04 September 23 | Lisboa
The new Mental Health Act

Law 35/2023 replaces the Mental Health Law of 1998 and revokes article 92/3 of the Penal Code

The new Mental Health Act, published on 21st July 2023, regulates the foundations and objectives of the mental health policy and provides the rights and obligations of people in need of mental health care, establishing guarantees to protect their freedom and autonomy.

Law 35/2023 replaces the Mental Health Law of 1998 and revokes article 92/3 of the Penal Code, therefore eliminating the possibility of indefinitely extending the confinement of mentally ill persons who commit criminal offences.

Generally speaking, confinement should end when the state of danger is considered to have ceased, and its maximum duration equals the maximum limit of the penalty corresponding to the type of crime committed by the respective person. With this new statute, the possibility of successively extending the period of confinement beyond the maximum penalty is no longer permitted, even in exceptional cases.

Involuntary treatment takes place on an outpatient basis, provided by local mental health services and community mental health teams, unless confinement is the only way to ensure medically prescribed treatment. That confinement should cease as soon as treatment can be resumed on an outpatient basis.

For a person to be subjected to involuntary treatment, the following conditions must be met:

a) The existence of mental illness;

b) The existence of a danger to personal or patrimonial legal interests of third parties or of the person in question;

c) Refusal of medically prescribed treatment necessary to prevent or eliminate the respective danger;

d) The purpose of the treatment, focused on the person's full recovery through therapeutic intervention and psychosocial rehabilitation.

However, involuntary treatment can only take place if it is:

  • The only way to guarantee medically prescribed treatment;
  • Adequate to prevent or eliminate a dangerous situation as defined above;
  • Proportional to the seriousness of the mental illness, to the degree of danger and to the importance of the legal interest. 

This law also creates the figure of the "trusted person", who people in need of mental health care can appoint to support them throughout the involuntary treatment process, namely in exercising their rights of complaint and review of the treatment decision. 

The new Mental Health Act came into force on 20th August 2023, involving the release of 46 people spread across the mainland and the Autonomous Region of Madeira, although the decision regarding the end of these confinements falls exclusively to the courts, in accordance with the principle of separation of powers.

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