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Law n.º 36/98 of July 24 : Mental Health Act
The Assembly of the Republic decrees
the following, with the force of national law , pursuant to
Article 161, paragraph c), Article 165 paragraphs a) and b)
of nº 1 and Article 166 nº 3 of the Constitution:
CHAPTER I
General provisions
Article 1
Objectives
The present Act establishes the general
principles of the mental health policy and governs the compulsory
detention of persons suffering from mental disorders, namely
persons with mental illness.
Article 2
Protection and promotion
of mental health
1. The protection of mental health is
achieved through measures which contribute towards ensuring
or re-establishing the individuals' mental equilibrium, enhancing
the development of the capacities involved in the construction
of the personality and promoting their critical integration
in their social environment.
2. The measures referred to in the preceding paragraph, include
primary, secondary and tertiary activities for the prevention
of mental illness, as well as those which contribute to the
promotion of the populations' mental health.
Article 3
General principles of
mental health policy
1. Without prejudice to the provisions
of the Framework Law for Healthcare, the following general
principles should be observed:
a) The provision of mental healthcare
is undertaken primarily at the community level, so as to
avoid the displacement of patients from their familiar environment
and to facilitate their rehabilitation and social integration;
b) Mental healthcare is provided in the least restrictive
environment possible;
c) The treatment of mental patients on an inpatient basis,
usually takes place in general hospitals;
d) The care of patients who fundamentally require psychosocial
rehabilitation, is preferably undertaken in residential
structures, day centres and training and professional rehabilitation
units, which are part of the community and adapted to the
patient's specific degree of autonomy.
2. In the cases stipulated in paragraph
d) of the preceding paragraph, the charges incurred with the
services rendered within the framework of rehabilitation and
social integration, residential support and professional reintegration
will be subsidised pursuant to the provisions to be defined
by the members of Government responsible for the areas of
health, social security and employment.
3. Mental healthcare is to be provided by multidisciplinary
teams capable of responding in a concerted manner to the medical,
psychological, social, nursing and rehabilitation aspects.
Article 4
National Council of
Mental Health
1. The National Council of Mental Health
is the Government's advisory body in matters pertaining to
mental health policy, with the representation of the entities
interested in the functioning of the mental health system,
namely family and patient associations, health subsystems,
mental health professionals and government agencies with related
fields of activity.
2. The membership, responsibilities and functioning of the
National Council of Mental Health are governed by Decree-Law.
Article 5
Patient Rights and Duties
1. Without prejudice to the provisions
of the Framework Law for Healthcare, the patient utilising
the mental health services, is further entitled to:
a) Adequate information regarding his/her
rights as well as the proposed treatment plan and expected
effects;
b) Receive treatment and protection, based on the respect
for his/her individuality and dignity;
c) Decide whether or not to accept the proposed diagnostic
and therapeutic interventions, except in cases of compulsory
detention or in emergency situations in which non-intervention
would pose verifiable risks to the person himself or to
others;
d) Not be submitted to electroconvulsive therapy without
his/her previous written consent;
e) Accept or refuse, in accordance with the laws in force,
to participate in investigations, clinical experiments or
training activities;
f) Benefit from proper living conditions, hygiene, food,
safety, respect and privacy in hospitalisation services
and residential structures;
g) Partake of outside contact and be visited by family,
friends and legal representatives with the limitations inherent
to the functioning of the services and the nature of the
illness;
h) Receive just remuneration for activities performed or
services rendered;
i) Receive support in exercising the rights of protest and
complaint.
2. Psychosurgical interventions require,
in addition to previous written consent, the favourable written
opinion of two psychiatric doctors designated by the National
Council of Mental Health.
3. The rights referred to in paragraphs c), d) and e) of nº
1 shall be exercised by legal representatives, in situations
where the patients are under the age of 14 or do not possess
the necessary judgement to evaluate the meaning and implications
of the consent.
CHAPTER II
Compulsory detention
SECTION I
General provisions
Article 6
Scope of application
1. This chapter regulates the compulsory
detention of persons suffering from mental disorders.
2. Voluntary admission is not covered by the provisions of
this Chapter, except in cases where a person voluntarily admitted
into an institution, falls under the conditions stipulated
in Articles 12 and 22.
Article 7
Definitions
For the purposes of this Chapter, the
following shall be considered:
a) Compulsory detention: detention of a person suffering
from a serious mental disorder as a result of a judicial
decision;
b) Voluntary detention: detention at the request of a person
suffering from a mental disorder or the legal representative
of a minor under the age of 14.;
c) Patient to be detained : person suffering from a mental
disorder submitted to the proceeding leading to the decisions
stipulated Articles 20 and 27;
d) Institution: Hospital or analogous institution which
provides for the treatment of a person suffering from a
mental disorder;
e) Public health authorities: As described by law;
f) Police authorities: directors, officials, inspectors
and sub-inspectors of the police force so recognised by
the respective laws.
Article 8
General Principles
1. Compulsory detention may only be determined
in cases where it is deemed to be the only way of guaranteeing
that the detained patient is submitted to treatment, and shall
be suspended as soon as the reasons for its inception have
ceased to exist.
2. Compulsory detention may only be determined in cases where
it is deemed proportional to the danger and the legally protected
value in question.
3. Whenever possible, detention should be substituted for
out-patient treatment.
4. The restrictions imposed by compulsory detention on a patient's
fundamental rights shall be those which are strictly necessary
and suitable to the effectiveness of the treatment and the
safety and normal functioning of the institution, in accordance
with the respective internal regulations.
Article 9
Subsidiary Laws
In the cases which are not contemplated
herein, the Code of Criminal Procedure shall be applicable,
duly adapted.
SECTION II
Of rights and duties
Article 10
1. The patient to be detained has the
right to:
a) Be informed of his/her rights;
b) Be present in the procedural acts which directly pertain
to him, except in situations where his/her state of health
does not so permit;
c) Be heard by a judge whenever a decision might be taken
which personally affects him, except in cases where his/her
state of health renders the hearing futile or unfeasible;
d) Be assisted by an appointed or nominated defence attorney,
in all procedural acts in which he participates and in those
procedural acts which directly pertain to him and in which
he is not present;
e) Submit evidence and request the proceedings deemed necessary.
2. It is incumbent upon the patient to
be detained to submit himself to the measures and proceedings
stipulated in Articles 17,21, 23, 24 and 27.
Article 11
Rights and duties of
the detained patient
1. The detained patient maintains the
rights recognised to patients admitted in general hospitals.
2. The detained patient benefits in particular from the right
to:
a) Be informed of and, whenever necessary
explained his/her rights;
b) Explained the reasons surrounding his/her deprivation
of freedom;
c) Assisted by an appointed or nominated defence attorney,
with whom he may communicate in private;
d) Appeal the compulsory detention decision as well as the
decision to extend such detention;
e) Vote, in accordance with the law;
f) Send and receive mail;
g) Communicate with the commission stipulated in Article
38.
3. The detained patient has the duty to
submit to the medically prescribed treatments, without prejudice
to the provisions of Article 5 paragraph 2.
SECTION III
Detention
Article 12
Principle
1. A person suffering from a serious mental
disorder, who by virtue of this condition creates a situation
of danger to legally protected rights of relevant value, whether
his/her own or those of others, of a personal or patrimonial
nature, and refuses to submit to the necessary medical treatment
may be compulsorily detained in an appropriate institution.
2. A person suffering from a serious mental disorder who lacks
the necessary discernment to evaluate the meaning and implications
of consent, may be compulsorily detained in cases where the
absence of treatment can result in a significant deterioration
of his/her condition.
Article 13
Eligibility
1. Compulsory detention may be petitioned
by the legal representative of a person suffering from a mental
disorder, any person eligible to apply for his/her interdiction,
public health authorities and the Public Prosecution Service.
2. Whenever a doctor in the exercise of his/her duties, detects
a mental disorder with the effects stipulated in Article 12,
he may communicate such information to the competent public
health authority for the purposes of the provisions of the
preceding paragraph.
3. The clinical director of an institution, is also eligible
to apply for compulsory detention, in cases where detection
of a mental disorder occurs in the course of a voluntary admission
to such institution.
Article 14
Application
1. The application, addressed to the competent
court is made in writing without any special formalities and
should contain a description of the facts upon which the request
of the applicant is based.
2. Whenever possible, the application should comprise information
which can contribute to the decision of the judge, namely
psychiatric and psychosocial reports.
Article 15
Subsequent provisions
1. Following receipt of the application,
the judge shall notify the patient to be detained, inform
him of his/her procedural rights and duties and nominate a
defence attorney, the intervention of whom shall cease if
he appoints his/her own attorney.
2. The defence attorney as well as the nearest relative residing
with the patient, or person living with him as a spouse, are
notified to submit whatever applications they might see fit,
within a period of five days.
3. The file is sent to the Public Prosecution Service for
the same purposes and with the same time limit.
Article 16
Fact Finding procedures
1. The judge, either officiously or by
application, shall determine the procedures which he deems
appropriate, and essentially, the psychiatric assessment of
the patient, who will be duly notified for the purpose.
2. In the case stipulated under Article 13 paragraph 3, the
judge may forego the assessment referred to in the preceding
paragraph, designating at once the date for the joint session,
pursuant to Article 18.
Article 17
Psychiatric assessment
1. The psychiatric assessment is remanded
to the official psychiatric assistance services, of the patient's
area of residence and should be carried out within a period
of 15 days, by two psychiatrists, with the possible assistance
of other mental health professionals.
2. In exceptional cases, the assessment referred to in the
previous paragraph may be remanded to the forensic psychiatry
services of the Institute of Forensic Medicine.
3. Whenever there is a strong likelihood that the patient
to be detained will not be present on the designated date,
the judge shall issue a bench warrant to ensure appearance.
4. The services shall forward their report to the court, within
a maximum period of seven days.
5. The technical scientific assessment inherent to the psychiatric
assessment, is not subject to the judge's free appraisal.
Article 18
Joint session preparatory
measures
1. After receipt of the psychiatric assessment,
the judge shall designate a date for the joint session, of
which the patient to be detained, the defence attorney, the
applicant and the Public Prosecution Service shall be informed.
2. The judge may convene to the session any other persons
whose hearing he deems appropriate, namely the attending physician
and determine officiously or by application, that the psychiatrists
render additional clarifications, for which purpose they shall
be informed of the day, time and place of the joint session.
3. In cases of conflicting psychiatric assessments, each psychiatrist
shall render his/her report and the judge may determine that
the psychiatric assessment be repeated by other psychiatrists,
pursuant to Article 17.
Article 19
Joint session
1. The patient's defence attorney and
the Public Prosecution Service must be present at the joint
session.
2. After hearing the persons convened, the judge shall allow
the applicant's attorney, the Public Prosecution Service and
the defence attorney to make their summary pleadings and shall
render a decision immediately, or within a maximum period
of five days in complex cases.
3. In cases where the patient to be detained agrees to the
detention and there are no reasons to question this acceptance,
the judge shall arrange for him to report to the nearest official
mental health service and shall determine that the case be
filed.
Article 20
Decision
1. The detention order shall always be
well-founded.
2. The detention order shall identify the person to be detained
and specify the clinical reasons, clinical diagnosis, whenever
available and the motive for detention.
3. The Public Prosecution Service, the patient to be detained,
the defence attorney and the applicant, shall be notified
of the detention order, the reading of which shall be equivalent
to the notification of the parties present.
Article 21
Implementation of the
detention order
1. In the detention order, the judge shall
determine that the detained patient report to the nearest
official mental health service, which shall arrange for immediate
admission.
2. The judge shall issue a bench warrant with the identification
of the person to be detained, which shall be executed whenever
possible, by the service referred to in the preceding paragraph,
with the assistance if necessary, of the police forces.
3. In cases where compliance cannot be met in accordance with
the preceding paragraph, the bench warrant may be executed
by the police forces which, whenever necessary may request
the assistance of the mental health or local health services.
4. As soon as the final place of detention has been determined,
which should be located as close as possible to the detained
patient's residence, the latter shall be communicated to the
defence attorney as well as the nearest relative residing
with the patient, person living with him as a spouse, or person
of his/her confidence.
SECTION IV
Emergency Admission
Article 22
Provisions
A person suffering from a serious mental
disorder may be subject to an emergency compulsory detention,
pursuant to the following articles, in cases where, given
the provisions of Article 12 paragraph 1 , there is imminent
danger to the legally protected values referred therein, namely
due to an acute deterioration of the person's state.
Article 23
Escort of the patient
to be detained
1. Given the provisions of the preceding
Article, the police or public health authorities may determine,
officiously or by application, through a warrant, that the
person suffering from a mental disorder be escorted to the
institution referred in the proximate Article.
2. The warrant is executed by the police forces, with the
assistance, whenever possible, of the services of the institution
referred to in the proximate Article. The warrant shall be
signed by the competent authority and shall provide the identification
of the person to be escorted and indication of its basis .
3. In cases where, due to the urgency of the situation and
the dangers of delay, a warrant may not be previously issued,
any police officer may proceed with the immediate escort of
the patient.
4. In the above mentioned case, the police officer shall make
a report outlining the facts as well as the time and place
in which the occurrence took place.
5. The Public Prosecution Service with responsibility for
the area in which the escort was initiated, shall be advised
of the occurrence immediately.
Article 24
Presentation of the
patient to be detained
The patient to be detained, shall immediately
be presented to the nearest institution with a psychiatric
emergency, to the place where the process of detention was
initiated, where he will be submitted to a formal psychiatric
assessment and provided with the appropriate medical assistance.
Article 25
Subsequent provisions
1. In cases when the psychiatric assessment
determines the need for detention and such a measure is opposed
to by the patient, the institution shall immediately communicate
the admission of the patient to the competent court, with
copy of the warrant and assessment report.
2. In cases where the psychiatric assessment does not determine
the need for detention, the entity which presented the person
suffering from a mental disorder shall set him immediately
free and submit the process to the Public Prosecution Service
with responsibility for the area in which the escort was initiated.
3. The provisions of paragraph 1 are applicable when in the
psychiatric emergency or during the course of a voluntary
admission the situation described in Article 22 becomes apparent.
Article 26
Judicial confirmation
1. Upon receipt of the communication referred
to in paragraph 1 of the preceding Article, the judge shall
appoint a defence attorney for the patient and examine the
reports of the Public Prosecution Service.
2. After conducting the necessary steps, the judge shall issue
a decision regarding whether detention should or not be maintained,
within a maximum time limit of forty eight hours from the
deprivation of freedom, pursuant to articles 23 and 25 paragraph
3.
3. The decision to maintain the detention is communicated
to the competent court along with all the elements on which
it is based.
4. The decision is communicated to the patient and nearest
relative residing with him, or person living with him as a
spouse, as well as to the attending physician; the former
shall be advised whenever possible, of his/her procedural
rights and duties.
Article 27
Final decision
1. Upon receipt of the communication referred
to in paragraph 3 of the preceding Article, the judge shall
begin the compulsory detention process based on the principles
stipulated in Article 12 and shall therefore order a new psychiatric
assessment to take place within five days by two psychiatrists
not involved in the previous assessment and with the possible
assistance of other mental health professionals.
2. The provisions of Article 15 shall also be accordingly
applicable .
3. Upon receipt of the psychiatric assessment and once the
necessary steps have been undertaken, the date for the joint
session shall be designated, to which the provisions of articles
18, 19, 20 and 21 paragraph 4 shall be accordingly applicable.
SECTION V
Special cases
Article 28
Pending criminal suit
1. The existence of a pending criminal
suit in which the person suffering from a mental disorder
is the defendant, does not preclude the competent court from
ruling on compulsory detention pursuant to this statute.
2. In case of compulsory detention, the institution shall
submit, every two months information regarding the progress
of the person suffering from a mental disorder to the court
where the criminal suit is pending.
Article 29
Compulsory detention
of a non-imputable person
1. The court which does not apply the
safety measure set out in Article 91 of the Criminal Code
can decide upon the compulsory detention of a non-imputable
person.
2. In all cases where detention in imposed, a certificate
of the decision shall be submitted to the competent court
for the purposes of the provisions of articles 33, 34 and
35.
SECTION VI
Common provisions
Article 30
Rules of competence
1. For the purpose of the provisions of
this Article, competent court shall mean the judicial court
of generic competence of the patient's area of residence.
2. If in the district of residence of the patient there is
a judicial court specialising in criminal matters, the latter
shall be held as the competent court.
Article 31
Habeas corpus by virtue
of illegal deprivation of freedom
1. The person suffering from a mental
disorder who is deprived of freedom, or any citizen in the
use of his/her political rights may petition the court of
the area where the person is found for immediate release based
on any of the following:
a) The time period set out in Article
26 paragraph 2 has elapsed;
b) The deprivation of freedom was carried out or ordered,
by an incompetent entity;
c) The deprivation of freedom was engendered outside the
cases or conditions stipulated in this Act.
2. Upon receipt of the petition, the judge,
except in cases where the latter is deemed manifestly ill-founded,
shall order if necessary by telephone, the immediate appearance
of the person suffering from the mental disorder.
3. In conjunction with the order referred to in the preceding
paragraph, the judge shall notify the entity charged with
the responsibility for the person suffering from a mental
disorder, or representative, to be present at the same hearing
with the necessary information and clarifications for a decision
on the application.
4. The judge shall render a decision after hearing the Public
Prosecution Service and the defence attorney, appointed or
nominated for the purpose.
Article 32
Decisions subject to
appeal
1. Without prejudice to the provisions
of the previous Article, the decision rendered pursuant to
articles 20, 26 paragraph 2, 27 paragraph 3, and 35 are subject
to appeal to the competent Court of Appeal.
2. The detained patient, his/her defence attorney, the person
applying for detention, pursuant to Article 13 paragraph 1
and the Public Prosecution Service may appeal.
3. The appeals stipulated in this Chapter are only reversal
in nature.
Article 33
Alternative to compulsory
detention
1. Detention is substituted for compulsory
out-patient treatment, whenever such treatment can be performed
under conditions of freedom, without prejudice to the provisions
of articles 34 and 35.
2. The alternative to detention depends upon the express agreement
of the detained patient, to the conditions for out-patient
treatment, stipulated by the attending psychiatrist.
3. The alternative shall be communicated to the competent
court.
4. Whenever the stipulated conditions are not met with by
the patient, this situation shall be reported to the competent
court and detention shall be resumed.
5. Whenever necessary, the institution shall request from
the competent court, the issue of bench warrants to be executed
by the police forces.
Article 34
Discharge of patients
compulsorily detained
1. Compulsory detention shall terminate,
once the factors which originate this measure have ceased.
2. Compulsory detention shall cease following a discharge
order by the institution's clinical manager, based on a psychiatric
assessment report by the health service where detention took
place, or by a judicial decision.
3. The discharge shall be immediately communicated to the
competent court.
Article 35
Review of the detained
patient's situation
1. In cases where the existence of factors
justifying the cessation of the compulsory detention is evoked,
the competent court shall promptly examine the matter.
2. A review of the patient's situation is mandatory, independently
of whether it is requested, two months following the beginning
of the detention, or the decision to extend it.
3. The detained patient, his/her defence attorney and the
persons referred to in Article 13 paragraph 1 are all entitled
to request a review.
4. For the purposes of the provisions of paragraph 2, the
institution shall send a psychiatric assessment report by
two psychiatrists with the possible assistance of other mental
health professionals, up to 10 days before the date established
for the review.
5. The Public Prosecution Service, the patient's defence attorney
and the detained patient shall be heard at the mandatory review,
except in cases where the patient's state of health renders
his/her hearing futile or unfeasible.
SECTION VII
Of the nature and costs
of the proceedings
Article 36
Nature of the proceedings
The proceedings set out in the current
Chapter are of a secret and urgent nature.
Article 37
Costs
The proceedings set out in this Chapter
are exempt of costs.
SECTION VIII
Monitoring Commission
Article 38
Establishment and purposes
A Commission is hereby established, to
monitor the implementation of the provisions of the current
Chapter, herein after designated as "Commission".
Article 39
Head Office and administrative
services
Through a joint order of the Ministers
of Justice and Health, the technical and administrative support
services to the Commission are hereby defined, as well as
the respective head Office.
Article 40
Membership
The Commission is comprised of psychiatrists,
lawyers, a representative of the association of mental health
family members and users and other mental health workers appointed
by joint order of the Ministers of Justice and Health.
Article 41
Responsibilities
The Commission shall have as its main
responsibilities to :
a) Visit the institutions and communicate directly with
detained patients ;
b) Request from or submit to any administrative or legal
institution, information regarding detained patients;
c) Receive and examine the complaints of the detained patients
or of persons eligible to request the detention, regarding
their conditions;
d) Request that the Public Prosecution Service undertake
the necessary legal proceedings with the competent court,
to correct any violations of the law which it may observe
during the course of its duties;
e) Gather and analyse the information regarding the application
of the current Chapter;
f) Propose to the Government the measures deemed necessary
to the implementation of the current Act.
Article 42
Co-operation
1. For the purposes of paragraph e) of
the preceding Article, the courts shall submit to the Commission,
copies of the decisions set-out in the current Chapter.
2. It is the duty of public and private institutions to render
the commission the necessary co-operation for the exercise
of its responsibilities.
Article 43
Database
Pursuant to the terms and conditions set-out
in the legislation regarding protection of personal data and
medical secrecy, the commission shall promote the organisation
of a computer database regarding the application of the current
Chapter, accessible to public and private entities with a
legitimate interest in the matter.
Article 44
Report
The commission shall present a yearly
report to the Government until March 31st of the following
year, on the exercise of its responsibilities and the implementation
of the provisions of the current Chapter.
CHAPTER III
Final and transitory
provisions
Article 45
Transitory provisions
1. The proceedings filed up to the date
of entry into force of the present statute shall continue
to be governed by Law nº 2118 of April 3, 1963, until
the decision to apply the detention.
2. The hospital institutions harbouring compulsory detained
patients under the law referred to in the preceding paragraph,
shall, within a maximum time limit of two months following
the entry into force of the current Act, communicate to the
competent court the clinical situation of those patients and
the basis for the respective detention and shall identify
the proceeding at which the decision determining the detention
was given.
3. In cases where the decision pertaining to detention is
given after the entry into force of the current Act, the time
limit referred to in the preceding paragraph shall begin after
the commencement of the implementation of the decision determining
the detention.
4. The court shall request the proceeding in which the decision
was given from the entity which determined the detention and
once this has been received, shall comply with the provisions
of Article 35 of the current Act.
SECTION II
Final provisions
Article 46
Management of patient's
assets
The management of assets belonging to
mental patients who have not been declared mentally incompetent
, are governed by decree-law.
Article 47
Mental health services
The organisation of mental health services
is governed by decree-law.
Article 48
Entry into force
The current Act shall enter into force
six months following its publication.
Article 49
Revocation
Law nº 2118 of April 3, 1963 is hereby
revoked.
Approved on June 18, 1998. The President of the Assembly of
the Republic, António Almeida Santos.
Enacted on July 8, 1998. To be published.
The President of the Republic, Jorge Sampaio.
The Prime-Minister, António Manuel
de Oliveira Guterres.
(Tradução de Manuela Enweren)
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