Adult patient’s right to self-determination and use of restrictive measures in somatic care in Finland, legal and empirical legal research: preliminary results

Balancing between the principles of self-determination and protection has been going on in health legislation for a century. Towards the end of the 20th century the importance of fundamental and human rights increased significantly, through Finland’s accession to the human rights treaties and the European Union, and through the national fundamental rights reform.

The right to self-determination is based on sufficient decision-making capacity. When the patient is unable to understand his situation and the consequences of his actions, he may be treated for his protection by consent of a substitute decision-maker, by provision on urgent care, or by provisions on involuntary care and restrictive measures, taking into account the previous will of the patient. The aim is to ensure necessary healthcare, and to protect the life, health and safety of the patient or other person.

Regulation on involuntary treatment and restrictive measures cover actual situations in adult patients’ somatic care only partially. In lack of legislation, supervisory authorities have practically defined the acceptable extent of fundamental and human rights restrictions. The Finnish hospital districts’ guidelines on restrictions in somatic care can’t guarantee equal implementation and protection of patients' fundamental and human rights in hospitals across the country. From ECHR’s, ECtHR decisions’ and UN Conventions’ perspective, additional regulation is needed concerning involuntary care and restrictive measures in somatic care in Finland. However, the CRPD and the interpretation of the CRPD Committee challenge the traditional competence-based informed consent doctrine, national regulation on patient rights and protective measures, and new regulatory needs.