Prosecutor's Office Support Service: facilitating access to justice
Summary
The Barcelona Prosecutor's Office for the Provision of Support Services has a healthcare social worker as a support staff member. This is a unique role in Catalonia and is virtually unknown in the rest of the Spanish State Prosecutor's Offices (only Madrid has a professional performing similar tasks).
The Prosecutor's Office Support Service was created in 1999 amidst the expansion of incapacitation courts (the terminology used at the time) and the lack of a liaison between the public, social services, and the judicial system in cases of incapacitation and involuntary hospitalization. The Sant Joan de Déu Health Center was responsible for selecting the social worker assigned to the Prosecutor's Office. The professional's role and functions have undergone some modifications since the service's inception, but the core principle of humanizing the justice system for people with disabilities, their families, and support teams has always been the service's central focus.
Justice accessible to all people
The role of the facilitator: a virtually non-existent support
Law 8/2021 has brought about a paradigm shift in the care of people with disabilities. It has moved from a paternalistic model, in which legal incapacity (and the subsequent modification of legal capacity) implied the loss of freedom of choice in different (or all) areas of life for those under guardianship, to a support model , in which the preferences and values of the person receiving court-ordered (or processed) assistance must be respected . Despite being in effect for four years, this change in model has not yet been fully integrated by all support services, nor by the general public, who, to some extent, still hold the view that providing support is the same as legal incapacity, just with a different name.
The figure of the “facilitator” should be one of the supports in the free exercise of the rights of people with disabilities, but it is not really formally established in the courts.
Beyond noting that assistance can be representative (the most restrictive option in decision-making) or non-representative (with varying degrees of support intensity), the important point is to emphasize that "persons with disabilities have legal capacity on an equal basis with others" (Art. 12). Thus, legal incapacity ceases to exist, giving way to more respectful approaches to supporting people with disabilities. To enable them to exercise their rights, States must guarantee safeguards and support for those who require them. This statement opens an interesting debate about the limited safeguards that have been established to date.
In the legal sphere, the role of the "facilitator" should be a key support for the free exercise of the rights of people with disabilities. However, this role is not formally established in Catalan courts regarding the provision of support. Far from offering the close and dedicated support that a facilitator should provide to the person with a disability, the Public Prosecutor's Office Support Service offers a space for advice, listening, guidance, and clarification on the procedure for providing support for legal capacity and related precautionary measures.
However, since there is only one professional with this role in all of Catalonia, and she is assigned to the Barcelona Public Prosecutor's Office, the citizen guidance service is only available to residents of Barcelona. Access to the service is not direct, but always requires a referral from healthcare teams who can demonstrate their inability to address the queries of those seeking their help. Therefore, citizen advice is only provided at the request of these referring healthcare teams.
Decision-making in mental health: replacement or support?
Functions of the Prosecutor's Office Support Service
The advice provided to the public typically responds to requests from families facing conflicts of interest, usually due to financial issues or because a family member with a serious mental disorder refuses the treatment offered by the healthcare system. In these cases, one of the functions of the Prosecutor's Office Support Service is, in addition to validating the families' suffering and distress, to clarify the limits of the support provided .
When the person seeking assistance is someone receiving support services, they are advised about their rights and the scope of that assistance, if any. Sometimes, they are also accompanied to file documents in court to request support services or to ask for their review or withdrawal. It is important that those affected know their rights and exercise them freely in all cases. Requesting the termination of support services does not always mean they can be eliminated, but the person should be able to express their wishes and needs .
The Prosecutor's Office Support Service offers a space for advice, listening, guidance and clarification on the procedure for providing support to legal capacity and on related precautionary measures.
The Prosecutor's Office Support Service also provides guidance and clarification to social services throughout Catalonia (and also handles inquiries from the rest of Spain) that have questions about procedures, whether regarding how to initiate them or the specific circumstances that determine eligibility. This guidance is always based on respect for individual rights. The service emphasizes the importance of processing support requests with the consent of the person affected and, if this is not possible (such as in cases of severe cognitive impairment or extreme vulnerability), that the person's principles and values be respected. Therefore, it is essential to prepare support reports following established protocols and in close collaboration with the person receiving care.
Defending the rights of people with disabilities
Although most requests for support services come from people with cognitive impairment, withholding information about the procedure should only be considered in the most severe cases, when the person lacks the capacity to understand it. However, this is not the case, because most requests are made without the consent of the person concerned . This is unacceptable in a context of upholding rights. We must acknowledge that support services are acting improperly when they proceed without informing the person concerned about the request for support measures.
What is a support plan and how is it developed?
We must also address the demands arising from uninformed families , who come forward when someone fails to follow the mental health network's recommended follow-up care, often with the added problem of behavioral disorders or substance abuse. Consultations are also frequent from relatives of individuals with cognitive impairment who refuse treatment or admission to a residential facility. In these cases, families generally seek support behind the affected person's back, placing their hopes on a "legal incapacitation" that will "cure" (or at least disable) the person. Families feel powerless when the limits of the legal process are clarified. We cannot abandon families in their suffering, but neither should we encourage them to seek support without the person concerned knowing what is being planned for their life. The Prosecutor's Office Support Service offers a space for dialogue and reflection to those seeking assistance, aiming to find a balance between the family's wishes and the individual's rights.
Most requests for support services are made without the consent of the person concerned. This is unacceptable in a human rights context.
In exceptional circumstances, and always at the request of the prosecutor or judge, the Prosecutor's Office Support Service prepares expert reports on individuals with open support provision proceedings. This expert report is based on an assessment of the individual and their family or social environment. When possible, documentary analysis and coordination with support teams are also carried out to obtain a thorough and objective technical understanding of the affected person's psychosocial situation.
In a context where there is still a lack of proximity between the judicial system and the public, the Prosecutor's Support Service offers a friendly and humanized space to address the suffering of people affected, directly or indirectly, by a procedure for providing support or precautionary measures in relation to legal capacity.
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