On the reform of decision that denies habeas corpus in the face of involuntary hospitalization in a geriatric residential: case study

Abstract

This is a case study referring to a civil appeal to TJRS filed against a decision on constitutional action that denied the granting of habeas corpus the stating that there was no illegality or abuse of authority that kept the patient hospitalized, against her will, in a geriatric residential. Among the decision grounds is the need to ascertain the health state real of the patient, which would require probationary delay. Unfeasible in habeas corpus proceedings, it should be done in a separate action, that is, a tutelage/interdiction process. In addition, on the grounds that there was a service contract presumed signed between the family member and the clinic, there was no illegal act or abuse of power. Therefore, the research problem question. If the proposed action is successful, what is the procedural route and what are the grounds for modifying the decision denying the habeas corpus against involuntary hospitalization in a geriatric residential? The work has as general objective to investigate the material errors present in the judgment and the appropriate procedural way to modify it. And, as specific objectives: 1 narrate the case under study; 2 demonstrate the unsustainability of the grounds for the decision; 3 verify the proposed action and the appropriate procedural route against involuntary hospitalization in a geriatric residential. As a result, considering that the restriction on the right to come and go is the exception, and not the rule, as well as being the rule consider every person capable and, in cases of relative incapacity, to prefer Supported Decision Making to the detriment of Interdiction/Tutelage, it was concluded that the arguments of the decision are unsustainable. Therefore, the evidentiary delay is unnecessary.