Judicial review of deprivation of liberty at psychiatry centre

Case no. BS-28185/2021-HJR
Judgment delivered on 1 December 2022

A
vs.
Capital Region of Denmark

From 11 October 2019 to 24 February 2020, A was detained pursuant to the Danish Mental Health Act. On 11-18 October 2019, A was involuntarily committed and detained in one psychiatric centre, and on 18 October 2019, he was transferred to another psychiatric centre where he was involuntarily detained until 24 February 2020. On 31 October 2019, the Danish Psychiatric Patients’ Board of Appeal approved the involuntary detention of A since 18 October 2019.

The case before the Supreme Court concerned the issue of whether depriving A of his liberty was lawful, and whether A’s right to a judicial remedy covered the entire period of the deprivation of liberty (11 October 2019 – 24 February 2020), or only the period considered by the Board of Appeal (18-31 October 2019).

The Supreme Court stated, among other things, that the resolution of the question of whether the courts of law may review the lawfulness of deprivation of liberty concerning another period than the one considered by the Board of Appeal required an interpretation of the Mental Health Act and should be based on the facts of the case.

Based on an assessment of those facts, the Supreme Court held that A was also entitled to a judicial review of the lawfulness of the deprivation of liberty for the period 11-18 October 2019, i.e. prior to the Board of Appeal’s decision.

Referring in particular to the travaux préparatoires for the Mental Health Act, the Supreme Court also held that A was entitled to a judicial review of the lawfulness of the deprivation of liberty in the period after the Board of Appeal’s decision.

Finally, the Supreme Court ruled that the conditions for depriving A of his liberty had been fulfilled for the entire period (11 October 2019 – 24 February 2020).

The Supreme Court thus affirmed the judgment of the High Court with the amendment that it had also been lawful to deprive A of his liberty in the period 11-18 October 2019.