Psychiatry & health law

Patients legal rights be it in relation to coercive measures or research participation should be of great concern not only but most definitely within forensic mental health. Projects aiming at illustrating and investigating these issues will be posted here.. More to come.

Collaboration contacts:
Søren Birkeland: sbirkeland[a]
Frederik A. Gildberg: fgildberg[a]
Forensic Mental Health Research Unit Middelfart (RFM),Department of Regional Health Research, Faculty of Health Science, University of Southern Denmark & Psychiatric dept. Middelfart, Mental Health Services in the Region of Southern Denmark. 

Birkeland, S., Berzins K., Baker J., Mattson T., Søvig, KH., Gildberg FA., 2020 Prohibition on research involving psychiatric patients subject to coercion. Kritisk Juss. 01(51) Status: Published

This paper compares legislation on clinical research conducted on patients subject to coercion in the Scandinavian countries and the UK, examines it from a human rights perspective, and problematizes the Danish legal model as the only one employing a total ban on this kind of research. Reference is made to the consequences to evidence-based psychiatric care improvements and international ethical principle statements generally entitling psychiatric patients to treatment under similar ethical and scientific conditions as patients with other illnesses, given the absolute premise that the patient does not object to research participation and always retains the right to withdraw.

Birkeland, S. 2019 Coercion and health professional responsibility. Nordisk Sygeplejeforskning. Vol 9. 1 pp. 72-80 Article, peer reviewed, Status: Published.

As is the case in other countries, Danish legislation permits psychiatric coercion in some special situations and health professionals are responsible for only instigating coercive measures when satisfying legal requirements. In this essay, this responsibility is discussed with reference to formal law and case law. It is highligthed that by preventing unlawful utilization, coercion in principle could be considerably reduced. When using coercive measures, nursing staff and other authorized health persons are professionally responsible according to the authorization act’s claim for diligence (Para 17). Nonetheless, contrary to other parts of the healthcare system, patient complaints about application of coercive measures usually are handled as cases about lawfulness only and rarely are managed as malpractice cases about individual health professional responsibility. This suggests a relative gray area. Besides, a great proportion of cases concern documentation issues again drawing attention to the importance of thorough medical records keeping.

Birkeland S. (2017). Threats and Violence in the Lead-up to Psychiatric Mechanical Restraint – a Danish Complaints Audit. Journal of Forensic Psychiatry and Psychology, 1-7. Vol 29, no 1 Article, peer reviewed, Status: Published

Coercive measures like mechanical restraint (MR) are widely used in psychiatry but may collide with bioethical autonomy principles, damage those involved, and harm patient–staff relations. Reductions in usage are desirable and addressing illegitimate MR would be an obvious starting point. As one important reason for instigating MR is dangerous patient behavior this attracts special attention. In this complaints audit the role of threats, violence, and contextual characteristics was examined in decisions concerning MR completed by the Danish Psychiatric Patient Complaint Board system from 2007 to 2014. According to case descriptions, threats and violence were common and sometimes rather serious. Mainly actualized physical violence seemed to justify MR use. However, roughly every sixth patient subject to MR episodes filed a complaint and in one in 25, usage was found unlawful. The interpretation of clinical situations vs. law elements and surrounding coercion legislation needs further investigation as does the impact of, e.g. psychiatry staffing.

Birkeland, S. Gildberg, F.A. 2016 Mental health nursing, mechanical restraint measures and patients’ legal rights. Vol. 2016. No. 10. pp. 8-14. The Open Nursing Journal. Short Communication Article, peer reviewed, Status: Published.

Coercive mechanical restraint (MR) in psychiatry constitutes the perhaps most extensive exception from the common health law requirement for involving patients in health care decisions and achieving their informed consent prior to treatment. Coercive measures and particularly MR seriously collide with patient autonomy principles, pose a particular challenge to psychiatric patients’ legal rights, and put intensified demands on health professional performance. Legal rights principles require rationale for coercive measure use be thoroughly considered and rigorously documented. This article presents an in-principle Danish Psychiatric Complaint Board decision concerning MR use initiated by untrained staff. The case illustrates that, judicially, weight must be put on the patient perspective on course of happenings and especially when health professional documentation is scant, patients’ rights call for taking notice of patient evaluations. Consequently, if it comes out that psychiatric staff failed to pay appropriate consideration for the patient’s mental state, perspective, and expressions, patient response deviations are to be judicially interpreted in this light potentially rendering MR use illegitimated. While specification of law criteria might possibly improve law use and promote patients’ rights, education of psychiatry professionals must address the need for, as far as possible, paying due regard to meeting patient perspectives and participation principles as well as formal law and documentation requirements.