2011: Restrictions of freedom
There is a distinction in the Danish legislation between coercive means in treatment and coercive measures in the social area.
Coercive means in treatment are described below and in section 220.127.116.11 – 18.104.22.168 and coercive means in the social area is described in section 22.214.171.124.
There are currently no rules that permit the coercive treatment of people with dementia in nursing homes, and others who do not understand what the treatment involves, and therefore instinctively resist the treatment.
The Ministry of Health is, however, currently considering legislation to allow this and it is also mentioned in the National Dementia Plan of 2010.
The Law N° 1729 on Coercive Measures in Psychiatry of 2010 only applies to psychiatric institutions and therefore the provisions of the law do not extend to other wards which may nevertheless provide services to people suffering from a mental disorder. It does not apply to people with a mental disorder (i.e. dementia) who live in nursing homes.
Deprivation of a person's liberty is a coercive measure. Nevertheless, in the general provisions of the law (chapter 2), it is stated,
"In order to avoid as far as possible the use of coercion, the hospital authorities shall offer hospital stay, treatment and care that correspond to good hospital standards. The patient's consent should be sought on a constant basis with regard to proposed treatment."
The other forms of coercive measures dealt with by this law can be found in the section on coercion.
The conditions for involuntary internment
According to Law N° 1729 on Coercive Means, a person must be mentally ill or suffering from a similar condition and fulfill one of two conditions:
- The outlook for a recovery or a significant and decisive improvement of the condition would otherwise be materially worsened OR
- The person in question constitutes an obvious and considerable danger to him/herself or others
The first condition is not really applicable to people with dementia as it entails the necessity of treatment in order to cure or improve the person's condition. Consequently, it would be illegal to intern a person with dementia in a psychiatric hospital simply because there was no room in a nursing home. On the other hand, it could be argued that a person with dementia was an obvious danger to him/herself or others and could therefore be interned in accordance with the second condition.
The procedure for internment
If a person who is assumed to be mentally ill does not voluntarily seek treatment, his/her nearest relatives have an obligation to call a doctor. If they do not do so, it is the responsibility of the police. However, before any measures can be taken to intern a person against his/her will, s/he must be informed of the nature, background and aims of the proposed internment and the doctor must try to obtain the patient’s consent.
A doctor then examines the person, makes a declaration and judges whether forced internment is called for. His/her decision is based on whether the conditions for forced internment (mentioned above) have been fulfilled. The declaration must not be issued by a doctor who is employed by the psychiatric establishment to which the person is to be admitted or by a disqualified doctor.
Concerning the examination carried out by the doctor, if the person is to be admitted in accordance with condition 2, it must have been carried out within the last 24 hours. If the person is to be admitted on the basis of condition 1, it must have been carried out within the last 7 days.
A consultant decides to what extent the conditions for involuntary interment have been fulfilled.
Once a decision has been made, the person must be interned immediately (if condition 2 has been fulfilled) or within 7 days (if the internment is based on condition 1). The doctor should be informed when this will be. Furthermore, the doctor who is responsible for the involuntary internment must be present until the police leave the site together with the person who is to be interned.
The duration of forced internment and the process of review
The consultant, who decides whether the conditions for forced internment have been met, must constantly monitor whether such deprivation of liberty is not being unnecessarily imposed. If the conditions for internment are no longer valid, the person must be immediately released. A reassessment of the need for involuntary internment must be made 3, 10, 20 and 30 days after the start of the internment and subsequently every four weeks.
In accordance with chapter 8 of the Law on Coercive Measures in Psychiatry, a patient advisor is appointed for every person who is coercively admitted, coercively detained or coercively treated in a psychiatric establishment. The role of the patient advisor is to guide and advise the patient on all issues relating to admission, stay and treatment. S/he may also assist with the implementation and completion of any complaints. The patient advisor also ensures that coercive measures are not used to a greater extent than necessary.
Patient advisors are appointed by the regional state administrations and a list then distributed among the individual psychiatric wards. If a situation arises whereby a patient advisor is needed, the nurse who is on duty appoints one as quickly as possible, taking simply the next name on the list. If the patient objects to the person chosen, s/he can make a request for a different one to be appointed from the list. The regional state administrations make the final decision. A person can be appointed who is not on the list. In this case, the person is provisionally appointed until the regional state administrations can decide whether this person should be fully appointed.
As soon as a patient advisor is appointed, s/he must visit the patient within 24 hours, then on a weekly basis and as required. S/he is entitled to free and unhindered personal, written and telephone contact with the patient. Hospital personnel must provide the Patient Advisor with any information necessary to allow him/her to carry out his/her duties effectively. However, the Patient Advisor should not be provided with any information that for medical grounds has not been given to the patient.
The Law on Coercive Measures in Psychiatry specifies the different kinds of coercive measures used in psychiatric hospitals and psychiatric wards, sets rules and provides some form of protection against abusive use of such measures. There are also more explicit rules on coercive treatment, the use of physical force and protective fixation which are set by the Minister of Health.
It is illegal to use coercive treatment in nursing homes.
Chapter 2 of the above-mentioned law contains general stipulations on the use of coercion. These include the following:
Coercion should not be used until all possible steps have been taken to obtain the patient's voluntary co-operation.
The use of coercion must be reasonably linked to what is hoped to be achieved. If less extreme measures would be sufficient, then they must be used.
Coercion should be performed as gently as possible and with the greatest concern for the patient so that unnecessary affront or inconvenience is avoided.
Coercion should not be used in a greater measure than is necessary.
According to §12, coercive treatment can only be used for people who have been interned against their will. In such cases, the treatment must involve the use of proven drugs in normal doses and with the fewest possible side effects. The consultant is responsible for deciding when coercive treatment can be administered and for determining the degree of force that can be used in order to carry out the treatment (if necessary). The consultant who is responsible for the ward where the treatment is to be carried out must also be involved in decision making concerning coercive treatment. The consent of the patient is not needed if the treatment is necessary to avoid considerably endangering his/her life or health.
Chapter 7 of the Law on Coercive Measures in Psychiatry provides special rules on psycho-surgical interventions and on experimental treatment. According to §§22 and 23 any psycho-surgical intervention requires the consent of the patient and must be approved by the Council of Doctors appointed by the National Health Service. The intervention may be carried out on a patient who is unable to consent provided that s/he has been declared incapable of managing his/her own affairs and that an appointed guardian has given written consent. Patients who have been interned against their will cannot be subjected to experimental treatment. Those who are voluntarily interned cannot be coercively subjected to experimental treatment.
Chapter 5 of the Law on Coercive Measures in Psychiatry deals with fixation and the use of physical force. According to §14 coercive fixation may include the use of belts, hand and foot straps and gloves. It can be used only to the extent that it is necessary in order to prevent a patient from:
- exposing himself/herself or others to obvious danger of bodily injury or impairment of health.
- pestering or otherwise similarly grossly molesting fellow patients or
- causing significant vandalism
Before coercive fixation can be used, a doctor must have seen the patient. However, if nursing staff feel that fixation with belts is necessary in consideration of the patient's own safety or that of other people, it would be irresponsible to wait for the doctor's supervision. In such cases, the nursing staff may take the decision themselves and have the patient fixated with belts. Immediately after, they must summon the doctor who then decides whether the fixation was justified and should be continued. Once coercively fixated with belts, the patient must be constantly supervised. Only a consultant can authorize the use of hand or foot straps in addition to the use of belts.
§18 of the above mentioned law deals solely with protective fixation which is described as the use of any means to prevent a patient from unintentionally exposing him/herself to considerable danger. Protective fixation can only be employed after a doctor has seen the patient and decided upon the kind of protective medium to be used.
The use of physical force
The justification for the use of physical force is covered by §17. A person who has been admitted to a psychiatric ward can be secured and transferred by force to another place of abode in the hospital if the conditions for fixation have been fulfilled. Force can be used if necessary in order to secure the continued presence in the ward of a person who has been interned against his/her will.
According to § 18g a consultant can decide to use physical force in personal hygiene situations if it is necessary in consideration of the patient himself, other patients or the staff.
The use of electronic means
According to § 17a a doctor can decide to use a personal alarm, a paging system or special door opening devices for patients with dementia to prevent the patient from unintentionally exposing him/herself to considerable danger by leaving the hospital.
Control of the use of coercion and the right to complain
A record must be kept whenever coercive measures are used and the consultant has continual responsibility to ensure that coercive treatment and fixation are not used to a greater extent than is actually necessary. In the case of protective fixation, a review of the situation is made 3, 10, 20 and 30 days after the original decision and thereafter at least every 4 weeks. A new decision can be made on its continued use whenever conditions warrant it.
Whenever, any kind of coercive measure is used, the patient must be informed about the complaints procedure.
According to the provisions of chapter 10, the patient or his/her patient advisor can complain to the hospital authority against the use of coercive measures. They also have the right to submit a complaint verbally. In each regional state administration there is a Psychiatric Patient Complaints Board. It is comprised of a Chief Administrative Officer who acts as chairperson and two other members, who are selected by the Danish Medical Association and the Co-operative Invalid Organisations.
The hospital authority must submit all complaints to the Psychiatric Patient Complaints Board. This should include the relevant file, including a transcript of the coercion protocol, as well as a declaration made by the consultant. If the Board requires additional information, it will take the necessary steps to obtain it and may even decide to visit the psychiatric ward. A decision should normally be made as soon as possible and within 14 days.
If the patient or the patient advisor wishes to complain about the Psychiatric Patient Complaints Board’s decision there is a distinction.
If the patient or the patient advisor complains about forced internment, coercive fixation or protective fixation they are obliged to submit it to the court (Byretten) in accordance with the rules set out in chapter 43a of the Administration of Justice Law ("Retsplejeloven").
If the patient or the patient advisor wishes to complaint about treatment, use of alarms, paging systems, special door opening and the use of physical force the Psychiatric Patient Complaint Board is obligated to submit all complaints to the National Agency for Patients' Rights and Complaints
If the Psychiatric Patient Complaint Board decides that the decision is legal, the patient can only resubmit a request for release 2 months after the date of the board’s decision.
Use of coercive measures in the social area
Act No. 81 on Social Services of 4 February 2011 has been amended to ensure the rights of people with mental incapacity are respected by staff employed by the municipality. In chapter 24, the various coercive measures, which can be used in the professional social care of persons with mental incapacity (including people with dementia), are specified.
The municipal council can, under certain conditions, allow their staff to use:
- personal alarm or paging systems;
- special door opening devices;
- physical force by way of restraint to prevent a person from leaving the home or to take him/her back to the home;.
- restraint by means of a fabric brace fastened to a wheelchair or any other aid, bed, chair or toilet so as to prevent falls.
According to § 126, the municipal council may decide to allow the use of physical force in restraining a person or leading a person to another room where there is an imminent risk that the person may cause substantial injury to him/herself or others, and it is absolutely necessary in the given situation.
By way of exception, the municipal council may decide to allow the use physical force for a limited period to restrain a person where this must be deemed to be absolutely necessary in order to exercise the duty of care in personal hygiene situations. At the same time, attempts must be made through the occupational action plan to ensure that forcible measures are avoided in future personal hygiene situations.
The person or relatives can complain to the Regional Social Complaints Board.
According to § 129, the municipal council may recommend that the Regional Social Complaints Board should decide that a person opposing removal or lacking the capacity to give informed consent thereto, is to be admitted to a specific accommodation facility, where:
- it is absolutely required in order to ensure that the person in question receives the necessary assistance; and
- the assistance cannot be provided in the person’s existing home; and
- the person in question cannot understand the consequences of his/her actions; and
- the person in question risks exposing him/herself to substantial personal injury; and
- it would be irresponsible not to arrange for the person to move.
The municipal council may recommend that the regional social complaints board in exceptional cases moves a person to a nursing home to be closer to relatives, if it is in the interest of the person.
The Regional Social Complaints Board’s decision shall be made no later than two weeks after receipt of the municipal board’s recommendation.
The municipal council may make decisions regarding admission to a specific accommodation facility for a person with substantial and permanent impairment of mental function, who does not oppose removal to that facility, but who lacks the capacity to give informed consent to a such a move, and where the mental functional impairment is a consequence of an age-related or subsequently acquired mental impairment that is progressive, provided that the municipal council’s recommendation is accepted by the guardian appointed by the state administration, where:
- admission to a residential accommodation facility with associated service is necessary for the person in question to receive the necessary help; and
- in the specific case it is assessed as the most expedient care solution for the person in question.
If any spouse, cohabiting partner or other relative can no longer provide the necessary assistance for and supervision of the person in question, this should be included in the assessment made by the municipal council.
The issue of restraint and coercion, which if not handled correctly could constitute abuse, is dealt with in the Law on Coercive Means in Psychiatry. However, this law is limited to care in psychiatric establishments, which is not generally the place of residence of people with dementia.
Under the Guardianship Act (No. 1015) of 20 August 2007, a guardian can be held responsible for any damage caused either intentionally or through neglect to the person under guardianship. S/he can also be forced to pay compensation. Although not explicitly stated, this would seem to cover financial issues.
There is no actual mention of abuse in the consolidating Act of Health No. 913) of 13 July 2010.
Before a person can be issued with a driving license, s/he must pass a medical examination. A driving license is normally valid until the person reaches the age of 70.
When the person reaches 70 years of age, the driving license can be extended by:
- four years, if the person is 70 years’ old
- two years, if the person is 74-80 years’ old
- one year, if the person is more than 80 years’ old
if the person passes the medical exam.
The Danish Ministry of Justice has implemented the Directive 2006/126/EC of the European Parliament and of the Council of 20 December 2006 on driving licences, which means that the driving license cannot be valid for more than 15 years. This change will come into force on 19 January 2013. It is still possible to get the driving license extended beyond the age of 70 as mentioned above.
If the doctor considers the person incapable of driving safely the doctor is obliged to inform the Public Health Medical Officers. The Public Health Medical Officers will consider the case, before forwarding it to the police.
 Nr. 1729 af 02/12/2010, Lovbekendtgørelse om tvang i psykiatrien
Last Updated: Wednesday 14 March 2012