The Limits of the Right to Self-Determination and Restrictions in the Somatic Care of Adult Patients

In Finland the current national regulation on involuntary care and restrictive measures does not cover all somatic care situations in which restrictive measures are being used to ensure the safety of a patient or the safety of other people. The objective of this legal study is to answer the question of how the regulatory gap concerning restrictive measures in the somatic care of adult patients could be filled. The concept of restrictive measures is used here in conformity with the Finnish concept ‘rajoittaminen’, meaning physical, chemical and mechanical restraints and isolation, and it is interchangeable with the concept of coercive measures that is common in international usage.In conclusion, the study indicates that there is a need for national regulation on involuntary care and restrictive measures in somatic care from the perspective of fundamental and human rights. Human rights regulation exerts pressure to transition from a solidaristic regime of autonomy to a perfectionistic regime of autonomy, and even calls for giving up substitute decision making and the competence-based consent doctrine. In a technical sense, the Finnish Patient Act would not require extensive changes to become compatible with the CRPD, but at the level of practice, the changes would be major and would contradict the Convention on Human Rights and Biomedicine. As for regulation on involuntary care and restrictive measures, the conflict of human rights norms and interpretations brings about a situation in which implementation of the interpretation of the CRPD leads to a violation of the European Convention on Human Rights and the Convention on Human Rights and Biomedicine, and vice versa. However, the study shows that the objectives and scope of regulation on restrictive measures can be determined in such a manner that renders them compatible with the European Convention on Human Rights, the Convention on Human Rights and Biomedicine, as well as the UN CRPD. Given the conflicting norms and interpretations, two models for regulation on restrictive measures are proposed: a model based on decision-making capacity that is compatible with the European Convention on Human Rights and the Convention on Human Rights and Biomedicine, and a model based on non-discrimination that would ensure greater compatibility with the CRPD. In addition, the study discusses the situation that would result from the deregulation on involuntary care and restrictive measures, recommended by the CRPD Committee.