Patients with mental disorders are under more pressure from a legal perspective compared to other patients, and the likelihood of their fundamental and human rights being violated is much higher due to their vulnerability and lack of recognition of their legal agency. This legal vulnerability is compounded by the societal pressures they face, which also contribute to them not being believed even when defending themselves, resulting in them being at risk of physical and sexual harm.

Because their legal capacity as a human is dependent on the assistance of others, and without it, they do not have the necessary capacity to fulfill their rights. This legal incapacity is known as “incapacitation” in the law; meaning individuals who, as the law states, suffer from “mental deterioration or insanity” and therefore do not have the mental capacity to manage their legal affairs, especially their financial, civil, and social matters.

Although the purpose of this legal restriction is to protect the rights of individuals who are not legally allowed to enter into legal and civil affairs, this very limitation can become a capacity for serious and widespread violation of their rights. Therefore, nowadays in many countries and legal systems, in addition to restrictive laws, there are also supportive laws to protect individuals and patients with mental disorders. Laws whose main purpose is to protect the fundamental and human rights of these individuals, as well as their inherent dignity against illegal interference by the medical system, family, and even the judicial system.

Where is the problem?

As the World Health Organization says, the decision-making regarding the forced hospitalization of individuals with mental disorders should be the responsibility of an independent medical authority. This authority, although it can be chosen by an independent judicial authority, should not be dependent on the judicial system and should have the freedom to make decisions. Otherwise, any forced hospitalization will be a serious violation of the fundamental and basic rights of humans and a violation of human freedom, especially if the decision-making is solely in the hands of the judicial authorities. Many countries today have excluded the decision-making regarding forced hospitalization from the jurisdiction of judicial authorities in order to prevent the violation of the rights of individuals with mental disorders and other individuals by judicial authorities, and have entrusted it to an independent medical authority. In countries where the judicial authorities still have the right to participate in this process based on the law, this participation is subject to the consent of the medical authority.

In Iran, however, according to current law (Article 150 of the Islamic Penal Code), it is only the judicial authority (the prosecutor’s ruling or the judge’s verdict) that has the power to forcibly institutionalize individuals for what is deemed as “insanity”. This power is so absolute that even a specialized doctor in a medical center or its responsible person cannot object to it or oppose it. This issue, especially in the dependent and non-independent judicial system in Iran, has seriously violated the rights of individuals. In particular, judges affiliated with security institutions or prosecutors, due to their obedience to security-intelligence institutions, are legally authorized to institutionalize citizens for political or ideological reasons under the pretext of their own ruling of insanity in psychiatric centers. This forced institutionalization can deprive a citizen of their right to enjoy their rights and cause irreparable harm to their human rights.

On the other hand, giving the authority to make decisions about involuntary hospitalization to the judicial authorities has deprived a group of mentally ill patients who require urgent and involuntary hospitalization from accessing this right. This is because doctors are unable to make decisions regarding the urgent and involuntary hospitalization of patients due to the lack of legal permission in this matter.

Another main problem with current laws in Iran regarding individuals with mental disorders is that in these laws, all of these individuals are simply labeled as “insane” without considering the type and severity of their illness. However, according to psychiatrists and psychologists, mental illness encompasses a wide spectrum of disorders and has very different definitions. In this regard, the term “insanity” mentioned in the law is not only extremely vague and ambiguous, but if applied to an individual from a legal perspective, it will greatly affect their rights and make them in need of a guardian.

On the other hand, some mental disorders are cyclical and have a specific duration that affects the individual. However, the concept of insanity is a very general concept and from a medical perspective, it cannot accurately represent individuals with mental disorders in the law. Even the emphasis on article 1213 of the Civil Code on cyclical insanity has not been able to solve this problem; because cyclical disorders also have a wide spectrum and simply using the word insanity is not enough to introduce them.

This absolute legalism has caused all individuals with mental disorders, despite all their differences, to be seen with just one eye. While many of them have the ability to manage some or most of their affairs, this absolute legalism considers all individuals with mental disorders to be restricted in managing their own affairs, regardless of their level of ability, and prohibits their access to fulfilling their rights. In fact, according to current legal procedures, there is no middle ground for the legal competence of individuals with mental disorders, and they are either authorized to fully exercise their rights or this permission is completely denied to them.

This is while nowadays in many countries, the access of individuals with mental disorders to their rights and affairs varies depending on the degree and type of their disorder. In addition, the restrictions and the need for guardianship are constantly monitored and evaluated at regular legal intervals (every two to six months). However, in Iran, guardianship orders are generally issued without a specific time limit and are not monitored or evaluated.

The lack of specialized facilities for the care of criminals with mental disorders is another major gap in the laws in Iran. Since there are no special facilities in Iran for the care of criminals with mental disorders, these individuals are either kept in regular prisons alongside other criminals, or in facilities designated for the hospitalization and care of individuals with mental disorders, alongside other patients; with the difference being that they are assigned a law enforcement officer. This is a violation of the rights of the accused and prisoners, as well as a violation of the rights of other patients; as the treatment needs and conditions of these two groups are different and therefore require a separate environment.

This lack of identification of criminals, suspects, and prisoners with mental disorders has also resulted in their special conditions and needs not being taken into consideration during the trial process and before and after it, and they are treated the same as other suspects. However, these individuals may exhibit different behaviors due to their unique situations and the degree and type of their disorder, which often leads to them facing violence from the police and law enforcement officers.

The lack of specific laws regarding the rights of individuals with mental disorders in Iran has also resulted in a lack of necessary legal support for these individuals, particularly in terms of access to facilities, equal social conditions, and opportunities. As a result, these individuals face numerous challenges in finding employment. Meanwhile, in many countries, there are clear regulations for the mandatory employment of individuals with mental disorders (depending on the type and severity), and necessary legal mechanisms are in place to support them.

These legal voids, especially the lack of a specific protective law for individuals with mental disorders and the recognition of their rights in practice, have resulted in complete deprivation of their human rights or at least facing numerous restrictions, leading to their exclusion from society and lack of access to social opportunities.

Current efforts to draft a bill to support the rights of individuals with mental disorders, which began last year (1399), demonstrate the urgent need for the approval of such a law. However, these efforts have not yet reached a conclusion and the process is slow and inadequate.