MINISTERS’ DEPUTIES

Notes on the Agenda

CM/Notes/1419/H46-12

2 December 2021

1419th meeting, 30 November – 2 December 2021 (DH) Human rights   H46-12 X v. Finland (Application No. 34806/04) Supervision of the execution of the European Court’s judgments Reference document DH-DD(2021)1065

 

Application	Case	Judgment of	Final on	Indicator for the classification
34806/04	X	03/07/2012	19/11/2012	Complex problem

Case description

This case concerns the involuntary confinement of the applicant for care in a mental hospital between 17 February 2005 and 27 January 2006, without sufficient safeguards against arbitrariness as concerns the extensions of her confinement which were decided by the head of the hospital (violation of Article 5 § 1 (e)). The Court criticised in this respect the lack of possibility to benefit from a second independent psychiatric opinion and the fact that the initiative of periodic review belonged solely to the authorities. 

It concerns also the unlawful interference with the applicant’s physical integrity due to the recourse to forcible administration of medication without adequate legal safeguards (violation of Article 8). The Court observed that the decision to confine the applicant included an automatic authorisation to proceed to forcible administration of medication which was solely in the hands of the doctors treating the patient and was not subject to any kind of immediate judicial scrutiny.

Status of execution

A revised action plan was submitted most recently on 15 October 2021 (DH-DD(2021)1065).

Individual measures:

The applicant has been released from involuntary confinement in January 2006.

General measures:

1)     Extension of the involuntary confinement for care (violation of Article 5 § 1)

- Legislative amendments: Amendments to the Mental Health Act (“MHA”) entered into force on 1 August 2014. Since then, a patient subject to involuntary confinement has a right to receive an opinion from an independent physician before a decision on extension of treatment is made by the competent hospital doctors (new sections 12a – 12c). If the assessment of the independent physician is not followed, the reasons shall be stated in the decision on whether to continue the involuntary confinement. Patients can also, bearing the relevant expenses, request examination by a psychiatrist of their choice. 

Sections 12 and 17 of the MHA stipulate the time limits for making decisions on extension of treatment (before the expiry of three months under Section 12, which concerns civil patients, and before the expiry of six months under Section 17, which concerns forensic patients). In addition, according to Section 11 of the MHA, a patient shall always be heard before such a decision is made. Extension can be granted for a maximum of six months. After that, the initial hospitalisation procedure must be started again. According to Section 24 of the MHA, the patient has the right to appeal against the decision to the administrative court within 14 days.

Also, a patient shall be given an opportunity to have the grounds for his or her continued involuntary confinement for treatment reviewed even before the expiry of the maximum period. If only a short time has passed since an earlier request by the patient and it is obvious that his or her condition has not changed, the assessment may be omitted. The grounds for omitting the assessment shall be recorded. 

In the Government’s view, these measures (for further details, see the most recent action plan) have fulfilled the obligations that arise from the Court’s judgment with respect to the violation of Article 5 § 1.

- Communication by the Finnish National Human Rights Institution (“Finnish NHRI”): The Finnish NHRI confirmed that remedies have been put in place regarding decisions on involuntary confinement. It noted that no major issues existed in this regard (see DH-DD(2021)1137).

- Reports of the Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (“CPT”): In the report concerning its 2020 visit to Finland[1] the CPT reiterated its recommendation that the MHA be further amended to provide, in the context of review of involuntary hospitalisation of civil and forensic patients, for the obligatory involvement of an independent psychiatric expert, because patients are often too vulnerable to request themselves an external opinion.

The CPT also reiterated its concerns about the length of courts proceedings concerning involuntary confinement, which usually took several weeks and sometimes months. It noted moreover that each court approval examined by its delegation consisted of identical wording stating that the legal requirements for extended hospitalisation were met. It further noted that while patients were usually heard in the context of an appeal procedure initiated by themselves, they were still very rarely heard during the regular court approval procedures concerning the continuation of involuntary hospitalisation. It therefore reiterated its recommendation to ensure that the court approvals of civil and forensic involuntary hospitalisation decisions include individualised detailed reasons explaining the rationale behind the ruling, that patients have an effective right to be heard in person and that hearings are carried out within appropriately short timescales.[2]

2)     Forcible administration of medication (violation of Article 8)

- Planned reforms and provisional measures: Legislative amendments regarding involuntary medication and legal safeguards have been under preparation for a number of years, as a part of a broader reform of the legislation concerning self-determination of users of welfare and health care services. One legislative proposal expired in 2015 with the end of term of the Parliament to which it had been introduced. Subsequent one was not proposed by the Government to Parliament partly due to criticism expressed during consultations. More recently, preparation of legislative proposals was delayed by the pandemic, but the authorities intend to submit a new legislative proposal to Parliament in 2022.

Pending the adoption of legislative reforms, in December 2012 the Ministry of Social Affairs and Health issued instructions concerning the involuntary treatment (“the 2012 Guidelines”), including the medication of patients. Administration of medication shall always be recorded in the patient’s medical records and the patient has a right to complain to the Regional State Administrative Agency. The 2012 Guidelines and the judgment in this case have been broadly disseminated to domestic stakeholders.

In addition, a patient has at his or her disposal the legal remedies provided for in the Act on the Status and Rights of Patients, namely an objection or a complaint. A patient also has the right to file a complaint to the authorities overseeing legality, i.e. the Parliamentary Ombudsman and the Chancellor of Justice and the right to turn to a court, for instance by way of an action for damages. The Government noted that when examining both objections and complaints, the authorities assess, inter alia, whether the conduct of a health care professional has been appropriate, including whether the medication of a patient has been correct and proportionate or whether other, more appropriate options would have been available in the case.

- Communication by Finnish NHRI: The Finnish NHRI noted that Finnish law treats forced medication as an administrative action and does not provide for an appeal of this decision. It noted that the 2012 Guidelines are not a law and do not include a right to appeal. It also provided information on domestic court decisions refusing to examine the question of compulsory medication, as falling outside the competence of the courts.

According to the Finnish NHRI, the only legal avenue in cases of forcible administration of medication, is a complaint to the Regional State Administrative Agency, with no possibility to appeal, which cannot lead to change in the treatment or compensation and is therefore not per se an effective legal remedy. Additionally, the Parliamentary Ombudsman could only recommend compensation, based on a complaint.

It noted that since the next elections will take place in April 2023, there is a serious risk that the current third legislative proposal will not reach the Parliament in time, or it will lapse due to the end of electoral term (for more details see DH-DD(2021)1137).

Analysis by the Secretariat

Individual measures

As the applicant is no longer subject to involuntary confinement and the just satisfaction awarded by the European Court was paid, no further individual measures appear necessary.

General measures

1)     Extension of the confinement for involuntary care

The 2014 amendments to the Mental Health Act are to be welcomed, since now patients have a right to request a second independent opinion before involuntary confinement is extended and the possibility to initiate themselves judicial review of the confinement. These amendments appear to have addressed the main deficiencies in the legal framework criticised by the European Court.

That said, in view of the concerns expressed by the CPT, it is useful to clarify whether in the absence of explicit refusal by a patient a second opinion is always sought, or whether a second opinion is sought only in case of specific request by a patient, as well as to provide statistical information on the frequency at which second independent opinions are being prepared. The authorities should also be encouraged to provide their analysis as to whether vulnerable patients are in practice capable of benefiting from the possibility to request a second independent opinion before the extension of involuntary confinement.

In addition, given the concerns expressed by the CPT, the authorities should be encouraged to provide their assessment as to whether any further steps are needed to ensure that judicial review of extension of involuntary confinement is always a meaningful safeguard against arbitrariness[3], in particular that judicial decisions are timely, well-reasoned and that patients are heard. 

2)     Forcible administration of medication

It is concerning that despite the authorities’ repeated attempts to introduce legislative changes, it is still impossible for patients to obtain a judicial review of a doctor’s decision to impose on them medication against their will.

It is true that the authorities issued the 2012 Guidelines that should be respected by doctors. However, the 2021 CPT report[4], as well as the recent Finnish NHRI communication indicate that involuntary confinement of a patient is still understood as automatically authorising medication without his or her consent and patients still cannot appeal against such decisions to a court. The Finnish NHRI’s communication also clarifies the limits of the alternative remedies available, such as the complaint to the higher administrative authority or to the Parliamentary Ombudsman.

Therefore, the Committee could call upon the Finnish authorities to finalise without delay their ongoing work on a legislative reform aimed introducing judicial review. In this context, the authorities could draw inspiration from the relevant CPT reports[5].

As concerns the modalities of this review, the authorities could consider introducing procedures which:

i)              distinguish between urgent medication and non-urgent medication, as concerns time-limits or suspensive effect;

ii)             allow judicial review at regular intervals not exceeding few months and possibly also, as an exception, in situations where there is a radical change in the treatment or an important change in the condition of the patient;

iii)            allow patients to receive a ruling within a reasonably short time-scale.

The Committee could also call upon the authorities to adopt the amendments needed before the end of the term of office of the current parliament, to avoid further delay in the execution process.

3)     Need for the supervision under enhanced procedure

It should be underlined that this judgment became final more than nine years ago. While the authorities adopted rapidly a legislative reform to prevent similar violations of Article 5 § 1, their repeated efforts to adopt legislation addressing the issue of lack of sufficient safeguards for the forcible administration of medication have not yielded concrete results. The difficulties encountered in the execution process and the fact that the lack of adequate safeguards may potentially affect numerous patients are indicative of the complexity of the underlying problems. In view of the above the Committee may wish to pursue its supervision of the execution of this judgment under the enhanced procedure, to provide the authorities with its support on the adoption of further general measures.

Financing assured: YES