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: 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