Eighth European Conference on Health Law: Book of Abstracts

Can the law help to guarantee right to xnecessary care for adult patient incapable of self-determination in somatic care? A Finnish perspective

The Finnish Patient Rights Act has been in force nearly 30 years. It protects patient’s right to self-determination by principle of informed consent, but also sets limits for using that right. The act limits treatment options to medically justified ones, authorizes urgent care in medical emergencies, and the use of deputy decision maker or treatment in the patient’s best interest in situations when the patient is incapable of decision-making and understanding the consequences of one’s actions.

Involuntary treatment and use of restrictive measures are regulated only in acts concerning mental health, substance abuse, infectious diseases and mentally handicapped people. The implementation of the right to self-determination is the general rule also in involuntary treatment. Use of restrictive measures and giving treatment in the patient’s best interest require specific justification, such as deterioration of patient’s illness or endangerment to patient’s or other person’s health, life or safety. The aim is to ensure necessary health care in the best interest of the patient in situations when the patient is incapable of self-determination and understanding the consequences of one’s actions.

In Finnish legislation options for involuntary treatment and restrictive measures cover actual situations in somatic health care only partially. In lack of legislation use of restrictive measures in somatic health care requires application of constitutional and human rights norms, which is very demanding for health care personnel. How to coordinate official responsibilities, professional ethical duties, right to care and protection of patient’s life and health with patient’s right to self-determination and rights to freedom and privacy? In the Finnish PO’s complaint rulings the justification principles of criminal law, the intensity of restrictive measures compared to general principles for restrictions of constitutional rights and the substantive requirements for restrictive measures in special health care acts have been taken into account.

Restrictions to adult patient’s right to self-determination in somatic health care have not yet been legislated with such precision and punctuality as is required of restrictions concerning constitutional and human rights. Attempts have been made to renew patient rights legislation in this perspective in 2014 and 2018, with no success. Third time’s the charm?