Restrictions of freedom
Under section 7 of the Constitution, it is stated that there shall be no interference in personal integrity or deprivation liberty without legitimate grounds prescribed by an Act of Parliament. The lawfulness of any other form of deprivation of liberty may be submitted to judicial review.
The Mental Health Act (No. 1116) of 1990 lays down guidelines for mental health work and the organisation of mental health services. It is also an Act of Parliament, which provides a framework for legitimising the deprivation of liberty in that it deals with involuntary treatment in a psychiatric hospital.
The conditions for involuntary internment
For a person to be committed for treatment against his/her will the following three criteria must be met:
- The person has been diagnosed as mentally ill;
- S/he must be in need of treatment for mental illness which, if not treated, would become considerably worse or would severely endanger his/her health or safety or that of other people; and
- All other mental health services are inapplicable or inadequate.
If the police are of the opinion that there is a person who might meet the criteria for involuntary treatment, they must report this to a health centre. In urgent cases, they can take the person to the health centre to be examined. Similarly, if the chief health centre doctor considers that the criteria have been met, s/he should issue a referral for observation and if necessary arrange for the person to be taken to hospital.
The procedure for involuntary internment
In order to determine whether the three criteria have been met, the person must be admitted to hospital for observation. First, however, the person must be examined by a doctor. If the doctor considers that treatment is necessary, s/he draws up a written statement (known as a referral for observation) which must contain a well-founded opinion of whether the conditions for commitment are likely to be met. On the basis of this statement, which must not be older than 3 days, the person is admitted to hospital for observation. The doctor carrying out the observation must produce a written statement no later than four days following admission.
According to paragraph 11, before the person can be involuntarily admitted to hospital for treatment, his/her opinion must be sought. It is stated that the parents or guardians of minors should be heard during the decision making process. However, there is no reference made to guardians of adults who lack mental capacity and are hence unable to give their opinion on the matter.
The chief doctor in charge of psychiatric care is responsible for deciding on internment. This cannot be the same person who made the referral for observation. His/her decision must be in writing and based on the referral for observation, the statement on observation and the case history. The decision must state whether the conditions have been met and the person must be informed of the decision.
According to section 27 of the Mental Health Act, the Administrative Court or the Supreme Administrative Court can appoint a legal counsel to a person who has been ordered to treatment against his or her will if the person asks for it or the court otherwise considers it necessary. This is covered by the Legal Aid Act (257/2002).
The Administrative Court or the Supreme Administrative Court can appoint a legal counsel even if the person has not requested one. In such cases, the appointment of the counsel and appropriate fees and reimbursements to be paid to the counsel are subject to the provisions of the Legal Aid Act irrespective of whether the person ordered to treatment has been or will be granted legal aid referred to in the Legal Aid Act.
The duration of involuntary internment
The person may be detained for up to 3 months. This period can be extended unless the person objects, in which case a new observation would have to be made. The decision to prolong the period of involuntary treatment and detention must be made by the chief doctor who made the original decision. The person must be informed without delay and the approval of the provincial administrative court must be obtained. Treatment can be prolonged for a period of six months after which a new observation must be made. If during any period of detention of involuntary treatment it is found that the conditions which led to internment are no longer valid, the person must be immediately discharged if s/he so desires.
The right to appeal
According to §24 an appeal may be lodged with the provincial administrative court against the hospital doctor's decision to order a person to treatment, to continue treatment against a person's will, to take possession of a patient’s personal property or to limit his/her contact. The appeal must be lodged within 14 days of notification of the decision. Otherwise all appeals are subject to the provisions of the Administrative Judicial Procedure Act (586/1996).
Appeals can also be lodged against a decision of the National Institute for Health and Welfare to order a person to treatment or to continue treatment against the person’s will or to order a person to hospital examination in a case referred to in section 21 (criminal cases), and against a decision concerning special care given against a person’s will.
Alternatively, an appeal can be made to the chief doctor in charge of psychiatric treatment in the hospital or to another person appointed for this purpose within the appeal period. The chief doctor sends the petition, documents relating to the appeal and his/her statement about the appeal to the relevant authority without delay.
However, once the decision has been made to involuntarily intern a person for treatment or to treat him/her against his/her will, it is immediately enforced irrespective of whether the decision has been submitted to another authority for confirmation or whether an appeal has been made. On the other hand, once an appeal has been received the relevant authority may forbid enforcement of the decision.
According to section 11 of the Act on the Status and Rights of Patients, No. 785 of 1992, there must be a patient ombudsman in every health care unit. His/her tasks include:
- advising patients on issues contained in above mentioned Act (No. 785 of 1992).
- helping patients to formulate complaints.
- informing patients of their rights.
- acting in favour of the promotion and implementation of patients' rights.
Restriction of personal liberty
Section 6 of the Constitution states that everyone has the right to life and personal liberty, physical integrity and security of person and that no-one should be tortured or otherwise treated in a degrading manner. Furthermore, it is stated that there shall be no interference in personal integrity or deprivation of libertywithout legitimate groundsprescribed by an Act of Parliament.
Restraint and other coercive measures
The Mental Health Act contains several paragraphs which address the issues of coercive measures, abuse and unlawful deprivation of freedom. However, this only applies to involuntary treatment in psychiatric hospitals or wards. People with dementia are usually treated elsewhere e.g. in nursing homes where coercive measures are sometimes used.
There is still no adequate legislation in Finland covering the use of coercive measures in ordinary hospitals or nursing homes. For this reason, the National Supervisory Authority for Welfare and Health (Valvira)  has produced guidelines:"Use of restraints for patients". According to the Valvira, the use of restraint for patients is only permitted to prevent serious harm to a patient’s health or safety. It further states that:
- a doctor must make a written/documented statement of his/her decision concerning the use of restraint for a patient.
- the need for restraint has to be evaluated regularly.
- the proper equipment must be used in accordance with guidelines on the use of restraint.
(In 2010, the Ministry of Social Affairs and Health established a working group whose aim was to assemble the provisions relating to the deprivation of liberty and self-determination of all patients/clients of social and welfare, within the same act if possible. The reform of the legislation specifically addresses the deprivation of liberty in the care of people with mental disabilities and dementia. Its goal is also to strengthen the multidisciplinary co-operation and the availability and development of services in such a way as to lessen the need to limit liberty and self-determination. The term of office of the working group ends on 31.12.2011.
Concerning the way patients are treated in the healthcare setting, the Act on the Status and Rights of Patients, No. 785/92 of 17 August 1992 provides details on how patients should be treated. Section 3 states that the care of the patient should be arranged in such a way that:
- his/her human dignity is not violated
- that his/her beliefs and privacy are respected
- that his/her mother tongue, individual needs and culture are taken into account as far as possible in his/her medical care and other treatment.
Sections 5 to 8 of the Penal Code of Finland (39/1889 with subsequent amendments) cover assault:
Section 5 - Assault (578/1995)
(1) A person who employs physical violence on another or, without such violence, damages the health of another, causes pain to another or renders another unconscious or in a comparable condition, shall be sentenced for assaultto a fine or to imprisonment for up to two years.
(2) An attempt is punishable.
Section 6 - Aggravated assault (654/2001)
(1) If in the assault
(1) grievous bodily injury or serious illness is caused to another or another is placed in mortal danger,
(2) the offence is committed in a particularly brutal or cruel manner, or
(3) a firearm, edged weapon or other comparable lethal instrument is used
and the offence is aggravated also when assessed as a whole, the offender shall be sentenced for aggravated assaultto imprisonment for at least one year and at most ten years.
(2) An attempt is punishable.
Section 7 - Petty assault (578/1995)
If the assault, when assessed as a whole and with due consideration to the minor significance of the violence, the violation of physical integrity, the damage to health or other relevant circumstances, is of minor character, the offender shall be sentenced for petty assaultto a fine.
Negligence, endangering others and abandonment
The following extracts from the Penal Code of Finland (39/1889 with subsequent amendments) cover bodily injury resulting from negligence, including that which endangers the life or health of another person and abandonment:
Section 10 -Negligent bodily injury(578/1995)
A person who, through negligence, inflicts significant bodily injury or illness on another shall be sentenced for negligent bodily injuryto a fine or up to six months’ imprisonment.
Section 11 -Grossly negligent bodily injury(578/1995)
If in the negligent bodily injury the bodily injury or illness is inflicted through gross negligence, and the offence is aggravated also when assessed as a whole, the offender shall be sentenced for grossly negligent bodily injuryto a fine or to imprisonment for up to two years.
Section 13 -Imperilment(578/1995)
A person who intentionally or through gross negligence places another in serious danger of losing his/her life or health, shall be sentenced, unless the same or a more severe penalty for the act is provided elsewhere in the law, for imperilmentto a fine or to imprisonment for at most two years.
Section 14 -Abandonment(578/1995)
A person who renders another helpless or abandons a helpless person of whom s/he should take care, and thereby endangers the life of the said person, shall be sentenced for abandonment to a fine or up to 2 years’ imprisonment.
Since 2004, doctors have been legally obliged to report to the police any patient with a medical condition which makes him or her unfit to drive. Whilst many doctors object to this obligation, hundreds of reports have been made, resulting in numerous withdrawals of licence, some of which were for people with dementia (Sulkava, 2008).
However, it is important to note that a diagnosis of dementia does not automatically lead to the withdrawal of a person’s driving licence. According to Sulkava (2008), a person with dementia can keep his/her driving licence if the following criteria are met:
- His/her dementia must be mild (this usually means an MMSE score of more than 20.
- There must be information from the relatives and friends that s/he is driving safely and has no traffic offences due to dementia.
- S/he must undergo a clinical examination by a doctor (usually a neurologist or geriatrician). This examination includes a clock drawing test (to reveal possible agnosia).
In case of doubt, an “on the road” driving test or laboratory traffic test is carried out.
People with mild dementia may be permitted to drive for just one year or even a shorter period of time but must report any deterioration in symptoms and are advised not to drive alone, either at night or in bad conditions.
Professional driving licenses, on the other hand, are always withdrawn when cognitive disorders are detected. Furthermore, certain impairments and difficulties always result in the withdrawal of the driving licence even if the person only has mild dementia e.g. in the case of obvious impairments in executive functions (as in the case of fronto-temporal dementia), lack of insight and/or a marked slowing of movement and thinking.
Sulkava, Raimo, (2008), Practice of competence assessment in dementia: Finland. In Stoppe Gabriela (Edit.),Competence Assessment in Dementia. EDCON 2008. p.109-111.)
 Valvira is the National Supervisory Authority for Welfare and Health and a centralised body operating under the Ministry of Social Affairs and Health. Its statutory purpose is to supervise and provide guidance to healthcare and social services providers, alcohol administration authorities and environmental health bodies and to manage related licensing activities. The most important task is to protect the right of all Finnish residents to a living environment that promotes their health and welfare and to assure their access to social and healthcare services that are both safe and adequate.
Last Updated: mercredi 14 mars 2012