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Patient operated on against her will

Ombudsman issues reprimand and recommends recompense

Parliamentary Ombudsman Petri Jääskeläinen has issued reprimands to two doctors at a central hospital as well as to a hospital district for an unlawful action. In addition, he has recommended that the hospital district make recompense to the patient for the violations of her fundamental and human rights to which she was subjected.

Against her wishes and despite her efforts to resist, the patient was given an epidural anaesthetic and a catheter was inserted into her urinary tract because she was suffering from kidney stones. The patient was not treated in the way that the Patient Act requires, i.e. in agreement with her.

The Ombudsman underscores that our judicial system does not include any general entitlement to ignore a person's right of self-determination on the ground that intervening in that person?s bodily integrity can be regarded objectively or from a medical perspective as being in his or her best interests.

The patient was crying the whole time even before the procedure and while she was being taken to the operating theatre. She was told to get onto the operating table and when she refused, she was grabbed and forced down onto the table. An epidural anaesthetic was administered to her against her will. After this, she attempted to prevent her genitals being touched and held on to her panties, but her grip was loosened. At this stage the patient was given more sedatives, until she finally fell asleep for the duration of the procedure.
 
Ombudsman Jääskeläinen finds it clear that the measures carried out against the patient's will were a violation of the personal integrity that the Constitution safeguards as well as of the protection of privacy that are safeguarded in both the Constitution and the European Human Rights Convention. He is astonished that the parties who provided reports and submissions in the matter did not realise this.

The Constitution and the Human Rights Convention allow a measure to be carried out against a patient's will only if this is based on a law enacted by the Eduskunta. No such legislation has been enacted for somatic health care and medical treatment. The Patient Act requires a patient's consent for treatment measures.

It has been customary in the case law of the European Court of Human Rights, at least where the most serious violations of human rights are concerned, to require the right to compensation for immaterial damages (suffering) in order to ensure that the demand for effective legal remedies is met. Medical measures that have been carried out without the patient's consent or the support of an act that separately permits these measures have been regarded in the case law of the Court of Human Rights as being the kind of violation for which financial compensation must be paid. The Court has paid attention to whether the measure has caused fear, anxiety or feelings of inferiority to the complainant.

Ombudsman Jääskeläinen considers it clear that the actions of professional health care personnel in the central hospital caused the patient the kind of suffering that warrants recompense being made to her. He has asked the hospital district to inform him, by 31.12.2013, of the measures it has taken in the matter.

Additional info will be provided by Senior Legal Adviser Kaija Tanttinen-Laakkonen, tel. +358 (0)9 432 3377.