Compensation for body searches

Case no. BS-48104/2018-HJR
Judgment delivered on 10 September 2019

A
vs.
Central Denmark Region

A was convicted to placement in the forensic psychiatry unit in Viborg from August 2013 to February 2015. During his stay at the hospital, he was searched approx. 40 times after unsupervised visits and unescorted leave. The rules for visits to the hospital unit were set out in house rules and provided that patients could choose between a 30-minute supervised visit without a subsequent body search or a 60-minute unsupervised visit with a subsequent body search.

The main issue in the case was whether A had consented to the searches, and if not, whether there was any justification for performing forced body searches.

The Central Denmark Region had stated that A gave his consent to the searches, and that the conditions in the Danish Mental Health Act in force at the time for performing body searches without consent were also met. A had disputed the claim that he gave his consent to the body searches, also stating that he, if the Supreme Court was to find that he had in fact given his consent, had withdrawn such consent before the body searches were performed. A had also submitted that the conditions in the Danish Mental Health Act in force at the time for performing forced searches were not met, and that the searches were in breach of the European Human Rights Convention. A claimed compensation for the body searches.

The Supreme Court stated, among other things, that the forensic psychiatry unit’s house rules, including the rules for visits, could not be used as legal basis for the unit’s decision to search patients. Body searches must be performed based on voluntary informed consent or in compliance with Section 19 a of the Danish Mental Health Act. On the evidence, the Supreme Court held that A had at no time given a valid consent for the body searches. The Supreme Court further stated that the searches of A were performed in breach of Section 19 a of the Mental Health Act in force at the time. Accordingly, the Supreme Court held that the body searches, which involved full stripping, standing in humiliating positions and examination of intimate parts of the body, and which were performed systematically and many times over the course of 18 months, constituted degrading treatment of A in breach of the European Human Rights Convention.

The Supreme Court thus ordered the Central Denmark Region to pay compensation of DKK 25,000 to A.

The High Court had reached a different conclusion.