The due process of law for involuntary psychiatric internment in Brazilian Constitutional Law

Abstract

Brazilian Federal Constitution of 1988 stipulates that “no one shall be deprived of his freedom or possessions without the corresponding legal process” (Art 5º, LIV). This clause derives from English law – due process of law – and grants a previously established legal process for all and a fair trial in order to deprive the psychiatric patient of the fundamental right to freedom. Involuntary psychiatric internment, beyond its medical nature, implies a restriction to freedom rights, thus making a legal process necessary. The legal-constitutional nature of psychiatric internment and its constitutionality, although it does not derive from the expressed text of the Constitution, comes from the so-called “third-party rights” which authorize a restriction to fundamental rights when confronted to other rights or constitutional values. There is a specifi c provision for due legal processes for involuntary psychiatric internement in Brazil, as stipulated by Law n. 10.216/2001, which includes dispositions about protection of rights for the mentally handicapped and redefi nes the mental health assistance model. However, the principle of ample access to legal powers (Art. 5º, XXXV) for the referred constitutional clause entitles the interpreter, mainly the jury, to a higher level of decision power with regards to the basic rights of mental health patients. The corresponding involuntary psychiatric internment process is a widely examined subject in comparative law, which offers guidelines that can be perfectly applied to the characteristics of contemporary constitutionalism in Brazil. Therefore, considering that involuntary psychiatric internment is in disagreement with due legal processes and health conditions foreseen in the psychiatric reform law, a constitutional

habeas corpus petition can and should be considered to grant the fundamental right to freedom for the mentally handicapped patient, even in the case of private acts (such as clinic or hospital directors) as authorized by the Brazilian doctrine and jurisprudence.