[Alternative for an equitable law on the protection of the person or confinement and mental illness: 2 impossible concepts].
Since the French Revolution legislation has been mainly concerned with the restraint of innocent people by the so-called "letters de cachet", as it was the case with the mentally ill. Two authorities were legally recommended for this restraint: a judiciary one--the judge--and an administrative one--the Town Mayor. In Belgium it was the changing political domination which decided for one or the other procedure. At present however a judiciary procedure is recommended by the Council of Europe. When the first laws were passed on this matter restraint for mental illness was the only possible proceeding as it was considered as been the sole medical approach of this illness in the 19th century. At present legislation should be based on new grounds and should rather focus on treatment and in particular on the protection of the patient in general. People, who can not give their "informed consent" since they endure extreme physical or mental weakness, should be represented by an authorized person appointed by the justice of the peace, to discuss the treatment in his place. Mentally ill people who are able to hold a discussion but who are disturbed by their illness fall under the same category. The magistrate administering justice of peace should here also appoint a representative when an indispensable treatment should be imposed on the reluctant patient.