According to Jaspers, with the term of choice you should not be understood the possibility to choose between objects but freedom as a choice for themselves. Because I choose, then I am; in fact, I feel my freedom in my mind. Choose what is best for the psychiatric patient in different contexts (relational, occupational, social, therapeutic) is the ability to act. The best practices provide that psychiatrists, nurses, social workers, rehabilitation professionals are committed to enhancing the capacity to choose but the legal protection measures are likely to be a contradiction.

We try to explore the theme of choice based on the capacity to act or failure to act from a phenomenological approach.

Through some concrete cases, extrapolated from clinical practice, highlight the contradictions between enunciation of principles and procedures for responding to the problems of psychiatric patients who are not able to choose.

Protections of health and individual freedom are the weights of a balance poised, since there is uncertainty about the anthropological paradigm of the mentally ill.

The authors have not supplied their declaration of competing interest.