Itsemääräämisoikeuden rajat ja rajoittaminen täysi-ikäisen potilaan somaattisessa hoidossa

The current national regulation on involuntary care and restrictive measures does not cover all somatic care situations in which restrictive measures are being used to ensure the safety of a patient or the safety of other people. The objective of this legal study is to answer the question of how the regulatory gap concerning restrictive measures in the somatic care of adult patients could be filled. The concept of restrictive measures is used here in conformity with the Finnish concept ‘rajoittaminen’, meaning physical, chemical and mechanical restraints and seclusion or isolation, and it is interchangeable with the concept of coercive measures that is common in international usage.

The study consists of three main chapters. The first chapter analyzes the development of regulation on the right to self-determination and restrictive measures from the 20th century to the 1990s. This historical review examines the manifestation and development of the prerequisites for the right to self-determination – consent, decision-making capacity, adequate information, and voluntariness – in medical treatment practice, ethics and regulation. In the absence of regulation on somatic care, the development of regulation on restrictive measures is analyzed through the regulation on communicable diseases, mental health care, substance abuse care, and special care for people with intellectual disabilities that has been in force at the time in question, and through the decisions of the Parliamentary Ombudsman of Finland and supervisory authorities.

The second chapter analyzes the current state of the regulation and application of the limits of and the preconditions for restricting the right to self-determination of adult patients in somatic care. The international human rights treaties and the judgements and decisions issued by their treaty bodies constitute the starting point for the analysis. Traditionally, within the framework of the treaty systems of the Council of Europe and the UN, under certain boundary conditions, imposition of restrictions on the patient’s right to self-determination, involuntary treatment, and application of restrictive measures that interfere with the patient’s individual freedom or protection of privacy in health care with the purpose of keeping the patient safe have been approved. After the ratification of the UN Convention on the Rights of Persons with Disabilities (CRPD) and following the interpretation of the CRPD Committee, from the human rights perspective, there is pressure towards a transition to the perfectionistic regime of autonomy, and even towards giving up substitute decision making and the competence-based consent doctrine. In addition, regulation on involuntary care and restrictive measures targeted towards persons with disabilities should be abolished, according to the CRPD Committee. Based on the CRPD definition of persons with disabilities, at the human rights level, the prevailing conflict of norms and interpretations influences nationally all current and future regulation on involuntary care and restrictive measures except for the Communicable Diseases Act.

The analysis of the current state continues with discussion on national regulation on fundamental rights, and with Act on the Status and Rights of Patients and special health care legislation that specify the fulfillment of and also concretize the restrictions to fundamental rights. In hierarchy of norms, regulation on fundamental rights is superior to Conventions on Human Rights that are enforced by law. Restrictions on fundamental rights must, however, adhere to the Human Rights Principles. The Patient Act and the current regulation on restrictive measures reflect the competence-based consent doctrine and the solidaristic regime of autonomy. The exercise of the right to self-determination requires that the patient has adequate decision-making capacity. Patients with inadequate decision-making capacity can be protected by using substitute decision-making, an advance directive, based on the emergency treatment provision, or involuntary care protocols. The regulation provided in the Patient Act is not fully compatible with the CRPD.

Involuntary care is regulated in the Mental Health Act, the Communicable Diseases Act, the Substance Abuse Treatment Act, and the Act on Special Care for People with Intellectual Disabilities. As a rule, care is provided to the patient in mutual understanding with him/her, including in involuntary care. Restrictive measures may be applied only if they are necessary to safeguard the life, health or safety of the patient or another person. The current regulation on involuntary care and restrictive measures concerns, with the exception of the Communicable Diseases Act, patients with inadequate decision-making capacity, i.e., persons with a mental or intellectual disability as defined in the CRPD. Considering the prohibition of discrimination in the CRPD and its interpretation, national regulation on involuntary care and restrictive measures constitutes discrimination against persons with disabilities and is, thus, a violation of the Convention.

To address the regulatory gap concerning restrictive measures in somatic care, the current state – the reasons for restriction, the restrictive measures used, and, in the absence of legislation, other applicable regulation – is analyzed through the decisions of the Parliamentary Ombudsman. In the justification assessment concerning restrictive measures, the applicability of the justification principles in the Criminal Code and the compatibility of the measures with the general preconditions for restricting fundamental rights have been taken into consideration. Substantive requirements for restrictive measures have been sought from special health care regulation on involuntary care and restrictive measures and the criteria of medically justified treatment. The Parliamentary Ombudsman has also recommended that, in the absence of regulation, health care organizations provide internal guidelines on the use of restrictive measures in somatic care. This study, which uses a targeted sample of hospital districts, examines how health care organizations, in the absence of regulation, manage the situation by their internal guidelines. The research data indicate that different health care units employ restrictive measures based on different grounds, different preconditions for restrictions, and different restrictive measures. The Finnish hospital districts’ guidelines on restrictions in somatic care cannot guarantee equal implementation and protection of patients’ fundamental and human rights in hospitals across the country.

The third chapter addresses the future of the regulation on the patient’s right to self-determination and on restrictive measures in somatic care, de lege ferenda. The analysis starts with the former proposal for a new Act on the Rights of Social Welfare Clients and Patients, which was put forward in 2018, in order to examine the regulatory model and to identify potentially problematic points. The solutions put forward in the proposal to support the exercise of and to regulate restrictions on the right to self-determination were not fully practical or compatible with the CRPD. Scandinavian regulation on the patient’s right to self-determination and coercive care in somatic care is analyzed from a comparative perspective. There is regulation on coercive treatment in somatic care in Denmark and in Norway, where the regulation aims to ensure provision of necessary health care to the patient, to restrict use of coercive measures, and to ensure adequate legal protection mechanisms. The regulation is neutral in terms of diagnosis and the intensity of the measures is lower compared to Finland.

In conclusion, the study indicates that there is a need for national regulation on involuntary care and restrictive measures in somatic care from the perspective of fundamental and human rights. Human rights regulation exerts pressure to transition from a solidaristic regime of autonomy to a perfectionistic regime of autonomy, and even calls for giving up substitute decision making and the competence-based consent doctrine. In a technical sense, the Patient Act would not require extensive changes to become compatible with the CRPD, but at the level of practice, the changes would be major and would contradict the Convention on Human Rights and Biomedicine. As for regulation on involuntary care and restrictive measures, the conflict of norms and interpretations brings about a situation in which implementation of the interpretation of the CRPD leads to a violation of the European Convention on Human Rights and the Convention on Human Rights and Biomedicine, and vice versa. However, the study shows that the objectives and scope of regulation on restrictive measures can be determined in such a manner that renders them compatible with the European Convention on Human Rights, the Convention on Human Rights and Biomedicine, as well as the UN CRPD. Given the conflicting norms and interpretations, two models for regulation on restrictive measures are proposed: a model based on decision-making capacity that is compatible with the European Convention on Human Rights and the Convention on Human Rights and Biomedicine, and a model based on non-discrimination that would ensure greater compatibility with the CRPD. In addition, the study discusses the situation that would result from the deregulation on involuntary care and restrictive measures, recommended by the CRPD Committee.

Keywords: autonomy, right to self-determination, coercive measures, coercive treatment, involuntary treatment, patients, fundamental rights, human rights, health care, medical care, health law, medical law