1. The context
On 20 August 2023 a new regulation on mental health entered into force (Act no. 35/2023, Mental Health Act). The fact was widely reported in the media with headlines such as “New mental health act ends with ‘life imprisonment’ for the unimputable”, “The Mental Health Act: 40 unimputable people released from ‘life imprisonment’”, “The new Mental Health Act: more humane or more complex?” and “Another step for mental health. New act now in force”.
In the explanatory note accompanying the government’s proposal, (Draft Law no. 24/XV/1 of 2022) it is pointed out that the new regulation aims to revise and update the rights and duties of people in need of mental health care, in line with progress in medical science and pharmacology, and with international and European law instruments. There are mentions of the United Nations Convention on the Rights of Persons with Disabilities (2006), the WTO Global Mental Health Action Plan (2013; 2021), the European Framework for Action on Mental Health and Wellbeing (2016), and the Council of Europe Additional Protocol to the Convention on Human Rights and Biomedicine, concerning the protection of human rights and dignity of persons with involuntary placement and involuntary treatment within mental health care services (2012).
It could have also mentioned the European Court of Human Rights Case Fernandes de Oliveira v. Portugal, 78103/14, Judgment (merits and just satisfaction), Court (Grand Chamber), 31/01/2019. In this judgment, it was a contentious point whether Portugal had sufficient regulation in place under Article 2 to protect people suffering from mental illness from harm inflicted by themselves (no. 119), i.e., a “regulatory framework compelling hospitals to adopt appropriate measures for the protection of patients’ lives” (no. 103) [“The applicant complained under Article 2 of the Convention that her son, A.J., had been able to commit suicide as a result of the negligence of the psychiatric hospital where he had been hospitalised on a voluntary basis.” (no. 3)].
According to the Portuguese judge Pinto de Albuquerque’s partly dissenting opinion, at the time of the death of A.J. (2003), “Portugal was in the pre-historic stages of suicide prevention of psychiatric inpatients”; it has no legislation that established what types of regimes (“restrictive” and “regular”) could be applied, under what circumstances, by whom and until when (no. 13). “[T]here was and still is no clear legal framework regarding the State obligation to protect the life of mentally ill patients in voluntary internment in public hospitals” (no. 13).
Elif Celik commenting on the case, observes that “regarding the restrictions of persons with psychosocial disabilities… the ambition of the [European] Convention [on Human Rights] is to eliminate institutionalisation”; and argues that it is important to bear in mind “that emphasising the liberty and autonomy of persons without addressing their extreme vulnerability may result in a reoccurrence of similar events” (“Exploring the use of the concept human dignity in disability human rights law: from UNCRPD to EctHR”, The Age of Human Rights Journal, (17), 27–53. https://doi.org/10.17561/tahrj.v17.6321). It is this balance (at stake in the Fernandes Ferreira Judgment - Peter Bartlet, “The Right to Life and the Scope of Control: Fernandes de Oliveira v Portugal”, Strasbourg observers, March 18, 2019) that the new Act aims to achieve.
The Act, on the one hand, addresses the rights and duties of mentally ill people. On the other hand, it regulates involuntary treatment. In order to clarify these two aspects, first, the scope and content of the Act are specified, as well as the regime regarding involuntary placement. Then, some observations are made about the impact of the new regulation in the Portuguese legal order.
2. The scope and content
The 2023 Mental Health Act begins by specifying the three concepts that are central for its understanding: the concepts of mental illness, of involuntary treatment and of person of trust (Chapter I, article 2-a-c)). The concept of “mental illness” is “a condition characterised by significant disturbance in the cognitive, emotional or behavioural spheres, included in a set of clinical entities categorised according to the diagnostic criteria of the International Classification of Diseases of the World Health Organization ”. “Involuntary treatment” means treatment ordered or confirmed by a judge, outpatient or inpatient. “Person of trust” is the person chosen by the person in need of mental health care, expressly indicated, to provide support in the exercise of their rights, with their agreement.
The Mental Health Act provides the definition, foundations and objectives of the mental health policy (Chapter II), protects the rights and duties of people in need of mental health care (Chapter III, Sections I and II) and regulates the restrictions on these rights (Chapter III, Sections I and II [Articles 11 to 13]), and the guarantees for the protection of their freedom and autonomy [Chapter IV - involuntary treatment - and Chapter V - complementary provisions, regarding habeas corpus and liability).
One of the foundations of the mental health policy is the provision of person-centred mental health care, recognising their individuality and subjectivity, their specific needs and their level of autonomy (Article 4(1)-a)). Accordingly, the person has the right to decide, freely and in an informed manner, at all times, to the best of their capacity, about the health care proposed (Article 7(1)-c) and f)). The person also has the right to have their choices expressed in the form of advance directives or through a health care proxy (article 7(1)-d and 10). These advance directives regarding mental health care must not be applied when their observance would result in danger to the person and the property of third parties (article 10(4)).
In the case of involuntary treatment, the patient must be able to participate, to the best of his/her ability, in drawing up and implementing the health care plan and be actively involved in decisions about the development of the therapeutic process (article 8(4)-c). He/she has the right to an interpreter, when necessary (article 8(3)-f)-h)), to be assisted by a defence lawyer or representative, and to communicate with them in private (article 4(4)-d)), and to appoint a person of trust to support him/her in exercising their rights, namely those of complaint, suggestion, appeal and obtaining a review of the involuntary treatment (article 8(3)-i) and article 9(4)).
One of the objectives of the Act is to finalise the transition to mental health care at the community level (already foreseen in the revoked Act of 1998) [article 6-c)]. Mental health care in the community shall be prioritised (article 5-c)), and Base 13(2) of the of the Basic Health Law, approved by the Act no. 95/2019 of 4 September).
The provision of mental health care in psychiatric hospitals and hospices should be largely residual. It shall be provided in local mental health services, which must articulate with primary health care and integrated long-term care and psychosocial rehabilitation services (article 6 and the Decree-law no. 113/2021, of 14 December, that adopted the principles for the organisation, management, and evaluation of mental health care services; this legislative act constituted the Milestone 1.4 under the Recovery and Resilience Plan for Portugal - C(2022) 2927 final Commission Implementing Decision of 2.5.2022 on the authorisation of the disbursement of the first instalment of the non-repayable support and the first instalment of the loan support for Portugal, p. 2 (6)).
The community approach is reflected on the right to access comprehensive and integrated quality health care, from prevention to rehabilitation, which must include responses to the person’s various health problems and be appropriate for their family and social environment (article 7(1)-a)). It is coherent with the objective of involuntary treatment of a person’s full recovery, through therapeutic intervention and psychosocial rehabilitation (article 14). Additionally, the legal status of the mentally ill person includes provisions aimed at protecting his/her privacy (article 7(2)-f) and g)), the enjoyment of safe and decent living conditions (article 7(2)-g)), and the right to vote (article 7(2)-i)).
3. Involuntary commitment
The Portuguese Constitution foresees the “committal of a person suffering from a psychic anomaly to an appropriate therapeutic establishment, when ordered or confirmed by a competent judicial authority” as a ground for deprivation of freedom (article 27(1), (2) and (3)-h)). People with mental health care needs have the right to not be subjected to restrictive or deprivation measures of liberty of an unlimited or indefinite duration (article 7(1)-j) of the Mental Health Act), including coercive confinement (article 8(1)-a), idem).
The Act emphasises involuntary hospitalisation as the ultima ratio of mental health policy. In addition to the fact that mental health care should be provided in the “least restrictive environment possible”, it prescribes that “involuntary treatment”, when necessary, should preferably be provided on an outpatient basis (article 4(1)-b) and article 15(3)). Inpatient treatment and outpatient (compulsory) treatment are two types of involuntary treatment. Although they can operate autonomously, the former can only take place when the latter proves insufficient (e.g., article 23(2)-d)). That is to say “must be of a kind or degree warranting compulsory confinement” (e.g., Case of Rooman v. Belgium, 18052/11, Judgment [Merits and Just Satisfaction], Court [Grand Chamber], 31/01/2019, no. 192); and shall cease as soon as treatment can be resumed on an outpatient basis (article 15(3)). There shall be a regular judicial review of the involuntary placement (article 25).
The decision on involuntary treatment is the responsibility of a judge, but it has to be based on clinical-psychiatric elements, limiting the principle of the judge’s free judgement (articles 20(6) and 23(2); and, e.g., Case of Miklić v. Croatia, 41023/19, Judgment [Merits and Just Satisfaction], Court, 07/04/2022, no. 63). The new Act is more demanding in terms of reasoning, both for the clinical-psychiatric assessment (that must include the relevant description of facts), and for the judicial decision (article 20(4), and article 23). Therefore, involuntary treatment measures must be considered in concrete terms, as an exceptional, subsidiary and proportional remedy or solution (National Ethics Council for the Life Sciences, Opinion 121/CNECV/2023 on Draft Bill no. 24/XV/1).
The Mental Health Act modified article 93 of the Penal Code (article 50). In a criminal execution context, it allowed, in certain cases, the successive extension of security measures for the commitment of criminally unimputable or irresponsible persons (the commitment could be extended for consecutive periods of two years until the criminal state of dangerousness, which gave origin to it, has ceased.
Now, there shall be a review, regardless of request, one year after the compulsory confinement has been decided or maintained - article 93(2) of the Penal Code - e.g., the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment Report to the Portuguese Government on the visit to Portugal carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) from 23 May to 3 June 2022, nos. 202-207, pp. 62-63; and the Case of Magalhães Pereira v. Portugal, 44872/98, Judgment (Merits and Just Satisfaction), Court (Fourth Section), 26/02/2002.
Another problematic aspect that arose from the execution of the Mental Health Act of 1998 (Act no. 36/98, of 24 July, repealed by the 2023 Mental Health Act) was in regards to coercive measures. In the Report to the Portuguese Government on the visit to Portugal carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) from 3 to 12 December 2019, it was stressed that at the Lisbon Central Prison, medication was “applied to any prisoner who showed signs of psychomotor agitation or psychosis”, without medical support, an approach that the CPT condemned, as well the lack of registers.
According to the Mental Health Act, the use of coercive measures must be specifically and expressly prescribed by a doctor or immediately brought to his or her attention for consideration and approval, in cases of urgency or danger of delay (article 11(3)). Information on the nature of the coercive measures used and the reasons for them and for their duration must be immediately recorded in the medical file. Moreover, coercive measures must be applied by those trained to do so and involve continuous clinical monitoring, recorded in the clinical file at regular intervals (article 11(4)).
4. The impact of the Mental Health Act
The Mental Health Act is not considered to be an act of rupture, but of continuity to the Act of 1998 that it repealed. It is argued that it has “deepening principles, and is an update to the models that had already shaped mental health policy and especially with regard to involuntary treatment” (Pedro Soares de Albergaria, “A nova Lei de Saúde Mental na Proposta de Lei 24/XV/1.ª: ruptura ou evolução?”, Julgar Online, June 2023, p. 11). The statement is controversial.
Its entry into force led to the end of the institutionalisation of unimputable persons who had reached the end of their period of commitment – which cannot exceed the maximum limit of the sentence corresponding to the type of crime committed – and which, under the terms of the new law, cannot be successively extended. That has implied the reintegration into a family environment (with the support of local mental health services), the placement in residential structures or in health institutions; for those who have no residence or family support, a housing response through Social Security must be secured (with the support of local mental health services).
After the end of the commitment measure in such context, the intervention of Justice ceases. The Social Security (insofar as people need to be integrated into a social response) and Health Services (the regional and local mental health services in the area of residence) become responsible for accompanying people who are released. In cases where, due to mental illness and refusal of treatment, a person continues to pose danger to himself/herself or others, a court may order involuntary treatment, including involuntary commitment, under the Mental Health Act (e.g., article 15(3) and articles 28-33).
The inclusion of investments in local mental health care, namely community teams, in the Portuguese Recovery and Resilience Plan of 2021 and updated in 2023 (p. 37 and p. 201, respectively) shows that this is one of the biggest challenges for the “transition into the community” approach (Telma Almeida and Andrew Molodynski, “Compulsory admission and involuntary treatment in Portugal”, BJPsych International, 2016, Vol. 13, Issue 1, p. 19, doi: 10.1192/s2056474000000933).
The other is the “poor recording of important legal and health interventions”, as Telma Almeida and Andrew Molodynski noticed, highlighting the critical need for data “to provide evidence on which to base care” (idem). One of the competences of the Commission for monitoring the implementation of the legal regime on involuntary treatment – created by the Act under comment (article 38) – is to collect and process information on the application of the regime in involuntary hospitalisation (article 39(e)). This Commission shall promote the organisation of an anonymised computer database, which may be accessed by public or private organisations with a legitimate interest (article 43).
On 7 June 2023, the European Commission adopted a Communication on a comprehensive approach to mental health (COM(2023) 298 final). It refers that it is “the beginning of a new strategic approach to mental health, cross-sectoral in nature, going beyond health policy”. It draws on three guiding principles: “(i) to have access to adequate and effective prevention, (ii) to have access to high quality and affordable mental health care and treatment, and (iii) to be able to reintegrate society after recovery” (p. 2).
This strategic Communication lays down “the foundations for sustained action at national and EU level for a comprehensive, prevention-oriented and multistakeholder approach to mental health” (p. 28). The new Portuguese Mental Health Act must therefore be considered and applied taking this EU strategy into account.