Under the Treatment of Mental Patients Law (Amendment No. 5) 5764-2004, Legal Aid is granted by the Legal Aid District Offices all over the country to persons who have been forcibly hospitalized, including their representation before District Psychiatric Committees.

 

"The mentally ill patient presents the law and society with serious dilemmas.  The mentally ill person cannot be viewed in isolation. He has the same rights as any other person.  His dignity is the same as the dignity of any other person. The infringement of his liberty is the same as the infringement of the liberty of any other person.  A person does not lose his right to dignity and freedom if he is mentally ill.  Forced hospitalization is an infringement of freedom; forcible hospitalization is an affront to self-image. Very often he has difficulty in expressing himself. Society must protect him and deal with him. Forced hospitalization is an important tool in the treatment of the mentally ill.  On the other hand there is a third consideration which is that of public safety. Society must protect itself from harm that might be caused by a mentally ill person." (Application for Leave to Appeal 2060/97, Jane Doe v. The District Psychiatrist (not yet published)).

 

Legal representation by the Legal Aid District Offices throughout the country has the aim of achieving a proper balance between a deprivation of the liberty of the individual in a manner that conflicts with what is provided in Section 5 of the Basic Law: Human Dignity and Freedom, that "the liberty of a person shall not be deprived or restricted through imprisonment, detention, extradition, or in any other manner", and the fact is that now an opportunity is afforded to an individual to have his voice heard even before he is deprived of his liberty.

 

What are the Circumstances in Which a Person will be forcibly hospitalized?

 

The cases in which a doctor is required to forcibly administer medical treatment to one of his patients are rare and are defined in Section 15 of the Patient's Rights Law, 5756-1996. The administering of medical treatment contrary to or against the wish of the patient is conditional on the existence of circumstances in which the patient is considered to be a serious danger, or in the creation of an emergency medical situation by refraining from obtaining urgent medical treatment. Medical treatment can be provided by hospitalization in a hospital, in a clinic or professional institution, and sometimes also in the patient's home. The position is different in relation to a patient suffering from a severe psychiatric illness whose ability to make judgments or whose ability to appreciate the reality of his own situation is liable to be impacted to a substantial degree, a situation that is known as "mental illness" and which requires a different approach both on the part of the patient and on the part of interested parties such as relatives, friends or acquaintances of the patient, or his neighbors or colleagues at work. The term "forced psychiatric hospitalization" means the forcible hospitalization of a person who is mentally ill, in a psychiatric ward in a mental hospital or in a general hospital.

As a general rule, forced hospitalization can occur for a variety of reasons, such as - refusal of voluntary hospitalization, a determination of danger made by the hospital Director and an application on the part of the District Psychiatrist for the issue of a forced hospitalization order, application of a relative to the District Psychiatrist and a request on his part for hospitalization of his relative, an application by the police, and application by the social services, or of a neighbor (even under an assumed name) etc.

 

In the State of Israel, it is the District Psychiatrist who can issue an urgent examination instruction and a forced hospitalization order. In order to issue an urgent forced examination order the following three conditions must be satisfied:

 

1.   The person is ill and as a result of his illness, his judgment or his ability to appreciate reality is impaired to a substantial degree.

2.  The person is likely to be a danger to himself or to put others at immediate physical risk.

3.  The person has refused to be examined by a psychiatrist.

 

In order for an urgent hospitalization order to be issued the following conditions must be satisfied:

 

1.   The person is suffering from mental illness.

2.  The person is a danger to himself or others.

3.   There is a causal relation between 1 and 2.

4.   As has been held in the case-law:  The person agreed to an examination of his own free will before a hospitalization order has been issued or an examination order has been issued as mentioned above.

 

The Legal Aid will grant representation when a hospitalization order has been issued by the District Psychiatrist.

 

Forced Hospitalization Order

 

On the civil track the legal authority to order a forced examination, full hospitalization or forced clinical treatment by a professional - medical authority, lies with the District Psychiatrist. The hospitalization order will be in force for a period of 10 days from the date of its issue. The patient has a right of appeal to the District Psychiatric Committee against the Psychiatrist's decision in respect of a hospitalization order or an order for clinical treatment, or against a refusal to order hospitalization (Section 12 of the Treatment of Mental Patients Law, 5715-1955.  Such a committee is appointed by the Minister of Health and it consists of three members:  a Lawyer as Chairperson who is qualified to be appointed as a Magistrates Court Judge, a psychiatrist who is a State employee (with the exception of District Psychiatrists and their Deputies) and a Psychiatrist who is not a State employee. A District Psychiatric Committee which is considering a continuation of hospitalization must be convened no later than 14 days from the date of the issue of a Hospitalization Order, unless an Appeal has been lodged against the Hospitalization Order or an extension of the Hospitalization Order. This Committee is a Legal Committee.  All its decisions can be appealed to the District Court.  "An initial period of forced hospitalization under a Hospitalization Order shall not exceed 7 days.  A District Psychiatrist may, upon a request setting out reasons in writing, of a Hospital Director, extend the Hospitalization Order for a further 7 days and as previously stated, after such periods the Psychiatric Committee shall consider a continuation of the hospitalization."

 

Representation by Legal Aid

 

Under the Treatment of Mental Patients Law (Amendment No. 5) 5764-2004, Legal Aid may be granted by the Legal Aid District Offices all over the country to forcibly hospitalized patients, including their representation before District Psychiatric Committees.  By virtue of the circumstances, in such applications the applicant is unable to physically come to the relevant District Office close to his place of residence and he is sometimes not even capable of conducting a telephone interview with one of the District Office's Lawyers.  Accordingly, in cases in which a telephone interview cannot take place, the applicant is granted Legal Aid in which one of the Lawyers of the Legal Aid District Office who deals with forced hospitalization cases, meets the applicant in the institution in which he is confined and assists him to complete the Legal Aid Application Form.  It should be emphasized that in order to obtain representation of a Legal Aid Lawyer the hospital must inform the patient about legal representation and provide the patient with special forms immediately upon his hospitalization and complete them and require the hospital to fax them immediately to the Legal Aid District Office.

 

In an application for Legal Aid for representation before the Psychiatric Committee neither the economic entitlement of the applicant nor the legal prospect of success in the case is examined. In examining the prospects of representation in an appeal against a decision of the Committee (to the District Court) only the prospects in law are examined.