A reprimand from the Ombudsman to the National Police Board
The Parliamentary Ombudsman Petri Jääskeläinen has issued a reprimand to the National Police Board for partly unlawful and partly incorrect guiding letter concerning police executive assistance under the Mental Health Act. The Ombudsman considers that the guiding letter may have seriously endangered the health and safety of the persons in need of treatment under the Mental Health Act and other persons as well as other fundamental rights. He considers the proceedings of the National Police Board to be seriously reprehensible.
Under the Mental Health Act, at the request of a physician in a public service relationship, the police are obliged, under certain conditions, to provide executive assistance for delivering a person to a health care unit for the purpose of assessing the need for voluntary treatment.
According to the guiding letter from the National Police Board, the content of police executive assistance depends on whether a referral for observation has been drafted for the person or not. If a referral for observation has been drafted for the person, the police may use their authorisations under the Police Act to transport the person to the health care unit against their will. If, on the other hand, there is no referral for observation, the police cannot invoke the letter to interfere in a person's freedom or take any other measure restricting the person's freedom to act, but the transport is based on the person's voluntary cooperation and consent.
According to the Ombudsman, this basic starting point of the guiding letter from the National Police Board is incorrect and unlawful. The distinction in the letter cannot be made under the legislation in force. With regard to police executive assistance, the Mental Health Act expressly compares situations in which a referral for observation has been prepared or in which executive assistance is requested to prepare a referral for observation. In both situations, the police are obliged to provide executive assistance in the same way.
According to the guiding letter, the Mental Health Act does not contain specific provisions on the authorisation of a health care authority that could oblige a person to go to a health care unit regardless of their consent without a referral for observation. If a health care authority cannot "force" a person to participate in treatment, it is not possible for the police to do so either.
The Parliamentary Ombudsman considers the letter to be incorrect in this respect, too. A physician with a public service relationship in a health centre or hospital district has the power to decide that a person must be transported to an operating unit to prepare a referral for observation. This does not require that the physician would be given the right to "force", i.e. use force to deliver the patient to a health care centre. Emergency medical personnel are also not entitled to use force. On the other hand, the physician has the right under the Mental Health Act to request executive assistance from the police, which in turn has the power to use the force laid down in the Police Act to break down resistance aimed at preventing the transport of a person to an operating unit.
In accordance with the Mental Health Act, an order for voluntary treatment takes place in a multi-stage process, the first stage of which is the preparation of a referral for observation. The physician cannot draw up a referral for observation until they have personally examined the patient. When, according to the National Police Board's guiding letter, the police do not provide executive assistance in violation of the person's consent to deliver the person to the health centre for the purpose of drawing up a referral for observation, the process for ordering voluntary treatment cannot be initiated in practice. This may seriously jeopardise the health and safety of both persons in need of treatment and other people as well as other fundamental rights.
The Ombudsman finds the situation caused by the guiding letter and the surprising change to the interpretation of the Mental Health Act in the letter from the National Police Board to be very worrying and serious. The Ombudsman has received a number of complaints about the matter and concerned messages from the loved one of persons in need of treatment.
The Ombudsman has sent his decision to the National Police Board and asked it to bring his decision to the attention of all police units. The Ombudsman has also asked the National Police Board to urgently assess the content of its letter and to inform him of the measures it has taken as a result of his decision by 30 September 2022 at the latest.
The Ombudsman has also sent his decision to the Ministry of the Interior, the Ministry of Social Affairs and Health and the National Supervisory Authority for Welfare and Health for information.
Parliamentary Ombudsman Petri Jääskeläinen's decision no 55/2022 has been published (in Finnish) on the Parliamentary Ombudsman's website at www.oikeusasiamies.fi.
Further information is available from Principal Legal Adviser Kaija Tanttinen-Laakkonen, tel. +358 9 432 3377.