COMMITMENT ACCORDING TO PORTUGUESE LAW
III. The mentally ill patient: Specificities
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The capacity to self‑determine interests as well as the personal sphere results from the concrete and contemporary situation of decision‑making and act‑
ing. Human dignity prevents someone from being denied a full exercise of his highly personal legal rights, through a sentence, if he has full capacity to be self‑determined. Any attempt to instrumentalize an individual for legal certainty reasons is prohibited, whenever the legal interests in question relate to the exercise and implementation of legal personality.
Besides the person’s legal status, the capacity to act by himself is recognized to everyone as far as his personality rights are concerned, if at the time of the action the person has qualities and intellectual and voli‑
tional competencies to be responsibly self‑determined.
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a risk of a paternalistic intervention that may also jeopardize the self‑determination of the patient.
Medical intervention is only valid with the informed consent of the patient able to discern (except in situations of compulsory treatment), in which the consent may be revoked at any time (17). The consent given does not have to be present, because, and due to the particularities of the disease, the person may authorize a certain type of treatment prospectively — for issuance of advance directives
‑, thus the power to decide over their own personal sphere must be respected, holding the power to be freely revocable, if in a moment of lucidity the patient gets sufficient capacity for discernment (18).
The affirmation of the power of self‑determi‑
nation about the treatment must take into account variations of the clinical status and the patient’s current competence. Consent, as a dynamic process of communication, must adapt to the demands and risks of psychiatric treatment. Therefore, a duty of surveillance over the patient’s condition must pre‑
vail, in order to ensure the verification of factual circumstances for the competent affirmation of self‑
determination (19).
The particularities of the mentally ill patient are also felt as far as the legal possibility of compulsory detention and treatment are concerned, according to
(17) Erwin Deutsch e Andreas Spickhoff, Medizinrecht — Arztrecht, Arzneimittelrecht, Medizinprodukterecht und Transfusionsrecht, 6. Auflage (Heidelberg: Springer, 2008), pp. 522‑523.
(18) Erwin Deutsch e Andreas Spickhoff, Medizinrecht — Arztrecht, Arzneimittelrecht, Medizinprodukterecht und Transfusionsrecht, 6. Auflage (Heidelberg: Springer, 2008), p. 524.
(19) Erwin Deutsch e Andreas Spickhoff, Medizinrecht — Arztrecht, Arzneimittelrecht, Medizinprodukterecht und Transfusionsrecht, 6. Auflage (Heidelberg: Springer, 2008), p. 526.
the Mental Health Law (MHL) (20). The acknowl‑
edgment of the person’s power of self‑determination, whether or not the person is a mentally ill patient, it implies the assurance of treatments according to the expressed will by means of consent. Only in a very exceptional manner, and upon a proportional verifi‑
cation of the relevance of the content of the decision and the personal or supra‑individual or third party interests, it the compulsive medical intervention is undertaken (21).
Article 12, paragraph 1 of the MHL allows the compulsory treatment of a person capable of dis‑
cerning, who has a serious mental disorder and who is in a situation where his state creates a dangerous situation for his own or someone else’s legal interests of significant value, of a personal or financial nature, and who refuses to submit himself to the required medical treatment, driving the person to be admit‑
ted to the appropriate institution.
Paragraph 2 of the above stated Article foresees the possibility of commitment of the incompetent, when the absence of treatment may seriously dete‑
riorate his status. In the first case we are before a commitment due to danger and the second a tute‑
lary commitment (22).
(20) Pedro Soares Albergaria, “Internamento Compulsivo”, Sub Judice, n.º 14 (1999), p. 22; André Gonçalo Dias Pereira, O Consentimento Informado na Relação Médico‑Paciente (Estudo de Direito Civil) (Coimbra: Coimbra Editora, 2004), p. 587.
(21) Erwin Deutsch e Andreas Spickhoff, Medizinrecht — Arztrecht, Arzneimittelrecht, Medizinprodukterecht und Transfusionsrecht, 6. Auflage (Heidelberg: Springer, 2008), p. 540.
(22) José Carlos Vieira de Andrade, “O internamento compulsivo de portadores de anomalia psíquica na perspectiva dos direitos fundamentais” in A Lei de Saúde Mental e o Internamento Compulsivo (Coimbra: Coimbra Editora, 2000), p. 83. See also J. C. Dias Cordeiro, Psiquiatria Forense (A Pessoa como sujeito ético em medicina e em direito) (Lisboa: Fundação Calouste Gulbenkian, 2003), pp. 204‑205
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The prediction of an intervention on some‑
one’s personal sphere, in a coercive manner, which is able to consent to his medical treatment, is the utter limit of the restriction of the person’s power of self‑determination. The qualified judgment of proportionality that is here required is observed not only in the verification of the legal requirements for the application of the measure, but also in its execution. The verification of the necessity and appropriateness of compulsory treatment must be contemporary to the interests of the patient and the danger generated by his clinical condition. The commitment is only justifiable as a last resort, when compared to the non‑removal of the present danger Article 8, paragraph 3 of the MHL.
The need to refrain as much as possible the restriction of the patient’s fundamental rights results in the full affirmation of his rights and the excep‑
tional nature of this restriction. The special power relationship that comes from the compulsory inter‑
vention cannot jeopardize the full legal capacity of the assertion of self‑determination of the patient, except for the minimal necessary restrictions, for the well functioning of the institution or group he is inserted in, or for the removal of the danger that justified the application of the measure. Articles 8 (paragraph 4), 11 and 18 of the MHL are very clear about the identification and limitation of the restric‑
tive effects of the patient’s status, in particular the hospitalized one (23).
(23) José Carlos Vieira de Andrade, “O internamento compulsivo de portadores de anomalia psíquica na perspectiva dos direitos fundamentais”, in A Lei de Saúde Mental e o Internamento Compulsivo (Coimbra: Coimbra Editora, 2000), pp. 89‑90.
Regarding the tutelary commitment, there shall exist reinforced caution in the verification of its assumptions. As Helder Roque states, “if the actual injury of legal goods of a personal nature is not always subordinated, regardless of the will of the victim, the compulsory commitment of a citizen that bears a mental illness does not seem justifi‑
able, where there is a mere danger of injury of such goods” (24). The proportionality principle, therefore, requires a close correlation between the coercive imposition of a commitment due to the existence of a serious danger to life or personal integrity of the incapable patient. The patient’s incapacity does not legitimize the hetero‑determination of his sphere of interest, without a clear justification. In the case of the need to provide for the incompetent’s treatment, it should occur in a privileged manner under civil protection measures.
In both types of compulsory interventions, the requirement and extent of the treatment or commit‑
ment are the basis that justifies its compulsive nature as far as the mentally ill patient is concerned. Thus, only the mental illness that serves as the basis of the measure can be processed and for all the other pathological conditions are mobilized the general rules (in this sense, Article 7 of the CDBH (25). The breach of self‑determination also implies that the medical intervention to be limited to the removal of the danger by resorting to treatments according
(24) Hélder Roque, “Uma reflexão sobre a nova Lei de Saúde Mental”, in A Lei de Saúde Mental e o Internamento Compulsivo (Coimbra: Coimbra Editora, 2000), p. 128.
(25) Convention for the Protection of Human Rights and Dignity of the Human Being with regard to the Application of Biology and Medicine: Conven‑
tion on Human Rights and Biomedicine
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to the legis artis pelleted and accepted within the medical practice.
IV. The definition of “voluntary” commitment