La salud mental (en la argentina): dos paradigmas en pugna

Abstract

In this paper, a critical analysis of the “disability” concept in the Argentine civil law is made in light of new paradigms within the mental health context which tend to re-establish these individuals’ (wrongly called the “handicapped” or “disabled”) dignity and autonomy, it being understood that the disability is more than a illness or limitation of the individual (as usually considered); it is a barrier outlined by society itself which then, through the law, disables the individual (declares them disabled). It will be held that the disability embodies a legal contradiction. Within this context, a proposal for change is analysed from a new social model (replacing the protective model of the Argentine Civil Code, which has shown that “protection” is a vertical model which tends to silence and isolate those who most need to be heard) focused on the full respect for the dignity and autonomy of the individuals resorting to mental health services. The role of the temporary guardian in mental disability proceedings is analysed, posing the question of whether they should act as the lawyer of such individuals (Kraut) or as an assistant to the judge (Llambías), emphasizing in said cases the vertical (protective) nature of these procedures (which put the legal proceedings on an equal footing with part of the medical treatment) and, as a result, the isolation and muting of the individual who most needs to be heard during the legal proceedings: the alleged “disabled”. The conclusion is that the civil law must abandon the disability concept because by making individuals disabled it has not “protected” or “recovered” the “disabled”, it has rather isolated, silenced, killed and annulled them as individuals (many times, only to protect property). For the law there can no longer be disabled or handicapped people. Only people. It will be demonstrated that the disability concept is incompatible with a human rights-based approach.