Adult patient’s right to self-determination and prerequisites of it’s restrictions in somatic health care in Finland

Patient’s right to self-determination has been one of the key research subjects of medical law in Finland during the past decades. The Finnish Patient Rights Law protects patient’s right to self-determination by principle of informed consent and contains regulations for situations when an adult patient can not give a valid consent: consent by-proxy and treatment in patient’s best interest (assumed consent). However the law does not contain regulation concerning restrictive measures. Restrictive measures against adult patient’s right to self-determination have only been legislated in special health care laws concerning mental health, substance abuse, infectious diseases and mentally handicapped people which give only partial coverage to actual situations in somatic health care.

Based on the Finnish Parliamentary Ombudsman’s 21st century complaint solutions actual use of restrictive measures against patients’ right to self-determination and the underlying constitutional and human rights has occurred in somatic health care units in Finland. In some circumstances restrictive measures have been used to protect patient’s life and health and to ensure necessary health care in situations when a patient is not capable of making decisions or understanding the consequences of one’s actions. Because of lack of specific legislation concerning restrictive measures constitutional and human rights norms should be applied in these situations, which is very demanding for health care personnel. This loophole situation is problematic also to health care personnel while official responsibility, professional ethical duties and protection of patient’s life and health need to be coordinated with patient’s right to self-determination and rights to freedom and privacy.

In stead of (and in the lack of) legislation the acceptable extent of restrictions to constitutional and human rights has been outlined by not only supervisory officials but also law enforcers, as in organizational guidelines. Thus 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 also in this perspective in 2014 and 2018, the latter one being still in process.

The goal of my research is to make a profound analysis on the prerequisites and situations for restrictive measures against patient’s right to self-determination in somatic health care. I’m using mixed methods, combining law analysis and empirical research. As part of my master’s thesis I’ve already done legal analysis of the normative content of adult patient’s right to self-determination and of the normative prerequisites of it’s restrictions. I’ve also analysed current state of restrictions to adult patients right to self-determination in somatic health care through the Finnish Parliamentary Ombudsman’s 21st century complaint solutions. I’ve analysed the ongoing renewal of patient rights law in this respect, as it was in 2018. Acceptable extent of constitutional and human rights restrictions can be further defined by analysing the judgements of Finnish high courts and European Court of Human Rights. Organizational guidelines concerning restrictions and law enforcers (mainly doctors’) point of view may become analysed through surveys.