The Republican Constitutional perspective against physical restraint practices

Issue 3/2020

Abstract. This work examines the legitimacy of freedom restraining measures in psychiatry directed to people with disabilities and aged people. We show how the use of physical restraint is constitutionally forbidden, due to the lack of a rule that allows for the practice, as art. 13 Cost requires. Not by chance, this constitutional provision poses the principle of substantial legality against any limitation of the individual’s physical freedom. The paper then dispels some myths by moving from text-book cases such as micro restrainig measures connected to therapeutic actions and practices at the request of the person concerned. It is necessary to clear the field from these misunderstandings, especially after the judgment of the Supreme Court of Cassation, in Mastrogiovanni case, of which we highlight some sound conclusions, but also some argumentative deficiencies, on the level both of the constitutional theory and of medical practice. Excluding the nature of a therapeutic act, as well as the elusive reduction of these practices to precautionary measures, the analysis is based on a definition of biomechanical restraint which, if misunderstood, can generate serious aporias in terms of logic and of legal reconstruction.

SUMMARY: 1. Some issues underlined by Court of Cassation, judgment 20th of June 2018, n. 50497. – 2. The failures in looking for a legal baseline allowing the use of physical restraints as a limit to personal freedom of movement. – 3. Two thesis taken up by the Court of Cassation in order to define the legitimacy of restraining practices in psychiatry. – 4. Four elements in order to define such a practice. – 5. The extreme cases of request of self-restraining personal liberty and voluntary disposal and their misleading effect on legal analysis. – 6. Theory and practice before Constitutional binding rules and safeguards. – 7. State of need and apparent state of anomy. – 8. Conclusions: the unlawful nature of physical restraining practices

To read the Reflection, click on “open file”.

To read the judgemnet by the Court of Cassation, sect. V, 20th of June 2018, n. 50497, click here.