Restraining at Care Institutions Evaluated from the Standpoint of Penal Law

• Author: Erkki Hirsnik - Marje Allikmets
• Pages: 129-157

129

JURIDICA INTERNATIONAL 27/2018

Erkki Hirsnik Marje Allikmets

Dr. iur., Judge Adviser to the Criminal Chamber

Tartu County Court Supreme Court of Estonia

Restraining at Care Institutions,

Evaluated from the Standpoint

of Penal Law

1. Introduction

The title of this article needs some explanation. Although the focus of the article is on providing an assess-

ment of restraining that takes place both in health-care institutions and in social-welfare institutions, we

will use a term that encompasses both of these, ‘care institutions’, to simplify reading. Although several

positions expressed in this article may be applicable to other f‌i elds also (e.g., in provision of health-care

services in accordance with Chapter 41 of Estonia’s Law of Obligations Act*1), the article uses the general

term ‘care institutions’ to refer to general care homes (retirement homes in the meaning of §20 of the Social

Welfare Act*2, or SWA), special care homes (see the SWA’s §100), psychiatric hospitals providing inpatient

psychiatric care under the Mental Health Act*3 (MHA), and nursing hospitals providing inpatient nursing

services (as addressed in §24 of the Health Services Organisation Act and elsewhere*4). The main elements

connecting these institutions are that they usually accommodate relatively helpless people and, secondly,

there may often be a need to perform acts described in some of the provisions of the special part of the Penal

Code directed at these people.

The article also repeatedly uses the word ‘caretakers’. This refers to all employees at care institutions:

doctors, nurses, caregivers, and activity instructors. ‘Care patients’, in turn, are the people who receive any

kind of service at care institutions as def‌i ned above.

Finally, restraining (or implementing forms of restraint) within the meaning of this article is carrying

out acts that comprise elements necessary for a criminal o ence towards care patients, where those acts

are performed by caretakers so as to eliminate or reduce a threat to legal rights that arises from said care

patients. First of all, this def‌i nition means that the article does not address those means of restraint that

feature no legally def‌i ning elements of a criminal o ence. For instance, it does not address whether a cer-

tain means of restraint could bring about any consequences in disciplinary proceedings or an obligation to

compensate for the damages incurred, nor does it address the instances in which a caretaker’s acts entail the

necessary elements for a criminal o ence under other consideration than minimising threat – for instance,

 RT I , , ; RT I, ,,, .

 RT I, .., ; .., .

 RT I , , ; RT I, .., .

 RT I , , ; RT I, .., .

https://doi.org/10.12697/JI.2018.27.13

Erkki Hirsnik, Marje Allikmets

Restraining at Care Institutions, Evaluated from the Standpoint of Penal Law

130 JURIDICA INTERNATIONAL 27/2018

illegal appropriation of jewellery of a care patient (see §199 of the Penal Code*5 (PC), on larceny) or torture

of a care patient for sadistic reasons (see the PC’s §121, on physical abuse). Neither is medical treatment of

the person in care a topic of the discussion here.*6 Lastly, acts of people who are not caretakers are not con-

sidered, with examples being the care patients themselves and visitors to the institutions (although largely

the same considerations apply to the punishments for such actions as to the liability of caretakers).

Since there is very little legal literature (and case law) on this matter, the analysis in the article is based

in large part on German law as an important model for Estonian law.

2. Restraint in connection with the elements

necessary for a criminal offence

The connection of means of restraint to the necessary elements of a criminal o ence can be two-sided.

Firstly, the measures of restraint may correspond to a description established in some of the provisions of

the Penal Code. This means that a restrainer may be criminally liable for restraining. Secondly, it should be

noted that sometimes criminal liability can follow when caretakers do not resort to restraining measures:

they could be held responsible for o ence through omission. Therefore, a caretaker's job is full of responsi-

bilities and dangerous in the sense of criminal law: a punishment can follow from either act or omission. In

Germany, caretakers share a grim joke that they always have one foot in a prison.*7

In cases of implementation of means of restraint, several sets of conditions in the special part of the

Penal Code may apply. The main provision to be examined in this connection, however, is found in §136

of the PC (on unlawful deprivation of liberty). That is why the article addresses this provision thoroughly

before proceeding to analysis of some other provisions of the special part of the Penal Code that may become

relevant.

2.1. Deprivation of liberty

Subsection 136 (1) of the PC stipulates pecuniary punishment or up to f‌i ve years’ imprisonment for unlawful

deprivation of the liberty of another person. Freedom in this context means freedom of movement. Section

136 of the PC is a delict with arbitrary description; i.e., any kind of action can be considered to have the

constituent elements of an o ence if it results in rendering it impossible for the victim to change location.*8

Among classic examples of deprivation of liberty are tying a person up and locking someone in a room.

Hence, for instance, deprivation of liberty within the meaning of §136 of the PC can be considered in the

context of this topic if a patient is being forcibly restrained within the sense of §14 (2) 1) of the MHA, is

strapped to a bed within the meaning of §14 (2) 3) of the MHA, or is placed in an isolation room in the mean-

ing of §14 (2) 4) of the MHA or §107 of the SWA. In contrast, there are no grounds for discussing deprivation

of liberty in a case wherein the person is not locked inside a room but one or more particular rooms are

closed to that person, for instance, to prevent the patient from accessing other patients, his or her posses-

sions, or the television set. Such infringement of freedom of movement in relation to a specif‌i c matter does

 RT I , , ; RT I, ,,, .

 However, it should be noted here that it is questionable whether treating a person even is consistent with the necessary ele-

ments of a criminal o ence. For instance, German case law and some legal literature f‌i nd that also inf‌l uencing bodily functions

for the purpose of treatment (e.g., a scalpel incision or a syringe prick) should be deemed damage to health (the unlawfulness

of which can be precluded through patient consent); see the overview given by T. Fischer. Strafgesetzbuch. Kommentar. .

Auf‌l . [‘Penal Code: rd, Commented Edition’]. Munich, Germany,  (in German), Art. , references –. However,

a large part of German legal literature has expressed an opposite view and indicated that steps taken to improve a person’s

health cannot be deemed causing of health damage. Estonian legal literature shares this opinion; see A. Nõmper, J. Sootak.

Meditsiiniõigus [‘Medical Law’]. Tallinn  (in Estonian), pp. –.

 F. Henke. Fixierungen in der Pf‌l ege. Rechtliche Aspekte und praktische Umsetzung. . Auf‌l . [‘Restraints in Care: Legal

Aspects and Practical Implementation’]. Stuttgart, Germany,  (in German), p. .

 J. Sootak, P. Pikamäe. Karistusseadustik. Kommenteeritud väljaanne [‘Penal Code: Commented Edition’]. th, updated and

revised ed. Tallinn: Juura  (in Estonian), §, Comment .. (M. Kurm); T. Fischer (see Note ), §, Comment ;

W. Joecks. Strafgesetzbuch. Studienkommentar. . Auf‌l . [‘Penal Code: th, Commented Study Edition’]. Munich, Germany,

 (in German), Art. , Comment .