Date when decision was rendered: 8.11.2002

Judicial body: Turku Administrative Court = Åbo förvaltningsdomstol = Turun hallinto-oikeus

Reference: Report No. 02/0612/1 (02032/01/2300)

Reference to source

Electronic database for administrative court decisions within the FINLEX databank system, administered by the Finnish Ministry of Justice

Databasen för beslut av förvaltningsdomstolar inom FINLEX-databassystemet, vilket administreras av justitieministeriet

Oikeusministeriön ylläpitämän FINLEX-tietopankin hallinto-oikeuksien päätöksiä sisältävä tietokanta

Date of publication:

Subject

respect for private life, integrity,
respekt för privatliv, integritet,
yksityiselämän kunnioittaminen, koskemattomuus,

Relevant legal provisions

sections 1-1 and 2 of the Occupational Health Care Act; sections 7, 80 and 107 of the Constitution Act

= lag om företagshälsovård 1 § 1 mom., 2 §; grundlagen 7 §, 80 §, 107 §

= työterveyshuoltolaki 1 § 1 mom., 2 §; perustuslaki 7 §, 80 §, 107 §

Abstract

According to the health care regulations of the municipality of X, a municipal office-holder had a duty to attend medical examinations referred to in the regulations.With reference to the health care regulations, the municipality of X had ordered A, a municipal office-holder, to attend a medical examination and thereafter a further psychological examination in order to assess A's working capacity.A refused to attend the psychological examination.The municipality gave A a caution for having acted contrary to his/her official duty.

The administrative court ruled that ordering a municipal office-holder to attend a medical examination interferes with that person's constitutional right to personal integrity.Therefore, such interference must be based on grounds that are prescribed in an Act of Parliament.The Occupational Health Care Act (743/1978), which was in force when the decisions regarding A's medical examinations were made, did not contain any provisions on the basis of which a municipal office-holder, whose working capacity is questioned by the employer, could have been ordered to attend a medical examination for any other reasons than those referred to in the Act.The court concluded that bearing in mind the constitutional provisions, the decisions in A's case could not be made with reference to the municipal health care regulations only.The municipality's decision to order A to attend the medical examinations as well as the decision to caution A were thus contrary to law.

6.8.2003 / 30.5.2006 / RHANSKI

Date when decision was rendered: 28.7.2005

Judicial body: Supreme Administrative Court = Högsta förvaltningsdomstolen = Korkein hallinto-oikeus

Reference: Report no. 1892; 2105/3/04

Reference to source

KHO 2005:50.

Yearbook of the Supreme Administrative Court 2005 July-December

Högsta förvaltningsdomstolens årsbok 2005 juli-december

Korkeimman hallinto-oikeuden vuosikirja 2005 heinä-joulukuu

Place of publication: Helsinki

Publisher: Edita

Date of publication: 2009

Pages: pp. 91-100

Subject

right to liberty, security of person, right to life, integrity, aliens, domestic violence, residence permit,
rätt till frihet, personlig säkerhet, rätt till liv, integritet, utlänningar, familjevåld, uppehållstillstånd,
oikeus vapauteen, henkilökohtainen turvallisuus, oikeus elämään, koskemattomuus, ulkomaalaiset, perheväkivalta, oleskelulupa,

Relevant legal provisions

section 21 of the Aliens Act (378/1991); sections 54-5, 58-4 and 215-1 of the Aliens Act (301/2004); section 7 of the Constitution Act

= utlänningslag (378/1991) 21 §; utlänningslag (301/2004) 54 § 5 mom., 58 § 4 mom. och 215 § 1 mom.; grundlagen 7 §

= ulkomaalaislaki (378/1991) 21 §; ulkomaalaislaki (301/2004) 54 § 5 mom., 58 § 4 mom. ja 215 § 1 mom.; perustuslaki 7 §.

Abstract

A had been issued a fixed-term residence permit on the basis of a family tie.She was married to B who resided in Finland with a permanent residence permit.Some six months after A have moved to Finland, she had to leave her home because of B's violent behaviour.She moved first to a shelter for women who have been subjected to domestic violence, and later to an apartment of her own.When her first residence permit expired, A applied for a new fixed-term residence permit.The Directorate of Immigration rejected her application on the grounds that the requirements under which A had originally been issued a residence permit were no longer met.Though A did not intend to divorce her husband, her family life with B had ended after a fairly short period of time and she had no other ties to Finland.The administrative court agreed with the Directorate of Immigration.Both instances based their decisions of the Aliens Act (378/1991) in force at that time.As the Act did not contain any explicit preconditions for issuing a new fixed-term residence permit, principles concerning revocation of residence permits were applied instead.

In its decision, the Supreme Administrative Court considered both the old (378/1991) and the new Aliens Act (301/2004), which entered into force 1 May 2004.As compared to the old Act, the new Aliens Act contains slightly different rules on the revocation of a residence permit in cases where the requirements under which the permit was issued are no longer met.According to the Government Bill to the Act, one of the principal ideas behind these provisions is that in cases in which the changes in circumstances cannot be attributed to the applicant, the residence permit may not be revoked if the applicant is already residing in Finland.The new Aliens Act also contains explicit provisions concerning the requirements for issuing a new fixed-term residence permit.According to these provisions, an alien who has been issued with a fixed-term residence permit on the basis of family ties may be issued with a new residence permit on the basis of close ties to Finland even when the family ties are broken.The Supreme Administrative Court also referred to section 7 of the Constitution Act which provides for the right to life, personal liberty, integrity and security and states that the personal integrity of an individual shall not be violated.The Court held that in this case, the facts pertaining to A's separation from her husband must be taken into account when considering whether A should be issued with a new fixed-term residence permit.Considering the principles in the new Aliens Act, the circumstances with had led to A's separation from her husband as well as the circumstances A would face if she returned to her home country (Tunisia) as a woman separated from her husband, the Supreme Administrative Court ruled that refusing a residence permit in A's case would be manifestly unreasonable.The Court quashed the decisions of the administrative court and the Directorate of Immigration and returned the matter to the Directorate of Immigration for reconsideration in accordance with the new Aliens Act (301/2004).

26.5.2006 / 10.10.2012 / RHANSKI

Date when decision was rendered: 5.7.2006

Judicial body: Supreme Administrative Court = Högsta förvaltningsdomstolen = Korkein hallinto-oikeus

Reference: Report no. 1717; 288/3/05

Reference to source

KHO 2006:43.

Yearbook of the Supreme Administrative Court 2006 July-December

Högsta förvaltningsdomstolens årsbok 2006 juli-december

Korkeimman hallinto-oikeuden vuosikirja 2006 heinä-joulukuu

Place of publication: Helsinki

Publisher: Edita

Date of publication: 2010

Pages: pp. 47-56

Subject

appeal, access to court, non-discrimination, respect for private life, integrity, drugs,
ändringssökande, rätt till domstolsprövning, icke-diskriminering, respekt för privatliv, integritet, narkotika,
muutoksenhaku, oikeus tuomioistuinkäsittelyyn, syrjintäkielto, yksityiselämän kunnioittaminen, koskemattomuus, huumeet,

Relevant legal provisions

sections 28-1-7, 34-1 and 34-2-4 of the Administrative Procedure Act; section 6-2 of the Act on the National Authority for Medicolegal Affairs; sections 25-1, 25-2, 25-5, 29, 38-1 and 39 of the Act on Health Care Professionals; sections 7-1 and 18-1 of the Constitution Act

= förvaltningslag 28 § 1 mom. 7 punkten, 34 § 1 mom och 2 mom. 4 punkten; lag om rättsskyddscentralen för hälsovården 6 § 2 mom.; lag om yrkesutbildade personer inom hälso- och sjukvården 25 § 1, 2 och 5 mom., 29 §, 38 § 1 mom. och 39 §; grundlagen 7 § 1 mom. och 18 § 1 mom.

= hallintolaki 28 § 1 mom. 7 kohta, 34 § 1 mom. ja 2 mom. 4 kohta; laki terveydenhuollon oikeusturvakeskuksesta 6 § 2 mom.; laki terveydenhuollon ammattihenkilöistä 25 § 1, 2 ja 5 mom., 29 §, 38 § 1 mom. ja 39 §; perustuslaki 7 § 1 mom. ja 18 § 1 mom.

ECHR-5; ECHR-6; ECHR-8

Abstract

The National Authority for Medicolegal Affairs, responsible for the supervision of health care professionals, found that it had good reason to presume that A, who was a foreign national and a physician licensed to practice his profession in Finland, was no longer capable of practicing his profession, owing to reduced functional capacity and possible drug addiction.Based on the Act on Health Care Professionals, the National Authority for Medicolegal Affairs ordered A to submit a medical report concerning his health and his ability to work and imposed on A a temporary prohibition to practice his profession.It also held that appeal against the decision was not possible, because this was concerning a preparatory measure and not a final decision by which the issue would have been resolved or dismissed.Nevertheless, A appealed against the decision, to the Supreme Administrative Court, claiming that this was an administrative decision directly concerning his rights and obligations.He argued that he had a right to appeal on the basis of the Act on Health Care Professionals as well as on the basis of section 21 of the Constitution Act (protection under the law and access to court) and Article 6 of the ECHR.He also claimed that the decision amounted to discrimination and did not honour his right to privacy and personal liberty, protected under the Constitution Act and the ECHR.

The Supreme Administrative Court ruled that the decision was appealable, because the possibility of appeal was not specifically restricted in the Act on Health Care Professionals.Moreover, the decision affected A's rights, obligations and interests to such an extent that he was entitled to submit the matter to the consideration of a court.Regarding the merits, the Court held, among other things, that the National Authority for Medicolegal Affairs had previously issued several similar orders in cases where a physician had been suspected of drug addiction, and therefore the decision concerning A did not amount to discrimination on the basis of nationality.Also, the National Authority for Medicolegal Affairs has a right, based on the law, to use the assistance of experts and to submit to the experts information necessary for the performance of their task, confidentiality provisions notwithstanding.It could thus attach to its decision A's medical records and other information for the use of the expert who would assess A's health and ability to work.The decision was also not in violation of A's right to personal liberty, because it had a legitimate aim to guarantee patient security and because it was A's own choice whether he would undergo a medical examination or not.The decision did not mean that A would have been ordered to involuntary treatment.The Supreme Administrative Court concluded that the National Authority for Medicolegal Affairs had acted in accordance with its powers under the Act on Health Care Professionals.A's appeal was dismissed.

11.4.2007 / 2.12.2010 / RHANSKI

Date when decision was rendered: 16.6.2010

Judicial body: Kuopio Administrative Court = Kuopio förvaltningsdomstol = Kuopion hallinto-oikeus

Reference: Report no. 10/0358/7

Reference to source

Electronic database for administrative court decisions within the FINLEX databank system, administered by the Finnish Ministry of Justice

Databasen för beslut av förvaltningsdomstolar inom FINLEX-databassystemet, vilket administreras av justitieministeriet

Oikeusministeriön ylläpitämän FINLEX-tietopankin hallinto-oikeuksien päätöksiä sisältävä tietokanta

Date of publication:

Subject

involuntary care, mental health, integrity, right to liberty, exercise of public powers, public administrative tasks,
tvångsvård, mental hälsa, integritet, rätt till frihet, utövning av offentlig makt, offentliga förvaltningsuppgifter,
tahdonvastainen hoito, mielenterveys, koskemattomuus, oikeus vapauteen, julkisen vallan käyttäminen, julkiset hallintotehtävät,

Relevant legal provisions

sections 3-1, 8, 9, 10-1, 11, 29 and 31 of the Mental Health Act; sections 2-3 and 44-2 of the Local Government Act; sections 7-1 and 124 of the Constitution Act

= mentalvårdslag 3 § 1 mom., 8 §, 9 §, 10 § 1 mom., 11 §, 29 § och 31 §; kommunallag 2 § 3 mom. och 44 § 2 mom.; grundlagen 7 § 1 mom. och 124 §

= mielenterveyslaki 3 § 1 mom., 8 §, 9 §, 10 § 1 mom., 11 §, 29 § ja 31 §; kuntalaki 2 § 3 mom. ja 44 § 2 mom.; perustuslaki 7 § 1 mom. ja 124 §

Abstract

X had been ordered to involuntary treatment in a psychiatric hospital by virtue of the Mental Health Act.X appealed against the decision.In order to determine whether the conditions for ordering X to involuntary treatment were met, X had been admitted to hospital for observation.The referral for observation had been drawn up by a physician who worked in a municipal health centre as a doctor on 24-hour call, on the basis of an agreement between the municipality and a private service provider.The physician had also asked the police to provide assistance in bringing X to the health centre for an examination.

The administrative court found that drawing up the referral for observation and bringing X to the health centre also had to be seen in the light of the provisions of the Mental Health Act concerning the obligation of health centre physicians to take action when the conditions for ordering a person to involuntary treatment are met and the obligation of the police to provide assistance at the request of a health centre physician.Therefore, the actions of the physician in this case involved exercise of public powers.According to the Constitution Act, public administrative tasks may be delegated to others than public authorities only by an Act.According to the Local Government Act, functions that involve the use of public power shall be performed in a civil service relationship.The physician who had drawn up the referral for X's observation did not hold a municipal office.The court found that there is no legal provision which could be regarded as authorizing the delegation of the exercise of public powers in mental health affairs from a public authority to an employee of a private service provider.The court concluded that the physician, as an employee of a private service provider, had no right to perform tasks involving exercise of public powers.Because of the errors made in the process which eventually resulted in X's involuntary treatment, the administrative court quashed the decision subject to appeal.

2.10.2012 / 16.1.2018 / RHANSKI

Date when decision was rendered: 21.12.2010

Judicial body: Kuopio Administrative Court = Kuopio förvaltningsdomstol = Kuopion hallinto-oikeus

Reference: Report no. 10/0608/2

Reference to source

Electronic database for administrative court decisions within the FINLEX databank system, administered by the Finnish Ministry of Justice

Databasen för beslut av förvaltningsdomstolar inom FINLEX-databassystemet, vilket administreras av justitieministeriet

Oikeusministeriön ylläpitämän FINLEX-tietopankin hallinto-oikeuksien päätöksiä sisältävä tietokanta

Date of publication:

Subject

involuntary care, mental health, integrity, right to liberty, exercise of public powers, public administrative tasks,
tvångsvård, mental hälsa, integritet, rätt till frihet, utövning av offentlig makt, offentliga förvaltningsuppgifter,
tahdonvastainen hoito, mielenterveys, koskemattomuus, oikeus vapauteen, julkisen vallan käyttäminen, julkiset hallintotehtävät,

Relevant legal provisions

sections 8, 9 and 29 of the Mental Health Act; sections 2-3 and 44-2 of the Local Government Act; sections 7-1 and 124 of the Constitution Act

= mentalvårdslag 8 §, 9 § och 29 §; kommunallag 2 § 3 mom. och 44 § 2 mom.; grundlagen 7 § 1 mom. och 124 §

= mielenterveyslaki 8 §, 9 § ja 29 §; kuntalaki 2 § 3 mom. ja 44 § 2 mom.; perustuslaki 7 § 1 mom. ja 124 §

Abstract

A physician at a private clinic had drawn up a referral for observation on the basis of which X had been admitted to a hospital in order to determine whether the conditions for ordering X to involuntary psychiatric treatment were met.A specialist at a state mental hospital had produced a statement on observation, finding that these conditions were met.A chief physician in charge of psychiatric care at the state mental hospital had made the decision on ordering X to involuntary treatment, based on the referral for observation, the statement on observation and the case history.The decision had been submitted to the administrative court for approval.

The administrative court noted that, according to the Constitution Act, public administrative tasks may be delegated to others than public authorities only by an Act.However, a task involving significant exercise of public powers can only be delegated to public authorities.According to the Local Government Act, functions that involve the use of public power shall be performed in a civil service relationship.The court found that there is no legal provision which could be regarded as authorizing the delegation of the exercise of public powers in mental health affairs as referred to in this case from a public authority to an employee of a private service provider.The court held that sending a person to hospital for observation under the Mental Health Act involved significant exercise of public powers.A person exercising significant public powers must be in a public-service employment relationship.In drawing up the referral for observation, the physician was not employed as a civil servant in the municipality or the state mental hospital but was employed by a private company.Therefore, the physician was not authorized to send X to hospital for observation under the Mental Health Act.The administrative court concluded that ordering X to involuntary treatment had not been done according to law and therefore, the court did not approve of the decision ordering X to treatment.

3.10.2012 / 16.1.2018 / RHANSKI

Date when decision was rendered: 13.6.2011

Judicial body: Kuopio Administrative Court = Kuopio förvaltningsdomstol = Kuopion hallinto-oikeus

Reference: Report no. 11/0351/7

Reference to source

Electronic database for administrative court decisions within the FINLEX databank system, administered by the Finnish Ministry of Justice

Databasen för beslut av förvaltningsdomstolar inom FINLEX-databassystemet, vilket administreras av justitieministeriet

Oikeusministeriön ylläpitämän FINLEX-tietopankin hallinto-oikeuksien päätöksiä sisältävät tietokanta

Date of publication:

Subject

involuntary care, mental health, integrity, right to liberty, exercise of public powers, public administrative tasks,
tvångsvård, mental hälsa, integritet, rätt till frihet, utövning av offentlig makt, offentliga förvaltningsuppgifter,
tahdonvastainen hoito, mielenterveys, koskemattomuus, oikeus vapauteen, julkisen vallan käyttäminen, julkiset hallintotehtävät,

Relevant legal provisions

sections 3-1, 8, 9, 10-1 and 11-2 of the Mental Health Act; sections 2-3 and 44- 2 of the Local Government Act; sections 7-1, 10 and 124 of the Constitution Act

= mentalvårdslag 3 § 1 mom., 8 §, 9 §, 10 § 1 mom. och 11 § 2 mom.; kommunallag 2 § 3 mom. och 44 § 2 mom.; grundlagen 7 § 1 mom., 10 § och 124 §

= mielenterveyslaki 3 § 1 mom., 8 §, 9 §, 10 § 1 mom. ja 11 § 2 mom.; kuntalaki 2 § 3 mom. ja 44 § 2 mom.; perustuslaki 7 § 1 mom., 10 § ja 124 §

Abstract

X had been ordered to involuntary treatment in a psychiatric hospital by virtue of the Mental Health Act.X appealed against the decision.The referral for observation, on the basis of which X had been admitted to a hospital in order to determine whether the conditions for ordering X to involuntary psychiatric treatment were met, had been drawn up by a physician who was a doctor on 24-hour call in a municipal health centre.The physician was not a civil servant but was employed by a private service provider.The following day, a physician, employed by the municipal health centre, examined X and produced a new referral for observation.However, X's admission to hospital for observation was not based on this latter medical opinion.

The administrative court found that the obligation of a health centre physician to take action when the conditions for ordering a person to involuntary treatment are met, admission for observation, producing a statement on observation and ordering a patient to treatment, as prescribed in the Mental Health Act, all involve the exercise of public powers.According to the Constitution Act, public administrative tasks may be delegated to others than public authorities only by an Act.However, a task involving significant exercise of public powers can only be delegated to a public authority.According to the Local Government Act, functions that involve the use of public powers shall be performed in a civil service relationship.The court found that there is no legal provision which could be regarded as authorizing the delegation of the exercise of public powers in mental health affairs from a public authority to an employee of a private service provider.

The court noted that, in the different stages of the process for ordering a person to undergo involuntary psychiatric treatment, the physicians involved work independently.They each interfere in another person's liberty and integrity.The process may also result in restrictions to a patient's right to privacy.Although each physician makes his or her decision independently, the different stages of the process form a whole, and it is essential that each stage is performed correctly also from a formal point of view.The referral for observation under the Mental Health Act involves significant exercise of public powers.The court found that the physician who had drawn up the referral for observation in X's case had no authority to send X to hospital for observation against X's will, because the physician was not a civil servant employed by the municipal health centre.The original referral for observation could not be retroactively amended by a second referral produced by a health centre physician.The court concluded that because X's admission to hospital was not based on a referral for observation drawn up according to law, the subsequent statement on observation and the decision on ordering X to treatment, based on that statement on observation, could not be regarded as being in accordance with the Mental Health Act.The administrative court quasned the decision by which X had Been ordered to involuntary treatment.

5.10.2012 / 16.1.2018 / RHANSKI

Date when decision was rendered: 16.2.2011

Judicial body: Helsinki Administrative Court = Helsingfors förvaltningsdomstol = Helsingin hallito-oikeus

Reference: Report no. 11/0169/2

Reference to source

Electronic database for administrative court decisions within the FINLEX databank system, administered by the Finnish Ministry of Justice

Databasen för beslut av förvaltningsdomstolar inom FINLEX-databassystemet, vilket administreras av justitieministeriet

Oikeusministeriön ylläpitämän FINLEX-tietopankin hallinto-oikeuksien päätöksiä sisältävä tietokanta

Date of publication:

Subject

appeal, right to liberty, integrity, civil servants,
ändringssökande, rätt till frihet, integritet, tjänstemän,
muutoksenhaku, oikeus vapauteen, koskemattomuus, virkamiehet,

Relevant legal provisions

section 19 of the Act on Municipal Office Holders; sections 89, 90 and 91 of the Local Government Act; section 7 of the Constitution Act

= lag om kommunala tjänsteinnehavare 19 §; kommunallag 89 §, 90 § och 91 §; grundlagen 7 §

= laki kunnallisesta viranhaltijasta 19 §; kuntalaki 89 §, 90 § ja 91 §; perustuslaki 7 §

Abstract

The main question in this case was whether ordering a civil servant in a municipality to undergo an assessment of his/her ability to work was a decision against which appeal was allowed or an official order from the employer which according to the Local Government Act was not subject to rectification or appeal.The administrative court found that a civil servant's obligation to attend a medical examination or assessment on the basis of the employer's order under the Act on Municipal Office Holders is an interference in the right to personal liberty and integrity as prescribed in the Constitution Act.In this case, therefore, an order to undergo an assessment of work ability had such an impact on a civil servant's rights and obligations that the civil servant was entitled to have the decision reviewed by an appeal body.Also, the right to appeal against a decision on an assessment of work ability was not expressly restricted in law.The administrative court concluded that the order from a municipal authority for the assessment of a civil servant's work ability was a decision against which appeal was allowed.The Supreme Administrative Court upheld the decision of the administrative court (report no. 1168 of 29 April 2011).

8.10.2012 / 16.1.2018 / RHANSKI

Date when decision was rendered: 10.8.2012

Judicial body: Supreme Administrative Court = Högsta förvaltningsdomstolen = Korkein hallinto-oikeus

Reference: Report no. 2127; 333/2/12

Reference to source

KHO 2012:63.

Yearbook of the Supreme Administrative Court 2012 July-October

Högsta förvaltningsdomstolens årsbok 2012 juli-oktober

Korkeimman hallinto-oikeuden vuosikirja 2012 heinä-lokakuu

Place of publication: Helsinki

Publisher: Edita

Date of publication: 2013

Pages: 221-227

Subject

involuntary care, mental health, integrity, right to liberty, exercise of public powers, public administrative tasks,
tvångsvård, mental hälsa, integritet, rätt till frihet, utövning av offentlig makt, offentliga förvaltningsuppgifter,
tahdonvastainen hoito, mielenterveys, koskemattomuus, oikeus vapauteen, julkisen vallan käyttäminen, julkiset hallintotehtävät,

Relevant legal provisions

sections 3-1, 8-1, 9, 10-1, 11-2 and 29 of the Mental Health Act; section 44-2 of the Local Government Act; sections 2-3, 7-1, 7-3 and 124 of the Constitution Act

= mentalvårdslag 3 § 1 mom., 8 § 1 mom., 9 §, 10 § 1 mom., 11 § 2 mom. och 29 §; kommunallag 44 § 2 mom.; grundlagen 2 § 3 mom., 7 § 1 och 3 mom. och 124 §

= mielenterveyslaki 3 § 1 mom., 8 § 1 mom., 9 §, 10 § 1 mom., 11 § 2 mom. ja 29 §; kuntalaki 44 § 2 mom.; perustuslaki 2 § 3 mom., 7 § 1 ja 3 mom. ja 124 §

Abstract

X had been ordered to involuntary psychiatric treatment in a hospital by virtue of the Mental Health Act.X appealed against the decision to the administrative court, but the court upheld the decision.X appealed further to the Supreme Administrative Court.At the request of the Supreme Administrative Court, the chief physician of the hospital submitted a report in which the court was notified of the fact that the physician, who had drawn up the referral for observation on the basis of which X had been admitted to a hospital in order to determine whether the conditions for ordering X to involuntary psychiatric treatment were met, was an employee of a private company providing medical services and had been a doctor on call at the municipal health centre, based on an agreement between the municipality and the private service provider.

The Supreme Administrative Court noted that in the different stages of the process for ordering a person to undergo involuntary psychiatric treatment under the Mental Health Act, the physicians involved work independently.However, the different stages of the process form a whole, and before moving from one stage to another, it is essential that the preceding stage has been performed correctly also from a formal point of view.The Court pointed out that sending a person to a hospital for observation under the Mental Health Act interferes with that person's constitutional right to personal liberty and integrity.A physician who makes the decision on referral for observation exercises public powers in the matter.According to the Constitution Act, a public administrative task may be delegated to others than public authorities only by an Act.A person who exercises significant public powers must be a civil servant.In the view of the Supreme Administrative Court, the question whether a referral for observation involves exercise of public powers or significant exercise of public powers is, ultimately, for the legislator to decide and the Court did not in this case take a stand on this issue as such.The Court found that the physician who had drawn up the referral for observation had no authority to send X to hospital for observation against X's will, because there was no explicit provision on such authorization in the Mental Health Act and because the physician had not been employed by the municipality.Therefore, the subsequent statement on observation and the decision ordering X to treatment, based on the statement on observation, could not be regarded as being in accordance with the Constitution Act and the Mental Health Act.The Supreme Administrative Court quashed the decision of the administrative court and the decision of the chief physician ordering X to involuntary treatment.

One member of the Supreme Administrative Court would have rejected X's appeal.She noted, among other things, that only the rank of the physician who makes the decision on ordering a person under observation to involuntary treatment (chief physician in order of psychiatric care) has been explicitly specified in the Mental Health Act.Also, the referral for observation in this case had been based on the grounds as specified in the Mental Health Act.X had been admitted to hospital that same day and the physician in charge of the observation was the deputy chief physician of the hospital.She also pointed out that the Mental Health Act (1990) has been enacted before the entry into force of the Constitution Act (2000), and the drafters of the Mental Health Act had not considered the question whether referral for observation involved exercise of public powers to the effect that the physician drawing up the referral for observation must be a civil servant.

8.10.2012 / 16.1.2018 / RHANSKI

Date when decision was rendered: 21.8.2012

Judicial body: Kuopio Administrative Court = Kuopio förvaltningsdomstol = Kuopion hallinto-oikeus

Reference: Report no. 12/0521/7

Reference to source

Electronic database for administrative court decisions within the FINLEX databank system, administered by the Finnish Ministry of Justice

Databasen för beslut av förvaltningsdomstolar inom FINLEX-databassystemet, vilket administreras av justitieministeriet

Oikeusministeriön ylläpitämän FINLEX-tietopankin hallinto-oikeuksien päätöksiä sisältävä tietokanta

Date of publication:

Subject

involuntary care, mental health, right to liberty, integrity,
tvångsvård, mental hälsa, rätt till frihet, integritet,
tahdonvastainen hoito, mielenterveys, oikeus vapauteen, koskemattomuus,

Relevant legal provisions

section 8-2 of the Mental Health Act

= mentalvårdslag 8 § 2 mom.

= mielenterveyslaki 8 § 2 mom.

ECHR-5-1

Abstract

The chief physician in a psychiatric hospital had made a decision on the continuation of Z's involuntary treatment, after having obtained a medical observation statement by another physician in the same hospital.Z was a minor.Z's parents appealed against the decision to the administrative court.In an oral hearing in August 2012, the parents referred to the decision of 3 July 2012 by the European Court of Human Rights in the case of X v.Finland (application no. 34806/04).In its decision, the European Court of Human Rights referred, among other things, to the recommendation of the European Committee for the Prevention of Torture according to which the periodic review of an order to treat a patient against his or her will in a psychiatric hospital should involve a psychiatric opinion which is independent of the hospital in which the patient is detained.The European Court of Human Rights noted that, in the Finnish system, the medical evaluation pertaining to the continuation of treatment is made by two physicians of the same mental hospital in which the patient is detained.It concluded that the patients do not therefore have a possibility to benefit from a second, independent psychiatric opinion.The Court found that, in X's case, the procedure prescribed by Finnish law did not provide adequate standards against arbitrariness and the Finnish law was thus not in conformity with the requirements imposed by Article 5-1-e of the ECHR.

The administrative court found that, in Z's case, the decision-making had followed the procedure as prescribed in the Mental Health Act, the decision was based on a thorough psychiatric evaluation, and the physician who had carried out the evaluation did not participate in the decision-making.However, the administrative court also took into account the views of the European Court of Human Rights in the case of X v.Finland.The court noted that the decision to continue Z's involuntary treatment was made by the chief physician in the psychiatric hospital, on the basis of a medical statement by another physician in the same hospital and without obtaining an external, independent psychiatric opinion.Following the views of the human rights court, the administrative court regarded this lack of an external opinion as a significant defect, and, therefore, quashed the decision subject to appeal.The court's decision is final.

See also the decision of the Supreme Administrative Court KHO 2012:75 of 13 September 2012.

10.10.2012 / 12.10.2012 / RHANSKI

Date when decision was rendered: 13.9.2012

Judicial body: Supreme Administrative Court = Högsta förvaltningsdomstolen = Korkein hallinto-oikeus

Reference: Report no. 2399; 1202/2/12

Reference to source

KHO 2012:75.

Yearbook of the Supreme Administrative Court 2012 July-October

Högsta förvaltningsdomstolens årsbok 2012 juli-oktober

Korkeimman hallinto-oikeuden vuosikirja 2012 heinä-lokakuu

Place of publication: Helsinki

Publisher: Edita

Date of publication: 2013

Pages: 360-379

Subject

involuntary care, mental health, integrity, right to liberty,
tvångsvård, mental hälsa, integritet, rätt till frihet,
tahdonvastainen hoito, mielenterveys, koskemattomuus, oikeus vapauteen,

Relevant legal provisions

sections 8, 11, 12, 14, 24 and 25 of the Mental Health Act; sections 7-1-3, 8-1 and 8-2-3 of the Administrative Courts Act; sections 33, 34, 36, 37 and 38 of the Administrative Judicial Procedure Act; sections 7-3, 21 and 22 of the Constitution Act

= mentalvårdslag 8 §, 11 §, 12 §, 14 §, 24 § och 25 §; lag om förvaltningsdomstolar 7 § 1 mom. 3 punkten, 8 § 1 mom. och 8 § 2 mom. 3 punkten; förvaltningsprocesslag 33 §, 34 §, 36 §, 37 § och 38 §; grundlagen 7 § 3 mom., 21 § och 22 §

= mielenterveyslaki 8 §, 11 §, 12 §, 14 §, 24 § ja 25 §; hallinto-oikeuslaki 7 § 1 mom. 3 kohta, 8 § 1 mom. ja 8 § 2 mom. 3 kohta; hallintolainkäyttölaki 33 §, 34 §, 36 §, 37 § ja 38 §; perustuslaki 7 § 3 mom., 21 § ja 22 §.

ECHR-5; CCPR-9

Abstract

The chief physician in a psychiatric hospital had made a decision on the continuation of Y's involuntary treatment, after having obtained a medical observation statement by another physician in the same hospital.The decision had been made on the grounds as prescribed in the Mental Health Act and following the procedure provided for in the same Act.In this case, the Supreme Administrative Court assessed whether the procedure provided sufficient legal safeguards for patients, in the light of international human rights obligations and, in particular, the decision of 3 July 2012 by the European Court of Human Rights in the case of X v.Finland (application no. 34806/04).In X v.Finland, the human rights court found that in the decision-making concerning the continuation of involuntary psychiatric treatment, the Finnish legislation did not provide for adequate safeguards against arbitrariness, because of the lack of an external psychiatric opinion, independent of the hospital in which the patient is detained, and because a patient did not appear to have any possibility to initiate the review of the conditions for his/her confinement to involuntary treatment.

The Supreme Administrative Court discussed at length the case of X v.Finland and other relevant case law of the European Court of Human Rights.It emphasized the need to take into account all legal remedies and due process guarantees related to the procedure for continuation of involuntary treatment.The court underscored the following issues, among others.Under the Mental Health Act, a person ordered to involuntary treatment has a right to appeal against the decision by which the person is ordered to treatment and the decision to continue the treatment.The right of appeal is independent of whether or not the hospital is obliged to submit the decision for the approval of an administrative court.In the administrative court, the appellant has a right to an oral hearing on the grounds prescribed in the Administrative Judicial Procedure Act.According to the Administrative Courts Act, when an administrative court hears and resolves matters concerning involuntary treatment or the continuation of such treatment, one member of the administrative court must be a licensed physician and specialist in psychiatry.In its earlier case law, the Supreme Administrative Court has specified that this member shall be independent of the hospital where the patient is detained.The court continued that by using his/her right of appeal, a person ordered to involuntary treatment has a right to initiate a procedure where the conditions for his/her confinement to involuntary treatment are examined and reviewed by a court.The initiative does thus not lay solely with the authorities.A decision to continue treatment (for a maximum period of six months) must always be submitted for the approval of an administrative court.If the patient is a minor, both the decision ordering the person to involuntary treatment and the decision to continue the treatment must be submitted to an administrative court.In the view of the Supreme Administrative Court, this provides for additional legal safeguards, in case the patient does not make use of his/her right of appeal.

The Supreme Administrative Court found that the decision to continue Y's involuntary treatment was made on the grounds as prescribed in the Mental Health Act and following the procedure provided for in the same Act.In the administrative court, Y's case was heard and resolved by two legally trained members and one expert member who was a licensed physician specialising in psychiatry.The Supreme Administrative Court noted that the conditions for the continuation of involuntary treatment under the Mental Health Act meet with those for the lawful detention of a person with unsound mind under Article 5-1-e of the ECHR as established in the case law of the European Court of Human Rights.Considering the procedure for the continuation of involuntary treatment and the relevant legal remedies and guarantees of impartiality as a whole, the Supreme Administrative Court found that the procedure in which the decision to continue Y's involuntary treatment was made guarantees an effective remedy and proper safeguards against arbitrariness as required by Article 5 of the ECHR and the case law of the European Court of Human Rights.The court held that the decision in the case of X v.Finland did not give cause to interpret the provisions of the Mental Health Act to the effect that it would have been necessary to obtain an external medical opinion, independent of the hospital in which Y was detained, before the decision to continue Y's treatment was submitted for the approval of the administrative court.The Supreme Administrative Court upheld the decision of the administrative court by which the lower court had approved of the decision to continue treatment.

18.10.2012 / 29.9.2014 / RHANSKI

Date when decision was rendered: 9.8.2013

Judicial body: Vaasa Administrative Court = Vasa förvaltningsdomstol = Vaasan hallinto-oikeus

Reference: Report no. 13/0463/2

Reference to source

Electronic database for administrative court decisions within the FINLEX databank system, administered by the Finnish Ministry of Justice

Databasen för beslut av förvaltningsdomstolar inom FINLEX-databassystemet, vilket administreras av justitieministeriet

Oikeusministeriön ylläpitämän FINLEX-tietopankin hallinto-oikeuksien päätöksiä sisältävä tietokanta

Date of publication:

Subject

involuntary care, mental health, right to liberty, integrity,
tvångsvård, mental hälsa, rätt till frihet, integritet,
tahdonvastainen hoito, mielenterveys, oikeus vapauteen, koskemattomuus,

Relevant legal provisions

sections 8 and 12 of the Mental Health Act

= mentalvårdslag 8 § och 12 §

= mielenterveyslaki 8 § ja 12 §.

ECHR-5; CCPR-9

Abstract

A decision had been made to continue X's involuntary care on the basis of sections 8 and 12 of the Mental Health Act.Before the decision was made, X had told that he wanted an external medical opinion as to whether the conditions for ordering X to involuntary care were still met.The hospital requested such an opinion from the medical director of the municipal social services and health care department who was also a member of the hospital board of directors.However, the opinion was not given until after the decision to continue X's treatment had been made.

The administrative court found that an assessment by a hospital board member as to whether the conditions for ordering a patient to involuntary care are still met could not be regarded as an external, independent opinion which would have given adequate safeguards against possible arbitrariness.Also, the opinion had been submitted after the decision to continue X's treatment had already been made.The court concluded that ordering X to involuntary care had not met with the international obligations binding on Finland.In making its decision, the court took into account the decision of the European Court of Human Rights in the case of X v.Finland (judgment of 3 July 2012) and the decision of the Kuopio administrative court of 18 January 2013, report no. 13/0017/7.

5.9.2014 / 5.9.2014 / RHANSKI

Date when decision was rendered: 27.3.2013

Judicial body: Kuopio Administrative Court = Kuopio förvaltningsdomstol = Kuopion hallinto-oikeus

Reference: Report no. 13/0239/7

Reference to source

Electronic database for administrative court decisions within the FINLEX databank system, administered by the Finnish Ministry of Justice

Databasen för beslut av förvaltningsdomstolar inom FINLEX-databassystemet, vilket administreras av justitieministeriet

Oikeusministeriön ylläpitämän FINLEX-tietopankin hallinto-oikeuksien päätöksiä sisältävä tietokanta

Date of publication:

Subject

involuntary care, mental health, right to liberty, integrity,
tvångsvård, mental hälsa, rätt till frihet, integritet,
tahdonvastainen hoito, mielenterveys, oikeus vapauteen, koskemattomuus,

Relevant legal provisions

sections 8, 17 and 27 of the Mental Health Act; sections 7, 21 and 22 of the Constitution Act; section 31-1 of the Administrative Procedure Act; sections 33 and 37-1 of the Administrative Judicial Procedure Act

= mentalvårdslag 8 §, 17 § och 27 §; grundlagen 7 §, 21 § och 22 §; förvaltningslag 31 § 1 mom.; förvaltningsprocesslag 33 § och 37 § 1 mom.

= mielenterveyslaki 8 §, 17 § ja 27 §; perustuslaki 7 §, 21 § ja 22 §; hallintolaki 31 § 1 mom.; hallintolainkäyttölaki 33 § ja 37 § 1 mom.

ECHR-5-1

Abstract

The decision to continue X's involuntary care in a psychiatric hospital had been submitted for approval by the administrative court.Before the decision had been made, Y, who was a physician independent of the hospital where X was treated, had assessed X's case and concluded that the conditions for ordering treatment against X's will no longer existed.Y's opinion thus differed from the statements of the hospital physician who had been in charge of X's observation and the physician in charge of psychiatric care who had decided X's treatment should continue.The administrative court decided to conduct an oral hearing in the case.It appointed counsel for X and decided to hear Y as a witness.In its decision, the administrative court noted that the evaluation of X's mental condition, as based on Y's written opinion and the evidence received in the oral hearing, was in part unclear and insufficient and the conclusions also in part unsubstantiated.In the oral hearing, Y had had difficulties in remembering issues pertaining to X's medical examination.In addition, Y's statement was lacking any views of X's ability to carry out and accept various forms of psychiatric treatment deemed necessary for X.The administrative court concluded that at the time the decision to continue X's involuntary care had been made, X had been in need of treatment for a mental illness which, if not treated, would have become considerably worse or would have severely endangered X's health or safety or the health or safety of others.Other mental health services were inapplicable or inadequate.There were thus reasonable grounds for continuing X's involuntary care.

5.9.2014 / 5.9.2014 / RHANSKI

Date when decision was rendered: 18.1.2013

Judicial body: Kuopio Administrative Court = Kuopio förvaltningsdomstol = Kuopion hallinto-oikeus

Reference: Report no. 13/0016/7

Reference to source

Electronic database for administrative court decisions within the FINLEX databank system, administered by the Finnish Ministry of Justice

Databasen för beslut av förvaltningsdomstolar inom FINLEX-databassystemet, vilket administreras av justitieministeriet

Oikeusministeriön ylläpitämän FINLEX-tietopankin hallinto-oikeuksien päätöksiä sisältävä tietokanta

Date of publication:

Subject

involuntary care, mental health, right to liberty, integrity,
tvångsvård, mental hälsa, rätt till frihet, integritet,
tahdonvastainen hoito, mielenterveys, oikeus vapauteen, koskemattomuus,

Relevant legal provisions

sections 8, 15, 16, 17 and 22 of the Mental Health Act; sections 7, 21 and 22 of the Constitution Act

= mentalvårdslag 8 §, 15 §, 16 §, 17 § och 22 §; grundlagen 7 §, 21 § och 22 §

= mielenterveyslaki 8 §, 15 §, 16 §, 17 § ja 22 §; perustuslaki 7 §, 21 § ja 22 §.

ECHR-5; CCPR-9

Abstract

The chief physician in a psychiatric hospital had made a decision on the continuation of Z's involuntary care, after having obtained a medical observation statement by another physician in the same hospital.The decision was submitted for approval by the Kuopio administrative court.

The administrative court found that the procedure followed in this case was in accordance with the Mental Health Act.However, in the court's view there was room for doubt as to whether the procedure had been objective and reliable as far as the medical observation statement was concerned.The court discussed at length the case law of the European Court of Human Rights concerning the grounds for permitted deprivation of liberty of mentally disordered persons.It noted in particular the case of X v Finland (judgment of 3 July 2012), where the decision to continue X's involuntary confinement after the initial care order had been made by the chief physician of the hospital after having obtained a medical observation statement by another physician of the same hospital.The human rights court found that the procedure prescribed by national law did not in this case provide adequate safeguards against arbitrariness.The administrative court also took into account the subsequent decision of the Supreme Administrative Court, KHO 2012:75 of 13 September 2012, in another case, in which the court had noted the case of X v Finland, but found that the guarantees of objectivity and reliability of the procedure for ordering a person to involuntary care did not require in the present case that the patient is also examined by a physician who has no connection with the hospital where the patient is being treated.This is because the procedure and the Finnish legislation, on the whole, provide for effective remedies and sufficient safeguards against arbitrariness as required by the ECHR.

The administrative court noted the exceptionally challenging case of legal interpretation because of the inconsistency between the views of the human rights court and those of the Supreme Administrative Court as far as the reliability of medical observation statements was concerned, albeit both courts had emphasised that their decisions were concerning "the instant case".In the administrative court's opinion, the requirement of objectivity could be regarded as an important principle in a constitutional state and therefore the views of the human rights court should prevail, considering also that the present case of Z was essentially comparable to the case of X v Finland.The court found that although the relevant provisions of the Mental Health Act were not in apparent conflict with the ECHR, they were inadequate, because there was no explicit provision which a patient involuntarily detained could rely on in order to safeguard his or her rights under the ECHR.The fact that the decision on the continuation of a patient's involuntary care is submitted for approval by an administrative court could not, in the court's view, substitute and external, independent psychiatric opinion.The expert member of the administrative court makes his/her assessment of a patient's health on the basis of documentary material and this does not correspond to a psychiatric examination or observation.The court referred to section 22 of the Constitution Act according to which the public authorities shall guarantee the observance of basic rights and liberties and human rights.It concluded that ordering Z to involuntary care had not been carried out as required by international obligations binding on Finland, and therefore, the court could not confirm the decision to continue Z's treatment.The matter was returned to the hospital for a new consideration.The court also ordered that Z must be given the opportunity to obtain an external, independent medical opinion.

For a similar case, see the decision of the Kuopio Administrative Court 13/0017/7 of 18 January 2013.

8.9.2014 / 8.9.2014 / RHANSKI

Date when decision was rendered: 4.6.2013

Judicial body: Helsinki Administrative Court = Helsingfors förvaltningsdomstol = Helsingin hallinto-oikeus

Reference: Report no. 13/0427/2

Reference to source

Electronic database for administrative court decisions within the FINLEX databank system, administered by the Finnish Ministry of Justice

Databasen för beslut av förvaltningsdomstolar inom FINLEX-databassystemet, vilket administreras av justitieministeriet

Oikeusministeriön ylläpitämän FINLEX-tietopankin hallinto-oikeuksien päätöksiä sisältävä tietokanta

Date of publication:

Subject

involuntary care, mental health, right to liberty, integrity,
tvångsvård, mental hälsa, rätt till frihet, integritet,
tahdonvastainen hoito, mielenterveys, oikeus vapauteen, koskemattomuus,

Relevant legal provisions

sections 8 and 12 of the Mental Health Act; sections 27 and 31-1 of the Administrative Procedure Act

= mentalvårdslag 8 § och 12 §; förvaltningslag 27 § och 31 § 1 mom.

= mielenterveyslaki 8 § ja 12 §; hallintolaki 27 § ja 31 § 1 mom.

ECHR-5

Abstract

In December 2012, B, who was a specialist in psychiatry at the Peijas hospital, had ordered D to involuntary psychiatric treatment.A few weeks later D was moved to the Kellokoski hospital.In March 2013, C, who was the chief physician in charge of psychiatric care at the Kellokoski hospital, made a decision on the continuation of D's involuntary care, after having obtained a medical observation statement by another physician at the Kellokoski hospital.C had also requested B's opinion on whether the conditions for ordering D to treatment were still met.Before giving an opinion B had visited D at the Kellokoski hospital.All three physicians agreed that the conditions for ordering D to involuntary care were still met.The decision to continue D's involuntary care was submitted to the Helsinki administrative court for confirmation.

Also in December 2012, the Ministry of Social Affairs and Health had given instructions as to the implementation of the Mental Health Act as far as cases of continuation of involuntary care were concerned.The instructions were to be followed pending the amendment of the Mental Health Act.They were issued as part of the execution of the judgment by the European Court of Human Rights of 3 July 2012 in the case of X v Finland, in which the court found that the procedure prescribed by national law did not in this case provide adequate safeguards against arbitrariness.This was, among other things, because the medical evaluation of the need to continue a patient's involuntary care after the initial care order was made by two physicians of the same hospital where the patient was detained, and the patient did not have any possibility to benefit from a second, independent psychiatric opinion.According to the Ministry's instructions, before the decision to continue a patient's involuntary care is made, an opinion must be obtained from a physician independent of the hospital where the patient is being treated.The external expert is either chosen by the hospital ex officio or by the patient concerned, who also has a right to refuse such external involvement.The external expert opinion is not binding but it must be taken into account when making the decision to continue a patient's involuntary care.

In the present case, the administrative court held that the decision of the European Court of Human Rights in the case of X v Finland could not be interpreted to the effect that safeguarding a patient's rights would require that, in addition to the procedure prescribed in the Mental Health Act, an external psychiatric opinion should always be obtained before the decision to continue a patient's involuntary care.The need for an external opinion is assessed on a case-by-case basis.In this assessment, a patient's request for an external medical opinion is taken into account as one of the relevant factors.The administrative court found that, in the present case, no reason had been shown to doubt the reliability or objectivity of the data on D's health and need of care as presented in the patient's case history and the medical observation statement.The medical evaluation could also be regarded as adequate.The patient had not requested an external medical opinion.The administrative court concluded that in this case it would not have been necessary to obtain an external opinion ex officio.

The court then deemed it necessary to assess that there had been no procedural fault in obtaining the external opinion.It noted that the opinion had been given by a physician who was independent of the Kellokoski hospital but who nonetheless had a few months earlier ordered D to involuntary psychiatric care at the Peijas hospital.Under the circumstances, the opinion could not be regarded as an independent external opinion, as prescribed in X v Finland.However, in the present case it was not necessary to obtain an independent opinion and therefore, the administrative court found no need to decline the confirmation of the decision because of the lack of such an opinion.The court also held that the provisions on disqualification in the Administrative Procedure Act were not applicable in this case.This was because, when giving the opinion B had not been a public office holder or acting in an official capacity, nor had B participated in the consideration of the matter.There had thus been no procedural fault when taking into account B's opinion in the decision-making process.

The administrative court concluded that the conditions for ordering D to involuntary care were still met.The court's decision was made by vote (5-3).The minority judges agreed with the decision made by the majority but formulated their reasons in a slightly different manner when concluding there had been no procedural fault.

8.9.2014 / 8.9.2014 / RHANSKI

Date when decision was rendered: 17.10.2008

Judicial body: Supreme Court = Högsta domstolen = Korkein oikeus

Reference: Report no. 2250; R2007/500

Reference to source

KKO 2008:93.

Decisions of the Supreme Court 2008 II July-December

Avgöranden av Högsta domstolen 2008 II juli-december

Korkeimman oikeuden ratkaisuja 2008 II heinä-elokuu

Place of publication: Helsinki

Publisher: Edita

Date of publication: 2009

Pages: 660-672

Subject

integrity, children, best interests of the child, rights of the child, child abuse, circumcision, respect for family life, respect for private life, freedom of religion,
integritet, barn, barnets bästa, barnets rättigheter, barnmisshandel, omskärelse, respekt för familjeliv, respekt för privatliv, religionsfrihet,
koskemattomuus, lapset, lapsen etu, lapsen oikeudet, lasten pahoinpitely, ympärileikkaus, perhe-elämän kunnioittaminen, yksityiselämän kunnioittaminen, uskonnonvapaus,

Relevant legal provisions

chapter 21 sections 5 and 7 of the Penal Code; sections 6-3, 7-3, 10 and 11 of the Constitution Act; sections 1 and 4 of the Act on Child Custody and Right of Access

= strafflagen 21 kapitel 5 § och 7 §; grundlagen 6 § 3 mom., 7 § 3 mom., 10 § ja 11 §; lag angående vårdnad om barn och umgängesrätt 1 § och 4 §

= rikoslaki 21 luku 5 § ja 7 §; perustuslaki 6 § 3 mom., 7 § 3 mom., 10 § ja 11 §; laki lapsen huollosta ja tapaamisoikeudesta 1 § ja 4 §.

ECHR-8; ECHR-9; CRC-19; CRC-24; CRC-30

Abstract

X, who was a Muslim and a sole guardian of her son, had asked a physician to perfom circumcision on her son on grounds of religious tradition.At the time the child was 4½ years old.The question was whether X was guilty of assault or incitement to assault under Finnish law.There is no legislation on non-medical male circumcision in Finland, whereas female genital mutilation is treated as aggravated assault and is always prohibited.

The Supreme Court found that the protection of a child's right to personal integrity is strong when balanced against the rights of a parent or a guardian which also can be protected as human rights or constitutional rights through the right to family life or the right to freedom of religion.Parents or guardians have a right to decide on the education of their child and the right to raise the child in accordance with their religious and cultural traditions.However, protecting the rights of the guardian does not as such justify actions which cause harm to the child's health or well-being.

The Supreme Court continued that in creating a balance between the rights of the child and those of the guardians the starting-point must be that the guardians' right to decide on the child's care, upbringing and other personal matters is based on the purpose to ensure the welfare and balanced development of the child in accordance with the child's individual needs and wishes.Interference in a child's personal integrity must be assessed specifically from the point of view of the child's interests.A child's guardians may have a right to decide, on the child's behalf, on a procedure which interferes in the child's personal integrity, provided that the purpose of the procedure is to enhance the child's welfare and development.Also, in an objective assessment such a procedure shall not be contrary to the child's best interests.A serious interference in the personal integrity of a child cannot be justified with reference to freedom of religion or the right to practice religion even in cases where it is allegedly based on the best interests of the child.

In the Supreme Court's opinion, male child circumcision is a fairly minor interference in the child's personal integrity, provided that the procedure is performed in a medical manner, in hygienic conditions and with analgesia.The court pointed out that the circumcision of Muslim boys is an established tradition in the Muslim community and is deemed compulsory.It is also an integral part of the identity of Muslim men.Therefore, circumcision for religious reasons can be considered to have a positive impact on the boy himself, the development of his identity and his attachment to a religious and social community.In this case circumcision had been performed for acceptable religious reasons and in a safe and appropriate medical manner without causing the child unnecessary pain.Overall, the procedure was only a minor interference in the child's physical integrity and it could not be regarded as being against the best interests of the child.The Supreme Court concluded that for these reasons, X's decision to have her son circumcised was not unlawful and thus not punishable.

In its decision the Supreme Court discussed the questions of medical interventions and the right to physical integrity, parental rights, and freedom of religion also in the light of the ECHR.It referred to the judgments of the European Court of Human Rights in the cases of Juhnke v Turkey (judgment of 13 May 2008), Nielsen v Denmark (judgment of 28 November 1988, Publications of the European Court of Human Rights, Series A, Vol. 144), Johansen v Norway (judgment of 7 August 1996, Reports of Judgments and Decisions 1996-III), Scozzari and Giunta v Italy (judgment of 13 July 2000, Reports of Judgments and Decisions 2000_VIII) and Kokkinakis v Greece (judgment of 25 May 1993, Publications of the European Court of Human Rights, Series A, Vol. 260).

2.6.2016 / 2.6.2016 / RHANSKI

Date when decision was rendered: 31.3.2016

Judicial body: Supreme Court = Hösta domstolen = Korkein oikeus

Reference: Report no. R2014/116; 0767

Reference to source

KKO 2016:24.

Electronic database for the decisions of the Supreme Court within the FINLEX databank system, administered by the Finnish Ministry of Justice

Databasen för Högsta domstolens beslut inom FINLEX-databassystemet, vilket administreras av justitieministeriet

Oikeusministeriön ylläpitämän FINLEX-tietopankin Korkeimman oikeuden päätöksiä sisältävä tietokanta

Date of publication:

Subject

integrity, children, best interests of the child, rights of the child, child abuse, circumcision, respect for family life, respect for private life, freedom of religion, right to be heard,
integritet, barn, barnets bästa, barnets rättigheter, barnmisshandel, omskärelse, respekt för familjeliv, respekt för privatliv, religionsfrihet, rätt att höras,
koskemattomuus, lapset, lapsen etu, lapsen oikeudet, lasten pahoinpitely, ympärileikkaus, perhe-elämän kunnioittaminen, yksityiselämän kunnioittaminen, uskonnonvapaus, oikeus tulla kuulluksi,

Relevant legal provisions

chapter 21 section 5 of the Penal Code; sections 1 and 4 of the Act on Child Custody and Right of Access

= strafflagen 21 kapitel 5 §; lag angående vårdnad om barn och umgängesrätt 1 § och 4 §

= rikoslaki 21 luku 5 §; laki lapsen huollosta ja tapaamisoikeudesta 1 § ja 4 §.

CRC-12

Abstract

X had circumcised two Muslim boys at the request of the boys' parents and on grounds of religious tradition.At the time one of the boys, Y, had been 7 years old and the other, Z, had been 12 years old.X was not a physician but he had extensive experience in performing circumcision.X was charged with assault and the parents with incitement to assault.There is no legislation on non-medical male circumcision in Finland, whereas female genital mutilation is treated as aggravated assault and is always prohibited.

The Supreme Court referred to its earlier decision concerning male circumcision on religious grounds (KKO 2008:93).The court pointed out that in assessing whether circumcision is lawful or unlawful, it is not required that the person performing circumcision is a licensed physician.What is decisive is that the procedure is performed in a professional, medical manner.In this case, the procedure had been performed safely and X's competence had in fact not even been challenged.The Supreme Court noted that the circumcision of Muslim boys is an established tradition in the Muslim community and is deemed compulsory.In this case, both boys' parents had also brought forth the possibility that an uncircumcised boy child is subjected to discrimination within his community.

The Supreme Court referred to the Act on Child Custody and Right of Access and noted that a child's guardian has a right to decide on the care, upbringing and other personal matters of the child.Before making a decision concerning a child's personal matter, the guardian must discuss the matter with the child, if this is possible in view of the age and stage of development of the child and the nature of the matter.When making a decision, the guardian must give due consideration to the opinion and wishes of the child.The Supreme Court held that when a child because of his age is not capable of understanding the meaning and implications of circumcision or capable of giving his consent to circumcision, the guardians' decision-making power cannot be justified solely with reference to the child's right to freedom of religion.Whereas when a child is able to assess the meaning of circumcision, his opinion is decisive when assessing whether the procedure is justified.

In this case the boys had been circumcised at the request of their parents.There is no indication that the boys' views would have been heard before the procedure.The Supreme Court found that especially concerning Z, who at the time was 12 years old, the performance of the procedure would have required that his own opinion should have been considered.On the other hand, it had not been shown that either of the boys would have objected to the procedure.Z, who at the time of the Supreme Court's decision had reached the age of 15 and had thus an independent right to be heard, parallel to that of his guardians, had told that he does not demand punishment and did not wish to proceed in the matter.Considering this and the fact that circumcision had been performed in an appropriate medical manner, the Supreme Court concluded that the procedure in this case was in the interests of the children and that X's or the parents' conduct could be deemed justifiable.

2.6.2016 / 10.3.2017 / RHANSKI

Date when decision was rendered: 31.3.2016

Judicial body: Supreme Court = Högsta domtolen = Korkein oikeus

Reference: Report no. R2014/211; 0768

Reference to source

KKO 2016:25.

Electronic database for the decisions of the Supreme Court within the FINLEX databank system, administered by the Finnish Ministry of Justice

Databasen för Högsta domstolens beslut inom FINLEX-databassystemet, vilket administreras av justitieministeriet

Oikeusministeriön ylläpitämän FINLEX-tietopankin Korkeimman oikeuden päätöksiä sisältävä tietokanta

Date of publication:

Subject

integrity, children, best interests of the child, rights of the child, child abuse, circumcision, respect for family life, respect for private life, right to be heard,
integritet, barn, barnets bästa, barnets rättigheter, barnmisshandel, omskärelse, respekt för familjeliv, respekt för privatliv, rätt att höras,
koskemattomuus, lapset, lapsen etu, lapsen oikeudet, lasten pahoinpitely, ympärileikkaus, perhe-elämän kunnioittaminen, yksityiselämän kunnioittaminen, oikeus tulla kuulluksi,

Relevant legal provisions

chapter 4 section 3 and chapter 21 section 5 of the Penal Code; sections 6-3 and 7 of the Constitution Act; section 5 of the Act on Child Custody and Right of Access

= strafflagen 4 kapitel 3 § och 21 kapitel 5 §; grundlagen 6 § 3 mom. och 7 §; lag angående vårdnad om barn och umgängesrätt 5 §

= rikoslaki 4 luku 3 § ja 21 luku 5 §; perustuslaki 6 § 3 mom. ja 7 §; laki lapsen huollosta ja tapaamisoikeudesta 5 §

Abstract

X, who was originally from Nigeria, had had his son circumcised for cultural reasons.At the time the child was four months old.The procedure had been performed by a licensed physician, B.Both X and B were charged with aggravated assault.The child's mother, who was Finnish, objected to the procedure.The family lived in Finland and the parents had joint custody of their child.After having moved to Finland, X had retained his cultural and religious identity.The child thus shared the cultural background of both his parents.

The Supreme Court referred to is previous decision (KKO 2008:93) and held that male child circumcision is a fairly minor interference in the child's personal integrity, provided that the procedure is performed in a medical manner.In this case, circumcision had been performed by a licensed physician, in an appropriate medical manner and with analgesia.The court noted that in multicultural families circumcision enhances the child's integration into the cultural community of one of the parents.On the other hand, circumcision, even when performed in a medical manner, is an interference in the child's personal integrity.In the court's view, non-medical male circumcision can be justified only when it is clearly and unequivocally in the best interests of the child.

According to the Act on Child Custody and Right of Access, the parents or guardians of a child are jointly responsible for the duties inherent in custody of a child and make the decisions concerning the child together, unless otherwise provided or ordered.In a matter that is of great significance for the future of the child, the parents may only make a joint decision, unless it is manifest that the best interests of the child do not require this.In the Supreme Court's opinion, non-medical circumcision is a matter which can only be decided jointly by the child's parents.On the other hand, the protection of the child's right to personal integrity is strong, to the extent that the parents' fundamental rights or their right to make decisions on behalf of the child do not as such justify interference in the child's personal integrity.The justification of such interference must be assessed primarily with the best interests of the child in view.

The best interests of the child must be assessed objectively.When the child's parents disagree on the question of circumcision, the justification of the procedure cannot be based on the opinion of one of the parents only as to what is in the best interests of the child.When it comes to a procedure which is not necessary for medical reasons and which can also be performed at a later age, the child's own opinion and wishes must be given due weight.Before the child is old enough to express his own will concerning circumcision and his own wish to enhance his attachment to the religious and cultural community of one of the parents, the justification of circumcision, in view of the child's overall interests, cannot be regarded as objectively clear if the parents disagree on the procedure.

The Supreme Court concluded that, in an objective assessment, the procedure in this case had not been in the best interests of the child.It had been performed in a safe medical manner, but on grounds of the cultural background of one of the parents only and against the wishes of the other parent.X was found guilty of assault and was sentenced to a fine.B was acquitted.Before the procedure B had stressed that both parents should be present and give their consent to the procedure.However, X had misled B to believe that the mother had given her consent and had explicitly said she did not want to be present during the procedure.

In its decision, the Supreme Court stated that it was unfortunate that there is no legislation governing non-medical male circumcision in Finland.The court also noted that there were no explicit guidelines emanating from international conventions binding on Finland or the case law of the European Court of Human Rights.In its own decisions, the Supreme Court has attempted to draw guidelines as to the assessment of the justification of male child circumcision, in view of the child's best interests.In the Supreme Court's opinion, however, the question of non-medical male circumcision cannot be covered comprehensively by court decisions in individual cases.Instead, thorough evaluation in a legislative drafting process would be required, taking also into account possible penal sanctions.

2.6.2016 / 2.6.2016 / RHANSKI