Restraining at Care Institutions Evaluated from the Standpoint of Penal Law

Author:Erkki Hirsnik - Marje Allikmets
Pages:129-157
 
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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 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 de 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 de nition means that the article does not address those means of restraint that
feature no legally de 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 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 speci 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 nd that also in 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. .
Au . [‘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 P ege. Rechtliche Aspekte und praktische Umsetzung. . Au . [‘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. . Au . [‘Penal Code: th, Commented Study Edition’]. Munich, Germany,
 (in German), Art. , Comment .

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