Critical Analysis on Legal Capacity of The Mentally Retarded: the Portuguese Reality in the European Context

Abstract

Introduction

Almost 50 years after the mental health reform in Europe and the deinstitutionalization of the mentally ill, there seems to be a slow change in the social concept of mental disorder. However, in the case of mental retardation, little progress has been made, since the social approach to these patients does not seem to involve the promotion of their autonomy. This is a reality with implications in medical, social and forensic psychiatry settings.

Objective

We will present a statistical analysis on interdiction/inhabilitation processes in two districts of Portugal followed by a comparative analysis between Portuguese and other European countries’ civil law concerning the regulation of legal capacity.

Aims

Critical analysis of the means by which the concept of legal incapacity has been applied in the Portuguese social setting.

Methods

Descriptive and retrospective analyses of 500 expert reports in the districts of Coimbra and Viseu regarding interdiction/disqualification processes. Research on Pubmed and legal databases; keywords used: mental disability, mental retardation, civil law, mental incapacity, legal incapacity, legal capacity, interdiction, curator.

Results

The number of forensic psychiatric examinations has suffered a significant increase in the last years. The majority of these expertise concern interdiction/inhabilitation processes. Mental retardation is the more prevalent diagnosis, and the great majority of the cases were interdicted.

Conclusions

In Portugal, the law has been applied in order to safeguard the economic assets of mentally retarded individuals, but not in order to promote their social integration and autonomy.

Disclosure of interest

The authors have not supplied their declaration of competing interest.