No consent or legal basis for measures

Case no. BS-51032/2022-HJR
Judgment delivered on 20 October 2023

A
vs.
Region Z

A had been committed to a maximum-security forensic psychiatry facility. However, due to shortage of space, A was only transferred to the facility after approx. 18 months. Until then, he was instead committed to the forensic psychiatry unit in X town. For approx. eight months of the period when A was committed to the forensic psychiatry unit, he was under an arrangement where the door to his room was locked for about 16 hours a day and open for the remaining eight hours with a bookcase placed in the doorway. He was not allowed to leave his room by himself. The case concerned the issue of whether this arrangement was lawful.

Prior to the arrangement, A had been physically restrained for many months, and the question was whether A had given his consent to the arrangement, with the effect that the arrangement could be regarded as voluntarily (a so-called informed consent).

According to the Supreme Court, it had to be taken into account that A had been under the impression that the only way that he could be released from the prolonged physical restraint was to accept being confined to his own room. The Supreme Court therefore agreed with the High Court that A had not given his informed consent to the arrangement.

The question was then whether the (forced) implementation of the arrangement was justified by institutional conditions or necessity or by analogy from the Danish Mental Health Act. The Supreme Court stated that, according to the Mental Health Act, a doctor at a general psychiatric unit may decide to lock the doors in the unit, but not the doors to the patient rooms. In addition, the Act dictates that the patient rooms in a maximum-security forensic psychiatry facility may be locked, for example if this is necessary to prevent a patient from putting others in imminent danger of injury to life and limb.

Against this background, and as the arrangement to some degree may be likened to locking of the room, the Supreme Court held, referring to the provisions of the Mental Health Act, that the arrangement was not justified by institutional conditions or necessity or by analogy.

The Supreme Court also held that it was for the legislator to consider whether to amend the Mental Health Act to provide for arrangements of this nature.

The Supreme Court also concluded that confining A to his own room did not amount to an infringement of Article 3 of the European Convention on Human Rights on inhuman or degrading treatment. The arrangement did not involve deprivation of liberty under Article 5 ECHR or an infringement of A’s right to respect for private life under Article 8 ECHR. Consequently, there was no basis for awarding A compensation.

The High Court had come to the conclusion that there was a legal basis for the arrangement.