extend this period, a motion must be presented before the district psychiatric board for children and youth. The board may, according to a rationale from the manager, extend the period of hospitalization for additional periods of no more than 3 months each, according to the treatment program, if it has been convinced that treatment requiring an extension of the hospitalization period is necessary for the minor.
The minor’s parent or legal guardian, a welfare officer, a minor who is at least 15 years old, as well as the manager, are permitted at all times to request an additional district psychiatric board for children and youth hearing regarding the minor’s hospitalization.
With the minor’s consent only
A minor who is at least 15 years old may request to be hospitalized of his own free will and consent to being hospitalized the same as any patient requesting to be hospitalized. However; if the minor’s parent or legal guardian does not consent to the hospitalization, the minor may only be hospitalized with court approval according to Section 3g of the Juvenile Law.
Rights in The Hospital
A patient committed in a hospital may:
- Send and receive closed letters and other mail parcels;
- Receive guests at times and under conditions determined by the hospital;
- Have a relationship with people outside the hospital;
- Keep personal items to a reasonable extent and wear personal clothing according to the conditions determined by the hospital.
A hospital may limit these patient rights if required for medical reasons. In all cases, the patient’s right to send closed letters or maintain a relationship with his/her lawyer, guardian, the district psychiatrist, and the district psychiatric board may not be limited.
The hospitalization of a patient may not harm the patient’s rights to manage his/her assets, unless the hospital is of the opinion that the patient is not capable of handling his/her own affairs; the hospital must explain the decision in writing and the patient may submit an appeal of the decision to the district psychiatric board.
Receiving details of obligations and rights
A patient received for hospitalization must receive a form detailing his/her rights and obligations, as well as an oral explanation of the topic from the receiving doctor. If the medical condition of the patient makes it impossible for him/her to understand the form, the hospital must indicate this in writing in the patient’s medical file and must explain the rights to the patient when his/her medical condition allows. In addition, the hospital must hang a copy of the patient’s rights and obligations form in a prominent location in every psychiatric department.
Receiving medical information
A hospitalized individual is entitled to receive medical information regarding his/her condition. The law dictates that this information must be transferred to him/her according to the doctor’s opinion. In actuality, one of the common patient complaints is that they are prevented from reviewing the medical file. Quite often, only with the intervention of a lawyer or other external body is a patient able to review the medical records. Sometimes, a hospital only allows a lawyer or another doctor acting on the patient’s behalf to review the information, subject to the requirement that the content will not be transmitted to the patient. There is a legal dispute between human rights organizations and the Ministry of Health regarding the conditions for denying or limiting a patient’s right to review his/her own medical information. It must be emphasized that the Patient’s Rights Law and all of the rights and arrangements detailed in it, apply to the mentally ill, as well.
Transfer between hospitals
A patient may not be transferred from one hospital to another except with the consent of both the patient and both hospital managers; in the absence of this consent, the district psychiatrist of the district in which the hospital to which the patient is being requested to move may decide. This decision may be appealed before the district psychiatric board. Nonetheless, under special circumstances and with consideration of the need for hospitalization, the head of mental health services is permitted to order the transfer of a patient from one hospital to another.
Use of forcible measures (isolation or restraint)
Forcible measures may only be performed if required for medical treatment of the patient or in order to prevent danger to him/herself or others.
The order to use forcible measures must be given in writing by a doctor and is limited to a maximum period of 4 hours. In case of emergency and in the absence of a doctor, a nurse may give this order. The supervising nurse must examine the patient at least once every half hour. Based on an examination, a doctor may extend the restraining order for additional periods of no more than 4 hours each time.
Electric shock treatment
Electric shock treatment may only be given with the decision of 3 doctors in the hospital. Electric shock treatment may not be performed on a patient with consent unless he/she consented in advance and in writing.
Compulsory Clinical Treatment as an Alternative to Hospitalization
Compulsory clinical treatment limits the patient’s rights less. Accordingly, in every case in which compulsory psychiatric treatment of an individual is required, even if the required conditions according to the law have been met, all decision makers are obligated to consider compulsory clinical treatment instead of hospitalization. In legal terms, this examination is called the “Less Severe Means Test”. The more severe means may not be chosen if the same goal may be achieved using less severe means: “A mentally ill individual’s liberty may not be harmed more than that which is required to protect him, treat him, or protect the public welfare. A mentally ill individual may not be compulsorily committed to a hospital if it is possible to treat him and protect the public welfare by means of compulsory clinical treatment; and treatment must not be forced if it is possible to perform without force. Steps should always be taken to achieve the desired goal with the least injury to the mentally ill individual” (Vilenchik ruling).
The pre-conditions required to issue a compulsory clinical treatment order are similar to the conditions required to issue a compulsory hospitalization order.
Compulsory Clinical Treatment
The district psychiatrist has the authority to order psychiatric testing of an individual even if he/she refuses, if evidence has been presented which shows that all of the following conditions have been met:
- The individual is ill and as a result of the illness, significantly impaired in terms of judgment capabilities or the ability to ascertain reality.
- The individual is liable to endanger him/herself or others and poses an immediate physical danger.
- The individual refused to be tested by a psychiatrist.
- According to the request of a welfare officer that a minor be urgently brought for psychiatric testing, if, according to the opinion of the district psychiatrist, there exists sufficient evidence that the minor is mentally ill or mentally disturbed and the illness or disturbance are liable to physically endanger him/herself or others.
Performing testing on a minor
A psychiatric test of a minor according to every one of these instances must be performed by a psychiatrist who specializes in children and youth.
Submission of an appeal
For every decision of compulsory hospitalization or compulsory clinical treatment (including refusal to issue an order), an appeal may be submitted, which will be heard by the district psychiatric board. Any individual may submit such an appeal, not just the patient or his/her family. The board also deliberates regarding extension of compulsory hospitalization for more than the initial 14 day period. This body has a type of judicial authority, as the law provides it with broad authorities to make decisions regarding compulsory hospitalization.
An appeal must be submitted in writing and include detailed rationale. The board must deliberate on the appeal of a hospitalization order within 5 days of its submission. For appeals of compulsory clinical treatment orders, the board must deliberate within 10 days of the submission.
Every psychiatric board is composed of 3 members: a jurist who also serves as the board’s chairman, and two psychiatrists. The discussion with the individual brought before the board includes both a psychiatric test, and the opportunity for the patient to argue factual claims (i.e.: “The claim that I tried to commit suicide or that I injured another person, is not correct”) and legal claims (i.e.: “I can be treated by means of compulsory clinical treatment and not full hospitalization”, “My behavior does not pose an immediate physical danger”).
The board must allow the patient, the patient’s relatives and their lawyers (if they have lawyers) to argue their claims before the board. Additionally, the board has the authority to permit additional people to argue claims, if it deems them relevant. So, for example, the patient may order witnesses to the hearing, including a medical expert on his/her behalf. The board itself sets the order of the hearing, unless for a specific issue, an order has been specifically determined in the bylaws. It must be emphasized that law gives the psychiatric board the authorities of an investigative committee, enabling it to require witnesses to appear and testify.
Regarding the issue of the right to representation before the board: In 1998, regarding this issue, the Supreme Court stated that, “There is nothing like a mentally ill individual requiring proper representation. A mentally ill individual is not capable, in most cases, of pleading on his own behalf. What value does a mentally ill individual’s right to plea have if he is not capable of pleading on his own behalf? A mentally ill individual’s right to plea, therefore, includes the obligation that he be appointed counsel to plead for him.” As a result of this decision, a governmental committee was established to examine the issue and it determined that there is room to establish a right in the law for individuals to be represented before the board. As of when this information was written (September 2001), the public struggle regarding this issue continues, including in the framework of a claim submitted to the Supreme Court by the Association for Civil Rights in Israel and Bizchut – The Israel Human Rights Center for People with Disabilities.
The rule is that the patient has the right to be present during all court proceedings. If the board determines that the presence of the patient during the proceedings, in its entirety or in part, is liable to damage his/her physical or mental welfare, the board may deliberate that portion of the proceedings in the patient’s absence, as long as the rationale for doing so is recorded.
According to the Ministry of Health’s procedures, the patient must be given an abstract and rationale of the board decision in writing within 5 days of the proceedings’ conclusion, except for instances where it is impossible to give the patient the decision on professional grounds. In this case, a copy of the decision must be given to the patient’s proxy.
Submission of a Court Appeal
The patient him/herself, a relative or a governmental representative may appeal every psychiatric board decision before the district court. This type of appeal must be submitted within 45 days of the board’s decision and it is argued before an individual district judge.
The court ruling regarding the appeal may approve the board decision, return it to the board or issue an alternative decision.