Annual Report 2012: Spain’s National Preventive Mechanism
the only changes every six months are the dates, which was also brought to the
attention of the Office of the Attorney General. In order to ensure full respect of
the safeguards of the persons committed to a center, the medical reports submit
ted by the latter must be thorough and updated.
The effects of judicial
incapacitation should be
limited to the exact terms
and conditions required by
the residential care
measure
A thorough
neuropsychological
examination and
psychological assessment
should be performed
Having the center and
relatives make decisions
without consulting
residents who are not
incapacitated should be
avoided
The admissions process
must respond to patients’
functionality and
possibilities of
rehabilitation
136
175. About 60% of the residents in the center at the time of the inspection visit
were totally judicially incapacitated. For another 10% the incapacitation
proceedings were underway, and only 6 persons were only partially incapacita
ted. In the NPM’s opinion, both the centers and the Public Prosecutor’s Office
should devote great efforts to promoting a balanced use of the legal figure of in
capacitation, carrying out a thorough assessment of the affected party’s capacities
and his/her real level of functionality and capacity of judgment, volition and free
choice, respecting as much as possible his/her capacities and autonomy. Likewise,
in cases in which it is deemed appropriate to seek judicial incapacitation and
given the possibility of establishing levels of incapacity, it would be advisable to
limit its effects to the exact terms and conditions required by the residential care
measure, duly justifying the reasons for and objective of requesting a ruling of
incapacity; in other words, what benefits is the person with disabilities going to
obtain once the judgment of incapacity is issued.
176. On the other hand, it was noted that when the center applies for incapacita
tion, it prepares a social and medical report, but does not perform a neuropsy
chological examination or psychopathological assessment as thorough as if they
were performed by an external neurology or mental health service. This is some
thing which should be corrected.
177. The common practice observed during the inspection visit, whereby resi
dents who are not incapacitated are nonetheless subject, in respect to some deci
sions, to the agreement reached between their relatives and the center, should be
avoided. These agreements contain covenants regarding matters such as manage
ment of a resident’s pocket money, outings and the activities he/she can perform,
which could violate the personal freedom of citizens whose lives are already lim
ited and for whom these aspects are very important.
178. The procedure of admissions to a residential center of this sort normally
consists of keeping the person in observation for a certain period of time, during
which neuropsychological tests are carried out and his/her level of autonomy and
relationships established with other residents is assessed in order to determine
the most suitable module for his/her rehabilitation and stay. However, at «San
José» Residence, classification of the residents in the different buildings is done
prior to admissions, on the basis of the reports issued by the general practitioners
(whose assessments on occasions are too high in respect to disabilities, as noted),
so that they arrive in preassigned buildings which may not correspond to their
real needs. In order to avoid these situations, the procedure described at the be
ginning of this paragraph should be generally adopted. In consequence, assign
ment to buildings should be decided on the basis of functionality and the possiTHE OMBUDSMAN OF SPAIN
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