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Right To Protection Of Mental Health - Full Text Of The Norm

Original Language Title: SALUD PUBLICA DERECHO A LA PROTECCION DE LA SALUD MENTAL - Texto completo de la norma

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image inicio sitio infoleg MInisterio de Justicia y Derechos Humanos
PUBLIC HEALTH Law 26.657 Right to the Protection of Mental Health. Complementary provisions. Default of Act No. 22,914. Posted: November 25, 2010 promulgated: December 2 of 2010

The Senate and Chamber of Deputies of the Argentine Nation assembled in Congress, etc. sanction with force of Law:


Chapter I Rights and guarantees ARTICLE 1 O 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 suffering in the national territory, recognized in the international human rights instruments, with constitutional hierarchy, without prejudice to the most beneficial regulations that can be established by the provinces and the Autonomous City of Buenos Aires for the protection of these rights.

ARTICLE 2° O The United Nations Principles for the Protection of Mental Illness and for the Improvement of Mental Health Care, adopted by the General Assembly in its resolution 46/119 of 17 December 1991, are considered an integral part of this law. In addition, the Caracas Declaration of the Pan American Health Organization and the World Health Organization for the Restructuring of Psychiatric Care within Local Health Systems of 14 November 1990 and the Guiding Brazilian Principles; for the Development of Mental Health Care in the Americas of 9 November 1990, are considered as guiding tools for public policy planning.

Chapter II Definition

ARTICLE 3° O This law recognizes mental health as a process determined by historical, socio-economic, cultural, biological and psychological components, whose preservation and improvement implies a dynamic of social construction linked to the realization of human and social rights of everyone.

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 exclusive basis of:

(a) Political, socio-economic status, membership of a cultural, racial or religious group;

(b) Family, labour, lack of conformity or adequacy with prevailing moral, social, cultural, political or religious beliefs in the community where the person lives;

(c) Sexual choice or identity;

(d) The mere existence of a history of treatment or hospitalization.

ARTICLE 4° O Addictions should be addressed as an integral part of mental health policies. Persons with problematic use of drugs, legal and illegal, have all the rights and guarantees set out in this Act in their relation to health services.

ARTICLE 5° O The existence of a diagnosis in the field of mental health does not in any case authorize the risk of damage or disability, which can only be deduced from an interdisciplinary assessment of each particular situation at a given time.

Chapter III Scope of application

ARTICLE 6° O Public and private health services and effects, regardless of their legal form, must conform to the principles set out in this Act.

Chapter IV Rights of persons with mental suffering ARTICLE 7° O The State recognizes the following rights:

(a) Right to receive comprehensive and humanized health and social care, from free, equal and equitable access to the necessary benefits and inputs, in order to ensure the recovery and preservation of their health;

(b) Right to know and preserve your identity, your membership groups, your genealogy and your history;

(c) Right to receive care based on scientific foundations adjusted to ethical principles;

(d) Right to receive treatment and to be treated with the most convenient therapeutic alternative, which less restricts their rights and freedoms, promoting family, labour and community integration;

(e) Right to be accompanied before, during and after treatment by family members, other affections or to whom the person with mental suffering designates;

(f) Right to receive or reject spiritual or religious assistance or assistance;

(g) The right of the assisted, his lawyer, a relative, or any other person whom he designates, to access his family history, medical records and histories;

(h) Right to ensure that in the case of involuntary or prolonged voluntary placement, the conditions of such placement are monitored periodically by the review body;

(i) Right not to be identified or discriminated against by a current or past mental suffering;

(j) Right to be adequately and understandably informed of the rights that assist him, and of all that is inherent in his or her health and treatment, according to the rules of informed consent, including the alternatives for his or her care, which in the event that he or she is not understood by the patient will be communicated to family members, guardians or legal representatives;

(k) Right to be able to make decisions related to your care and treatment within your possibilities;

(l) Right to receive personalized treatment in a suitable environment with protection of your privacy, always being recognized as a subject of law, with full respect for your private life and freedom of communication;

(m) Right not to be the subject of clinical research or experimental treatment without a fruitful consent;

(n) Right to have mental suffering not considered an immodifiable state;

(o) Right not to be subjected to forced labour;

(p) Right to receive fair compensation for their task in the event of participating in activities such as community work therapy or work involving the production of objects, works or services that are then marketed.

Chapter V Modality of approach

ARTICLE 8° O Mental health care should be promoted by an interdisciplinary team consisting of professionals, technicians and other trained workers with due accreditation from the competent authority. The areas of psychology, psychiatry, social work, nursing, occupational therapy and other relevant disciplines or fields are included.

ARTICLE 9° O The care process should be carried out preferably outside the hospital and within the framework of an interdisciplinary and intersectoral approach, based on the principles of primary health care. It will guide the strengthening, restitution or promotion of social ties.

ARTICLE 10. It governs the informed consent for all types of interventions, with the only exceptions and guarantees provided for in this Act.

Persons with disabilities have the right to receive information through appropriate means and technologies for their understanding.

ARTICLE 11. The Implementation 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 actions of social, labour and community mental health care. The development of such devices should be promoted: outpatient consultations; social and labour inclusion services for people after institutional discharge; supervised home care and support for family and community individuals and groups; services for the promotion and prevention of mental health, as well as other benefits such as cohabitation houses, day-care hospitals, work cooperatives, social-labor training centres, social enterprises, foster homes and families.

ARTICLE 12. The prescription of medication should only respond to the fundamental needs of the mentally suffering person and be administered exclusively for therapeutic purposes and never as punishment, for the convenience of third parties, or for the need for therapeutic accompaniment or special care. The indication and renewal of prescription of drugs can only be done from the relevant professional evaluations and never automatically. Psychological treatments should be promoted within the framework of interdisciplinary approaches.

Chapter VI Interdisciplinary team

ARTICLE 13. Graduate professionals are on an equal footing to occupy the positions of leadership and management of services and institutions, and their suitability for office and ability to integrate the different knowledge that goes through the field of mental health must be valued. All workers members of the care teams have the right to permanent training and to the protection of their comprehensive health, for which specific policies must be developed.

Chapter VII Internal

ARTICLE 14. Internship is considered a therapeutic resource of a restrictive nature, and can only be carried out when it provides greater therapeutic benefits than the rest of the interventions made in its family, community or social environment. The maintenance of links, contacts and communication of persons who have been placed with their families, relatives and the working and social environment should be promoted, except in those exceptions which for duly founded therapeutic reasons establish the interlinked health team.

ARTICLE 15. Interdisciplinary therapeutic criteria should be as short as possible. Both the patient's evolution and each of the interdisciplinary team's interventions must be recorded daily in clinical history. In no case can internment be indicated or prolonged to solve social or housing problems, for which the State must provide adequate resources through the competent public bodies.

ARTICLE 16. Any provision of placement within the ACCENTA and OCHO (48) hours must meet the following requirements:

(a) Evaluation, interdisciplinary and comprehensive diagnosis and grounds for placement, with the signature of at least two professionals in the care service where the placement is performed, one of which must be necessarily a psychologist or a psychiatrist;

(b) Search for available data on identity and family environment;

(c) Informed consent of the person or legal representative as appropriate. Consent is only considered valid 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 detention the state is lost, either by the person's state of health or by the effect of the medications or therapeutics applied. In such a case, it should be carried out as an involuntary placement.

ARTICLE 17. In cases where the person is not accompanied by family members or his or her identity is unknown, the institution that undertakes the placement, in collaboration with the relevant public bodies, must conduct inquiries aimed at obtaining data from relatives or emotional ties that the person has or indicates, or clarify his or her identity, in order to promote his or her return to the family and community framework as soon as possible. The institution must cooperate with the information requirements requested by the review body established in article 38 of this Act.

ARTICLE 18. The person placed under his or her consent may at any time decide for himself the abandonment of the placement. In all cases in which voluntary placements are extended by more than SESENTA (60) days, the health-care team is required to notify the review body established in article 38 and the judge. The judge must evaluate, within a not greater period of CINCO (5) days of being notified, whether the placement continues to be voluntary or if the detention should be considered involuntary, with the requirements and guarantees established for the latter situation. In the event that the prolongation of the detention was due to problems of social order, the judge must order the corresponding administrative body to include in specific social programmes and devices and to externalize as soon as possible, communicating that situation to the review body established by this law.

ARTICLE 19. The consent obtained or maintained with dolo, duly verified by judicial authority, or the failure to comply with the reporting obligation set out in chapters VII and VIII of this Act, shall make the responsible professional and the director of the institution responsible for the civil and criminal actions.

ARTICLE 20. Involuntary placement of a person should be conceived as an exceptional therapeutic remedy in the event that outpatient approaches are not possible, and can only be done when at the discretion of the health team means a certain and imminent risk situation for itself or for third parties. In order to ensure that involuntary placement is carried out, in addition to the requirements common to all placements, it must be noted:

(a) Professional opinion of the care service performed by the placement. The particular and imminent risk situation referred to in the first paragraph of this article should be determined with the signature of two professionals of different disciplines, who have no relation of kinship, friendship or economic ties with the person, one of whom should be a psychologist or a psychiatrist doctor;

(b) Absence of another effective alternative for treatment;

(c) Report on previous instances implemented if any.

ARTICLE 21. Duly founded involuntary placement must be notified obligatoryly within a period of TEN (10) hours to the competent judge and the review body, and must be added to the CUARENTA And OCHO (48) hours at most all the records provided for in Article 20. The judge within a maximum period of THREE (3) days of notice must:

(a) Authorize, if it evaluates the grounds provided for by this law;

(b) Require extensive reports of the treating professionals or indicate external expertise, provided that they do not prejudice the evolution of the treatment, to assess whether there are the necessary assumptions that justify the extreme measure of involuntary placement and/or;

(c) Deny, in the event of an assessment of the absence of the assumptions necessary for the involuntary placement measure, in which case it must ensure the immediate externalization.

The judge can only order an involuntary internment on his own if, in accordance with the requirements set out in article 20, the health service responsible for the coverage is refused to perform it.

ARTICLE 22. An involuntary person or his or her legal representative has the right to appoint a lawyer. If he did not, the State should provide him with one from the moment of his detention. The human rights defender may object to the placement and apply for externalization at any time. The court must allow the defender to control the proceedings at all times.

ARTICLE 23. High, externalization or exit permits are the faculty of the health team that does not require permission from the judge. It shall be informed if it is an involuntary internment, or voluntary, already informed in the terms of articles 18 or 26 of this law. The health team is obliged to externalize the person or to transform the placement into voluntary service, meeting the requirements set out in article 16, the situation of true and imminent risk is scarce. It is exempt from the provisions of this article, the placements made under article 34 of the Criminal Code.

ARTICLE 24. Having authorized involuntary detention, the judge must request reports on a periodicity not greater than TREINTA (30) days in order to re-evaluate whether the reasons for the continuation of such a measure persist, and may at any time have their immediate externality.

If the first NORTH (90) days after the third report continued the involuntary placement, the judge must request the review body to designate an interdisciplinary team that has not intervened so far, and as far as possible independent of the intervening assistance service, in order to obtain a further evaluation. In the event of a different criterion, it shall always choose the one that less restricts the liberty of the person in custody.

ARTICLE 25. After the first SIETE (7) days in the case of involuntary detentions, the judge shall take part in the review body established in article 38 of this law.

ARTICLE 26. In the event of placement of persons under the age or who are found to be incapable, it must be done in accordance with articles 20, 21, 22, 23, 24 and 25 of this Act. In the case of children and adolescents, it will also be carried out in accordance with national and international standards for the comprehensive protection of rights.

ARTICLE 27. The creation of new asylums, neuropsychiatrics or monovalent, public or private institutions is prohibited by this Act. In the case of existing ones, they must be adapted to the objectives and principles set forth, until their definitive replacement by alternative devices. This adaptation and substitution in no case can mean reduction of staff or decrease in the acquired rights of them.

ARTICLE 28. Mental health institutions should be carried out in general hospitals. To this end, the hospitals of the public network must have the necessary resources. Rejection of patient care, whether outpatient or in boarding, by the fact that it is a mental health problem, will be considered a discriminatory act in the terms of law 23.592.

ARTICLE 29. For the purpose of guaranteeing the human rights of persons in relation to mental health services, the members, professionals and non-professionals of the health team are responsible for informing the review body established by this law and the competent judge of any suspicion of irregularity involving unworthy or inhuman treatment of persons under treatment or undue limitation of their autonomy. Only communication to a hierarchical superior within the institution will not relieve the health team of such responsibility if the irregular situation persists. Such a procedure may be carried out on an identity-reservation basis and shall have the due guarantees of protection to its source of employment and shall not be considered as a violation of professional secrecy.

The dissemination and knowledge of the recognized principles, rights and guarantees and responsibilities set forth in this Act should be promoted to all members of the health teams, within a period of NOVENTA (90) days of the sanction of this Act, and at the time of the entry of each worker to the system.

Chapter VIII Referrals

ARTICLE 30. The referrals for outpatient or internment treatments that are carried out outside the community area where the person lives only correspond if they are made to places where the person has greater support and social or family containment. Transfers must be carried out with the person ' s family or emotional environment. If it is a matter of internalization, it must be done in the manner established in Chapter VII of this Law. Both the service or institution of origin and the service or institution of destination, are obliged to inform that derivation to the Review Body, when there is no consent of the person.

Chapter IX Implementation Authority

ARTICLE 31. The Ministry of Health of the Nation is the Authority for the Application of this Law, based on the specific area that designates or creates for this purpose, which must establish the basis for a National Mental Health Plan in accordance with established principles.

ARTICLE 32. In a progressive way and within a period not exceeding THREE (3) years from the sanction of this law, the Executive Power must include in the budget projects an increase in the headings for mental health to a minimum of TEN per SCIENTO (10 %) of the total health budget. It will be promoted that the provinces and the Autonomous City of Buenos Aires adopt the same criterion.

ARTICLE 33. The Implementation Authority should develop recommendations addressed to public and private universities to ensure that the training of professionals in the disciplines involved is consistent with the principles, policies and devices established pursuant to this law, with particular emphasis on the knowledge of international human rights and mental health norms and treaties. It should also promote training and updating spaces for professionals, particularly for those involved in public mental health services throughout the country.

ARTICLE 34. The Implementation Authority should promote, in consultation with the National Human Rights Secretariat and with the cooperation of jurisdictions, the development of standards for the regular empowerment and supervision of public and private mental health services.

ARTICLE 35. Within the OCHENTA (180) days of the sanction of this law, the Enforcement Authority must conduct a national census in all public and private mental health institutions to relieve the situation of persons in detention, to discriminate personal data, sex, time of internment, existence or not of consent, judicial status, social and family status, and other data that it considers relevant. Such a census should be repeated with a maximum periodicity of DOS (2) years and the participation and collaboration of jurisdictions should be promoted for its implementation.

ARTICLE 36. The Implementation Authority, in coordination with the ministries of Education, Social Development and Labour, Employment and Social Security, should develop mental health prevention plans and specific socio-labor integration plans for people with mental illness. Such plans, as well as the development of mental health policy, should contain clear and efficient mechanisms for community participation, in particular of user and family organizations of mental health services. It will be promoted that the provinces and the Autonomous City of Buenos Aires adopt the same criterion.

ARTICLE 37. The Implementing Authority, in coordination with the Superintendency of Health Services, should promote the adequacy of mental health coverage of social works in accordance with the principles set out in this Act, within a period not greater than NOVENTA (90) days from the sanction of the present.

Chapter X Review body

ARTICLE 38. In the context of the Public Ministry of Defence, the Review Body is established to protect the human rights of users of mental health services.

ARTICLE 39. The Review Body should be multidisciplinary, and will be composed of representatives of the Ministry of Health of the Nation, the Ministry of Human Rights of the Nation, the Public Ministry of Defence, the associations of users and family members of the health system, health professionals and other health workers and non-governmental organizations engaged in the defence of human rights.

ARTICLE 40. These are functions of the Review Body:

(a) Requiring information from public and private institutions to assess the conditions under which treatment is performed;

(b) Supervise, on a public or private basis, the conditions of detention for mental health reasons, in the public and private spheres;

(c) Assess that involuntary placements are duly justified and not longer than the minimum time required, and may make the relevant complaints in the event of irregularities and eventually appeal the decisions of the judge;

(d) To ensure that derivations occurring outside the community level meet the requirements and conditions set out in article 30 of this Act;

(e) Report to the Implementation Authority on a regular basis on the assessments carried out and propose the relevant amendments;

(f) Requiring judicial intervention against irregular situations;

(g) Make presentations to the Council of the Magistracy or the Agency in each jurisdiction to evaluate and sanction the conduct of judges in situations where there are irregularities;

(h) Make recommendations to the Implementation Authority;

(i) To make proposals to amend mental health legislation to guarantee human rights;

(j) Promoting and collaborating in the establishment of review bodies in each of the jurisdictions, with spaces for exchange, training and coordination, for the efficient discharge of their functions;

(k) Control compliance with this law, in particular with respect to the protection of the human rights of users of the mental health system;

(l) Ensure that the rights of persons are fulfilled in the process of declaration of inability and during the application of such sentences.

Chapter XI Cooperation agreements with the provinces

ARTICLE 41. The national State should promote agreements with jurisdictions to ensure the development of joint actions to implement the principles set out in this Act. These conventions shall include:

(a) Technical, economic and financial cooperation of the Nation for the implementation of this law;

(b) Cooperation in the conduct of ongoing training programmes for health teams, with the participation of universities;

(c) Advice for the establishment in each jurisdiction of specific areas for the implementation of mental health policies, which will act in coordination with the National Implementation Authority of this Law.

Chapter XII

Supplementary provisions

ARTICLE 42. Incorporate as article 152 ter of the Civil Code:

Article 152 ter: Judicial declarations of disqualification or incapacity shall be based on an examination of physicians consisting of interdisciplinary assessments. They may not be extended for more than THREE (3) years and must specify the functions and acts that are limited, ensuring that the impact of personal autonomy is the least possible.

ARTICLE 43. Replace article 482 of the Civil Code, which shall read as follows:

Article 482: He may not be deprived of his personal liberty of being declared incapable of mental illness or addiction, except in cases of certain and imminent risk to himself or to third parties, who shall be duly evaluated by an interdisciplinary team of the assistance service with subsequent approval and judicial control.

Public authorities should arrange for the transfer to a health facility for its evaluation to persons who are at certain and imminent risk for mental illness or addiction or for others.

At the request of the persons listed in article 144, the judge may, after summary information, have the assessment of an interdisciplinary health team for persons affected by mental illness and addictions, which require assistance in appropriate establishments even if they do not justify the declaration of inability or inability.

ARTICLE 44. Default of Law 22.914.

ARTICLE 45. This law is of public order.

ARTICLE 46. Contact the national executive branch.



JULY C. C. COBOS. EDUARDO A. FELLNER. . Enrique Hidalgo. . Juan H. Estrada.