X v Finland – Are we in trouble?

The decision of the European Court of Human Rights in X v Finland (Application no. 34806/04; judgment of 3 July 2012) makes significant new law concerning the provision of mandatory psychiatric treatment. It is at best highly doubtful that the approach in the Mental Health Act 1983, where compulsory treatment flows from detention automatically and with limited distinct procedural and substantive safeguards, is consistent with Article 8 of the ECHR.

The Facts in X

X originally came to the attention of the system through the criminal law. She was charged as a party to child abduction, a charge later discontinued because of her mental condition. Consistent with Finnish law, she was detained for examination in the state hospital by the National Authority for Medico-Legal Affairs, an administrative body, following a diagnosis of paranoid psychosis. This detention was renewed by her treating physician and the head of the hospital six months later, with the Administrative Court duly notified as required by Finnish law. (The fact that both psychiatrists were from the same facility gave rise to a breach of Article 5, but that’s tangential for the purposes of this post.) These orders by the National Authority and the Court expressly considered the desirability of her treatment in the State Hospital, and viewed the treatment favourably. This would seem to have been a central factor in their approval of her detention.

As X did not consent to the treatment, it was therefore provided under compulsion, based on the following provision of the Finnish act –

Section 8 – Conditions for ordering treatment

A person can be ordered to undergo treatment in a psychiatric hospital against his or her will only (1) if the person is diagnosed as mentally ill; (2) if the person needs treatment for a mental illness which, if not treated, would become considerably worse or seriously endanger the person’s health or safety or the health or safety of others; and (3) if all other mental health services are inapplicable or inadequate.

X challenged the hospital’s actions in the Administrative Court at each of these points, without success. Eventually, on the appropriateness of the involuntary treatment and on a number of other points, the case ended up at the ECtHR.

Article 3 or Article 8?

X pleaded the treatment-related issues on the basis of Article 3, the protection from torture and inhuman or degrading treatment or punishment. The Court on its own initiative recast the issues as engaging Article 8, the right to privacy and family life.

This is a rather surprising turn of events. The obvious conclusion is that the Court is not going to re-consider Herczegfalvy (shame in it!), and Article 3 remains a no-go area for cases involving involuntary psychiatric treatment. At the same time, its own re-casting of the case in terms of Article 8 suggests that it is prepared to use that provision. If it is bolting the Article 3 door, it seems to be opening the Article 8 window, sticking out its head, waving at us, shouting ‘kooee! Over here!’ and offering X a boost to get over the sill.

That is potentially good news. While it will not satisfy those who view enforced injection of strong medications as particularly intrusive and offensive, and who therefore want the moral gravitas of an Article 3 claim, it does at least allow a way forward for consideration of involuntary treatment cases at the Strasbourg court – a very important development. The structure of Article 8, with its qualifications to rights to privacy based on (most notably) public health and (in a small number of cases) public safety offers the potential for an interestingly nuanced discussion of involuntary treatment.

Whether Article 3 remains quite as closed as the above analysis suggests may, perhaps, be open to some question. A different panel of the Court has recently held that in a case where a person appropriate admission procedures were not followed in an individual’s admission (creating an Article 5 breach), treatment enforced did breach Article 3 as it was not demonstrably necessary: see Gorobet v Moldova, (Application no. 30951/10, judgment of 11 January 2012). How far this is a significant chink in the Herczegfalvy armour remains to be seen, and is a topic for another time.

The Article 8 findings

It was agreed by all parties that involuntary treatment engaged the right to private life protected by Article 8. The Court also held that the interference had a basis in domestic Finnish law. This was not sufficient to meet the Article 8 requirements, however. In addition, the domestic law had to be compatible with the rule of law:

In the context of forced administration of medication, the domestic law must provide some protection to the individual against arbitrary interference with his or her rights under Article 8. The Court must thus examine the “quality” of the legal rules applicable to the applicant in the instant case. [para 217]

This was not met, it would seem because the involuntary treatment flowed directly from the involuntary admission, and did not have a set of separate substantive and procedural safeguards:

The Court notes in the first place that section 22b of the Mental Health Act contains detailed provisions on the treatment of mental illness, and in particular, that it is for the physician attending to the patient to decide on the treatment to be given, regardless of the patient’s will. According to the preparatory works of that provision (see the Government proposal HE 113/2001 vp), a care order issued for an involuntary hospitalisation of a psychiatric patient is understood to contain also an automatic authorisation to treat the patient, even against his or her will. Even though the doctors may seek to obtain a person’s consent prior to the treatment, there is no obligation to have such consent in written form or to seek such consent from the patient’s relatives or guardian/trustee. If a patient refuses to give his or her consent or withdraws previous consent, the provision allows forced administration of medication. [para 218]

The Court further notes that the decision of the doctor was not subject to appeal. The court continued:

The Court considers that forced administration of medication represents a serious interference with a person’s physical integrity and must accordingly be based on a “law” that guarantees proper safeguards against arbitrariness. In the present case such safeguards were missing. The decision to confine the applicant to involuntary treatment included an automatic authorisation to proceed to forced administration of medication when the applicant refused the treatment. The decision-making was solely in the hands of the treating doctors who could take even quite radical measures regardless of the applicant’s will. Moreover, their decision-making was free from any kind of immediate judicial scrutiny: the applicant did not have any remedy available whereby she could require a court to rule on the lawfulness, including proportionality, of the forced administration of medication and to have it discontinued. [para 220]

On this basis, the Court held that there had been a violation of Article 8.

How big a move is this?

In a sense, we should not be surprised by the Court’s finding. The CPT standards have held for fourteen years that involuntary admission should not automatically result in the loss of rights to consent to treatment: see CPT/Inf (98) 12 para 41. While the CPT had, presumably, considered this to be a matter relating to Article 3 rather than Article 8, the Court’s decision in this context is hardly radical.

The Court further does not in this case begin to engage with the vexing question of when, if ever, involuntary treatment should be allowed. The CPT standards stop conspicuously short of an outright prohibition on compulsory treatment, noting instead that ‘every competent patient, whether voluntary or involuntary, should be given the opportunity to refuse treatment or any other medical intervention’ and that ‘any derogation from this fundamental principle should be based upon law and only relate to clearly and strictly defined exceptional circumstances.’ The Court, similarly, has not ruled out compulsory psychiatric treatment, although the language noted above does give a fairly clear steer that it is going to take violations of patients’ wishes seriously, requiring the sort of clear justifications proposed by the CPT. Indeed, it may be that the appeal to the Court for placing it in an Article 8 context is precisely because of the flexibility of that article in establishing standards for compulsion, taking into account other values and social needs contained in 8(2). While the United Nations Convention on the Rights of Persons with Disabilities may be highly restrictive of compulsory treatment (if indeed it allows it at all), there is still all to play for at the ECtHR on this point.

What does it mean for the Mental Health Act 1983?

Given the reasoning in the X case, there are cogent reasons to suspect that the Mental Health Act 1983 is in violation of Article 8. Like the Finnish act, the MHA 1983 includes a power to treat involuntarily as incidental to psychiatric detention. The medical professionals in the Finnish case were subject to some monitoring by judicial and quasi-judicial agencies (the National Authority and the Administrative Court), and these agencies expressly considered the desirability of X’s treatment under compulsion as part of their decision to detain. While an argument can be made for this for admissions under s3 of the MHA 1983, it does not apply for s2 admissions, where compulsory treatment is permitted while the patient is still under assessment. Even under s3, the question on admission is not whether treatment should be compelled, but merely whether appropriate treatment is available. On questions of substance, the provisions in section 8 of the Finnish act are significantly clearer than those of s 63, the section which applies to the significant bulk of people treated involuntarily. Section 63 contains no substantive or procedural protections or criteria for compulsory treatment at all: it says merely that the detained patient’s consent to treatment for mental disorder is not required. Any form of criterion enters English law only when s58 is triggered after three months, and then the criterion is merely that a SOAD certify that the treatment is ‘appropriate’. On this basis, the English act looks at least as vulnerable as the Finnish.

Does Wilkinson provide an appropriate judicial forum for appeals? It has generated a small handful of cases – about half a dozen reported in more than a decade – and in all, at all stages, the patient has lost. We now see more than 37,000 detentions under s2 and 3 per year. It is difficult to see that Wilkinson offers the sort of serious and practical legal challenge to involuntary treatment that the court in X would seem to want..

There can be little doubt that the legislature fluffed the reform process that commenced with the Richardson Committee Report in 1999. The problems of all those years ago have not by and large gone away, however, and will keep cropping up. X v Finland is a significant warning sign that the 1983 Act is vulnerable in its approach to involuntary treatment. It would be refreshing to see the government actually deal with the problem before an adverse ECHR judgment sends us tail-spinning into another half-baked response, as happened with HL and the DOLS.


5 thoughts on “X v Finland – Are we in trouble?

  1. Thanks very much for this post – what an interesting case. Reading it, I was surprised to see no mention of CRPD at all, given the relevance of it and it’s growing appearances in ECtHR case law.

    I wonder what this case means for forced treatments under the MCA as well? Like Wilkinson cases, it’s not a particularly accessible forum – and the procedural safeguards are even fewer than under the MHA.

    I was also interested, reading this post, in the Article 6 issues – I wonder if a trustee is something like a litigation friend? If so, it would almost certainly be at odds with Art 12 CRPD if a person’s ability to run their own case as they choose is contingent upon ‘capacity’. Particularly if they weren’t keen on the person offering them ‘support’ to exercise their legal capacity.

  2. Hi Lucy – I’m sorry it took me so long to approve this comment. I completely overlooked it. I really need a minion.

    The CRPD point is easy. Finland hasn’t ratified it yet so it doesn’t apply.

    On the MCA point – hmm. I’ll point Peter at this too. Obviously involuntary treatment isn’t usually constructed as ‘forced’ even when it undoubtedly is. The CoP is probably even less accessible right now than the High Court for a Wilkinson hearing! But if you get there the standards seem to me to be rather high. The problem is that the level of scrutiny is only afforded to very very rare cases. E v A Local Authority was a fascinating exception. I have a blogpost up my sleeve on E which looks at the procedures at the CoP and under the MHA so I’ll save my great thoughts for that…

    Finland is still working out how to make its domestic legislation fit with the CRPD so you may well be right on the article 6 ECHR/Art 12 CRPD/Finnish trustee law point – but I know nothing whatsoever about Finnish law. I do know that Art 6 is a slippery little git and that the right to a defence has never been usefully defined as the right to the defence counsel you’d actually want to represent you. Will think about that some more.

  3. Hi, all –

    Thanks to Lucy for an interesting post. A few thoughts –

    On the MCA question, I think the short answer is that we don’t know. Certainly, if an individual were actively objecting to the treatment being given, one would have thought that the protections required by X v Finland would apply. While X herself seems to have been in a bad way, we do not know whether she had capacity to consent to the treatment in question. Questions of capacity form no part of the Court’s judgment. I note that this is consistent with the Court’s downplaying of capacity generally as a threshold on issues related to ECHR rights – see, eg., Nevmerzhitsky v Ukraine. That could raise issues about the accessibility of the Court of Protection, but it seems to me the case is less strong here than under the post-Wilkinson jurisprudence. While I appreciate the accessibility issues, people do go to the Court of Protection, and some of them I think win. That is what does not seem to be the case under the post-Wilkinson jurisprudence.

    More interesting is that the Court requires a second opinion from an independent psychiatrist. That does not happen now under the MCA (or until 3 months have passed, under the MHA, come to that). There is no obvious reason that the Court would take a different view for non-psychiatric medical treatment – an issue potentially much more frequent under the MCA – although that point is not formally covered by the X judgment. Equally interesting is what the scope of decisions that would require similar safeguards would be. There is no suggestion that the treatment itself in X would raise issues elsewhere under the ECHR, so this is not a case of Art 8 being used as belt and braces support in challenges based on other ECHR articles. Are there other sorts of care that are sufficiently intrusive that they would engage Article 8? How about (for example) compulsory placement in accommodation that is not sufficiently controlling as to constitute a deprivation of liberty under Article 5?

    A wild card in the equation is of course how the Court will view the relevance of active objection to the care provided. In HL, the absence of objection by a person lacking capacity was not viewed as pivotal to the deprivation of liberty. While parallel arguments for Article 8 could no doubt be run, that too is not something contained in the judgment here: X was manifestly objecting to the treatment on offer.

    I do think the CRPD point is more complicated than Nell suggests, and raises a very difficult set of questions as to how the ECHR and similar international bodies will deal with the CRPD. Certainly, as we have seen in a number of ECHR cases, the Court can use the CRPD to indicate a general change in importance relating to disability rights in general (see, eg., Glor v Switzerland). I do not think that the Court can take into account in its interpretation of the ECHR whether the respondent state has signed or ratified the CRPD, though, since to do so would mean different ECHR standards applied according to whether states have signed a different treaty. That would seem to me legally wrong – the ECHR has to mean what the ECHR means for all parties to it. This seems consistent with where the Court is going – note that Switzerland, the respondent state in Glor, has neither signed nor ratified the CRPD, notwithstanding the significant role that the CRPD played in that case.

    How far the Court can go beyond noting the general context that rights of people with disabilities are clearly on the move is I think a tricky question. I have heard some staff at the Court argue that the CRPD should be ignored – the Court’s role is to develop its own jurisprudence. That seems to me unduly restrictive, and the court’s current approach to acknowledging the broader context would seem consistent with a broader view, but it is equally the case that the role of the ECHR in international law is not to enforce the CRPD. The Court is instead governed by the terms of the ECHR – so it is difficult to see (for example) how it would be able to hold that detention based on mental disability is prohibited (as at least arguably flows from Art 14 of the CRPD), when art 5 of the ECHR seems to say quite bluntly that it is permitted, at least in some circumstances. Somewhere within these conflicts, the court will need to find working space, but I’m not sure we know yet where that will be.


  4. Hi Nell and Peter,

    I hadn’t spotted that you’d commented – thanks very much for your thoughts and helpful insights.

    On the ‘accessibility’ of the COP, hmmmm… It’s true that there are more CoP hearings on forced treatment than there are Wilkinson hearings, but I’m not sure I’d consider it an accessible safeguard from the perspective of a person seeking to use the CoP to challenge treatment. In interviews with CoP judges, solicitors, the OS and others all confirmed that it’s almost unheard of for P to be the claimant – almost all cases are brought by professionals in dispute with each other (as in Re E – anorexia) or in dispute with families. It’s very rare indeed for a person to actively apply to the CoP to assert their capacity to make a choice or refuse treatment or whatever. Then there’s the requirement to have a litigation friend – who might decide not to argue a case against the treatment you’re seeking to refuse (as in Re E – anorexia), or might even drop the case altogether. What recourse would you have? You have no standing to challenge that decision, as solicitors won’t take your instructions (you don’t have capacity to litigate). And currently, if you’re reliant on the OS to bring a case for your you’ll have trouble unless it’s DoLS or a life or death medical emergency, as he’s ‘reach the limits of his capacity’. The ‘remedy’ of the CoP, such as it is, is almost entirely at the discretion of either those treating you to bring a case, or if you are one of the vanishingly small number of people who managed to bring it, of your litigation friend. DD v Lithuania suggests that a remedy that is at the discretion of state officials isn’t an effective remedy in Article 13… so I’m not sure the CoP really would count as either an accessible or effective safeguard against arbitrary forced treatments in ECtHR terms.

    Yep, that turned into a slightly longer access-to-justice rant than I meant it to. But much as I like the way CoP rulings really do dig into the merits of treatment, and often weigh medical evidence against other evidence, getting there and arguing the case you actually want argued is a real problem.

    On CRPD in ECHR, it’ll certainly be interesting to see if the ECtHR is ever called upon to explicitly endorse certain positions taken in relation to Arts 12, 14 and 17. Interesting times!

  5. 26 October 2012

    Dear Ms Series

    I am very appreciative of your excellent article.

    Vis-a-vis the Mental Health Act 2007, I am concerned about several issues regarding the rights of patients and have made numerous Freedom of Information Requests regarding:

    1] Why cannot a patient [mental] choose their own solicitor?
    I asked this of the Law Commission, the Law Society and the Bar Council.

    No real answer has there come in my opinion. It is a grey area.

    2] Why can a person have their Nearest Relative removed when the person WISHES that person to be their Nearest Relative? Why do external authorities have powers over patients in this way so that they can displace “unsuitable” Nearest Relatives under section 29? The section 29[e] is such a broad sweep that it could apply to virtually anybody and there seems to be little case law on it. Taken to its logical conclusion, the State rules OK!

    3] Why does ANYBODY have control over any other person’s body? I believe that this is a clear case of Habeas Corpus and believe that the MCA2005 does not go far enough to protect our rights as citizens. The Mental Health Act 2007 permitting just 3 people to put another person into compulsory treatment goes against all principles of freewill and Habeas Corpus in my opinion.

    4] Why can no Next of Kin complain about treatment of their relative under the Mental Health Act? I have been told that I cannot complain about this very issue because “there is no Next of Kin in the Mental Health Act” and that Next of Kin is only applicable when the patient has died and “our patient is very much alive” thereby being given as the reason – or excuse – for not answering my concerns.

    5] Why are toxic drugs “trialled” on patients? I say “trialled” because this is the terminology used in medical records and medical literature?

    6] And there is a question that if a person is sectioned against their will and then is medicated and toxic side-effects are known to have occurred but the patient is prevented from knowing, and the family are prevented from knowing, then there is surely an issue about recklessness under Section 127 of the Mental Health Act 2007, but if nobody ever is told, they can withhold this information – even from MHRT Tribunals it would appear.

    7] If that is indeed the case, then how free and how fair and how just is the System? Is it not open to abuse?

    I have not any answers.

    8] I am most concerned that Clozapine is being routinely used as an antipsychotic when I found reference to it being carcinogenic.

    And yet although I have placed Freedom of Information Requests to the Prime Minister’s Office and the MHRA, inter alia, I get no response.

    I am very concerned indeed.

    If anyone has any views on these matters, please do write back.

    Best wishes

    Rosemary Cantwell

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