Currently, in Romania there is legislation that covers both crimes committed by perpetrators of people with psychiatric pathology, as well as antisocial acts that are included in the law on mental health and protection of people with mental disorders.
Medical safety measures are located in a complex area of medical-legal interference and social protection, involving close collaboration and a smooth flow of information and persons between courts and medical and administrative institutions.
In the literature, security measures have been defined as “criminal law sanctions consisting of preventive coercive measures aimed at removing a state of danger generating facts provided by criminal law”(1). Medical safety measures have a pronounced protective character of the perpetrator and a low degree of coercion, being also ordered in the interest of those who have come into conflict with the criminal law. Through these characteristics, security measures become procedural measures.
Involuntary medical hospitalization finds applicability in the Law no. 487/2002 on mental health and the protection of persons with mental disorders, this representing the framework regulation in the matter of involuntary hospitalization(2).
If patients are a danger to themself or to society, or do not have the consciousness of mental illness, have a potential for self-aggression and physical or verbal heteroaggression, as well as unpredictability, for their hospitalization it is necessary to obtain the consent of legal representatives(3).
Involuntary hospitalization may be a form that violates the rights of the patient, but the Law on Mental Health and Protection of Persons with Mental Disorders no. 487/2002 clearly establishes the situations in which the psychiatrist may hospitalize a patient, against his will, while respecting his rights and dignity(4).
Thus, involuntary hospitalization can be defined as hospitalization that is performed against the will or without the patient’s consent.
The medical safety measure provided for in Article 248 of the Code of Criminal Procedure aims to ensure that the suspect or defendant does not constitute a danger to himself or to society.
The measure may be ordered if two conditions are met, namely:
a) The condition of the suspect/defendant
The state of illness is also caused by the chronic consumption of alcohol or other psychoactive substances, in which the suspect/defendant is. The Code of Criminal Procedure does not define as an independent notion the disease from which the suspect or defendant suffers, although the security measures have a pronounced procedural character. In this regard, reference is made to Article 109 and Article 110 of the New Criminal Code, respectively(5).
Thus, according to the literature, “disease” means any condition that causes the suspect or defendant to commit acts against society, acts provided by criminal law.
b) The existence of a state of danger(6)
Regarding the definition of the state of danger in the applicable legislation in this matter, an inconsistency of the legislator can be observed because in Article 245 of the Code of Criminal Procedure, the state of danger is for society, while in Article 247 we are dealing with a danger to public safety. Thus, we can observe that Article 245 establishes the state of danger in a general, extended way, addressed to the society as a whole, not being specified and not being requested to be specified by the court, in particular, what it consists of, thus making it difficult the mission of the court to establish a key element for a fair sentence.
In the field of criminal law, the conditions are much more restrictive in the case of hospitalization, the measure being extremely restrictive of fundamental rights, and can be compared to arrest. The mission of the court becomes difficult when it has to specify the state of danger to public safety, as that state of danger must be concrete and current. This form of regulation is excessively restrictive, limiting the possibility of disposing of medical hospitalization only to those cases where the state of danger results from the concrete way of manifestation of the suspect or defendant.
With regard to involuntary hospitalization, it is important to note that this will only apply after all attempts of voluntary hospitalization have been exhausted(7,8).
Thus, according to Article 54 of the Law 487/2002, a person can be hospitalized through the involuntary hospitalization procedure only if a qualified psychiatrist decides that the person suffers from a mental disorder and considers that:
because of this mental disorder, there is an imminent danger of harm to oneself or to other persons;
in the case of a person suffering from a serious mental disorder, non-hospitalization could lead to a serious deterioration of his condition or prevent him from being given adequate treatment.
According to Article 56 of the Law no. 487/2002, the request for the involuntary hospitalization of a person is made by:
the family medicine doctor or the psychiatrist who takes care of this person;
the person’s family;
the representatives of the local public administration with attributions in the social-medical and public order field;
representatives of the police, gendarmerie or fire brigade, as well as by the prosecutor;
the civil court, whenever it considers that the state of mental health of a person in the course of the trial could require involuntary hospitalization(9).
On the other hand, in the case of temporary medical hospitalization under Article 248 of the Code of Criminal Procedure, the scope of those who can request this type of hospitalization is significantly limited, only the prosecutor is the one who takes care during criminal proceedings or preliminary chamber proceedings, if he considers that the legal conditions are met, he shall submit it to the rights judge and liberties or to the judge of the pre-trial chamber of the court which would have jurisdiction to adjudicate the case at first instance or a reasoned proposal to take measures against the defendant for interim medical treatment(10).
The procedure for judging both forms of hospitalization is an urgent one precisely because of the need to protect the person with psychiatric pathology, so in case of involuntary hospitalization within the applicable law, the following deadlines must be observed:
within maximum 24 hours from the evaluation, the psychiatrist sends the necessary documentation for the proposal of involuntary hospitalization to the commission;
the proposal for involuntary hospitalization is analyzed by the commission of involuntary hospitalizations, no later than 48 hours from the receipt of the proposal, after the examination of the respective person, if this is possible;
the decision of involuntary hospitalization of the commission of involuntary hospitalization will be submitted by the management of the medical unit within 24 hours to the court in whose district the medical unit is located, together with the medical documents regarding the patient in question;
the trial is done in an emergency, in the council chamber.
According to the provisions of the Code of Criminal Procedure, after notifying the prosecutor, the notified judge immediately sets the trial term of the proposal and orders the arrest of the suspect or defendant(11-13).
The settlement of the proposal is made only after the hearing of the suspect or defendant, if his state of health allows it, in the presence of a lawyer, chosen or appointed ex officio. When the suspect or defendant is already hospitalized in a healthcare unit and his movement is not possible, the judge of rights and freedoms proceeds to hear him, in the presence of the lawyer, in the place where he is.
When the proposal is not accompanied by the psychiatric forensic examination, the notified court orders its execution(14). The difference from the involuntary hospitalization procedure is the possibility for the suspect or defendant to be assisted by a doctor appointed by him, whose conclusions are submitted to the judge of rights and freedoms.
The participation of the prosecutor is mandatory as in the case of judging the confirmation of involuntary hospitalization.
The judge shall immediately rule on the proposal by a decision.
Regarding the term for contesting the two measures, we notice again a difference, respectively three days from the pronouncement, for those present, or from the communication, for those absent in case of involuntary hospitalization, and five days from the pronouncement in case of provisional medical hospitalization.
The major difference between the two forms of hospitalization arises from the evidence that is made available to the court, in order to deliberate and pronounce the sentence; involuntary hospitalization is based on the evaluation of the psychiatrist, the commission of involuntary hospitalization and ultimately on the decision of the confirmation court of involuntary hospitalization and temporary medical hospitalization is based entirely on the conclusions and recommendations of the forensic psychiatric expertise(15).
However, even in the case of involuntary hospitalization, during the trial, at the first term, the patient and his legal or conventional representative may request a psychiatric forensic examination(16). However, this evidence of forensic psychiatric expertise is not often used in solving cases involving involuntary medical hospitalization as the court’s solution is mainly based on the decision of the involuntary hospitalization commission and it is also not used and requested frequently by the patient or his representative.
The implementation of the two measures differs as follows:
The safety measure of medical hospitalization is taken by a final decision which is enforced by communicating a copy of the device and a copy of the forensic report to the public health authority in the county on whose territory the person lives, once this measure has been taken.
After receiving the enforcement forms from the enforcement court, the public health authority is obliged to establish the unit where the person against whom the safety measure was taken will be hospitalized and to communicate it to the enforcement court, respectively psychiatric hospital and for safety measures.
For the cases in which the person against whom the measure of medical hospitalization was taken refuses to submit to the hospitalization, the execution of this measure will be done by coercion, with the support of the local police bodies.
The confirmation of involuntary hospitalization by the court does not imply the support of other authorities as the respondent is already hospitalized in a psychiatric hospital(17).
The termination of the two detention measures again confirms the distinct and authentic elements on which they are based. The termination of involuntary hospitalization and confirmation by the court is based on the decision of the involuntary hospitalization commission, which is the one who, after examining the patient, finds that mental status has improved and, most importantly, the insight of the disease is present and he wants to continue the treatment.
The termination of the provisional medical measure is supported by the decision of the delegated judge of the court in whose constituency the health unit is located, who has the task of periodic verification, but not later than 12 months if medical hospitalization is still necessary(18).
Psychiatric forensic examination is also mandatory in case of termination of this measure, the delegated judge being the one who orders its performance on the health of the person against whom the measure of medical admission was taken and, after receiving the report, notifies the court in whose constituency the health unit is to order the maintenance, replacement or termination of the measure(19).
The interference of the two types of hospitalization and implicitly of the matter of civil and criminal law has its origin in cases where it is proven that an involuntary hospitalized patient committed an act that meets the constitutive elements of a crime, which could lead to its removal, under the incidence of the Law no. 487/2002 and the inclusion in Article 248 of the Code of Criminal Procedure.
Thus, in the situation where the patient involuntarily hospitalized in a psychiatric hospital also has the quality of respondent in a file that has as object the temporary medical hospitalization, two situations can be foreseen, mentioned below.
If the court admits through a criminal order the temporary medical hospitalization provided in Article 248 of the Code of Criminal Procedure, the patient will be transferred to a psychiatric hospital and the safety measures and the involuntary hospitalization cease. After the involuntary hospitalization commission meets, the necessary documents provided for in Article 65 of the Law 487/2002 are drawn up, and the medical unit sends the proposal to terminate the involuntary hospitalization to the court, stating that it will cease as a result of admitting the safety measure of medical hospitalization.
The second option is represented by the case when the court does not admit the motivated proposal of the prosecutor to take the measure of temporary medical hospitalization to the suspect or defendant, and he remains involuntarily hospitalized in the psychiatric hospital. Subsequently, he will be reexamined no later than one month and whenever necessary depending on his condition, as well as at the request of the patient’s chief physician of the patient’s legal or conventional representative and the prosecutor, in accordance with Article 65, paragraph 1, of the Law no. 487/2002.
In this case, involuntary hospitalization supports the measure provided for in Article 248 of the Code of Criminal Procedure and aims to remove a potential danger to society, a danger that the perpetrator, due to his health, cannot remove.
The difficulty of applying the two measures results from the deficiencies of the legal texts, sometimes ambiguous and difficult to understand and interpret both by the courts and by the medical staff, which makes it difficult and creates difficulties in their application.
Even though the two types of hospitalization are different, both in procedure and in applicability, both the measure of temporary medical hospitalization which is found in the field of criminal law and the involuntary hospitalization which is found in the field of civil law have a common purpose, namely the protection of persons with psychiatric pathology, respectively the desire to remit the symptoms and increase the therapeutic compliance.