The use of involuntary treatment is regulated by several pieces of legislation, including the Patients’ Rights Act, the Health Personnel Act, the Health and Care Services Act and the Mental Health Care Act.
The regulations set forth in these acts ensure adequate services for patients and users, and outline where involuntary treatment can be considered legal and where it cannot. It is required that other solutions be tried before health and care services can consider resorting to coercive measures. When there is no choice but to treat involuntarily, the health and care services’ decision to use involuntary treatment must be made in accordance with provisions set forth in the acts. Internal checks must ensure that services in this field are offered in accordance with the applicable laws and regulations.
Emergency health care as per §7 of the Health Personnel Act
If it is deemed to be of vital importance, health personnel must immediately provide health care, even if the patient is incapable of giving consent, and even if the patient objects to such treatment. The purpose of this is, among other things, to ensure patient safety.
Health care given without consent as per Chapter 4A of the Patients’ Rights Act
The purpose of these regulatory requirements is to be able to provide necessary physical health care to patients who do not have the competence to give consent and who refuse medical treatment.
The goal is to provide necessary health care, avoid significant harm to patients’ health and prevent and limit the use of coercive measures. Patients or their next of kin may complain to the County Governor about a decision to use coercive measures. If a decision holds for longer than three months, the County Governor must in any case assess whether there is still a need for health care. Decisions regarding admission to and retention in health-care institutions or treatment lasting upwards of three months may be brought before the courts. The County Governor’s decisions may equally be brought before the courts should the treatment be a question of admission to or retention at a medical institution or should treatment last longer than three months.
The use of coercive measures and force as per chapter 9 of the Health and Care Services Act
The objective of the rules in this chapter is to prevent people with intellectual disabilities from exposing themselves or others to serious harm and to prevent and limit the use of coercive measures and force. This act relates to all coercive measures and force used in connection with municipal health and care services given to people with intellectual disabilities.
Coercive measures and force are defined as measures to which the service user is opposed, or measures which are so invasive that they must be considered as such regardless of the level of opposition. The municipality has a duty to ensure that arrangements are made for the least possible use of coercive measures and force, and that before deciding to use these, other options have been tried.
Decisions regarding a planned use of coercive measures must be reviewed by the County Governor before such measures can be employed. The use of coercive measures to prevent harm in emergency situations must be documented and sent to the County Governor. The County Governor also oversees the municipal health and care services.
Decisions and notifications regarding coercive measures must also be sent to the service user or patient, guardian, next of kin and the specialist health service. Service users or patients, guardians and next of kin may make an appeal concerning a municipal decision on the use of coercive measures in emergency situations. These appeals must be sent to the County Governor. The County Governor’s decision may be appealed to the county social welfare board. Should the county board approve the decision under appeal, this may nevertheless be brought before the district court.
Coercive measures pursuant to the Mental Health Care Act
The requirements surrounding the use of coercive measures within psychiatric treatment are governed by the regulations of the Mental Health Care Act and associated provisions. Special supervisory commissions have been established within each county, which must ensure that practice remains in keeping with the Act. The Act governs the forms of coercive measures specific to psychiatric care, primarily decisions regarding the use of compulsory psychiatric care and decisions on different forms of involuntary treatment – especially those involving the use of drugs.
There are strict requirements surrounding the use of coercive measures pursuant to the Mental Health Care Act. Coercive measures may only be used when voluntary psychiatric treatment has been attempted without success, or where it is clearly pointless to attempt it. As a prerequisite, the patient must be suffering from a serious mental illness and must additionally meet either treatment or hazard criteria.
Appeals relating to decisions that concern the use of coercive measures in relation to the Mental Health Care Act should be directed to the supervisory commission. Every institution in the field of psychiatric care that can resort to the use of coercive measures must be affiliated with a supervisory commission. Should you wish to appeal a decision regarding involuntary treatment involving drugs, this complaint should be sent to the County Governor.
Use of coercive measures with substance abusers
Substance abusers who put their physical or mental health at risk through the persistent and extensive misuse of drugs may be admitted to or detained in institutions against their will. Other assistance measures must be considered insufficient. Chapter 10 of the Health and Care Services Act features rules and conditions concerning case handling.
Pregnant substance abusers may, without their own consent, be admitted to an institution and detained there for the full term of their pregnancy if their substance abuse is such that it is highly likely that this would cause harm to the child, and if other measures prove insufficient. Decisions regarding detention in institutions must be made by the county social welfare board.