Texto integral (1970 palavras)
Portuguese Ombudsman
NATIONAL PREVENTIVE MECHANISM
Dear Mr.
Director of the Psychiatric Clinic of São
José
Azinhaga da Torre do Fato, 8
1600-774 Lisbon
Your Ref. Your Communication Our Ref.
Visit no. 5-2017
RECOMMENDATION NO. 12/2017/NPM
1
I
Under the provision enclosed in the article 19, paragraph b), of the Optional
Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment, I recommend the following measures:
a) The consolidation of guidelines for restrictive measures in accordance with
the guidelines of the General-Directorate of Health in this area 1, including
the definition of the list of therapeutic solutions to be considered as
chemical containment measures;
b) A prompt review of the clinical and legal situation of patients whose
consent to administering the current therapy raises doubts, while ensuring
full respect for the inviolability of their physical integrity and of their
fundamental right to freedom and self-determination;
1 See the guideline of the General-Directorate of Health no. 21/2011 of June 6, 2011.
Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
_____________________________________________________________________________________________________
Rua do Pau de Bandeira, 9 - 1249 - 088 Lisboa - Telephone number: (+351) 213 926 745 - Fax: (+351) 213 961 243
http://www.provedor-jus.pt - E-mail: mnp@provedor-jus.pt
Portuguese Ombudsman
NATIONAL PREVENTIVE MECHANISM
c) The promotion, in the interdiction processes with participation of the
Psychiatric Clinic of São José, of the persons’ heterogeneity designated to
represent or assist the representative of the will of the interdicted, in terms
that favor the desirable openness to the community.
II
This present position of mine comes as a result of my visit, as a National
Preventive Mechanism (NPM) 2, to the Psychiatric Clinic of São José, which took place
on March 2.
According to the scope of intervention of the NPM 3 and with the object of
the visit previously defined, the intent was to verify the habitability conditions during
hospitalization, with special attention to the practices in use, regarding the use of
restrictive measures, as well as ways of preventing ill-treatment.
For this purpose, while visiting two hospitalization units (Units 2 and 6), 2
among the seven that make up the health clinic, the institution’s manager and clinical
director, the doctors and the nurses were heard. The registration methods of the
restriction measures and the exchange of impressions with patients were further
analyzed. At the end of the visit the mother-superior of the religious community that
owned the institution was contacted.
III
Regarding the habitability conditions, there were no reasons worthy of repair,
showing good state of cleanliness, luminosity and organization of spaces. The place
2 In Portugal, the quality of NPM was attributed to the Ombudsman, through the Resolution of the
Council of Ministers no. 32/2013 of May 20.
3 The Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment, the purpose of which is to establish a system of regular visits by
independent international and national bodies to places where persons are deprived of their liberty in
order to prevent torture and other cruel, inhuman or degrading treatment or punishment, was ratified
by Portugal in 2012, through Decree no. 167/2012 of the President of the Republic of December 13.
Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
_____________________________________________________________________________________________________
Rua do Pau de Bandeira, 9 - 1249 - 088 Lisboa - Telephone number: (+351) 213 926 745 - Fax: (+351) 213 961 243
http://www.provedor-jus.pt - E-mail: mnp@provedor-jus.pt
Portuguese Ombudsman
NATIONAL PREVENTIVE MECHANISM
visited was also well equipped with objects able to guarantee the visual and
intellectual stimuli of the ones interned, in a way that favorably distanced this hospital
from a traditional hospital environment. Also worthy of mention is the policy of
«opening up» to the exterior, evidenced by the authorization of possession of mobile
phones, internet access and the general rule of free movement for the patients.
Regarding the use of restraining measures, although it was initially reported
that it would be merely residual, it was perceived the familiarity of health
professionals with practice, especially the references to mechanical restriction.
Although sometimes associated with the promotion of well-being and protection of
the patient against the danger of falling (an example was pointed out, a device that
secured the patient to the wheelchair, preventing it from bending over itself and
permitting the person to remain seated), it has been found that the restriction is used,
in a particular way, in the management of disruptive behaviors that cause danger to
the self, others or the surrounding environment. 3
For this purpose, the Unit 2, envisioned for the reception of acute patients, is
equipped with a room of isolation, although it has been stated that it is rarely used in
this context, serving to comply with measures of mechanical restraint or as individual
accommodation every time it is required.
The isolation room is equipped with a video surveillance system, transmitting
the collected images to the nursing room. Its functioning has been confirmed.
Although it does not have conditions that allow the patient to maintain visual or
auditory contact with health professionals, it was stated that, when used by patients,
the door is not closed.
According to the information contained in the records consulted the night
before the visit, a mechanical restraint was used in a patient, and lasted throughout
the night period. The record included the reason for the use of the restriction, those
responsible for the implementation of the restriction, duration and medical validation,
Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
_____________________________________________________________________________________________________
Rua do Pau de Bandeira, 9 - 1249 - 088 Lisboa - Telephone number: (+351) 213 926 745 - Fax: (+351) 213 961 243
http://www.provedor-jus.pt - E-mail: mnp@provedor-jus.pt
Portuguese Ombudsman
NATIONAL PREVENTIVE MECHANISM
along with other information. It has been indicated that authorization by an assistant
or service psychiatrist is always required before or immediately after application of the
measure. Additionally, the nursing professionals who were interviewed showed that
they were aware of the need to ensure a direct observation, along with checking the
position of the patient, every hour. This monitoring of proximity would not, as it was
perceived, include verification of vital signs or a reassessment, at pre-programmed
intervals, of the need to maintain the measure. The recording of restriction measures
is carried out in a computerized field.
Notwithstanding that no evidence of abuse has been detected, it is reasonable
to reinforce the principle of absolute exceptionality with which restrictive measures
should be addressed in cases of agitation and/or violence, with particular importance
in that the patients involved are fundamentally on voluntary treatment. The fact that
it has a high potential for violation of patients’ rights suggests the relevance of the
strengthening of the guidelines on the use of coercive means in hospitalized patients, 4
in accordance with the guidelines of the General-Directorate of Health on this
matter, in particular by setting up an internal procedure specifically dedicated to the
subject (if it is not possible to identify it in the context of the quality policy followed).
In particular, it is useful to include in the instrument adopted or adapted the
formalization of the list of therapeutic solutions that should be considered chemical
restraint measures and, therefore, subject to the standard of performance to those
associated.
IV
Regarding the rights of hospitalized patients, the reported legal situation of the
three patients whose consent for admission and administration of therapy, as initially
indicated by the institution’s responsibles, is a matter of serious concern, will not be
unequivocal. According to the information obtained, the initial reception of these
three persons took place during their minority, following a judicial decision issued
Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
_____________________________________________________________________________________________________
Rua do Pau de Bandeira, 9 - 1249 - 088 Lisboa - Telephone number: (+351) 213 926 745 - Fax: (+351) 213 961 243
http://www.provedor-jus.pt - E-mail: mnp@provedor-jus.pt
Portuguese Ombudsman
NATIONAL PREVENTIVE MECHANISM
under the legal regime for the promotion and protection of children and young
people at risk, extending to the present for compassionate reasons, based on a
psychiatric and socio-family assessment that suggest special vulnerability in the
outside environment.
In summary, if the data is confirmed, the afore mentioned patients who are of
age, and the final term of the educational guardianship measure that has enabled them
to be interned against the expressed will has long been exceeded, so that the
maintenance of the reception will require the express and fully informed adherence of
each to the proposed therapeutic plan. Outside the context of an internment or
voluntary treatment, only the verification of the legal presuppositions of compulsory
hospitalization, stipulated in Law no. 36/98, of July 24 4, or other judicially
determined situations of limitation of the capacity to consent, may legitimize the
Constitution and the law a continued treatment.
In these terms, without prejudice to the recognition of the goodness of the 5
purpose that underlies the conduct in question, it is strongly recommended to
promptly take the appropriate steps to re-examine the legal status and clinical
situation of these young adults interned by a judicial order that has already expired, in
view of the assertion that their fundamental rights to freedom and self-determination
are absolutely disregarded and, regarding the medical intervention, to the inviolability
of their physical integrity, as reflected in the ineluctable right of citizens to refuse
proposed diagnostic or therapeutic interventions, except in exceptional situations
constitutionally foreseen.
V
On the other hand, although in the same perspective of the dignity and will of
persons with psychiatric disorders, I believe that it is advisable to have greater
4 In the wording given by its amendment, operated by Law no. 101/99, of July 26
Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
_____________________________________________________________________________________________________
Rua do Pau de Bandeira, 9 - 1249 - 088 Lisboa - Telephone number: (+351) 213 926 745 - Fax: (+351) 213 961 243
http://www.provedor-jus.pt - E-mail: mnp@provedor-jus.pt
Portuguese Ombudsman
NATIONAL PREVENTIVE MECHANISM
heterogeneity and balance among those who, in cases of interdiction, are designated
to replace the will of the interdict, namely in the therapeutic choices, thus
guaranteeing independence and transparency. In this regard, welcoming the initiatives
of the Psychiatric Clinic of São José revealed, under which it is raised the interdiction
of users who seem to meet the legal requirements required are more unaccompanied,
I suggest that a composition of the family council which also includes external
members to the institution, both more relevant and necessary to balancing the
representation that is assumed by an integrated tutor in the institution.
VI
Finally, I verified that in the context of the expected quality policy, the
Psychiatric Clinic of São José delegates its developed activity to an international
external accreditation. However, in the opposite direction and totally unrelated to the
responsibility of the management of the visited institution, it was found that to date 6
the institution, that includes patients referred by the National Health Service, has not
been visited by any public entity with monitoring powers. Therefore, any initiatives
that actively seek presence and contact with this type of institutions of the National
Health Service will be important, committing and encouraging the integration of
national mental health policy.
I am certain of your efforts regarding the above mentioned improvements,
which I cannot fail to emphasize that are not related to the quality of the clinical care
provided.
The Portuguese Ombudsman
National Preventive Mechanism
José de Faria Costa
Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
_____________________________________________________________________________________________________
Rua do Pau de Bandeira, 9 - 1249 - 088 Lisboa - Telephone number: (+351) 213 926 745 - Fax: (+351) 213 961 243
http://www.provedor-jus.pt - E-mail: mnp@provedor-jus.pt