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Aumônerie hospitalière

The Hospital Status of 1968, decree 48.357, is the first legal document promulgated by the Portuguese government that gave a generic guarantee of religious assistance to sick people, when requested (article 80/4) and a specific guarantee of Catholic religious assistance, also when requested (whether by Catholics or by non-Catholics), in accordance with article 17 of 1940’s Concordat. In respect to religious minorities, article 83/2 stated that “all guarantees of religious assistance should be granted to sick persons of non-Catholic denominations whenever requested”. The costs of religious assistance continued to be covered and paid in accordance with the provisions of 1965’s decree 46.301. Chaplains were, therefore, considered informally as public employees paid by the state.

The Hospitals Regulatory Act, established by the decree 48.358 of 1968, guaranteed in its article 10/3 a specific right to Catholic religious assistance by chaplains appointed according to the Concordat. Religious personnel gained a special status and started to be considered as hospital staff (article 17).

With the advent of democracy, and with the publication of the Law of the NHS - National Health Service (law 56/79), the principle of religious assistance in hospitals is omitted. In fact, there is no reference to this activity in the legal document. Religious assistance is only implicitly guaranteed through article 9/2, where the legislator states that, while using the NHS, users maintain the rights derived from their integration in certain households or communities. In this case, the expression “the community to which they belong” comprehends, even if implicitly, the religious community.

In 1980, with the decree 58/80, on the status of hospital chaplains, the Portuguese government and the Episcopal Conference of Portugal enacted a complementary legislation to the Hospitals Regulatory Act, guaranteeing to the chaplains the official status of public employees. These chaplains were to be mostly Catholics because this legal provision (article 1) mainly emphasized the ones that were appointed by the 1940’s Concordat and mentioned only Catholic religious assistance in the duties of chaplains (article 5). Henceforth every hospital was compelled to have, in its staff, a hospital chaplain (article 10).

Ten years after, because of the lack priests to fill all hospital chaplain vacancies, the Portuguese government and the Episcopal Conference of Portugal enacted the law 48/90, on the Health Bases Law, guaranteeing the right to hospital religious assistance by lay people specially prepared to fulfill that mission. Conversely to law 56/79, religious assistance was again explicitly and generically guaranteed. All users of the NHS were “entitled to get religious assistance, if they ask for it” (article 14/1/f). This guarantee would be reinforced by the decree 11/93, on the Status of the NHS. This Status established, in article 39/1, a generic guarantee of religious assistance to all users of any religious denomination, and on article 39/2 it guaranteed that specific right to all users of the Catholic denomination.

Entering the 21st century, in particular after the publication of the law 16/2001 on religious freedom and of its article 13, and of 2004’s Concordat, especially of article 18, the Portuguese government felt the need to update the legal framework of spiritual and religious assistance in the establishments of the NHS. In fact, the decree 253/2009 enacts a new rule of assistance and determines a new designation for this hospital service : “religious and spiritual assistance”. The assistance is not only religious but it is also spiritual. There is an effort of the Portuguese government towards the recognition of new or non traditional expressions of religiosity or spirituality. The government tried to “conciliate the assistance requested with the physical as well as spiritual well being of NHS users” (preamble). Another significant change is the substitution of the figure of hospital chaplains. The decree replaces them by the image of spiritual or religious assistants (article 4 or 6).

On the one hand, decree 253/2009 preserves the juridical status of public servants of the chaplains, guaranteed by the decree 58/80 ; on the other hand, it abrogates certain articles of 1968’s Hospital Status, in particular, those regulating religious assistance and its payment. It also abrogates decrees 58/80 and 22/90.

Decree 253/2009 is today’s most important legal document on assistance, establishing a rule of religious and spiritual assistance in the NHS. This service is supposed to be universal. There is a generic guarantee of assistance to all churches and religious communities legally recognized in the country (article 3/1). This idea is reinforced in article 3/2 when it states that “the access to spiritual and religious assistance is guaranteed to NHS users regardless of their denomination”. Furthermore, spiritual and religious assistance is still provided just under the request of NHS’s users or by their family, in particular when the first cannot do it alone (article 4/1). Nevertheless, this assistance may also be provided by the initiative of the spiritual or religious assistant of user’s church or religious community (article 4/2). This takes place only when the user, before entering the hospital unit, declares its beliefs and consents this assistance. In terms of organization form, each unit of the NHS has to guarantee the existence and the regular working of assistance, and each unit has to give administrative and logistic support (article 9). This support implies : the identification of the user requesting assistance and the articulation with its church or religious community, the provision of a specific spaces for assistance and the essential non-religious equipment for that purpose ; a specific and permanent place of worship assigned to the Catholic Church, shared, if needed, with other Christian denominations, and another place of worship allocated to the users of other religious denominations (article 10). The number of spiritual and religious assistants must be adjusted to the needs of the NHS users and respect the representativeness of each religious denomination (article 11). Spiritual and religious assistants will carry out their duties under a contract of employment in public functions or under a contract for the provision of services, depending on the type and periodicity of the provided assistance and of the number of requests (article 17).

For further information :
 CORREIA, João P. M., “A assistência religiosa da Igreja católica nos estabelecimentos de saúde e reclusão em Portugal”. In : SATURNINO, Manuel C. G. (coord.), Estudos Sobre a Nova Concordata : Santa Sé – República Portuguesa, 18 de Maio de 2004. Col. Lusitania Canónica (11), Lisboa : Universidade Católica, 2006, pp. 151-173.
 LOURENÇO, Manuel Alves, “Modalidades de assistência religiosa às prisões e hospitais”. In : SATURNINO, Manuel C. G. (coord.), Relações Igreja- Estado em Portugal : Desde a vigência da Concordata de 1940, col Lusitania Canonica (8), Lisboa : Universidade Católica, 2002, pp. 235-244.
 SEABRA, João, “Assistência religiosa nas prisões e hospitais”. In : SATURNINO, Manuel C. G. (coord.), Estudos Sobre a Nova Concordata : Santa Sé – República Portuguesa, 18 de Maio de 2004. Col. Lusitania Canónica (11), Lisboa : Universidade Católica, 2006, pp. 137-149.

D 22 décembre 2017    AHelena Vilaça AJorge Botelho Moniz

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