Balancing Rights and Needs - Comparing Regulation of Restrictive Measures in Adult Patients' Somatic Care in Nordic Countries

Balancing Rights and Needs – Comparing Regulation of Restrictive Measures in Adult Patients’ Somatic Care in Nordic Countries

Nordic countries Denmark, Finland, Norway and Sweden share common international legal framework in health law: conventions of the UN and the European Council, case law of the European Court of Human Rights and in addition, the recommendations of the European Council and several international declarations of medical ethics. Important rights safeguarded by these international conventions and declarations to be balanced concerning restrictive measures in health care are rights to life, freedom and privacy, self-determination and necessary care.

There are variations between Nordic countries in national legal implementation of informed consent principle and human rights restrictions, which mostly originate from solutions to decision-making incapability and related human rights balancing. Decision-making capability is not defined in health care legislation, except in Denmark and Norway as the ability to understand information and treatment or the meaning of consent. In Sweden a more detailed definition has been suggested. More thorough definition has been left to legal interpretation and the assessment to health care professionals. However, restrictive measures are mainly allowed when the patient is found incapable of self-determination and understanding the consequences of one’s actions, which highlights the importance of decision-making capability and its variations. Deputy decision-making is allowed in Finland and Denmark, but not in Norway and Sweden. Treatment in the patient’s best interest has its differences, too. Emergency care is a common authorized exception to the requirement of decision-making capability and consent in the Nordic countries.

Patient’s right to self-determination and the principle of informed consent as authorization to treatment is the general rule in all the Nordic countries, also in involuntary treatment and considering restrictive measures. Involuntary treatment and use of restrictive measures are mostly regulated in special health care legislation on substance abuse, infectious diseases and mental health, which enables adjusting and balancing restrictions according to patient groups. In addition, Denmark and Norway have authorized use of restrictive measures in somatic care as part of patient rights legislation. In Finland and Sweden options for involuntary treatment and restrictive measures cover actual situations in somatic health care only partially. In all Nordic countries 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. Human rights balancing shifts from self-determination and freedom to protecting life and necessary care depending on the patient group, circumstances and country.