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Date when decision was rendered: 30.4.1999 Judicial body: Supreme Court = Högsta domstolen = Korkein oikeus Reference: Report No. 1076; S98/1281 Reference to source KKO 1999:50. Decisions of the Supreme Court 1999 I January-June Avgöranden av Högsta domstolen 1999 I januari-juni Korkeimman oikeuden ratkaisuja 1999 I tammi-kesäkuu Place of publication: Helsinki Publisher: The Supreme Court Date of publication: 1999 Pages: pp. 360-367 Subject
right to liberty,
security of person,
respect for private life,
rights of the child,
children,
fair trial,
paternity,
Relevant legal provisions sections 1, 2, 3 and 8 of the Act on blood tests and other tests concerning hereditary characters; sections 26 and 30 of the Paternity Act; Chapter 31, section 16 of the Code of Judicial Procedure; section 6 of the Constitution Act = lag om vissa blodundersökningar och andra undersökningar rörande ärftliga egenskaper 1 §, 2 §, 3 §, 8 §; lag om faderskap 26 §, 30 §; rättegångsbalken 31 kapitel 16 §; regeringsformen 6 § = laki eräistä veri- ja muita periytyviä ominaisuuksia koskevista tutkimuksista 1 §, 2 §, 3 §, 8 §; isyyslaki 26 §, 30 §; oikeudenkäymiskaari 31 luku 16 §; hallitusmuoto 6 §. ECHR-5; ECHR-8; CRC-7; CRC-8 Abstract In a case concerning the establishment of paternity, the man suspected to be the father of the child had died before the case was instituted, and he was represented in the proceedings by his mother and two brothers.The court of first instance had ordered the relatives to deliver blood samples so that the suspected paternity could be investigated on the basis of a DNA-test.The decision was not subject to appeal.The relatives refused by referring to their constitutional right to liberty and security of person and to the fact that the order made by the court was without a foundation in law.In a case concerning the establishment of paternity, only the child, the mother, and the man who is party to the case may be ordered to deliver blood samples (sections 1 and 2 of the Act on blood tests). The court referred to the right of the child to know his or her parents and to preserve his or her identity and family relations as prescribed in Articles 7 and 8 of the CRC.It also referred to the Paternity Act, the purpose of which it is to investigate and to establish or annul a family relation between a child and a suspected father.According to the same Act, the court may on its own initiative collect all evidence which is necessary in order to decide the matter.In this case, the only means to obtain the necessary evidence was to examine the blood samples of the relatives.According to the court, the rights of the child, as defined both in national and international law, were more important than the arguments against delivering the blood samples. The relatives appealed to the Kouvola Court of Appeal which considered the case as an extraordinary appeal.The court referred to Articles 7 and 8 of the CRC, to the decision of the European Court of Human Rights in the Marckx case (judgment of 13 June 1979, Series A, No. 31) concerning the inheritance rights of a child born out of wedlock, and to the decision of the European Commission of Human Rights in the case of X v.Austria (Application No. 8287/78, decision of 13 December 1979), according to which obligating the defendant to a blood test in order to establish paternity was not against Articles 5 or 8-1 of the ECHR.The court noted that the right of the child to a fair trial was jeopardized if the court because of an outdated provision of law could not obtain all available evidence in the case.The breach of the relatives' right to personal integrity was smaller than the damage inflicted to the rights of the child in case the blood samples were not examined.The appeal was dismissed. The relatives took the case before the Supreme Court which assessed first whether the matter could be considered as an extraordinary appeal and answered the question in the affirmative.In the matter itself, the Supreme Court referred to Articles 5 and 8 of the ECHR as well as to section 6 of the Constitution Act concerning the right to liberty and security of person.According to section 6-3, no interference in personal integrity is allowed without grounds prescribed by Act of Parliament.The Act on blood tests contains an exhaustive list of persons who may be ordered to a blood examination against their will.The decision ordering the relatives of the suspected father to deliver blood samples against their will was without a foundation in law.Such an order could also not be based on the fact that during the proceedings the relatives represented the suspected father who had died. 24.10.2002 / 30.5.2006 / RHANSKI
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Date when decision was rendered: 21.3.2003 Judicial body: Helsinki Administrative Court = Helsingfors förvaltningsdomstol = Helsingin hallinto-oikeus Reference: Report No. 03/0156/2; 06500/02/5900 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
right to liberty,
security of person,
deported persons,
prison conditions,
prisoners,
Relevant legal provisions Section 9-4 of the Constitution Act; section 19 of the Act on International Co-Operation in the Enforcement of Certain Penal Sanctions; Chapter 2, sections 13-1 and 13-2 of the Act on the enforcement of penal sanctions = grundlagen 9 § 4 mom.; lag om internationellt samarbete vid verkställighet av vissa straffrättsliga påföljder 19 §; lag om verkställighet av straff 2 kapitel 13 § 1 mom. och 13 § 2 mom. = perustuslaki 9 § 4 mom.; laki kansainvälisestä yhteistoiminnasta eräiden rikosoikeudellisten seuraamusten täytäntöönpanossa 19 §; laki rangaistusten täytäntöönpanosta 2 luku 13 § 1 mom. ja 13 § 2 mom. ECHR-5 Abstract An Estonian citizen A had been sentenced in Finland to imprisonment for a drug offence.The Directorate of Immigration had decided on A's deportation once A is released from prison.The Ministry of Justice ordered that A is transferred to Estonia in order to serve the prison sentence there.A appealed against the Ministry's decision to the administrative court. The administrative court noted that the formal conditions for A's transfer, as prescribed in the Act on International Co-Operation in the Enforcement of Certain Penal Sanctions, were fulfilled.However, section 9-4 of the Constitution Act had to be taken into account as well, as a specific legal condition for the transfer.Section 9-4 provides that a foreigner shall not be deported, extradited or returned to another country, if in consequence he or she is in danger of a death sentence, torture or other treatment violating human dignity.According to the court, attention should be paid, in particular, to prison conditions in the state to which the person is transferred and to the time period after which the person would have the possibility of being released on parole.In Estonia, a person may be released on parole after having served two-thirds of his/her sentence, whereas in Finland it is after one-half of the sentence has been served.The administrative court considered that although the carrying out of the sentence in Estonia may in practice prolong A's time in imprisonment, this did not as such contain a danger of treatment violating human dignity.Furthermore, in the court's view, there was no violation of Article 5 of the ECHR, as long as the term of imprisonment ordered by the Finnish court was not exceeded.With reference to reports submitted by the Ministry of Justice, the court then noted that the prison conditions in Estonia in general could not as such result in treatment violating human dignity.Admitt edly, the security conditions in prisons were not altogether stable, but on the other hand the court saw no reason to doubt that the prison authorities in Eston ia would not have the means and the intention to prevent any possible threats to the security of the prisoners.The administrative court rejected A's appeal.Th e decision is final. See also European Court of Human Rights, Application no. 9764/03, decision on admissibility 2 December 2003 (partly inadmissible) and final decision on admissibility 15 June 2004 (inadmissible). 22.4.2004 / 2.1.2009 / RHANSKI
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| [3 / 18] |
Date when decision was rendered: 27.1.2004 Judicial body: Supreme Court = Högsta domstolen = Korkein oikeus Reference: Report No. 176; R2003/300 Reference to source KKO 2004:7. Decisions of the Supreme Court 2004 I January-June Avgöranden av Högsta domstolen 2004 I januari-juni Korkeimman oikeuden ratkaisuja 2004 I tammi-kesäkuu Place of publication: Helsinki Publisher: Edita Date of publication: 2004 Pages: 37-42 Subject
right to liberty,
security of person,
appeal,
deprivation of liberty,
lawful detention,
Relevant legal provisions section 60 of the Aliens Act; section 21-2 of the Constitution Act = utlänningslag 60 §; grundlagen 21 § 2 mom. = ulkomaalaislaki 60 §; perustuslaki 21 § 2 mom. ECHR-5 Abstract A had been detained on the basis of the Aliens Act.The court of first instance had twice decided to continue A's detention.Section 60 of the Aliens Act (378/1991) prescribed that, with a few exceptions, decisions made under the Act were not subject to appeal.The exceptions did not include a decision on detention made by a court of first instance.However, extraordinary appeal under the Code of Judicial Procedure was possible in the form of a complaint on the basis of a grave procedural error.In A's case the question was whether it was possible to file a complaint on the grounds that there were no reasons for the detention as prescribed by law.The Supreme Court first recalled the amendments made to the previous Aliens Act (400/1983) in order for national legislation to correspond to the ECHR and its provisions concerning deprivations of liberty.In 1990, a provision was added to the Aliens Act according to which it was possible for a detained person to file a complaint against a decision concerning his or her detention in order for a higher court to review the reasons for detention.Such a provision was not included in the later Aliens Act (378/1991) which was in force when A's case was pending.However, the Supreme Court referred to the Government Bill to the Aliens Act, according to which previous amendments required by the ECHR were included in the proposed Act.It was not explicitly said in the Government Bill that the drafters intended to leave out the possibility of complaint from the new Act.Furthermore, the Supreme Court was of the opinion that it was possible to interpret the restrictions to the right of appeal in section 60 of the Aliens Act to the effect that they only applied to decisions made by administrative authorities and administrative courts and not to decisions by general courts.The Court ruled that section 60 did not prevent the possibility of appeal against the decision on detention made by a court of first instance: the question was left open in the Act.The Supreme Court then referred to section 21-2 of the Constitution Act concerning the right of appeal and to the fact that detention constituted serious interference with the liberty and security of a person.The Aliens Act did not prescribe any maximum duration for the time in detention.A court of first instance had a duty to reconsider its decision on detention at two-week intervals.In the Supreme Court's opinion this did not correspond to a possibility to have a decision reviewed by a higher court.Therefore, in the Court's view, it was reasonable that a detained person should have a right to have the grounds for his or her detention reviewed by a higher court.The Court then referred to legislation concerning general courts and pointed out that the need for swift legal safeguards in cases concerning personal liberty was taken care of by means of a right of filing a complaint.No time limit was prescribed for filing such a complaint.The Supreme Court ruled that also in the case of the Aliens Act it was possible to file a complaint against the decision on detention made by a court of first instance on the grounds that there were no reasons for the detention as prescribed by law.The court of appeal had rejected A's complaint as it was not made on the basis of a grave procedural error.One justice of the court dissented.His reasoning corresponded to that of the Supreme Court. 22.4.2005 / 11.4.2007 / RHANSKI
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Date when decision was rendered: 21.12.2004 Judicial body: Supreme Court = Högsta domstolen = Korkein oikeus Reference: Report No. 2997; R2003/886 Reference to source KKO 2004:128. Decisions of the Supreme Court 2004 II July-December Avgöranden av Högsta domstolen 2004 II juli-december Korkeimman oikeuden ratkaisuja 2004 II heinä-joulukuu Place of publication: Helsinki Publisher: Edita Date of publication: 2005 Pages: pp. 815-820 Subject
right to liberty,
security of person,
lawful detention,
Relevant legal provisions Chapter 1, sections 5, 19 and 26a of the Coercive Measures Act = tvångsmedelslagen 1 kapitel 5 §, 19 § och 26a § = pakkokeinolaki 1 luku 5 §, 19 § ja 26a §. ECHR-5 Abstract X had been absent from a main hearing in two different criminal cases against him.The court of first instance had ordered that X is to be detained when caught as his apparent intention was to avoid trial.X was later apprehended and sent to prison, in order to enforce both a sentence of imprisonment imposed by a court of appeal in an earlier case against X and the warrant for detention issued by the court of first instance.Having served his sentence X was released from prison but was almost immediately arrested again on the grounds that there was reasonable cause to believe that he would try to avoid trial in the cases pending before the court of first instance.The Coercive Measures Act provides that if a court has issued a warrant for the detention of a suspect absent from a hearing, the court shall be immediately notified of the enforcement of the warrant and shall review the grounds of the detention within four days from the detention at the latest.X's detention on the basis of the warrant issued by the first instance court was not reviewed until 22 days after the enforcement of the warrant, that is after he had served his sentence and was re-arrested.The Supreme Court ruled that as the court had not reversed the warrant for X's detention, it was still in force when X was released from prison.Considering what had been shown in the matter the Supreme Court saw that there was reasonable cause to believe that X would try to avoid trial and therefore there were legitimate grounds for his detention as provided for in the Coercive Measures Act.The Supreme Court then assessed whether X's detention was unreasonable having regard to the particulars of the case, X's age or his other personal circumstances.The Court found that X had not been granted the minimum legal safeguards applicable in a situation where a convicted prisoner is at the same time also a prisoner on remand.In the Court's opinion, X should have been able to rely on it that the lawfulness of his detention is immediately reviewed by a court ex officio and that he is heard in the process.The fact that X could have referred to Article 5-4 of the ECHR and requested on his own initiative that the lawfulness of his detention is reviewed by a court did not constitute a sufficient legal safeguard in this case.The Court also pointed out that the fact that X had first been released and then almost immediately detained again may have caused him unnecessary suffering.However, the Supreme Court concluded that in spite of these circumstances the continuation of X's detention could not be regarded as unreasonable as prescribed in the Coercive Measures Act.The decision was made by a vote (3-2).Two dissenting justices were of the opinion that as X's detention had not been reviewed within the time limit prescribed in the Coercive Measures Act, X could not be re-arrested on the same grounds upon which his previous detention was based. 22.4.2005 / 2.6.2006 / RHANSKI
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Date when decision was rendered: 23.1.2004 Judicial body: Supreme Administrative Court = Högsta förvaltningsdomstolen = Korkein hallinto-oikeus Reference: Report No. 93; 2469/3/02 Reference to source KHO 2004:4. Yearbook of the Supreme Administrative Court 2004 January-June Högsta förvaltningsdomstolens årsbok 2004 januari-juni Korkeimman hallinto-oikeuden vuosikirja 2004 tammi-kesäkuu Place of publication: Helsinki Publisher: Edita Date of publication: 2008 Pages: pp. 28-34 Subject
right to liberty,
mental health,
security of person,
involuntary care,
Relevant legal provisions sections 8, 9, 10 and 11 of the Mental Health Act; sections 1, 5 and 11 of the Act on the Status and Rights of Patients; sections 11 and 12 of the Act on the Openness of Government Activities = mentalvårdslag 8 §, 9 §, 10 § och 11 §; lag om patientens ställning och rättigheter 1 §, 5 § och 11 §; lag om offentlighet i myndigheternas verksamhet 11 § och 12 § = mielenterveyslaki 8 §, 9 §, 10 § ja 11 §; laki potilaan asemasta ja oikeuksista 1 §, 5 § ja 11 §; laki viranomaisten toiminnan julkisuudesta 11 § ja 12 §. ECHR-5 Abstract A had been ordered to treatment in a psychiatric hospital against her will by the decision of a doctor.A appealed against the decision to an administrative court.She claimed that the doctor's decision did not give the facts nor the legal rules upon which it was based and that the reasoning of the decision was therefore contrary to law.The administrative court rejected A's appeal.A appealed further to the Supreme Administrative Court.The Supreme Administrative Court pointed out that the doctor's decision had been made in accordance with the Mental Health Act on the basis of, among other things, A's case history and a written medical statement on observation concerning A, including an opinion on whether the conditions for ordering A to treatment against her will were met.A had also been given the opportunity to tell her opinion on the treatment.The Supreme Administrative Court noted that according to the patient's medical file, A had been given information about her health, the purpose of the treatment and the grounds for ordering her to treatment.A also had a right of access to the contents of her medical file, except when this right was restricted by law.In seeking this information A had the possibility of receiving assistance from a patient ombudsman.The Court concluded that the doctor's decision on ordering A to treatment against her will could not be overruled on the grounds that the reasoning in the decision was brief and referred to the relevant patient documents.The Supreme Administrative Court rejected A's appeal.When discussing the right of a patient to receive information the Supreme Administrative Court referred not only to the Act on the Status and Rights of Patients but also to Article 5-2 of the ECHR. 25.4.2005 / 3.7.2009 / RHANSKI
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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,
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
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Date when decision was rendered: 25.9.2009 Judicial body: Supreme Administrative Court = Högsta förvaltningsdomstolen = Korkein hallinto-oikeus Reference: Report no. 2339; 1801/2/09 Reference to source Electronic database for the decisions of the Supreme Administrative Court within the FINLEX databank system, administered by the Finnish Ministry of Justice Databasen för Högsta förvaltningsdomstolens beslut inom FINLEX-databassystemet, vilket administreras av justitieministeriet Oikeusministeriön ylläpitämän FINLEX-tietopankin Korkeimman hallinto-oikeuden päätöksiä sisältävä tietokanta Date of publication: Subject
right to liberty,
mental health,
involuntary care,
oral hearing,
fair trial,
Relevant legal provisions sections 8 and 17 of the Mental Health Act; sections 37 and 38 of the Administrative Judicial Procedure Act; section 21 of the Constitution Act = mentalvårdslag 8 § och 17 §; förvaltningsprocesslag 37 § och 38 §; grundlagen 21 § = mielenterveyslaki 8 § ja 17 §; hallintolainkäyttölaki 37 § ja 38 §; perustuslaki 21 §. ECHR-5-4 Abstract X, who was accused of a crime, had undergone a mental examination and had been ordered to involuntary treatment in a psychiatric hospital.X appealed to the administrative court against a physician's decision to continue the treatment.X also requested an oral hearing before the administrative court, but the court denied the request.It held that an oral hearing was manifestly unnecessary because, among other grounds, the conditions for continuing the involuntary treatment of a person must be assessed on the basis of the person's state of health at the time a physician makes his or her decision on the continuation of the treatment.X appealed against the decision to the Supreme Administrative Court and emphasized that the request for an oral hearing was not concerning the assessment of X's state of health but X's personal liberty and the right to a fair trial. The Supreme Administrative Court found that the right to a fair trial, as prescribed in section 21 of the Constitution Act and when interpreted in the light of Article 5-4 of the ECHR, requires that in cases where involuntary psychiatric treatment lasts for a long period of time, an administrative court must conduct an oral hearing on the request of an applicant at regular intervals.However, in this case, X had not based the request for an oral hearing before the administrative court on the same explicit grounds as presented in X's appeal to the Supreme Administrative Court.Therefore, in the Supreme Administrative Court's view, the administrative court could deny the request on the grounds presented in its decision. 22.10.2009 / 23.10.2009 / RHANSKI
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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,
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
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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,
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
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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,
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
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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,
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
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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,
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
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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,
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
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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,
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
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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,
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
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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,
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
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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,
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
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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,
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
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