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Urban Suffering Studies Center

 

 

Legal Responsability and Vulnerability

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Francesco Maisto

 

It is a naive and superficial position that which affirms that the known and overt phenomenon of mechanical restraining (as opposed to justifiable physical restraining as foreseen by law), is in psychiatry, both geriatric and in other spheres of disability, the result of limited resources and the ensuing effects on the organization of health services. It is also likely that restraining will be considered a taboo because, as seen in anthropology for these types of matters, their handling and debate creates strong and contrasting reactions and emotions.
The (partial) objectification of one's own kind, although part of man's ancient delusion of being all powerful over other men, and therefore indisputably inexcusable, merits some thought to find an explanation that can be developed and theorized.
A theoretical and practical contribution could be the uncritical acceptance, with the ensuing distorted amplification, of the doctrine of risk of harm for the health workers both towards and from the patients. The "duty of care", although moved by solidarity as an additional and special guarantee for weak individuals, as per the articles 2, 32, 41 co.II of the Italian Constitution, has become the unmotivated principle of exposure to permanent risk to irrational criminal liability for health workers, put in a difficult position by the criminal case law.
This position, prevalent today, seems to me completely unmotivated because, even though case law has attributed to psychiatrists the duty of care to protect the health and safety of the patient, on the other hand, except for isolated sentences in the past decade, both the doctrine ( G. Fiandaca, A. Manacorda) and the case law of the Supreme Court (v. IV Sez. Pen., 5.5. '87) have never clearly given a role of vigilance and control to health workers against damages caused by the patient to the health and safety of third parties.
On this foundation the creation of a "defensive psychiatry" was not difficult, a distortion of the original meaning intended to be a counterbalance in the debate, in the ‘70s and ‘80s, against "repressive psychiatry" ( Manacorda, Portigliatti Barbos, Traverso, Bourgeois).
The defensive measure, meant for the protection of the mental health and the respect of the personal and social rights of the patient was instead applied to the health worker.
It is common knowledge that hospital and professional protocols for restraining are created on the mistaken assumption that they justify and legally protect health workers in case of harm, death and damages of any kind to patients.
All the case arguments that justify these practices do not take into account the fact that in the current existing legislation mechanical restraining (as opposed to the occasional and exceptional physical and pharmacological restraining) is not foreseen and this is not a gap or mistake on behalf of the Legislator but a conscious decision.
Therefore three preliminary rules are important in the application of ordinary legislation: the respect of 1) the difference between the rule and the exception; 2) the hierarchy of legal sources; 3) the awareness of the importance of the time period in the legislation and case law.
So writes Guido Rossi in "The game of rules": "...the constant erosion of rules is not limited to making certain behaviors seem acceptable, both individual and collective, that until recently would have been harshly (and legally) sanctioned, but also attacks the values upon which the societies we live in are based...retracing the definitions of key concepts...a limit must be found to the crumbling of rules...". Certainly, there are certain legitimate exceptions, but those must be, for example self defense (art.52 cod.pen), state of necessity (art.54 cod.pen.), characterized by timeliness that must be proven in cases of death, kidnapping, lesions ect of the patient.
The current hierarchy of legal sources foresees in descending order of authority the legislative acts starting and giving priority to the Constitution then the Convention for Human Rights over the national and regional laws, regulations, circulars and protocols.

From this point of view and based on the constitutional norm according to which "judges are subject only to the law" (art. 101, co. II), protocols have a limited and relative value ( Cass., IV Sez. Pen., 5.6.'09, n° 38154) only as a guide for health workers, as the judge must always evaluate the existence of (professional) fault, for example negligence, imprudence, malpractice, as in the failure to observe laws, regulations, orders or controls (art. 43 cod. pen.).
Lastly the time period is important, both for the evaluation of the existing current legislation, according to the principle of succession of laws, and for bench-warrant arrests.
Therefore publications and protocols referring to the cd. Giolitti law of 1909 repealed by L.180 appear ridiculous, both in manuals that indiscriminately refer to the famous and historic sentence of the Pretore di Moncalieri and the more recent sentences of the Supreme Court as bench-warrant arrests.
A faithful reading and global and reasonable application of our Constitution calls for the binding duty of political, economic and social solidarity (art. 2), the removal of obstacles that block the full development of human beings and their effective participation (art 3.), the unassailability of personal freedom and the prohibition of any type of restriction of personal freedom, if not motivated by a warrant issued by a judicial authority and only in the cases and ways foreseen by law (art. 13), the protection of health as a fundamental individual right and in the interest of public safety (art. 32).
Therefore if the constitutional double reserve of law and jurisdiction is expressed in the (ordinary) law n° 180 and in the art. 33,34 and 35 of the L. n°833 of 1978, in the distinction between obligatory health treatment and voluntary health treatment, also in reference to "mental illness", it is also true that these laws, not only do not mention restraining, but also the notion of obligatory health treatment does not coincide neither with coercive health treatment nor with restraining.
Rem tene, verba...The confirmation is evident from the simple and easy reading of the laws that follow: the L. n° 180 knowingly does not use the word and does not foresee restraining.
That word and its synonyms were not foreign to legal lexicon.
Furthermore the Giolitti cd. Law, art. 60 of Asylum Regulations of 1909 decided that "in asylums forms of coercion of the infirm are banned or limited to exceptional cases and cannot be used if not by the written authorization of the director or doctor of the institution. Said authorization must indicate the nature and the length of the form of coercion. The unlawful authorization of said forms makes those responsible liable to criminal sentencing...".
As afore mentioned, this decision was not only repealed by the L. 180 also in connection to the L. 833, but also does not mention neither restraining nor forms of coercion.
Furthermore, as proof that when the legislator allows forms of coercion he explicitly mentions them, the Ordinamento Penitenziario art. 41 (L. n° 354/1975) disciplines the use of "physical force" and "forms of coercion" towards prisoners and detainees and the Regolamento di Esecuzione ( art. 82 D.P.R. n° 230 del 2000).
Similarly the L. n° 492/1992 (Dispositions on the matter of transportation of individuals in conditions of restricted freedom...) art.2, on the matter of coercive accompaniment, the use of handcuffs, puts a ban on "all other form of physical coercion".
I have chosen to "use obvious words, to not hide under the construction of seemingly new theories ultimately the desire to leave things as they are", according to the lesson of Franco Basaglia at the Conferenze Brasiliane.
At the 5th Simposio internazionale di etica clinica of 2008 in Lugano, all the lessons affirmed that "an institution cannot be restraining only welcoming". Most of all "we all have a supreme duty in our existence: to care for the lives in our life. Woe to us if we do not discover who we must care for, woe to us if we care for them badly!" (Elias Canetti).

 


 
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Center for urban suffering

The study centre wishes to study the phenomenon of urban suffering, in other words the suffering that is specific to the great metropolises. Urban Suffering is a category that describes the meeting of individual suffering with the social fabric that they inhabit. The description, the understanding and the transformation of the psychological and social dynamics that develop from the meeting of ...

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The Urban Suffering Studies Center - SOUQ - arises from Milan, a place of complexity and economic and social contradictions belonged to global world.Tightly linked to Casa della Carità Foundation, which provides assistance and care to unserved populations in Milan (such as immigrants legal and illegal, homeless, vulnerable minorities), the Urban Suffering Studies Center puts attention on ...

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Centro studi Souq Management commitee: Laura Arduini, Virginio Colmegna (presidente), Silvia Landra, Simona Sambati, Benedetto Saraceno ; Scientific commitee: Mario Agostinelli, Angelo Barbato, Maurizio Bonati, Adolfo Ceretti, Giacomo Costa, Ota de Leonardis,  Giulio Ernesti, Sergio Escobar, Luca Formenton, Francesco Maisto, Ambrogio Manenti, Claudia Mazzucato, Daniela ...
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ISSN 2282-5754 Souquaderni [online] by SOUQ - Centro Studi sulla Sofferenza Urbana - CF: 97316770151
Last update: 20/04/2019
 

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