Italian Constitutional Court requires legal defense for mandatory health treatments

Mandatory legal defense is now required during psychiatric hospitalizations without consent across Italy, altering how judges validate emergency mental health orders.

Sentence 157 and the Italian Constitutional Court Ruling

The Constitutional Court declared Article 35 of law no. 833 of 1978 constitutionally illegitimate because it lacked provisions requiring technical defense during validation hearings for mandatory health treatments in hospital wards and any subsequent extensions. The legal challenge originated from a Florence proceeding where a patient requested named lawyers during an evaluation, but the supervising judge validated the treatment without addressing the request. The Tribunal of Florence subsequently referred the matter to the Consulta via an ordinance dated December 29, 2025.

The Court grounded its decision in the nature of mandatory health treatments, noting that the measure directly infringes upon physical liberty, which the justices described as the primary core of personal freedom. Consequently, the presence of an attorney acts as a necessary mechanism to make the right to defense under Article 24 of the Italian Constitution effective.

Eliminating Optional Defense Barriers

The Tribunal of Florence had initially requested an optional defense model, but the Constitutional Court rejected that approach to prevent discriminatory outcomes. Restricting the framework to a purely optional right to appoint a private lawyer would create a dual distortive effect, according to the ruling. Individuals experiencing acute crises who lack sufficient lucidity or comprehension would remain undefended, alongside those lacking financial resources or family support networks.

Such an optional system would constitute an intolerable discrimination based on mental pathology and economic status, leaving the most vulnerable individuals without protection. The Court noted that the European Court of Human Rights upholds this exact principle regarding freedom deprivations linked to psychological distress.

Technical Defense Applies Immediately to Hospital Health Treatments

The ruling takes effect starting from the day following its publication in the Official Gazette, meaning technical defense applies immediately to every hospital-based mandatory health treatment without requiring new legislation. This decision builds upon sentence no. 76 of 2025, which mandated that patients receive ordinance copies and personal hearings before judicial validation.

The procedural steps for hospital-based mandatory health treatment span fixed deadlines under current law. Two public service doctors first establish clinical prerequisites, followed by mayoral issuance of an ordinance. The patient must receive notification alongside an advisory regarding defense rights under the 2026 ruling. If a private attorney is not designated, the supervising judge appoints an official defender from designated rosters.

Judicial hearings occur directly within hospital wards to ensure personal listening, with immediate notification dispatched to the appointed defender who is permitted to participate. Validation decrees are subsequently served to both the patient and the defense counsel. Statutory deadlines mandate transmitting ordinances to the supervising judge within 48 hours, followed by a 48-hour window for the judicial decision.

La difesa facoltativa diventerebbe così una intollerabile discriminazione fondata sul tipo di patologia mentale e sulla condizione economica e sociale, con il paradosso che proprio le persone più vulnerabili resterebbero prive di tutela.

Corte costituzionale