2011: Restrictions of freedom
The fundamental rights and freedom of the individual are guaranteed by Chapter IV of the Constitution of Malta.
Involuntary interment is covered by Chapter 262 of the Mental Health Act of 1976 as amended by Acts XIII of 1983 and VI of 2001.
The conditions for involuntary internment
A person may be admitted to a hospital for observation or treatment if:
- s/he is suffering from mental disorder of a nature or degree which warrantes the detention of the patients in a hospital and
- it is necessary that s/he be so detained in the interests of his/her own health or safety or with a view to the protection of other people.
In the context of this law, the term “hospital” is understood as referring to Mount Carmel Hospital, the Chambrai hospital, any other hospital declared by the Minister by notice in the Gazette to be a hospital for the purposes of this act and also a mental nursing home. A mental nursing home is a place that is not a hospital, which provides nursing or other medical treatment to “mentally disordered patients”, either exclusively or together with other categories of patients (article 14).
The procedure for involuntary internment
An application for admission must be based on the provision of two written recommendations from medical practitioners, given either jointly or separately, which confirm that the two conditions mentioned above are applicable. In the case of admission for treatment, they must also give detailed reasons for their opinion, specify whether other methods of dealing with the patient exist and if they do, why such methods are not appropriate (article 14).
If admission is considered urgent, one written recommendation is sufficient, preferably from a practitioner with previous acquaintance of the person concerned. However, in this case, the person must be released after 72 hours unless a second medical recommendation has been produced (article 15).
Applications for admittance to hospital may be made by the nearest relative or a mental welfare officer provided that the person making the request has personally seen the patient in the last fortnight (article 16).
If a patient is already an in-patient in a hospital but not liable to be detained there, an application for observation or treatment in that hospital can still be made (article 18).
The duration of the involuntary internment
A person who has been admitted to hospital for observation can be detained for up to twenty-eight days after which s/he must be released unless s/he has become liable to be detained for reasons other than observation.
A person who has been admitted to hospital in pursuance of an application for treatment may be detained for up to one year unless the authority for his/her detention is renewed. If this is the case, s/he can be detained for a further period of one year and thereafter for periods of two years at a time (article 21).
Request from the nearest relative for discharge
In article 30, relatives are organised in a hierarchy of their degree of closeness to the person as follows:
- Husband or wife (unless permanently separated)
- Son or daughter
- Brother or sister
- Uncle or aunt
- Nephew or niece
The nearest relative can make an application for discharge of a person who has been detained in hospital for treatment after having given seventy-two hours’ notice in writing to the manager of the hospital. In that time, the responsible medical officer may provide a report to the manager of the hospital that in his/her opinion the person would, if discharged, be likely to act in a way that is dangerous to him/herself or to others. If so, the application for discharge made by the nearest relative would be of no effect and the nearest relative would have to wait six months from the date of the report before making another application (article 29).
The use of violence to compel another person to do, suffer or omit anything is punishable (article 251 (1) of the Penal Code). Harassment is also considered an offence under article 251A (1). Harassment is defined as alarming another person or causing that person distress (article 251C).
Article 251B covers the threat of violence which is also considered an offence punishable by a prison sentence of 3 to 6 months or a fine of not less than EUR 4,658.75 and not more than EUR 11,646.87 or both a fine and imprisonment.
A person, who, without intent to kill or to put a person’s life in danger, causes harm to the body or health of another person or causes mental derangement to that person, shall be guilty of bodily harm. Such bodily harm may be considered grievous or slight (articles 214 and 215 of the Penal Code).
The punishment for bodily harm is increased by one or two degrees in cases where the person harmed is 60 years old or more or is suffering from a physical or mental infirmity which results in him/her being unable to defend him/herself adequately (article 222A(1)).
Article 339 (1) of the Penal Code provides a list of various acts committed against other people which are considered as contraventions. Those which could be relevant to people with dementia include the following (originally numbering used):
Incidents or cases in which a person:
“(b) without inflicting any wound or blow, threatens others with stones or other hard substances, or throws the same, or takes up any other weapon against any person;
(d) attempts to use force against any person with intent to insult, annoy or hurt such person or others, unless the fact constitutes some other offence under any other provision of this Code;
(e) utters insults or threats not otherwise provided for in this Code, or being provoked, carries his insult beyond the limit warranted by the provocation;
(f) through carelessness or want of caution throws water, or other liquid, or filth upon any person;
(i) frightens or terrifies any other person, in a manner that might cause harm to such person although it be done in jest;
(i) being in duty bound to take care of children, or of other persons incapable of taking care of themselves, neglects to take the necessary care of such children or persons;
(l) pushes against any person in the street with the object of hurting or insulting such person;
(n) annoys, vexes or scoffs at any imbecile, aged, crippled, feeble or deformed person;
(o) even though without the intent of committing another offence, enters into the dwelling-house of another person, against the express warning of such person, or without his knowledge, or under false pretences or by any other deceit.”
For those referred to as (d),(e),(l) and (o) proceedings would only be instituted on the complaint of the injured party.
The Domestic Violence Act of 2006 addresses the issue of violence between members of a family or between people sharing the same household. The definition of violence also includes any omission which causes physical or moral harm to the other person. However, this law only concerns the setting up and duties of a special commission to advise the Minister on all aspects of domestic violence.
Regulation 34 of the Subsidiary Legislation 65.18 on motor vehicles (driving licences) regulations covers various factors which might disqualify a person from obtaining or renewing a driving licence. Under article 9 of regulation 34 it is stated that
“driving licenses shall not be issued to, or renewed for, applicants or drivers who suffer from:
- severe mental disturbance, whether congenital or due to disease, trauma or neurosurgical operations;
- severe mental retardation;
- severe behavioural problems due to ageing; or personality defects leading to seriously impaired judgment, behaviour or adaptability,
unless their application is supported by authorised medical opinion and, if necessary, subject to regular medical check-ups.”
It is further stated that the competent medical authority shall give due consideration to the additional risk sand dangers involved in the driving of vehicles covered by the definition of this group.
Last Updated: Wednesday 14 March 2012