Carlos Morra: Argentina’s controversial National Law of Mental Health No. 26, 657.
In my October 24, 2019, comment on Francois Ferrero’s Inquiry of the Geneva 1980s’ Psychiatry Crisis: Forced Hospitalization, ECT and Sleep Therapy I was trying to bring to attention that “anti-psychiatry” is still alive to the extent that in Argentina it was legislated in a National Law of Mental Health that will come into effect as soon as January 2020.
In my comments I pointed out that the thinking that is legislated in the law is supported by the Pan-American Health Organization (OPS) but did not express what I see as the main problem with it, namely that many of the principles stated in it are good and necessary, but as a trojan horse it carries many dangers that may lead us, at the end, to the destruction of the practice of modern psychiatry and psychiatric education in Argentina.
Confronted with introduction of the new law within half a year I am struggling to answer three questions:
1. Are we ready to accept the downfall of psychiatry in Argentina?
2. Can we continue to manage acute and chronic patients within the reach of this law?
3. Is the world ready to forget psychiatric patients?
The following an English translation of the Law as presented.
RIGHTS AND GUARANTEES
ARTICLE 1. The purpose of this law is to ensure the right to the protection of the mental health of all persons, and the full enjoyment of the human rights of those with mental illnesses found in the national territory, recognized in international human rights instruments, with constitutional hierarchy, without prejudice to the most beneficial regulations for the protection of these rights may establish the provinces and the Autonomous City of Buenos Aires.
ARTICLE 2. The United Nations Principles for the Protection of the Mentally Ill and for the Improvement of Mental Health Care, adopted by the General Assembly in its resolution 46/119 of December 17, are considered an integral part of this law of 1991. Likewise, the Caracas Declaration of the Pan-American Health Organization and the World Health Organization, for the Restructuring of Psychiatric Care within the Local Health Systems, of November 14, 1990, and the Guiding Principles of Brasilia for the Development of Mental Health Care in the Americas, of November 9, 1990, are considered instruments of guidance for the planning of public policies.
ARTICLE 3. Within the framework of this law, mental health is recognized as a process determined by historical, socio-economic, cultural, biological and psychological components, whose preservation and improvement imply a dynamic of social construction linked to the concretion of the human and social rights of every person.
It must be based on the presumption of capacity of all people. In no case can diagnosis be made in the field of mental health on the sole basis of:
a) Political, socio-economic status, belonging to a cultural, racial or religious group.
b) Family, labor, lack of conformity or adequacy with moral, social, cultural, political or religious beliefs prevailing in the community where the person lives.
c) Choice or sexual identity.
d) The mere existence of a history of treatment or hospitalization.
ARTICLE 4. Addictions must be addressed as an integral part of mental health policies. People with problematic use of drugs, legal and illegal, have all the rights and guarantees established in this law in relation to health services.
ARTICLE 5. The existence of diagnosis in the field of mental health does not authorize in any case to presume risk of harm or disability, which can only be inferred from an interdisciplinary evaluation of each particular situation at a specific time.
AREA OF APPLICATION
ARTICLE 6. The public and private health services and providers, whatever their legal structure is, must comply with the principles established in this law.
RIGHTS OF PERSONS WITH MENTAL ILLNESS
ARTICLE 7. The State recognizes the following rights for people with mental illness:
a) Right to receive health care and integral and humanized social, from the free, equal and equitable access to the necessary benefits and supplies, in order to ensure the recovery and preservation of their health.
b) The right to know and preserve their identity, their groups of belonging, their genealogy and their history.
c) Right to receive care based on scientific foundations adjusted to ethical principles.
d) The right to receive treatment and to be treated with the most convenient therapeutic alternative, which least restricts their rights and freedoms, promoting family, work and community integration.
e) The right to be accompanied before, during and after treatment by relatives, other affections or whom the mentally ill person designates.
f) The right to receive or refuse assistance or spiritual or religious assistance.
g) The right of the assisted person, his lawyer, a family member or relative whom he designates, to access his family background, files and medical records.
h) The right that, in the case of prolonged involuntary or voluntary internment, the conditions of the same be periodically supervised by the Review Board.
i) The right not to be identified or discriminated against due to a current or past mental illness.
j) The right to be informed in an appropriate and understandable manner of the rights that assist him, and of everything inherent to his health and treatment, according to the rules of informed consent, including the alternatives for his care, which in the case of not be understood by the patient will be communicated to relatives, guardians or legal representatives.
k) The right to be able to make decisions related to their care and treatment within their possibilities.
l) The right to receive personalized treatment in a suitable environment with protection of their privacy, always being recognized as a subject of law, with full respect for their privacy and freedom of communication.
m) The right not to be the object of clinical research or experimental treatments without a reliable consent.
n) Right to mental illness is not considered an unchangeable state.
o) Right not to be subjected to forced labor.
p) The right to receive fair compensation for their work in case of participating in activities framed as work therapy or community work, involving production of objects, works or services that are then marketed.
ARTICLE 8. It must be promoted that the mental health care is in charge of an interdisciplinary team made up of professionals, technicians and other trained workers with the due accreditation of the competent authority. It includes the areas of psychology, psychiatry, social work, nursing, occupational therapy and other disciplines or relevant fields.
ARTICLE 9. The care process should preferably be carried out outside the hospitalization setting and within the framework of an interdisciplinary and intersectoral approach, based on the principles of primary health care. It will be oriented towards the reinforcement, restitution or promotion of social ties.
ARTICLE 10. In principle, informed consent applies to all types of interventions, with the only exceptions and guarantees established in this law.
Persons with disabilities have the right to receive information through appropriate means and technologies for their understanding.
ARTICLE 11. The Application Authority should promote that the health authorities of each jurisdiction, in coordination with the areas of education, social development, work and others that correspond, implement social, labor and care inclusion actions. in community mental health. The development of devices such as: outpatient consultations should be promoted; social and labor inclusion services for people after institutional discharge; supervised home care and support to individuals and family and community groups; services for the promotion and prevention in mental health, as well as other benefits such as houses of coexistence, day hospitals, work cooperatives, socio-labor training centers, social enterprises, homes and surrogate families.
ARTICLE 12. The prescription of medication must only respond to the fundamental needs of the person with mental illness and shall be administered exclusively for therapeutic purposes and never as a punishment, for the convenience of third parties, or to supply the need for therapeutic accompaniment or special care. The indication and renewal of prescription drugs can only be made from the relevant professional evaluations and never automatically. It should be promoted that psychopharmacological treatments are carried out within the framework of interdisciplinary approaches.
ARTICLE 14. The hospitalization is considered as a restrictive therapeutic resource, and it can only be carried out when it provides greater therapeutic benefits than the rest of the interventions that can be carried out in their family, community or social environment. The maintenance of links, contacts and communication of the interned persons with their relatives, relatives and with the work and social environment should be promoted, except for those exceptions established by the intervening health team for duly founded therapeutic reasons.
ARTICLE 15. The hospitalization should be as short as possible, based on therapeutic criteria interdisciplinary. Both the evolution of the patient and each of the interventions of the interdisciplinary team must be recorded daily in the clinical history. In no case may hospitalization be indicated or prolonged in order to solve social or housing problems, for which the State must provide adequate resources through the competent public bodies.
ARTICLE 16. Every provision of internment, within the FORTY-EIGHT (48) hours, must meet the following requirements:
a) Evaluation, interdisciplinary and integral diagnosis and reasons that justify hospitalization, with the signature of at least two professionals of the care service where the hospitalization is performed, one of which must necessarily be a psychologist or a psychiatrist.
b) Search of available data about the identity and the family environment.
c) Informed consent of the person or legal representative when appropriate. Consent is considered valid only when it is provided in a state of lucidity and with an understanding of the situation, and it will be considered invalid if, during the course of the internment, the state is lost, either because of the person's state of health or because of effect of the medications or therapeutics applied. In this case, it should be treated as if it were an involuntary hospitalization.
ARTICLE 17. In the cases in which the person was not accompanied by family members or their identity is unknown, the institution that carries out the internment, in collaboration with the corresponding public agencies, must perform the accusations aimed at obtaining data of family members or affective ties that the person had or indicated, or clarify their identity, in order to encourage their return to the family and community framework as soon as possible. The institution must provide collaboration to the information requirements requested by the Review Board that is created in article 38 of this law.
ARTICLE 18. The person admitted under his/her consent may at any time decide for himself/herself the abandonment of the hospitalization. In all cases in which the voluntary admissions are prolonged for more than SIXTY (60) calendar days, the health team in charge must inform the Review Board created in article 38 and the judge. The judge must evaluate, within a period not exceeding FIVE (5) days of being notified, whether the internment continues to be voluntary or whether it should be considered involuntary, with the requirements and guarantees established for this last situation. In the event that the prolongation of the internment was due to problems of a social nature, the judge must order the corresponding administrative board to include it in specific social programs and devices and the discharge as soon as possible, communicating said situation to the Organ of Review created by this law.
ARTICLE 19. The consent obtained or maintained with intent, duly verified by judicial authority, or the breach of the obligation to inform established in chapters VII and VIII of this law, shall render the responsible professional and the director liable of the institution of the corresponding civil and criminal actions.
ARTICLE 20. The involuntary hospitalization of a person must be conceived as an exceptional therapeutic resource in case ambulatory approaches are not possible, and may only be carried out when, in the opinion of the health team, a situation of certain and imminent risk is mediated yes or for third parties. In order for involuntary admission to proceed, in addition to the requirements common to all hospitalizations, the following must be stated:
a) Professional opinion of the care service that carries out the admission. The situation of certain and imminent risk referred to in the first paragraph of this article must be determined, with the signature of two professionals from different disciplines, who have no relationship of kinship, friendship or economic ties with the person, one of whom must be a psychologist or a psychiatrist.
b) Absence of another effective alternative for its treatment.
c) Report on the previous instances implemented, if any.
ARTICLE 21. The duly founded involuntary internment must be notified in a period of TEN (10) hours to the competent judge and the Review board, and all records must be added to the FORTY EIGHT (48) hours at most provided for in Article 20. The judge within a maximum period of THREE (3) consecutive days of notification must:
a) Authorize, if it evaluates that the causes foreseen by this law are given.
b) Require broader reports from the treating professionals or indicate external expertise, provided that they do not harm the evolution of the treatment, tending to assess whether there are the necessary suppositions that justify the extreme measure of involuntary admission and/or.
c) To deny, in case of evaluating that the necessary assumptions for the measure of involuntary commitment do not exist, in which case it must ensure the externalization immediately.
The judge can only order an involuntary internment by himself when the requirements established in Article 20 are met, the health service responsible for the coverage refuses to perform it.
ARTICLE 22. The involuntarily interned person or his legal representative has the right to appoint a lawyer. If it did not do so, the State must provide one from the moment of internment. The defender may oppose the admission and request the externalization at any time. The court must allow the defender to control the proceedings at all times.
ARTICLE 23. The discharge, externalization or exit permits are the faculty of the health team that does not require the authorization of the judge. The same shall be informed if it were an involuntary hospitalization, or voluntarily already informed in the terms of Articles 18 or 26 of this law. The health team is obliged to externalize the person or transform the hospitalization into a voluntary one, complying with the requirements established in Article 16 as soon as the situation of certain and imminent risk ceases. Exception is made from the provisions of this article, hospitalizations carried out within the framework of the provisions of Article 34 of the Penal Code.
ARTICLE 24. Having authorized the involuntary hospitalization, the judge must request reports with a periodicity no greater than THIRTY (30) calendar days in order to re-evaluate if the reasons for the continuity of said measure, and may at any time arrange its immediate externalization. If, after the first NINETY (90) days and after the third report, the involuntary hospitalization continues, the judge shall request the Review board to designate an interdisciplinary team that has not intervened so far, and as far as possible independent of the intervening care service, in order to obtain a new evaluation. In case of difference of criteria, it will always opt for the one that least restricts the freedom of the interned person.
ARTICLE 25. After the first SEVEN (7) days in the case of involuntary hospitalizations, the judge will report to the Review board that is created in Article 38 of this law.
ARTICLE 26. In case of hospitalization of minors or declared disabled, it must proceed in accordance with the provisions of Articles 20, 21, 22, 23, 24 and 25 of this law. In the case of children and adolescents, it will also be according to the national and international regulations of integral protection of rights.
ARTICLE 27. The creation of new insane asylums, neuropsychiatrics or monovalent, public or private inpatient institutions is prohibited by this law. In the case of existing ones, they must be adapted to the exposed objectives and principles, until their definitive substitution by the alternative devices. This adaptation and substitution can not under any circumstances mean a reduction of personnel or a reduction in the rights acquired from them.
ARTICLE 28. Mental health hospitalizations must be carried out in general hospitals. For this purpose, hospitals in the public network must have the necessary resources. The rejection of patient care, either ambulatory or in hospital, for the sole fact of dealing with mental health problems, will be considered a discriminatory act under the terms of Law 23,592.
ARTICLE 29. In order to guarantee the human rights of people in their relationship with mental health services, the members, professionals and non-professionals of the health team are responsible for informing the Review board created by this law and the competent judge, on any suspicion of irregularity that implied an inhuman or inhuman treatment to persons under treatment or undue limitation of their autonomy. The mere communication to a hierarchical superior within the institution will not repel the health team from such responsibility if the irregular situation persists. Said procedure may be carried out subject to the reservation of identity and shall have the due guarantees of the safeguard to its labor source and shall not be considered as a breach of professional secrecy. The dissemination and knowledge of the recognized principles, rights and guarantees and the responsibilities established in this law must be promoted to all members of the health teams, within a period of NINETY (90) days of the sanction of the present law, and upon the entry of each of the workers into the system.
ARTICLE 30. Referrals for outpatient or inpatient treatment carried out outside the community setting where the person lives only correspond if they are made to places where the person has greater support and social or family support. Transfers must be made with a person accompanying the family or emotional environment of the person. In the case of referrals with admission, the procedure established in Chapter VII of this law must be followed. Both the service or institution of origin and the service or institution of destination are obliged to inform the Review board of said referral, when there is no consent from the person.
ARTICLE 33. The Application Authority must develop recommendations addressed to public and private universities, so that the training of professionals in the disciplines involved is in accordance with the principles, policies and devices established in compliance with the present law, with special emphasis on the knowledge of international norms and treaties on human rights and mental health. Likewise, it should promote training and updating spaces for professionals, particularly for those who work in public mental health services throughout the country.
ARTICLE 34. The Application Authority should promote, in consultation with the National Human Rights Secretariat and with the collaboration of the jurisdictions, the development of habilitation standards and periodic supervision of public and private mental health services.
ARTICLE 35. Within the ONE HUNDRED EIGHTY (180) calendar days of the enactment of this law, the Enforcement Authority must conduct a national census in all mental health hospitalization centers in the public and private spheres in order to relieve situation of the interned persons, discriminating personal data, sex, time of internment, existence or not of consent, judicial situation, social and family situation, and other data that it considers relevant. Said census must be repeated with a maximum periodicity of TWO (2) years and the participation and collaboration of the jurisdictions for its realization must be promoted.
ARTICLE 36. The Enforcement Authority, in coordination with the Ministries of Education, Social Development and Labor, Employment and Social Security, must develop mental health prevention plans and specific plans for socio-labor insertion for people with disabilities. mental illness. These plans, as well as all the development of the mental health policy, must contain clear and efficient mechanisms of community participation, in particular of user organizations and family members of mental health services. It will be promoted that the provinces and the Autonomous City of Buenos Aires adopt the same criteria.
ARTICLE 37. The Enforcement Authority, in coordination with the Superintendence of Health Services, must promote the adaptation of mental health coverage of social works to the principles established in this law, in a term no greater than NINETY (90) days running from the sanction hereof.
ARTICLE 38. The Review Board is created within the scope of the Public Prosecutor's Office for the purpose of protecting the human rights of users of mental health services.
ARTICLE 39. The Review Board must be multidisciplinary and shall consist of representatives of the Ministry of Health of the Nation, of the National Human Rights Secretariat, of the Public Ministry of Defense, of user and family associations of the health system, of professionals and other health workers and of non-governmental organizations committed to the defense of human rights.
ARTICLE 40. The functions of the Reversing Board are:
a) Require information from public and private institutions that allows evaluating the conditions under which treatments are carried out.
b) Supervise, ex officio or upon the complaint of individuals, the conditions of hospitalization for reasons of mental health, in the public and private spheres.
c) Evaluate that the involuntary hospitalizations are duly justified and do not extend beyond the minimum necessary time, being able to make the pertinent complaints in case of irregularities and eventually, appeal the decisions of the judge.
d) Check that referrals made outside the community scope comply with the requirements and conditions established in Article 30 of this law.
e) Inform the Enforcement Authority periodically about the evaluations carried out and propose the pertinent modifications.
f) Require judicial intervention in irregular situations.
g) Make presentations before the Council of the Judiciary or the Organism that in each jurisdiction evaluates and sanctions the conduct of the judges in situations where there are irregularities.
h) Make recommendations to the Application Authority.
i) Make proposals for changes to mental health legislation aimed at guaranteeing human rights.
j) Promote and collaborate for the creation of review bodies in each of the jurisdictions, holding spaces for exchange, raining and coordination, for the efficient fulfillment of its functions.
k) Control compliance with this law, in particular regarding the protection of the human rights of users of the mental health system.
l) Ensure compliance with the rights of persons in processes of declaration of inability and during the validity of said judgments.
November 7, 2019