2011: Restrictions of freedom
The right to personal liberty is guaranteed by article 27 of the Constitution. This right is frequently violated as many elderly people are interned in nursing homes and residential care homes without their formal agreement. Portuguese legislation (Decreto-Lei nº 64/2007) imposes formal contracts and stipulates that only the client or his/her legal representative can sign these contracts (so as to make involuntary internment difficult). However, it remains a cultural practice and relatives still violate this legal measure. So people are attending nursing homes or day care centers without their consent or even against their will. It is against the fundamental rights stated in the Portuguese Constitution and in International Conventions that are in force in Portugal.
The involuntary internment of people with dementia is much better regulated and is covered by the Law on Mental Health No. 36/98 of 24 July 1998.
The conditions for involuntary internment
Clause 12 of the above-mentioned law lays down the following conditions for involuntary internment:
- The person suffering from a serious psychological illness who, as a result of the illness, threatens the judicial property of significant value, either belonging to him/her or others, of a personal or equity nature, and who refuses to submit himself/herself to the necessary medical treatment, can be interned in a suitable establishment.
- The person suffering from a serious mental illness who does not possess the necessary judgement to evaluate the meaning and extent of consent, and for whom absence of treatment causes acute deterioration of his/her state, may also be interned.
Involuntary internment, according to clause 8, should only be used if it can be justified as proportional to the potential danger that non-internment would entail and if it is the only way to ensure that the person will receive the necessary treatment. If possible, it should be substituted by out-patient treatment.
The procedure for involuntary internment
The legal representative, any person with the legal right to request restraint, the public health authorities and the Public Prosecutor all have the right to apply for internment. In addition, whenever a doctor, in the course of an examination or visit, finds that either of the above conditions has been fulfilled, s/he may contact the relevant public health authority in order to request compulsory internment. The clinical director of a psychiatric institution can also request the forced internment of a voluntary patient (clause 13).
The application should simply be addressed in writing to the competent court. There are no special formalities to respect concerning the writing of the application but it should contain a description of the facts on which the application is based and wherever possible, it should include information which might assist the judge in his/her decision, e.g. clinical, psychiatric and psychosocial reports. The judge then notifies the person concerned, informing him/her of the relevant rights and rules of court procedure. A counsel for defence is appointed and the person's spouse is informed (clause 14-15).
A clinical-psychiatric evaluation is carried out by the psychiatric services in the area where the person lives. A report must be produced within 7 days and submitted to the Court. If there is any disagreement amongst the psychiatrists, each must present his/her report and the judge may then decide to arrange for another clinical-psychiatric evaluation to be carried out by other psychiatrists (clause 17).
On receipt of the clinical-psychiatric report, the judge arranges for a hearing. The presence of other people may be requested, in particular a doctor and psychiatrists in order to lend additional support. The whole process may take several days and the decision to intern the person must be based on specific clinical justification, including a clinical diagnosis and relevant reasons. A joint session is then held. The internee's counsel for defence and the Public Prosecution Service must be present at this session. Having heard all the relevant parties the judge then either declares that a decision has been made immediately or will be made within 5 days. The decision must include details of the person to be interned, clinical reasons, the clinical diagnosis and where relevant the reasons for internment. Notification of the decision is given to the Public Prosecution Service, the internee, the counsel for the defence and the applicant. Arrangements can then be made to transport the internee to the relevant place of internment. The place of internment must be as near as possible to the internee's home. The location of this place must be communicated to the internee's counsel for the defence, the relative living closest to the internee, the person who lives with him/her as a spouse or a person in whom the internee trusts (clause 18-21).
A person who is incapacitated can be interned, but whenever this occurs, a certificate must be obtained from the competent court that certain provisions of the Law on Mental Health have been respected. These clauses deal with the possibility of organising out-patient treatment wherever possible, the termination of internment when the conditions for it are no longer valid and the regulated review of the need for internment (clause 29).
The duration of involuntary internment
As stated above, internment may be terminated if the conditions which led to it are no longer valid.
The right to appeal
Once a person has been interned, s/he has certain rights in addition to those of general patients. These include the right to be informed and wherever necessary to receive clarification on his/her rights, to be represented by a counsel for defence, to appeal against the internment decision, to send and receive correspondence, to be present at any proceedings which directly concern him/her and to communicate with a special committee.
The above-mentioned committee is established in accordance with clause 38 of the Law on Mental Health No. 36/98 of 24 July 1998. It is made up of psychiatrists, jurists, a representative of an association of relatives and mental health users and other mental health experts nominated by the Ministries of Justice and Health. The committee is responsible for visiting establishments, communicating directly with the internees, dealing with their complaints and correcting any violations of the law on internment.
Restriction of personal liberty
It is illegal to deprive someone of his/her personal liberty according to Article 27 of the Constitution. It is further stated in paragraph 2 of article 27:
“No one shall be deprived of his or her liberty, in whole or in part, unless as the consequence of a sentence of imprisonment imposed by a court convicting him or her of an offence punishable by law, or as the consequence of a security measure judicially ordered.”
Restraint and other coercive measures
The Law on Mental Health No. 36/98 of 24 July 1998 contains a clause which covers the rights and duties of the people who have recourse to mental health care (not only those who have been interned). According to clause 5, it is illegal to subject a person to electro-convulsive therapy without his/her consent. However, if it is judged that a person is incapable of evaluating the meaning or extent of consent to the above, the decision can be taken by his/her legal representative.
There is an administrative regulation, binding all the National Health System professionals (“Circular Normativa Nº: 08/DSPSM/DSPCS de 25/05/07) that specifies the conditions under which a physical restraint measure is acceptable (only as an exception, in very severe situations threatening the person’s integrity and under a medical prescription. A nurse can only decide about this in very special cases. All physical restraint measures have to be registered and duly justified.
Clause 5 of the Law on Mental Health No. 36/98 of 24 July 1998 states that users of mental health services should be able to enjoy decent living conditions, hygiene, food, safety, respect and privacy in internment and residential accommodation. Furthermore, they should be allowed to communicate with the outside world and receive visits from family members, friends and legal representatives (albeit within the limitations imposed by the services and the nature of the illness). Finally, it is stated that treatment and protection should be given to the patient in a way which respects his/her individuality and dignity.
The new Code of Medical Ethics of 2009 also addresses the issue of abuse. Article 52 recognises the particular need to care for children, the elderly and people who are dependent, particularly when they are mistreated by their families. Article 53 mentions the special need to protect victims of abuse and denounce such acts (Guimaraes, 2008).
Article 152.º - A of the Portuguese Criminal Code states that if a person, having under his/her responsibility a minor or someone who is especially weak because of his/her age, handicap, disease or pregnancy, mistreats that person, physically or psychologically, including physical punishments, deprivation of freedom, sexual offenses or cruel treatments, s/he will be punished with a prison sentence of one to five years.
This penalty may be increased to between two and eight years in case of a severe offense against physical integrity, or to between three and ten years if the mistreatment results in the death of the victim.
The Physical, Mental and Psychological Condition of Drivers is now governed by the “Decreto-Lei nº 313/2009” of 27.10. in which Article 18, nº 1, states that people who are found to have serious cognitive impairments (linked to attention, perception and memory) in the relevant clinical examinations will not be granted a driving license or be able to renew an existing license.
According to article 18, nº 2, an application from any person presenting the following symptoms must also be rejected:
- Behaviour which reveals mental deterioration, mental weakness or low resistance to a processing overload.
- Psychotic or para-psychotic behaviour.
- Clear emotional instability.
- Cyclical syndromes.
- Aggressiveness and impulsiveness or irritability of an explosive nature.
- Acute agitated behaviour.
- Depressive or antisocial behaviour.
Article 13º of the same decree covers the medical professionals’ duty to report people who are unfit to drive to the relevant authorities. It states that medical professionals who, in the course of their clinical activity, treat drivers with chronic or progressive illness or handicap, or identify psychiatric disorders which might affect the patient’s ability to drive safely must communicate this to the Health Authority and provide the Health Authority with a detailed confidential clinical report.
Firmino, H., Silva Carvalho, P. and Cerejeira, J. (2008), Practice of competence assessment in dementia: Portugal. Ed. Gabriela Stoppe (2008),Competence assessment in dementia,Springer Wien New York.
Guimaraes, P. (2008), Personal communication
Last Updated: Wednesday 14 March 2012