Mental health: the Constitutional Court strengthens the protections of compulsory hospitalization

The legislation on compulsory medical treatment (TSO) improves to protect the constitutional rights of citizens, 47 years after law 180. This is the main meaning of the ruling number 76 of 30 May 2025 of the Constitutional Court, which establishes the illegitimacy of article 35 of law 833 of 1978, establishing the National Health Service. A historic decision affirms the right to adversarial proceedings and defense in the case of compulsory medical treatment (TSO)

What's happening today

Today, the conditions for a TSO include the existence of psychiatric alterations that require urgent therapeutic interventions, the patient's failure to accept them, and the absence of conditions and circumstances for the adoption of timely and appropriate extra-hospital measures. The reasoned proposal of a doctor is submitted for validation by a second doctor belonging to the national health service, usually a psychiatrist. Then the mayor adopts the provision that orders the TSO within 48 hours of the reasoned validation by the specialist. Finally, the mayor's provision must be notified, within 48 hours of hospitalization, to the guardianship judge who, within the following 48 hours, having gathered the information and ordered any tests, provides with a reasoned decree to validate or not validate the TSO and notifies the mayor.

What changes with the sentence

The Court, however, for greater protection of constitutional rights, believes that the interested person, or his legal representative where applicable, must receive communication of the mayor's order and must be heard by the guardianship judge, presumably in the hospital psychiatric service where he is hospitalized following the same mayor's order, before the final validation order.

More protection for the patient: the judge must hear him

The current procedure, according to the Court, determines "a significant compression of the right of defense and adversarial proceedings", for which the condition of mental alteration cannot be an obstacle. The ruling reports that the European Court of Human Rights (ECHR) itself has underlined the importance of the direct hearing of the patient by the guardianship judge, to truly and correctly evaluate the situation before deciding, also in order to adopt urgent measures such as the appointment of a provisional support administrator.

The Court underlines that “the obligation to communicate and to be heard were also deemed necessary in relation to other administrative measures restricting personal freedom, such as forced escort to the border and detention of the foreigner in repatriation detention centres”.

Compulsory medical treatment only if the judge decides so

The ruling recalls not only art. 32 of the Constitution according to which no one can be forced to undergo a specific health treatment unless by law, but also art. 13 according to which no restriction of personal freedom is permitted unless by a reasoned act of the judicial authority.

Among the measures restricting personal freedom, the Court includes "also any medical treatment that can be carried out with force against the patient". The ability of the TSO to be traced back to the joint guarantees of Articles 32 and 13 of the Constitution indicates its "exceptional nature" and the rule, as a rule, of "free and informed consent of the patient matured within the therapeutic alliance".

TSO to protect mental health

The Court also emphasizes that the TSO “is not a social defense measure but must necessarily be aimed at protecting the mental health of the patient himself”. With the upcoming publication of the ruling in the Official Journal, the Court’s indications will become effective from the following day, without the need for new rules. If Parliament intervenes, whatever the legislative solutions, they must be respectful of “the constitutional statute of personal freedom and the constitutional rights of defense and adversarial proceedings”.

In conclusion, this is an important decision that strengthens the dignity of people with mental disorders and their citizenship rights, clearly rejecting the mandate of social control to psychiatry, reaffirming the therapeutic purpose of TSO and excluding the constitutional needs of public order and security recognizable as the responsibility of the community.

Massimo Cozza, psychiatrist Director of the Mental Health Department ASL Roma 2