The abusive use of restraints on patients in psychiatric hospitals is a practice which spreads across many states. In Denmark, this violation was first identified by the Court in the Aggerholm judgment. This interview discusses the shift towards alternatives to restraints in psychiatric care while reflecting on the current situation.

We speak with Elna Søndergaard, Senior Legal Advisor at Dignity Denmark, who shared with us her expertise on the issue and also her experience with making submissions to the implementation process.

About the series

 The Interview

Introduction

My name is Elna Søndergaard; I’m a lawyer by profession and I have been working in the legal department at Dignity for ten years. Dignity envisions a world without torture and ill-treatment; therefore, we focus on practices in Denmark that may involve violation of Article 3 of the European Convention on Human Rights (ECtHR). We focus on conditions and practices in prisons and psychiatric institutions that could qualify as torture or ill-treatment. Dignity is also a part of the national monitoring team that operates with the Institute for Human Rights and the Ombudsman; Dignity’s contribution relates to health matters. 

We as an institution follow the jurisprudence, and if we deem it of value for the plaintiff, we may intervene in the case related to Article 3 violation. In Denmark, the government take judgments from Strasbourg and from Danish courts very seriously. So, enhancing the possibility of a positive outcome is one of our strategies.

Background of the case 

The case of Aggerholm surrounds an applicant who is diagnosed with paranoid schizophrenia. In 2005, he was convicted under the Danish Penal Code of five incidents of violence against a civil servant and threats of violence. He was sentenced to a psychiatric hospital. During his sentence, he was strapped to a restraint bed with wrist and ankle straps, which occurred several times. However, this ECtHR case concerns one of these events in February 2013, where he was restrained for twenty-two hours and fifty minutes.

 When the judgment came, we analyzed it and thought that Denmark's reply to the judgment was insufficient. And thanks to EIN, we learnt about the execution of judgments; this case was our first involvement in collaboration with our two sister organizations, the Institute for Human Rights and Bedre Psykiatri. Through this case, we learnt how the mechanism functions and its role as a civil society organisation. The starting point for our reflections related to our disappointment with the government's response to the judgment and that very narrow interpretation of the judgment by Denmark. The Court found that the continuation and duration of the restraint measure was not strictly necessary and not respectful of his human dignity, and constituted a violation of Article 3.

We did attempt to intervene in the Aggerholm proceedings as a third party. Unfortunately, our request to intervene was denied, as we did not hear about it early enough to submit a request for third-party intervention. However, now we have a much more regular dialogue with Aggerholm’s lawyer and, therefore, we can intervene in other cases.

Restraints in psychiatric care

We got involved in the implementation mechanism because we heard about it from EIN, and then we liaised with the Institute for Human Rights and Better Psychiatry. They also did not know about this mechanism, and we discussed whether it was worth our resources to get involved, and we decided yes. We think there is a discrepancy between the Court’s jurisprudence on belt fixations as restrain measures (Article 3 violations), and the practice in Denmark.

Dignity has been taking the lead on drafting the submissions, then we proceed to internal discussions. This has been a very smooth process since bearing in mind that we have three different organizations making joint submissions. For example, Better Psychiatry is calling for an almost 100% preventative approach, which should be the end goal (as we are starting to see in Norway), while the Danish Institute for Human Rights have traditionally been a little bit more careful in public statements, due to the respect for the psychiatric sector, the system being under pressure, and lack of resources. The collaboration between organizations in the submission process allows us to collect more information, and from there, we can fine-tune our public communication.

Dignity’s Role in Implementation

We got involved in the implementation mechanism because we heard about it from EIN, and then we liaised with the Institute for Human Rights and Better Psychiatry. They also did not know about this mechanism, and we discussed whether it was worth our resources to get involved, and we decided yes. We think there is a discrepancy between the Court’s jurisprudence on belt fixations as restrain measures (Article 3 violations), and the practice in Denmark.

Dignity has been taking the lead on drafting the submissions, then we proceed to internal discussions. This has been a very smooth process since bearing in mind that we have three different organizations making joint submissions. For example, Better Psychiatry is calling for an almost 100% preventative approach, which should be the end goal (as we are starting to see in Norway), while the Danish Institute for Human Rights have traditionally been a little bit more careful in public statements, due to the respect for the psychiatric sector, the system being under pressure, and lack of resources. The collaboration between organizations in the submission process allows us to collect more information, and from there, we can fine-tune our public communication.

Dignity’s main points and recommendations

We first made a Rule 9 submission in March 2022.

Our main recommendation concerns the duration between the monitoring of belt fixations and the justification given. Regarding the monitoring of belt fixations, the government is proposing three reviews every 24 hours, namely one the first four hours and then one every next 10 hours. The government argues that this is a read interpretation of the Aggerholm judgment. However, these intervals will be standard requirements; we have stated that the maximum monitoring intervals should be two-hour intervals between medical assessments of the use of coercion, and that mechanical restraints should be the last resource and used for a minimal duration. 

Regarding the obligation to document the patient’s condition, we argued that the documentation of the use of mechanical restraint by belt was inaccurate and not comprehensive. There has been a positive change in legislation, and new guidelines were issued in spring 2022, giving further details on how documentation in each case should be done. We are not 100% happy with the guidelines; while they are a step in the right direction, the requirements are very objective, simply ticking boxes. We fear that staff sitting by the patient won’t describe in their own words what is happening. We believe this written description is crucial for the assessment of the patient’s condition and should be mandatory. 

Our final recommendation is related to legal safeguards during each situation. For example, permanent on-duty staff should have a health background and be provided with special guidelines and training in how to adequately and correctly document the patient’s condition.

 Positive Developments   

One positive development we have seen is the increase in the level of political will to implement this judgment. We have seen clear statements by the governments that practices have to change. In the words of the Minister of Health, we cannot live with an Article 3 violation. Five-year action plans were adopted, additional funds were allocated, and a monitoring mechanism was set up. Still, the old practice of belt restraint continues. We have politicians who agree that we need to change, but translating the political will into different institutional practices is difficult.

When the Ombudsman's monitoring mechanism visits a psychiatric institution, they include Aggerholm in the background information to their reports. We were involved in a case that the Danish Supreme Court decided on, which is also a part of their background information. This inclusion ensures that the psychiatric sector knows Danish courts are issuing judgments in accordance with the Strasbourg Court’s requirements. The case is getting a lot of attention, but it also prompts us NGOs to get our act together, follow jurisprudence, analyze, and discuss. The judgment has had positive implications.

The Danish Mental Health Act amendment has also been a positive development; it relates to the documentation needed in institutions. As regards staff who would sit next to the patient, questions arose as to what kind of documentation should be recorded by this staff, and what level of education should staff have. We are very optimistic that there are new guidelines on the matter. The doctor receives the document and assesses the individual based on the information. It is a step in the right direction, but we are not 100% satisfied because there is a fear that it's just ticking off boxes without that level of reflection.

I think also we can say that the authorities listen to the input from civil society when drafting these guidelines, and that's very positive. The Danish government takes this matter seriously. They study our submission. We are involved in this process as equal partners. They find the documentation that supports their arguments; it's all very structured. The main point we disagree on is whether Aggerholm is an expression of a general practice in Denmark or not.

On behalf of all three of the organisations involved, we find our arguments have been listened to and taken seriously.

Challenges & Remaining Issues

There is not an agreement in the sector about the impact of using coercion. There are several challenges with this case, in part due to significant discrepancy between the jurisprudence of the Strasbourg Court, where the maximum duration of restraints is addressed in terms of hours. However, the practice of the Convention against Torture in Europe addresses the issue of duration of belt restraints in terms of minutes, not hours.

 Furthermore, if we look at Danish jurisprudence in cases where the plaintiffs have lost, we see that the arguments by the plaintiff on the impact of using coercion have not convinced the judges. Doctors also have varying views. However, the impact of restraint measures for each patient varies because each patient is different. Is the alternative to the use of belt fixation medical intervention? These are complicated situations.

The preventive approach has not been fully implemented. I think that's the vision for the future. I have colleagues who visit certain psychiatric institutions where belts are no longer used. The preventive approach is possible, with the right attitude from management and the right level of resources. In one institution, they adopted a practice of preventing restraints without increasing their budget; it was a purely managerial decision and then implemented thoroughly.

The challenges relate to the increase in resources, understanding the severe consequences of using belt fixation, and convincing all stakeholders about the preventive approach. We can agree the current practice should change. We believe that court judgments are vital in this endeavour.

Cases like Aggerholm happen regularly in Denmark. The Danish Government argued that Aggerholm is not an expression of a general practice. His restraints were even maintained after a doctor decided it was safe to remove them. We hope the Committee of Ministers understand that we have hundreds of these cases in Denmark. If we look at the statistics, the use of belt fixation keeps increasing. The Aggerholm case is a symptom of a bigger problem. However, we can use it as a stepping stone towards change.

Capacity Building 

The support for a preventive approach is necessary, and the focus for this should be at the managerial level of psychiatric institutions. We know some institutions are doing well, applying very few coercive measures. We are not calling for a blanket ban on restraints: there are situations where a restraint for a short duration is used to get the patient to calm down; but exchanging good practices and learning between institutions is lacking. We know the difficulty is transferring that knowledge from one institution to another, but we are on the right track.

Advice to CSO’s 

Civil society organisations may question whether getting involved with the implementation of human rights judgments is worth investing resources. CSOs must understand the value of getting involved and convincing the Committee of Ministers of their arguments. There is a real value for civil society organisations to get involved in this process; we have convinced Danish journalists about this mechanism: together we can apply more pressure to push human rights forward. We have internal discussions and enhance our cooperation; there is some leverage to be had when a detailed submission was prepared. At the civil society level, these submissions also enhance our own cooperation. The impact takes place at different levels.

In a nutshell, what I think could be beneficial is thinking about what your options are when you get involved in this procedure.

Photo by Enric Moreu on Unsplash