§71, Alm.del - 2021-22 - Bilag 87: Orientering om SUU alm. del – svar på spm. 689 om hvor mange flere sager skal der til, før ministeren og regeringen griber ind over tvangspraksis i Danmark samt kopi af den opfølgende handlingsplan for EMD-sagen Aggerholm v. Danmark, fra sundhedsministeren

Tilsynet i henhold til grundlovens § 71 2021-22
§71 Alm.del Bilag 87
Offentligt

Sundhedsministeriet

Enhed: FOPS

Sagsbeh.: DEPNFF

Koordineret med:

Sagsnr.: 1903808

Dok. nr.: 2199667

Dato: 29-03-2022

Notat

Consolidated action plan: Aggerholm v. Denmark, Application no. 45439/18

Description of the case

The present case concerns a psychiatric patient who was strapped to a restraint bed

(tvangsfikseret)

in a

psychiatric hospital for 22 hours and 50 minutes between 8 and 9 February 2013.

In September 2020 the European Court of Human Rights (hereinafter “the Court”) held that there had been

a violation of Article 3 on prohibition of inhumane or degrading treatment in the European Convention of

Human Rights (hereinafter “the Convention”).

The Government of Denmark (hereinafter “the Government”) accepted the judgment in December 2020

and submitted an action plan regarding the implementation of the judgement in June 2021.

Individual measures

As stated in the Government’s action plan from June 2021, the applicant was awarded EUR 10,000 for non-

pecuniary damage and EUR 4,000 in respect of costs and expenses plus any tax that may be chargeable to

the applicant on the amounts.

The said amounts were transferred to the applicant on 22 December 2020.

For the record, the Government would like to emphasize that the applicant is no longer in psychiatric hos-

pital. Therefore, no other individual measures are possible or required.

General measures

The first issue in the judgment was that the doctor decided to maintain the restraint on 8 February 2013

at 10.46 p.m. because the doctor found the patient “potentially” dangerous to other people.

It follows from Article 14 (2) of the Danish Mental Health Act (lov

om anvendelse af tvang i psykiatrien

m.v.)

that compulsory restraint must only be used to the extent that it is necessary to prevent a patient from

exposing himself or others to an imminent risk of harm to body or health.

The Court noted that a “potential” danger does not suffice to establish that a danger is immediate or immi-

nent, and that a latent danger that may manifest itself under certain conditions or circumstances that may

occur later will not suffice.

§71, Alm.del - 2021-22 - Bilag 87: Orientering om SUU alm. del – svar på spm. 689 om hvor mange flere sager skal der til, før ministeren og regeringen griber ind over tvangspraksis i Danmark samt kopi af den opfølgende handlingsplan for EMD-sagen Aggerholm v. Danmark, fra sundhedsministeren

The Health Authority

(Sundhedsstyrelsen)

has issued a number of guidelines (binding instructions) for the

healthcare sector, including a guideline regarding the use of compulsion in psychiatric hospitals (vejledning

om anvendelse af tvang m.v. i psykiatrien).

In this guideline, the Health Authority has described Article 14

of the Mental Health Act and the conditions regarding the use of forced physical restraint. Accordingly, it

appears from the guideline that one of the conditions in Article 14 is that there has to be an immediate or

imminent danger to the patient or others.

As stated in paragraph 1 in the action plan, the regions, who are responsible for the healthcare sector, in-

cluding psychiatric hospitals, have given the Health Authority a number of suggestions on how to clarify

the guidelines, including giving practical examples with a view to clearly describe when there is an imme-

diate or imminent danger.

The Health Authority has begun adjusting the guidelines and will incorporate an elaboration of the condi-

tion regarding the imminent risk of harm to body or health as mentioned in Article 14 (2) in the Mental

Health Act. This includes which elements the chief doctor must include in the assessment of imminent risk

of harm to body or health.

The Health Authority expects to publish the adjusted guidelines in September 2022.

The Government emphasizes that the present guidelines contain, among other things, details regarding the

fundamental principle of the use of compulsion as a last resort. It follows from the guidelines that the

medical staff must do what is possible to achieve the patient’s voluntary participation. The chief doctor

must make a concrete and medical assessment of the patient and take into consideration the patient’s pref-

erences to treatment etc. It is also emphasized that the more intrusive the compulsion, the more important

it is to consider if the purpose of the treatment can be achieved through other and less intrusive methods.

Finally, the Government refers to paragraph 4 in the action plan where the Government notes that it on an

ongoing basis receives information from the regions regarding training of the medical staff. The regions

put a lot of effort into securing competent and well-educated staff in all positions in order to prevent the

use of compulsion. Both new staff as well as staff with more seniority receive training and/or participate in

seminars to improve and maintain the necessary knowledge and skills. In relation to the Execution Depart-

ment’s question regarding any planned capacity building measures within the judiciary, the Government

notes that the City Court of Roskilde (Byretten

i Roskilde),

The High Court (Østre

Landsret)

and the

Supreme Court have been notified of the Court’s judgment in the present case. Accordingly, the judiciary

is thus made aware of the Court’s judgment.

The second issue in the judgment was that the applicant was not attended to by a doctor for almost twelve

hours between 8 February 2013 at 10.46 p.m. and the following day, 9 February 2013 at 10.30 a.m.

According to Article 21 (4) of the Mental Health Act in force at the time of the judgement, the use of forced

physical restraints should be reviewed as often as the concrete situation requires, and at least 3 times every

Side 2

24 hours, which should be evenly spread out, after the decision on the use of the compulsory restraint has

been made.

Based on the judgment in the present case, the Danish Parliament has changed Article 21 (4) of the Mental

Health Act and introduced specific intervals between the 3 reviews by the doctor.

With the change, the first review by the doctor must occur 4 hours at the latest after the decision on the use

of the compulsory restraint has been made. The following reviews must occur with 10 hours interval at the

latest which must be evenly spread out.

The Government emphasizes that the 3 reviews every 24 hours are minimum requirements. Thus, patients

in compulsory restraint shall be reviewed as often as the specific situation requires it. There is always a

permanent guard present when patients are submitted to compulsory restraints, and the patient will be re-

leased as soon as there is no longer a need to maintain the compulsory restraint.

An exemption to the new intervals is restricted to special cases, where the patient is asleep and where based

on a medical assessment waking up the patient would be harmful to the patient, e.g. if a patient has been

awake a longer period of time before it is decided to use compulsory restraints, and it therefore would be

counterproductive or detrimental to the patient to wake up the patient. In such cases, the guard will summon

the doctor, as soon as the patient wakes up, so the review can take place.

The Government notes that the Health Authority has been made aware of the change in Article 21 (4) and

will adjust the guidelines accordingly. This means that the intervals between the reviews will be described

in the guidelines along with the exemption. The Health Authority expects to publish the adjusted guidelines

in September 2022.

Finally, the Government notes that Parliament has changed Article 16 of the Mental Health Act and has

established a

duty

for the permanent guard for patients who are submitted to compulsory restraints to make

on-going written descriptions of the state of the patients at least every 15 minutes. This description will

serve as a supplement to the already mandatory patient chart and be a tool for the doctor who assesses the

continued use of compulsory restraints, as well as for patients who wish to complain about the decision of

compulsory restraints.

Both of the changes in the Mental Health Act entered into force 1 January 2022.

In March 2022 the Ministry of Health published a new guideline (Vejledning

om notatpligt for den faste

vagt for patienter, der er tvangsfikseret med bælte)

describing when and how the guard must make the

written descriptions. As a part of the guideline, the Ministry of Health has made an example of a schedule

the psychiatric hospitals can use if they wish.

Side 3

The change regarding the permanent guard’s written descriptions was introduced in connection to among

other things the friendly settlement in the case Dam v Denmark (Application No. 1349/21), which the Court

was informed of in a letter of 15 October 2021.

In the action plan’s paragraph 4 and 5, the Government acknowledged the challenges with reducing the

frequency and duration of instances of compulsory restraint in psychiatric hospitals and stated that the use

of compulsory restraints should only be used as a last resort. The Government referred to the fact that the

Government has been working towards reducing compulsion in psychiatric hospitals for a number of years.

In addition, the Government referred to a number of legal rights in the Mental Health Act, hereunder that

every use of compulsion has to be registered in a protocol with a description of the measure and why it was

deemed necessary to use it, and that the medical staff is obliged to offer the patient a conversation about

compulsion and why the medical staff thought it necessary to use compulsive measures.

The Government also noted that the Government was working on a comprehensive 10-year plan to perma-

nently improve psychiatric care. At the time of the Government submitting the action plan, the Health

Authority and the National Board of Social Services were compiling an overview of the main challenges

regarding mental health care and social care for people with mental illness.

The Health Authority and the National Board of Social Services presented in January 2022 a report with

37 recommendations to improve the quality of life for people with mental illness as a basis for the prepara-

tion of the 10-year plan.

In connection with the preparations of the 10-year plan, recommendations for a new target to reduce com-

pulsion will be discussed. As mentioned in the action plan, the Government will closely continue to monitor

the extent of compulsion in psychiatric hospitals until new ambitious goals to reduce compulsion have been

implemented.

On 17 March 2022 the Ministry of Health received from the Department for the Execution of Judgments

of the ECHR a letter including a joint communication submitted by DIGNITY, Better Psychiatry and The

Danish Institute for Human Rights.

The organizations have initially expressed concern as to whether the 10 year-plan will be able to reach the

set goals to effectively reduce the use of means of restraint to an absolute minimum. The organizations

have also stated that they believe that the present case is not an isolated case.

The Government refers to paragraph 3 in the action plan, where it is laid out that the Government has

acknowledged the challenges with reducing the frequency and duration of instances of compulsory restraint

in psychiatric hospitals and that the use of compulsory restraints should only be used as a last resort. The

Government has referred to the fact that the Government has been working towards reducing compulsion

in psychiatric hospitals for a number of years.

Side 4

As mentioned in paragraph 3, the Government’s 10-year plan is prepared following the report from the

Health Authority and the National Board of Social Services, and recommendations for a new target to

reduce compulsion will be discussed in this regard.

The Government also notes that it is not the Government’s view that the present case is an expression of a

general practice in Denmark, and that the Government has taken a number of measures to prevent similar

cases from occurring. As mentioned above, the Government has thus among other things changed the Men-

tal Health Act and relevant guidelines on the basis of the judgement, and the Government is working on

further adjustment of the relevant guidelines. Moreover, the regions put a significant effort into ensuring

competent and well-educated staff in all positions in order to prevent the use of compulsion. When the

Government received notice of the case Dam v Denmark (Application No. 1349/21), the Government de-

cided to enter into a friendly settlement in the case. The Ministry of Health had a long and positive dialogue

with the applicant and the Minister of Health had a meeting with the applicant to among other things listen

and take into consideration the applicant’s experience and thoughts.

In addition, as mentioned in paragraph 8 in the action plan, a number of independent institutions follow the

use of compulsion in psychiatric hospitals and the mental health area in general. Also, as mentioned in

paragraph 7 in the action plan, the national courts are generally aware of the judgment from the Court.

There is also a sharp focus from the Government on the use of compulsion. In addition to the forthcoming

10-year plan, Parliament has earmarked an additional (DKK) 600 million (EUR 80.578.558) a year from

2020 and onwards to the psychiatric hospital services. Among other things, this will lead to an increase in

the general capacity at psychiatric hospitals. As part of the implementation agreement between the Gov-

ernment and the regions, it has been agreed that the regions' prioritization of the funds will be followed up

annually by following the development within four indicators, including the development in the use of

coercion in psychiatry.

In regards to the organizations’ four specific points of attention, the Government would like to note the

following:

First, the organizations have commented on the duration of intervals between medical assessments and

noted that the duration of the use of mechanical restraint should be as short as possible, and should always

be terminated when the underlying reason for their use have ceased. In the view of the organizations, inter-

vals of respectively 4 hours and 10 hours between assessments are insufficient to ensure that the continua-

tion and duration for the restraint does not exceed what is strictly necessary and respects the patient’s dig-

nity. Hence, the organizations recommend that the use of belt restraints should be assessed as often as

required and at least every two hours.

The Government notes that as stated in paragraph 2, the 3 reviews every 24 hours are

minimum

require-

ments. Hence, patients in compulsory restraint shall be reviewed as often as the specific situation requires

it and not less than 3 times within 24 hours. There is always a permanent guard present when patients are

submitted to compulsory restraints, and the patient will be released as soon as there is no longer a need to

maintain the compulsory restraint.

Side 5

Second, the organizations have commented on the permanent guard’s need for special guidelines and on

the permanent guards’ obligation to document the patient’s condition. The organizations’ notes that the

documentation should be prepared as often as deemed relevant, presumably every 30-60 minutes. The or-

ganizations recommend permanent guards to have educational backgrounds within health care and to pro-

vided with special guidelines and training in how to adequately and correctly document the patient’s con-

dition.

The Government in that connection refers to paragraph 2 of the action plan, which describes the publication

by the Ministry of Health of a new guideline (Vejledning

om notatpligt for den faste vagt for patienter, der

er tvangsfikseret med bælte)

describing when and how the guard must prepare the written descriptions.

The Government also notes that, as mentioned in paragraph 2, the permanent guard is obligated to make

on-going written descriptions of the state of the patients at least every 15 minutes and thus not as referred

to by the organizations every 30-60 minutes. This part of the amendment of the Mental Health Act was

introduced relatively late in the legal process and thus does not appear in the original legislative proposal

to the amendment of the Mental Health Act, but in a proposed amendment contained in a supplementary

report accessible along with the rest of the preparatory works (supplementary report no. 84 A of 16 Decem-

ber 2021), and the 15 minute interval described therein has subsequently been incorporated into the new

guideline (Vejledning

nr. 9285 af 4. april 2022 om notatpligt for den faste vagt for patienter, der er tvangs-

fikseret med bælte).

Third, the organizations have stressed that in Denmark solid knowledge exists on how to reduce and prevent

the use of means of restraint in psychiatric wards. The organizations refers to the 2021 report from the

Danish Health Authority on monitoring the use of means of restraints where are number of initiatives is

highlighted, such as the Six Core Strategies for Reducing Seclusion and Restraint Use.

The Government refers to paragraph 1 in the action report which describes that The Health Authority ar-

ranges meetings with a national task force (Task

Force for Psykiatriområdet)

twice a year where develop-

ments in the psychiatric field, especially the use of compulsion in psychiatric hospitals, are discussed. Mem-

bers of the task force are representatives from the regions and relevant Danish authorities, including the

Danish Patient Safety Authority, the Danish Health Data Authority and the National Board of Social Ser-

vices.

In regards to the organizations recommendation that the permanent guard must have a health background,

the Government refers to the fact that most permanents guards are medical staff, that all the permanent

guards are trained in observing the patient and that their observation of the patient is a part of the doctor’s

assessment of the patient.

Fourth and finally, the organizations have stated in regards to effective legal guarantees, that the provisions

in Section 2 of the Mental Health Act is not supported by any legal guarantees and that in practice, the

Side 6

Psychiatric Patients’ Complaints Board and the Danish courts do not look at the circumstances and treat-

ment provided prior to the decision to use means of restraint.

The organizations refer specifically to Article 2 (2) of the Mental Health Act which stipulates that means

of restraint must never replace care, treatment and nursing, and Article 2 (5) from which it follows that in

order to prevent the use of restraint the health care authorities must provide hospitalization, treatment, care

and nursing that meets the standards for good mental health care in psychiatric wards.

The Government notes that Article 2 in the Mental Health Act is equivalent to a preamble and does not

grant patient rights. Instead, Article 2 has to be taken into consideration when interpreting the rules in the

Mental Health Act.

The Government also refers to Article 4 in the Mental Health Act which stipulates that compulsion should

not be used unless all other available options have been pursued to achieve the voluntary participation by

the patient. Moreover, the use of compulsion shall be proportionate with its aim and the compulsion shall

be used as carefully as possible and with consideration to the patient, so that no unnecessary compulsion or

inconvenience occurs.

Article 4 is a part of the juridical review made by the Psychiatric Patients’ Complaint Board and the courts.

Moreover, as referred to in paragraph 8 of the action plan, a number of independent institutions follow the

use of compulsion in psychiatric hospitals and the mental health area in general. In addition, as mentioned

in paragraph 1, a public oversight committee established by the Danish Parliament

(§71-tilsynet),

supervises

the conditions for patients who are involuntary admitted to psychiatric hospitals. The Danish Parliamentary

Ombudsman also supervises how psychiatric hospitals treat patients who are involuntary admitted. Thus,

these independent institutions supervise both the use of coercion and the general treatment of the patients

and the Government is always responsive if the institutions inform the Government of challenges or issues

in the psychiatric hospitals.

5. Conclusions of the government

It is the position of the Government that the necessary general measures have been taken or are (in respect

to the pending adjustments of the relevant guidelines) in the process of being taken.

The Government notes emphasizes that the Health Authority has begun adjusting the relevant guidelines

regarding the use of compulsion in psychiatric hospitals (vejledning

om anvendelse af tvang m.v. i psykia-

trien)

and expects to publish the adjusted guidelines in September 2022.

In addition, Parliament has changed the Mental Health Act and introduced specific intervals between the 3

reviews of patients who are submitted to compulsory restraints by the doctor and established a duty for the

Side 7

permanent guard to make on-going written descriptions of the state of patients submitted to compulsory

restraints at least every 15 minutes.

The amendments to the Mental Health Act entered into force 1 January 2022. In March 2022, the Ministry

of Health published a new guideline describing when and how the guard must make the written descriptions.

Furthermore, in January 2022 the Health Authority and the National Board of Social Services presented a

report with a number of recommendations to improve the quality of life for people with mental illness as a

basis for the preparation of the Government’s10-year plan. Finally, the Government will continue to follow

the extent of compulsion in psychiatric hospitals closely until new ambitious goals to reduce compulsion

have been implemented.

Side 8