Updating Winterwerp with Rooman to add a requirement for ‘Real therapeutic measures’ to legal criteria for admission without consent in psychiatry

Abstract

Admission without consent and treatment without consent are topics of prolonged discussion throughout the history of psychiatry. These practices raise significant issues pertaining to human rights to liberty, bodily integrity, and treatment. Balancing rights is always challenging, especially when people lack decision-making capacity owing to the impact of mental illness. In 1979, the European Court of Human Rights outlined criteria required to justify lawful admission without consent owing to mental disorder in Winterwerp v. the Netherlands. These criteria were: (a) a competent national authority needs to demonstrate the existence of a true mental disorder based on objective medical expertise; (b) the extent of the mental disorder needs to warrant compulsory confinement, and (c) continued detention needs to be validated by the persistence of the disorder. Since then, the Court has delivered multiple judgements relating to psychiatric committal and detention in various facilities, but the most significant potential addition to the Winterwerp criteria occurred in 2019, in Rooman v. Belgium. In this case, the Court stated, “that there exists a close link between the ‘lawfulness’ of the detention of persons suffering from mental disorders and the appropriateness of the treatment provided for their mental condition”. The Court stressed ‘that, irrespective of the facility in which those persons are placed, they are entitled to be provided with a suitable medical environment accompanied by real therapeutic measures’. On this basis, this paper proposes adding a fourth requirement to the Winterwerp criteria to justify lawful admission without consent owing to mental disorder: ‘(d) real therapeutic measures must be provided’. The absence of ‘real therapeutic measures’ should undermine the legal basis of admission without consent on the basis of mental disorder. This would mean that there could be no involuntary admission owing to mental disorder without treatment being appropriate and available. Such an addition to criteria for involuntary admission in national mental health legislation would protect, rather than erode, human rights, and would more accurately reflect the core purpose of psychiatry: the treatment of mental illness and the consequent alleviation of suffering.