Public Health: Amendments to the Federal Mental Health Law

Article 618 of the Bill of Bases and Starting Points for the Freedom of Argentinians partially replaces article 5 of the Federal Mental Health Law  26657, introducing judges’ power to take urgent care measures with subsequent interdisciplinary assessment in cases of emergency.

Article 619 of the Bill replaces article 11 of the Federal Mental Health Law and establishes that the enforcement authority must promote that health authorities of each jurisdiction—in coordination with education, social development, labor, and other relevant areas—implements actions for social, occupational inclusion, and community mental health care and rehabilitation. It further specifies the promotion of the development of devices such as outpatient consultations, social, and occupational inclusion services for individuals after their discharge from institutions, supervised home care, and support for individuals and family and community groups.

Services for mental health promotion and prevention—as well as other provisions such as living communities, day hospitals, labor cooperatives, socio-labor training centers, social enterprises, communities, therapeutic institutions, foster homes, and substitute families—should be promoted. Previously, rehabilitation was not included as part of the actions to be promoted and implemented by the various health authorities in each jurisdiction. Similarly, the previous text did not include the promotion of therapeutic communities and institutions.

Article 620 of the Bill replaces article 20 of the Law, which explicitly establishes the circumstances under which involuntary hospitalization of individuals is allowed. The new wording of article 20 states that the involuntary hospitalization of a person is considered an exceptional therapeutic measure and is allowed, following medical and interdisciplinary evaluation, if:

a) the person fails to continue outpatient interventions and shows a lack of awareness of the illness that affects their capacity of discernment, resulting in a serious violation of their overall health,

b)  the person is in a situation of certain and imminent risk for themselves or others,

c)  following hospitalization under the circumstances of item b, there no longer is a certain and imminent risk to themselves or others, but the causes that led to such situation have not ceased,

d) it involves a minor addicted to psychoactive substances seriously compromising their overall health or psychophysical development, at the request of both parents or those exercising parental responsibility, a guardian, or upon the request of the judge following the prior request of the competent administrative entity.

For this purpose, the professional opinion of the interdisciplinary team must include the signature of a psychiatrist or psychologist, who must not be related by family, friendship, or economic ties to the individual. The submission should include:

1. evidence that there is no other effective alternative for treatment within the healthcare system of their jurisdiction or the one to which they belong,
2. the medical record, if available
3. a report of any previously implemented interventions, if applicable.

The current wording specifies that involuntary hospitalization can only be carried out when, in the opinion of the healthcare team, there is a situation of certain and imminent risk to the patient themselves or others. Also, for it to proceed–in addition to the common requirements for any hospitalization–the following must be documented:

a) professional opinion from the healthcare service conducting the hospitalization, determining the situation of certain and imminent risk, with the signatures of two professionals from different disciplines who are not related by family, friendship, or economic ties to the person, one of whom must be a psychologist or psychiatrist,

b) absence of another effective alternative for treatment,

c) report of any previous implemented interventions, if applicable.

Article 621 of the Bill replaces article 22 of the Law, stating that an individual involuntarily hospitalized or their legal representative have the right to appoint a lawyer. If they do not do so, the State must provide one from the moment of hospitalization. It also states that the defender can oppose the hospitalization or discharge. The article introduces the defender’s capacity to request a more appropriate therapeutic measure, an action that the previous wording did not include. Further, the court must allow the defender to oversee the proceedings at all times.

Article 622 of the Bill replaces article 23 of the Federal Mental Health Law, establishing that the discharge, release, or permits to leave are within the authority of the healthcare team and do not require the judge's authorization. The discharge must be reported if it is an involuntary hospitalization or a voluntary hospitalization already reported under the terms of articles 18 or 26 of this law. The healthcare team must release the person or transform the hospitalization into voluntary, complying with the requirements established in article 16 as soon as the circumstances that led to it cease, as defined in article 20.

Finally, article 622 establishes that the provisions of article 23 do not apply to hospitalizations carried out under article 34 of the Criminal Code. Previously, the healthcare team had to to release the person or transform the hospitalization into a voluntary one, complying with the requirements in article 16 of the Law only in if the certain and imminent risk ceased.

Article 623 of the Bill replaces article 27 of the Law. The new wording of article 27 states that hospitals or medical centers, neuropsychiatric institutions, or monovalent admission institutions, whether public or private, must operate in accordance with the objectives and principles in the Federal Mental Health Law and in accordance with the regulations established by the regulatory authority. The current text of article 27 prohibits creating public or private new asylums, neuropsychiatric institutions, or monovalent admission institutions . It states that the existing ones must adapt to the objectives and principles outlined until their definitive replacement by alternatives. Further, such adaptation and replacement must not cause a reduction of personnel or a decrease in their acquired rights.

Article 624 of the Bill replaces article 28 of the Federal Mental Health Law establishing that mental health hospitalizations must take place in suitable institutions, and public network hospitals must have the necessary resources for this. It also establishes that refusing to treat patients, whether outpatients or inpatients, solely because it involves mental health issues will be considered a discriminatory act in accordance with Law 23592 on the Exercise of Constitutional Rights and Guarantees. Regarding mental health hospitalizations, the previous text specified that these should occur in hospitals.

Article 625 of the Bill replaces article 39 of the Federal Mental Health Law, which specifies that the Review Board must be composed of multidisciplinary teams, with each team including a psychiatrist, a psychologist, a specialist in addiction issues, a specialist in childhood and adolescence issues, and a lawyer specializing in the matter. Previously, the Review Board had to be multidisciplinary and integrated only by representatives from the Federal Ministry of Health, the Federal Secretariat of Human Rights, the Public Defender's Office, user and family associations in the healthcare system, healthcare professionals and other healthcare workers, and non-governmental organizations dedicated to the defense of human rights.