Regulating Psychiatric Treatment: Social Functions and Legal Limits

2014-09-15    |   

Regulating Psychiatric Treatment: Social Functions and Legal Limits

On August 8, 2012, the Lebanese cabinet referred to parliament a draft law entitled The Care, Treatment and Protection of People with Mental or Psychological Illnesses. The bill was intended to replace a legislative decree issued on September 9, 1983 entitled The Care, Treatment and Protection of the Mentally Ill – a decree that was largely ignored and rarely implemented. The new draft law had been drafted at the initiative of the NGO IDRAAC (the Institute for Development, Research, Advocacy and Applied Care), whose members include specialists in psychology. Despite the significance of this law, the draft law went through several stages without much public debate. The media coverage of it was limited to a few articles.[1] For some unknown reasons, the bill skipped some of the preliminary stages and was put directly on the agenda of the joint committees of parliament without passing through parliament’s specialist committees; primarily, the committee on health, labor and social affairs. This suggests that certain social forces were pushing for the bill to pass with as little public attention as possible.

The Treatment of the Mentally Ill as a Public Issue

In light of the dubious process of fast tracking this law, The Legal Agenda recognized the need to present the draft law as it currently stands for public discussion, with at least three reasons for doing so:

First, to create space in public debate for the question of psychiatric treatment. This presupposes recognizing the mentally ill as a segment of society with their own needs, and deserving of public attention. However, more importantly, experience in Lebanon shows that public debate on draft laws helps create a receptive environment, not just for the laws to pass but also for their implementation, whether by judges or by government departments. This is evidenced by comparing the fate of the legislative decree issued in 1983, with that of the law on protecting women and other family members from violence. While the former was not implemented, the latter was applied by prosecutors and judges whose interpretations improved the law itself.[2]

Second, to critique the framework informing the drafting of the law. One of the main aims of a bill of this kind is to set limits to the authority of the psychiatric profession over the mentally ill. The Legal Agenda therefore decided to give more space to the legal approach, especially as the first draft of the law came from a non-governmental organization run by specialized doctors.

Thirdly, to push for making the necessary amendments to the bill, as explained below. Most of these amendments address the bill’s lack of strong legal provisions, that if properly implemented, would properly prescribe the authority of the psychiatric profession.

The Psychiatric Authority: What is its Function?

In this context we must first define the function of psychiatry. Its fundamental aim is to treat patients and ensure, as much as possible, their reintegration in society. Such a definition assumes a set of safeguards that The Legal Agenda has lobbied to insert into the draft law.

The aim of psychiatry is not to control social behavior, even if that behavior diverges from prevalent, approved or socially desirable modes of behavior. On the contrary, medical intervention to treat such behavior is usually a breach of medical ethics, especially in cases where psychiatry is inspired by its ability to change these types of behavior, or affect them in a way that could do serious harm to the person in question. On that basis, adding a clause to the definition of mental illness might prevent any deviation in this domain by explicitly recognizing that mental illnesses cannot be diagnosed on the basis of politics, economics, social factors or membership of any cultural, ethnic or religious group. Nor can such illnesses be diagnosed on the basis that the patient has violated behavioral norms or moral, social, cultural or family values, or on any basis that is not directly related to the state of the patient's mental health.

The second prohibition is against any tendency to use psychiatry as a means to protect society from dangerous people by confining  the patients and possibly isolating them, rather than as a means to treat them and then integrate or reintegrate them into society. The law should therefore aim primarily to ensure that mental patients are treated, and they should not be isolated except when necessary, on the principle that the treatment should restrict the patient's freedom as little as possible. Such a principle, however, remains a mere formality with no practical application in severe cases of illness as long as public authorities at the national or local level fail to establish alternative institutions that can provide treatment for mental patients, without detaining them or at least without isolating them. Under these conditions, isolation becomes a contingent rather than a medical necessity. It is thus necessary that the basic draft law stipulate that the state be made explicitly responsible for funding and setting up such centers. It is equally important that the law tightens the conditions under which patients can be compelled to enter such institutions, by stipulating that the danger must be imminent and the object of entry is treatment.

The third prohibition is to ensure that patients enjoy all their rights as citizens do, except those in conflict with the requirements of treatment given that psychiatry is a means of treatment and not a means of punishment. This is reflected in a number of proposed restrictions, especially with regard to the patient being forcibly restrained or subjected to electric shock treatment.

Psychiatric Authority: What are the Limits?

The draft law clearly gives psychiatrists broad powers, up to and including not only control over the freedoms of others, but sometimes even over the latter’s mental faculties. When patients are detained against their will, it is generally done on the initiative and at the prompting of the doctor. In most cases, a report issued by the doctor suffices. As a result, these specialists hold the power to restrict the freedom of citizens and subject them to therapies, some of which might have permanent effects on the patient. While linking the decision to detain a patient to approval by a specialist does provide a certain medical guarantee, the gravity of the possible consequences make it essential to put in place effective safeguards against arbitrary decisions by the doctor, or the medical institution. For this reason, a number of additional restrictions were proposed.

More rigorous medical safeguards. Patients can be forced to undergo treatment only on the basis of two medical reports, instead of just one. One of the two doctors should have no connection with the medical institution in question, in order to prevent any conflict of interest;

Empowering mental patients and their families. Possibly granting associations representing the patients and/or their families particular roles in the process of improving conditions for the patients, or to defend them in courts. The hope is that these associations would succeed in limiting the arbitrary detention of patients, or saving them from long periods of detention without justification or without observance of the basic rules. Stipulating the creation of such associations could be justified on the basis that mental patients are extremely vulnerable, and such associations would ensure constant dialogue about the treatment of mental patients;

A judicial safeguard by giving the judiciary a fundamental role in protecting the freedom of patients in detention. The Legal Agenda has proposed amending the draft law by substituting oversight by the interim relief courts for oversight by the civil status courts, as in the original draft. Compulsory detention in a medical institution is primarily a matter of personal freedom. Thus, the judicial body that specializes most in protecting freedoms should be involved. The Legal Agenda has also proposed that the judiciary be responsible not just for agreeing to keep a patient in the institution whenever the doctor in charge believes the treatment should last more than ten days, but also for considering any applications submitted by the relevant parties (including family, associations and the public prosecutor) for the release of the patient at any time. The judiciary should also receive regular reports from the physician in charge, which would allow the judiciary to intervene on its own initiative at any time in light of the contents of these reports;

The safeguard of administrative oversight. This is achieved by restoring the articles of the original draft that gave an oversight role to the medical committee set up at the Ministry of Public Health, with some fundamental amendments to make it more effective. The aim of these amendments is to define the committee’s composition and process of appointment of its members, period of service, remuneration, as well as granting the newly recognized associations of mental patients and their families a seat on the committee. Without such clarifications, the committee would probably remain a formality without substance;

The safeguard of internal supervision within the health institutions. The Legal Agenda called for restoration of articles in the original draft -after amending them- that stipulated the creation of ethical committees inside medical institutions. Amendments included the stipulation that membership of the committee include the director of the institution and a representative of the associations of mental patients and their families. This monitoring mechanism would be strengthened by making the medical institution (which is not mentioned in the current law in any way) responsible for any failure to implement the law; and

Accountability and criminal penalties. In the original draft, penalties were confined to cases where a mental patient's weakness has been exploited in certain ways in order to compel the patient to carry out criminal acts or particular acts. In other words, the draft law does not mention any penalties for violating the principles or rights that are enshrined in it. In view of this, The Legal Agenda has submitted proposals to penalize some violations of the provisions of the draft law, including arbitrary acts by authorities that the law is expected to endorse. To this end, several of these acts have been criminalized, most notably from our point of view, writing medical reports that are overtly misleading about someone's mental state in order to have them admitted, kept in an institution, or released from an institution. The proposals would also make it a crime to manage medical institutions that admit patients for compulsory treatment, or keep them detained in cases not sanctioned by this law.

This article is an edited translation from Arabic.


[1] See: Malak Makki’s, “Mental Health, a Draft Law to Protect Patients”, As-Safir Newspaper, April 8, 2013,
[2] See: Nizar Saghieh’s, “Interpreting Lebanon’s Law Against Domestic Violence: Jurisprudence as Legal Reform”, The Legal Agenda website, June 30, 2014.

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