Forensic treatment of patients without their consent lack of appropriate legal regulations harms both patients and health professionals

Abstract

Institutional forensic treatment as a protective measure of criminal law is intended both to protect society and to have a therapeutic effect on the person on whom the measure has been imposed, in order to reduce his dangerousness to a level that will enable his return to freedom. Currently, this protective measure is regulated in the Specific Health Services Act, which formulates the obligation of a patient in forensic treatment to undergo the individual treatment procedure laid down for forensic treatment. According to some health service providers, this obligation, as intended by the legislator, also includes the obligation of the patient to undergo treatment against his/her consent. It thus formulates an exception to the general principle of providing health care on the basis of the patient's informed consent. However, such a regulation does not reflect the principle enshrined in Article 7 of the Convention for the Protection of Human Rights and Dignity of the Human Being with regard to the Application of Biology and Medicine, an international treaty to which the Czech Republic is bound. In fact, it allows for treatment without consent of persons with serious mental disorders only if such a procedure is in accordance with the legal conditions for the protection of such persons, including the legal arrangements for supervision, control and appeal.  It is precisely the regulation for supervision, control and appeal that is absent in the Czech legal framework, and there is no way of obtaining a review of doctors' decisions. This legislation thus fails to meet the requirements laid down by international law, which has been brought to the attention of the Czech Republic by the Commissioner for Human Rights of the Council of Europe. The authors also refer to the case law of the European Court of Human Rights, according to which the absence of legal provisions for supervision, control and appeal is a violation of Article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms. According to the authors of this article, the complete impossibility of involuntary treatment within the framework of forensic treatment cannot be an appropriate solution, as it may lead to the impossibility of successfully fulfilling the purpose of forensic treatment and its transformation into secure preventive detention for offenders who are not extremely dangerous to society. At the same time, the imposition of forensic treatment cannot completely resign to the free will of patients and completely ignore the safeguards against unjustified interference with their physical integrity compared to other patients. When legislative changes are made to the institution of forensic treatment, greater attention should be paid to the obligation of patients under forensic treatment to submit to a treatment programme, and treatment of the patient without his or her consent (other than emergency care) should be supplemented by the possibility of review of the doctor's decision.