Rt 2011 s 666

Ref. HR-2011-2325-A
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On the basis of information from A’s family, A’s primary physician requested that A be hospitalized as soon as possible at the Buskerud hospital. A’s primary physician was told by the physician at Buskerud hospital that in order for compulsory admission to occur A had to have been examined by an independent doctor within the prior 10 day period. A refused to voluntarily be examined by her primary physician, so the primary physician contacted the police who forcefully brought A to the primary physician’s office for examination.

After the examination by A’s primary physician, A was admitted for compulsory psychiatric observation at the Buskerud hospital. At Buskerud hospital, A’s psychologist called her primary physician, and obtained a statement from the primary physician regarding his previous medical examination of A. The Buskerud hospital psychologist did not ask the primary physician if his examination of A had been voluntary or, if coerced, whether the municipal doctor had approved the decision.

The Mental Health Care Act Sec. 3-1 required that compulsory admission can only occur once the municipal doctor approved the decision.

Once A was discharged from the Buskerud hospital, she commenced legal proceedings against Vestre Viken Health Agency (“VVF”), the body responsible for the Buskerud hospital, for alleged breaches relating to her admission to the hospital under the Mental Health Care Act and for violation of the European Convention on Human Rights (“ECHR”) Article 5, paragraph 1.

The Court first held that health agencies such as the VVF “are independent legal entities with full autonomy and the right to act as a party before the courts. The agencies are owned by the state and are authorized to exercise power on behalf of the State.”  VVF, and not the State, was therefore the proper defendant for alleged breaches under the Mental Health Care Act and the ECHR.

The next issue was whether the VVF physician had a duty to check whether the independent doctor’s examination was conducted voluntary.

Examining the text of the Mental Health Care Act, the Court found that the act suggested “that the hospital’s duty of inspection is limited to checking that the patient prior to admission was examined by an independent doctor.” The Court also noted that the hospital also only had a limited time to check the circumstances of the patient’s admission, which suggested that the hospital’s duty did not extend to investigating the process prior to admission. Thus, the Court held that primary physician and not the hospital was responsible for the obligation to obtain consent to the medical examination and VVF did not violate the Mental Health Care Act in its admission of A.

As there was no breach of the Mental Health Care Act and no argument that the Mental Health Care Act did not satisfy the requirements of sufficient clarity and accessibility for ECHR, the Court found that there was no breach of the ECHR either.

“35. An argument against making the State the defendant is that the health authority exercises public authority and is an integral part of the State health care system. It may further be noted that a rule that the State must be made to the defendant would create confusion and be impractical where the plaintiff has multiple claims against a particular health authority. In addition, it must be observed that it is for the plaintiff to decide whether (s)he will proceed with a claim against which parties (s)he deems responsible.

36. Many have argued that the State should be the defendant in determining matters relating to the ECHR as “only the states are obliged persons under the ECHR”, cf Rt-2009-1350 section 24 and Rt-2010-291 Section 38. Although a health authority is not a party subject to the ECHR, it has been established above the institutions or bodies which execute state authority will be held liable to the provisions of the ECHR.”

“50. The obligation to obtain consent to compulsory medical examination rests with the primary physician. I agree with the VVF in that the starting point must be that specialist care is not obliged to check whether primary care has acted properly within its statutory responsibility. A’s reaction and protests to her admission are understandable. However, she could have taken her concerns up with primary care – i.e. her general practitioner – or asserted them in connection with the Mental Health Commission's review of admission.”

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