Violation of Art. 6-1;No violation of Art. 8;Not necessary to examine other complaints under Art. 8;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings

Elisabeth Palm;Gaukur Jörundsson;R. Pekkanen

NORP In DATE the applicant was convicted of having caused danger to others and sentenced to DATE imprisonment . In DATE ORG ( raastuvanoikeus , rådstuvurätten ) convicted him of attempted manslaughter and sentenced him to DATE imprisonment . The court had regard to an opinion on his mental state submitted by ORG of ORG on DATE as well as to a related opinion of ORG ( lääkintöhallitus , medicinalstyrelsen ) of DATE . ORG had concluded that the applicant had committed the offence while not fully in control of his faculties but that he was not in need of psychiatric care .

On DATE ORG convicted the applicant of having threatened and assaulted his then girlfriend H and of having subjected her to coercion . Those offences were found to have been committed while he was not fully in control of himself during H 's pregnancy in DATE , when their relationship had been ending . The applicant was sentenced to DATE imprisonment .

In DATE H gave birth to a daughter , I. The CARDINAL subsequently moved from GPE to GPE . In DATE the applicant was released from prison and recognised I as his child . In the light of H 's objections a judge of ORG refused to confirm the recognition .

On DATE ORG ( väestörekisterikeskus , befolkningsregistercentralen ) granted a request by H that her and I 's address would not be disclosed for marketing , polling or addressing purposes .

In an action of CARDINAL DATE the applicant requested that his paternity in respect of I be confirmed , that custody of her be shared and that she be granted a right to see him DATE from DATE TIME . In addition , the applicant requested access arrangements enabling I to spend part of the annual holidays with him . ORG summons was served on H on DATE , the first hearing having been fixed for DATE .

NORP Before FAC contested the paternity claim and objected to joint custody and to any form of access between I and the applicant . The hearing was adjourned until DATE , ORG having ordered the parties to deliver blood samples by DATE on pain of an administrative fine ( uhkasakko , vite ) in the amount of MONEY ( ORG ) . H was also under an obligation to have samples delivered by I.

NORP In DATE H married another man .

Taking note of H 's failure to deliver blood samples , ORG , on DATE , adjourned the proceedings until DATE . H was ordered to produce the samples by CARDINAL DATE on pain of a further administrative fine in the amount of LAW . At its hearing on DATE ORG adjourned the proceedings until DATE , having decided to seek opinions on the question of access both from ORG ( in respect of the applicant ) and from ORG ( in respect of H and I ) .

On DATE ORG requested that the time - limit for the submission of its opinion be extended until DATE so as to enable it to carry out a thorough investigation . ORG then requested ORG to provide a preliminary opinion by DATE .

In its opinion of CARDINAL DATE ORG noted that the applicant did not wish to be in contact with H and her new husband and was willing to accept that the authorities act as intermediaries during an initial period of access . The applicant further considered that the initial meetings should take place in the city or town where his daughter was resident .

In its preliminary opinion of DATE ORG suggested that the examination of the access question be adjourned until DATE so that a solution convenient to the child could be found in these exceptional circumstances . ORG alluded to H 's strong fear of the applicant and to her new pregnancy expected to reach its term in DATE .

On DATE ORG ( käräjäoikeus , tingsrätten ; the former ORG ) confirmed the applicant 's paternity in respect of I ( which was no longer disputed by H ) . On an interim basis , right of access in respect of the child was granted for TIME on DATE , DATE and DATE . The meetings were to take place in GPE on the LOC of an association in this field . The final decision in respect of custody and access was adjourned until DATE .

In a written opinion of CARDINAL DATE drawn up for the purposes of the access proceedings PERSON , a child and youth psychiatrist , stated as follows :

“ [ H ] , [ I ] , [ H 's husband ] and [ their son ] have paid a visit to my practice .

[ H ] has shown me a number of documents relating to certain court proceedings ; in part to the [ access proceedings ] and in part to [ the applicant 's assault on H ] . It transpires from the documents that the intention is to organise unsupervised meetings between [ I ] and [ the applicant ] .

On the basis of the above material I must , as an expert , oppose the meetings in question until further notice . Both supervised and , in particular , unsupervised meetings would amount to a flagrant violation of the best interests of the child and would subject [ I ] at least to a serious mental and possibly also physical danger and could damage her mental development to an extent which would be difficult to treat .

This opinion is of a preliminary character because I am currently examining the matter [ more ] thoroughly . The examination will DATE , following which I will be prepared to submit a more detailed and more reasoned opinion . ... ”

In a letter of CARDINAL DATE ORG informed the applicant that the meeting between him and the child fixed for DATE would not take place . H had informed ORG that she had no intention of bringing I to the meeting - place , the reason being that she feared that the child might be subjected to “ something harmful ” . ORG attempts to convince H to comply with the court order had been unsuccessful .

On DATE the applicant lodged a request for enforcement with ORG ( lääninhallitus , länsstyrelsen ) of PERSON , acting as Chief Bailiff ( ulosotonhaltija , överexekutor ) . He referred to H 's failure to bring I to the meeting fixed for DATE . Moreover , a leading official of ORG had informed the applicant that H was keeping his paternity secret from the child .

In a letter of DATE ORG informed the applicant that H would not bring the child to the meeting fixed for DATE either . This letter had been preceded by a social welfare official 's telephone calls to the applicant and PERSON The official had suggested to H that a plain - clothed police officer could attend the meeting . H had refused , indicating a wish to attend the meetings herself . When informed that this wish could be accommodated , H had retracted her consent , at least in respect of the DATE meeting . When requested to state her position in respect of the DATE meeting , H had thought her answer would remain negative .

On DATE ORG informed the applicant that H would not bring the child to the DATE meeting either .

On CARDINAL DATE the applicant repeated his enforcement request , referring to H 's failure to bring I to the DATE meeting .

On DATE requested that ORG ( maistraatti , magistraten ) order her and the child 's address to be kept secret in accordance with the DATE LAW ( väestötietolaki , befolkningsdatalag , no . CARDINAL/CARDINAL ) . H referred to the applicant 's conviction in DATE and suspected that he was threatening the lives of her and the child . On DATE ORG ordered that the address of H and I should be kept secret for DATE . This order was later extended .

On CARDINAL DATE and ORG Director and Senior ORG Officer of ORG , submitted the final opinion to ORG on the question of access . They noted H 's strong fear and suspicions in respect of the applicant and his intentions . H seemed to fear that the meetings between the applicant and his daughter would cause physical or psychological harm to the child or her new family . In the explosive situation at hand it would be difficult to organise the visits in an atmosphere which could be beneficial to the child . In the long term visits were nevertheless to be aimed at , as it was in the child 's best interests to meet her father in secure conditions and to be able to form her own opinion of his good and bad features . Regrettably , it had proved impossible to have any of the interim access arrangements enforced . This had significantly prevented the officials from forming their opinion of the applicant 's abilities to relate to his child .

A summary by ORG dated DATE indicated that , prior to drawing up the opinion of CARDINAL DATE , officials had met H CARDINAL times together with the child and once also together with the grandmother . The officials had intended to request investigations by ORG ( perheneuvola , familjerådgivningen ) but H had already contacted a private child psychiatrist ( Dr V ) , on whose preliminary opinion she had relied early on , refusing to comply with the interim access arrangements . She had categorically refused to accept any such access , even when it had been proposed to organise the meetings at ORG in the presence of a police officer . She had feared for her own and the child 's safety and had considered that access would not be in the child 's best interests . She had not wanted any information about the child to be given to the applicant . She had referred to his criminal record , the DATE opinion on his mental health and the threats he had addressed to her family . The social welfare official had concluded that the parents ' relationship was negative and filled with hatred . The applicant had been contacted by telephone and letter as he had found it unnecessary to attend a meeting with the social welfare officials . Occasionally , he had been very aggressive and threatening towards the officials . ORG summary concluded that in the light of the information available at the time ORG had been unable to formulate any clear proposal to ORG in respect of access rights .

On DATE ORG adjourned the access proceedings until DATE at the request of H. In its decision of the latter date the ORG afforded custody of the child solely to H and granted the child the right to meet with the applicant for TIME on DATE of DATE . ORG furthermore ordered H to pay the administrative fine imposed on DATE . ORG had at its disposal PERSON final opinion of CARDINAL DATE in which he had stated , inter alia , as follows :

“ ... I have met [ I ] twice and [ H ] , her husband and second child on CARDINAL occasions . ... [ The applicant ] refused to see me ... but spoke to me over the telephone . ...

... [ I ] is strongly attached to her mother and her stepfather , whom she wishes to call her father .

The conversation with [ the applicant ] was rather original . He was ... rather agitated and paranoid and unable to explain why . He refused to cooperate , although I explained that this would have been very important and in the interests of his child . Instead he threatened me with ... court proceedings and negative publicity ; ... At the beginning of the conversation he lied to me , saying that the person answering the telephone was a neighbour . His paranoia was illustrated by accusations against everyone ; everyone seemed to be wrong and to be persecuting him ; only he was right . This fits well with the impression one gets from the documents , namely that [ he ] very easily becomes aggressive and that his ability to control his impulses is very poor . These factors combined with his paranoid attitude and feeling of always being right makes him very dangerous as regards [ I ] .

... I consider it very likely that the planned meetings between [ I ] and [ the applicant ] will seriously damage at least [ I 's ] mental development . They might also endanger her physical health . I continue to be of the opinion that [ H ] ... should not agree to any such experiments ... at the expense of the child 's future . [ The applicant ] must first show that he is able to create a secure and good relationship towards [ H ] ; only subsequently can meetings of this kind be contemplated . ... ”

As regards the question of access ORG found as follows :

“ According to the opinion of the ... ORG , [ I ] is a well - balanced child with a trusting attitude towards adults . Witness [ V ] has stated in his opinion that the tests carried out by [ GPE ] , Chief Psychologist , and [ V 's own ] psychological interviews have shown that she is well cared for and mentally balanced and that she has developed and continues to develop well ... According to [ V ] , [ I ] is a healthy and happy child . [ He ] is of the opinion that [ the applicant ] can not be granted access rights ... , since [ H ] is afraid of meeting [ him ] and [ I ] can sense that fear on the part of her custodian .

Bearing in mind that the DATE [ I ] is a well - balanced child , who is behaving in a manner which is adequate for her age , short meetings between her and her biological father and other strangers can not be considered harmful to her , provided [ her ] custodian is able to support her mentally in connection with the meetings . There is thus no reason to prohibit access ... completely . ...

For these reasons , ... the ORG finds that [ I ] is entitled to meet her father and to stay in contact with him . ... ”

ORG specified that the meetings between the applicant and I were to take place at a children 's centre in GPE ( near GPE ) , where the meetings could also be supervised . Both parties appealed against the judgment , the applicant seeking more extended access and H opposing access altogether .

On DATE ORG appointed an official of ORG to act as conciliator in the enforcement proceedings . She was ordered to submit her report by CARDINAL DATE . H 's lawyer informed the conciliator that H could not be reached in DATE , since she was on holiday .

On DATE the conciliator requested to be replaced by another official , the applicant having objected to her appointment as she had been involved in drawing up ORG opinion to ORG .

On DATE ORG appointed the suggested official to act as conciliator and ordered her to submit her report by DATE . H informed the conciliator that she wished the matter to be handled by her lawyer , who would be on holiday until DATE .

On DATE the applicant repeated his enforcement request and referred to H 's failure to bring I to the DATE meeting .

In her report of CARDINAL DATE the conciliator found that conciliation had to be excluded , given the complete deadlock . H was categorically opposed to any access between I and the applicant and had refused even to discuss the matter in person with the conciliator . The applicant , for his part , was approaching the matter so aggressively and expressing such threats that it rendered any dialogue difficult . Even his telephone calls to the conciliator had been impertinent and had contained threats .

Heard in writing by ORG , H referred , inter alia , to the applicant 's criminal convictions and prison sentences as well as to the views of PERSON In his rejoinder the applicant essentially considered that such material was irrelevant for the purposes of the enforcement proceedings .

On DATE ORG rejected the applicant 's request for enforcement of the initial access arrangements , noting that ORG interim order of DATE had been replaced by its final decision of DATE . The applicant appealed to ORG ( hovioikeus , hovrätten ) .

On DATE ORG of ORG , in response to the parties ' appeal in the main proceedings concerning custody and access , made some minor changes in respect of the implementation of the access rights . Both parties sought leave to appeal to ORG ( korkein oikeus , högsta domstolen ) .

On DATE , DATE and DATE the applicant repeated his enforcement request , referring to H 's failure to bring I to the DATE and DATE meetings .

On DATE ORG , acting as appellate body in the enforcement proceedings , quashed ORG decision of DATE and ordered it to reconsider the applicant 's request as comprising a request for enforcement also of the access arrangements ordered on DATE .

ORG joined the remitted request and the applicant 's fresh request for enforcement and again heard H in writing . ORG summarised her statement , inter alia , as follows :

“ ... [ The applicant 's ] intention has clearly been to harass [ H ] by requesting the imposition of administrative fines . The imposition of fines would not be in the best interests of the child , since [ H 's ] financial possibility of caring [ for I ] would thereby be significantly jeopardised . The courts ' finding that the biological father 's rights are so strong that they must be given more weight than the experts ' views on the best interests of the child is astonishing . Both the social welfare officers of GPE and child psychiatrist [ V ] have been of the opinion that [ access between I and the applicant ] would not at this stage be in the best interests of the child . ”

On DATE ORG ordered H , on pain of an administrative fine of FIM CARDINAL,CARDINAL , to comply with the access arrangements ordered on DATE and upheld on DATE . ORG found that H had not put forward any acceptable reason for her refusal to bring I to the meetings fixed for DATE and DATE . Moreover , ORG had not suspended the enforcement of the decision of CARDINAL DATE of ORG . Finally , the expert views to which H had referred , allegedly showing that enforcement would not be in the child 's best interests , had already been known to the first - instance court in the civil proceedings regarding access and custody . That material could therefore not be invoked at the enforcement stage .

On DATE ORG refused leave to appeal in the main proceedings concerning custody and access .

On DATE the Deputy Chancellor of ORG ( apulaisoikeuskansleri , justitiekanslersadjointen ) found that ORG had not postponed the first set of the main proceedings unnecessarily , given the failure by H to produce the necessary blood samples and ORG requests for opinions from the social authorities .

In response to the applicant 's further request for enforcement ORG , on DATE , ordered H to pay the fine of ORG imposed in DATE and directed her to comply with the access arrangements on pain of a further fine of ORG CARDINAL,CARDINAL . ORG noted that the address of the centre where the meetings were to take place had changed . However , even after H had been informed of the new address ( on DATE ) she had refused to comply with the arrangements . She could also have verified the possible supervision of the meetings by contacting the centre directly .

In DATE the applicant brought fresh proceedings before ORG , seeking to obtain shared custody of I and extended access rights . H objected and sought to have the access rights revoked . She invoked her and her family 's right to respect for their private and family life within the meaning of LAW . She had now told her daughter that , being her biological father , the applicant wished to see her . The daughter , however , had allegedly not been interested in meeting him . H furthermore referred the applicant to her parents ' address in GPE , where he could send presents intended for his daughter without having to know her whereabouts .

On DATE Chief Inspector P .- L.H. of ORG requested the Deputy Senior Physician of ORG to forward copies of the applicant 's patient records . Reference was made to the drafting of the ORG 's opinion to ORG in respect of his application to the Commission . According to P .- L.H. , it had transpired from the documents already obtained that the centre in question was in the possession of records pertaining to the applicant 's mental health which were of major importance to the ORG 's observations to the ORG . The request was based on sections CARDINAL and CARDINAL of the DATE LAW ( sosiaalihuoltolaki , socialvårdslagen , no . CARDINAL/CARDINAL ) and LAW , subsection CARDINAL ) , of the DATE LAW ( laki potilaan asemasta ja oikeuksista , lagen om patientens ställning och rättigheter , no . DATE ) . Copies of the requested records were subsequently disclosed to ORG .

As from DATE a request for enforcement of access rights was to be lodged with a district court which could also order that a child be escorted to meetings for enforcement purposes . In DATE the applicant requested the GPE ORG to order such enforcement .

By letter of DATE Chief Inspector P .- L.H. forwarded to ORG the request of counsel for H to obtain copies of the applicant 's submissions to the Commission and the ORG 's observations in reply . H had argued that this material would be of relevance both to the enforcement proceedings and the second set of custody and access proceedings which the applicant had just initiated . ORG stated , with reference to the material obtained by ORG , that H would have good reasons to propose that ORG order a fresh conciliation and obtain a new opinion from ORG .

On DATE the ORG appointed CARDINAL conciliators of ORG of GPE ( GPE , Senior ORG , and ORG , a psychologist of ORG ) and ordered them to submit an opinion by DATE . The conciliators met separately with the parents and , as suggested by H , also planned on interviewing the child .

On DATE ORG upheld ORG decision of DATE in the first set of enforcement proceedings .

In their report of CARDINAL DATE the conciliators noted , inter alia , that in spite of her argument that it was important to ascertain the child 's own opinion H had refused to bring the child to a meeting with them . The applicant , for his part , had demonstrated in the course of the conciliation that he could become very aggressive . He had stressed his own intelligence and good health . In his view his current situation was simply a result of the protracted access proceedings . On this point the conciliators noted , however , that already in DATE he had been diagnosed as suffering from a mental disturbance . In his opinion the conciliators were always siding with H and the conciliation was only a means of prolonging the proceedings . He did not trust ORG or the judicial organs . He had threatened court proceedings and publicity . The conciliators continued as follows :

“ It is of course natural that [ the applicant ] is frustrated ... , having tried in vain to meet his child . However , this does not ... explain such a strong aggressive behaviour . [ The applicant 's ] suspicions also showed in that he recorded all telephone conversations and [ our ] meeting . ...

[ The applicant ] emphasised the child 's right to know who her father is and to meet him . However , the fact that [ H ] has refused to comply with the access arrangements does not change the fact that [ the applicant ] is a complete stranger to the child . [ The applicant 's ] lack of understanding is reflected , for instance , in his refusal to accept that the child could bring along a support person to the meetings , his reason being that he himself has to come to the meetings alone . ... ”

The conciliators concluded that it would be in I 's best interests that the meetings with the applicant be organised after the child had been properly prepared for them and would feel calm and safe . Otherwise the child would be under a duty to meet the applicant instead of enjoying a right to this effect .

Apart from interviewing the applicant and H the conciliators had also heard one of the previous conciliators as well as Chief Inspector ORG , the mother of H as well as the supervisor at the centre where I 's meetings with the applicant should have taken place . With reference to Chief Inspector P .- L.H. 's opinion that the conditions for the meetings should be revised , the conciliators attached a secret memorandum containing information obtained by ORG which had not been at the courts ' disposal earlier . According to the memorandum , Chief Inspector P - L.H. had obtained , while preparing the ORG 's observations on the application before the Commission , various patient records indicating that the applicant had been suffering from mental problems for DATE . When the conciliators had raised this point with the applicant , he had become very aggressive , contending that he had no such problems . The access dispute had begun to affect his nerves and his doctor had rightly been concerned about that , not about any mental problems . The applicant had again threatened court proceedings and publicity . He had refused even to consider psychiatric care or therapy . His language had been “ unbelievably inappropriate ” .

ORG heard the applicant , H , CARDINAL witnesses on the applicant 's behalf and conciliator PERSON The applicant contended that he had not behaved violently in DATE . Nor was he in need of therapy , care or medication against his alleged mental problems . The witnesses on his behalf testified along the same lines . Having been unable to interview the child , conciliator PERSON found herself unable to state any view as to whether the meetings would be in the child 's best interest .

In its decision of DATE ORG found that the testimonies by the applicant 's witnesses could not refute the medical indications relating to his mental state . Those indications did not , however , show that enforcement of the access arrangements would be contrary to the interests of the child , bearing in mind the limited access and the meeting place . The court was composed of CARDINAL presiding professional judge and CARDINAL lay members .

ORG dismissed the applicant 's request that the child be brought to the meetings . Having regard to the attitude of H , ORG found it most likely , however , that the court - ordered access would not take place despite any changes in the arrangements . The fact that the child had never met the applicant could therefore be seen as a weighty reason for ordering the child to be brought . On the other hand , such a measure could not be the right way for the child to get to know the applicant . Instead the child was to be given a possibility to get to know him gradually in conditions where she would feel that this would happen on a voluntary basis . ORG therefore concluded that there were no weighty reasons militating in favour of escorting the child to meetings and ordered that a professional supervisor as well as H and/or another person close to the child should attend the child 's meetings with the applicant for DATE . The applicant had agreed to those changes . ORG ordered H to comply with the modified arrangements on pain of a further administrative fine , this time automatically staggered in view of the special reasons at hand . The amount of the fine was FIM CARDINAL,CARDINAL at the outset , to be increased by ORG for each of the CARDINAL forthcoming meetings between I and the applicant with which H would refuse to comply ( in DATE and DATE ) .

ORG furthermore ordered that the applicant could not bring other persons with him to the meetings . Neither could he record the meetings on audiotape , let alone film and/or photograph the other persons attending the meetings , without their consent . In order to keep I 's whereabouts secret from the applicant , she and the accompanying persons would arrive at the meeting place TIME after the applicant and leave TIME before him .

ORG finally waived the administrative fine imposed on H on DATE . It noted that , whereas ORG decision of DATE could have given the impression that the meetings would be supervised , the centre where they were to be organised had informed H that the meetings would not be supervised without an explicit court order to that effect . In these circumstances H had had reason to suspect that enforcement would not be in the child 's best interests . Her refusal to bring I to those meetings had therefore been acceptable .

ORG decision was upheld by ORG on DATE and leave to appeal was refused by ORG on DATE .

Meanwhile , at a preparatory hearing on DATE the ORG decided to adjourn the second set of the custody and access proceedings pending receipt of fresh opinions from the social welfare boards of GPE and GPE by DATE . It found no reason to amend or revoke the access rights on an interim basis .

In its opinion of DATE ORG stated , inter alia , as follows :

“ ... At [ our ] meeting [ the applicant ] stated that his life situation had improved and that things were going well . He was unwilling to provide any further information to [ the social welfare officers ] , stating that he would inform the court directly of his conditions .

[ The applicant ] called on DATE to say he was moving away from GPE ... He refused to indicate his new place of residence .

In the light of the foregoing ORG is unable to put forward a recommendation concerning access , since there is no adequate information as to the conditions of the applicant . ... ”

ORG was granted an extension until DATE for the submission of its opinion . The opinion of that date stated , inter alia , as follows :

“ [ H ] was interviewed at ORG on DATE and briefly on DATE . She cancelled the [ CARDINAL ] appointments reserved for her [ DATE ] ...

... The child has not been interviewed . [ H ] refused to bring [ I ] to ORG . Nor did she accept that [ social welfare ] officers pay a visit to her home , where the child could have been interviewed in familiar surroundings . [ H ] wishes to keep her family ( her husband and children ) outside the access dispute . ...

H objects to any meetings between I and [ the applicant ] . In her opinion [ the applicant ] has nothing positive to give to the child . On the contrary , she fears that [ he ] will frighten [ I ] with his uncontrolled behaviour . She considers [ the applicant ] to be mentally unstable and fears physical violence on his part . ...

H will not permit [ the applicant ] to see [ I ] until [ the child ] is ready for it and expresses a wish to that effect . If the child is ordered to be brought , [ H ] will leave home with the child . ... The child itself should have the right to decide whether or not it wishes to see its father . ...

... The officers in charge of this investigation have not met with [ the applicant ] . In telephone conversations his behaviour has been inappropriate and threatening towards the officers of ORG . He has behaved in the same manner towards the conciliators of ORG .

In the course of the investigation a meeting between [ I ] and her father could not be organised . Such a meeting might have produced valuable information with a view to assessing the success of future meetings . ... On the basis of the information now collected it is not possible to assess at what age the meetings could be successful with regard to the best interests of the child . The circumstances would at any rate have to be very secure . ... In her early teens [ I ] will herself be ready to decide ... on possible meetings with her father . ... ”

In their opinion of DATE ( attached to ORG opinion ) psychiatrists GPE and ORG stated , inter alia , the following :

“ ... We met I together with her mother on DATE and the mother alone on DATE . We offered CARDINAL different appointments to [ the applicant ] but he refused to attend . ...

We have not met the child separately and have not conducted any psychological examination , considering that this would not shed any further light on the matter .

The investigation is incomplete , since in respect of the father it was limited to telephone calls and letters received from him . It was not possible to arrange a meeting between the ... father and the daughter or a ... meeting between the mother , the daughter and the father , since the mother did not agree to such a meeting .

[ The applicant ] could not agree on a date for a meeting . At first he doubted whether he would be able to attend the meetings due to his studies and the long distance [ between GPE and PERSON ] . Later he stated that he would not attend the meetings unless his daughter had been interviewed at [ the ORG ] before him . When we offered ... to meet him after [ I ] 's visit ... , he refused , requiring that we arrange a meeting between him and [ I ] . ... Finally , [ he ] noted that under domestic law it was for the authorities of his place of residence to provide an opinion on his conditions .

During the telephone conversations [ the applicant ] ... occasionally used inappropriate and aggressive language towards us . It was not possible to have a dialogue with him . [ His behaviour ] did not reflect any real understanding of the world of a DATE girl or of the feelings and reactions which she could be facing if she met him in the current extremely tense conditions .

... A DATE child 's perception of the world is still [ that it is ] identical to that of its parents ... Accordingly , even if [ H and I 's stepfather ] were to support [ I ] in her meetings with her biological father , [ the ] internal fears and resistance she would sense in her [ de facto ] parents would place her in a situation of anxiety and contradiction .

Subjecting the child to the very difficult disputes between its biological parents could endanger her normal mental development . ...

... It would be very important for [ I ] that the legal battle between her biological parents cease . ... ”

The applicant moved to PERSON towards DATE . In DATE he brought further enforcement proceedings before ORG , again referring to the exceptional circumstances which in his view required that the child be brought to the meetings . A preparatory hearing was held on DATE , by which time H and I had apparently moved to ORG .

On DATE the ORG again dismissed the applicant 's demand that the child be brought to the meetings . Neither the presiding judge nor any of the CARDINAL lay members had examined the previous enforcement request decided on DATE . ORG had again heard the applicant and H as well as psychiatrist PERSON of ORG and also based itself on ORG opinions of CARDINAL DATE and DATE , the opinion of ORG of DATE and ORG opinion of DATE .

ORG further ordered H to pay the administrative fines imposed on DATE in the amount of LAW . She was also ordered to comply with the access arrangements on pain of a further automatically staggered fine . Access was now to take place in GPE . The amount of the fine now imposed was FIM CARDINAL at the outset , to be increased by FIM CARDINAL for each of the CARDINAL forthcoming meetings between I and the applicant which H would refuse to respect ( in DATE , DATE and DATE ) . Both parties appealed against the decision .

DATE . On DATE the ORG considered the applicant 's fresh request for shared custody and extended access rights . It decided to hear him , H , CARDINAL witnesses on the applicant 's behalf ( NORP and GPE ) and CARDINAL on behalf of H ( Dr V , PERSON , GPE and GPE ) . H was to be heard in the applicant 's absence , as her fear of the applicant might prevent her from supplying all the relevant information . ORG dismissed a request by H that the applicant 's aggressive behaviour be assessed by an expert . The oral evidence was taken on DATE . Neither the presiding judge nor any of the lay members had participated in the decisions of DATE and DATE in respect of the applicant 's enforcement requests .

ORG also had regard to the opinion on the applicant 's mental state submitted by ORG of ORG on DATE , the related opinion of ORG of DATE , PERSON final opinion of CARDINAL DATE , ORG opinion of CARDINAL DATE , the conciliators ' opinion of DATE , the attached secret memorandum , the opinion of ORG of DATE , ORG opinion of DATE and the pre - trial investigation record of ORG drawn up in DATE in respect of the applicant 's offences against H.

In its decision of CARDINAL DATE ORG dismissed the applicant 's request for joint custody , revoked the access arrangements and upheld the secrecy order in respect of the child 's whereabouts . Having heard H orally in the applicant 's absence , ORG had become convinced that her fear of the applicant was genuine and primarily based on his assault and other offences committed in DATE , when H had been pregnant . This fear explained in a plausible manner why she had consistently refused to let I meet the applicant even under supervision . The testimony of witnesses GPE and GPE had further strengthened H 's account of her fears .

ORG furthermore found it established through the testimony of PERSON that H was considering I 's best interests by keeping the child out of her disputes with the applicant . Above all , H had been physically assaulted by him during her pregnancy . Her fears relating to that incident had not been dispersed despite the passage of time . Those fears would inevitably be passed on to I and any access at her age would produce distress and confusion which could lead to a permanent depression and anxiety . Access without any risks could take place once I was able to form her own opinion , namely at the age of DATE or DATE . When telling I of her biological father , H had also stated that she did not want the child to meet with him , fearing “ something bad ” could happen . In the opinion of Dr O.H. the child would at any rate have sensed H 's fears intuitively . During the investigation the applicant had cooperated with difficulty and had questioned PERSON competence . According to PERSON , it would have been crucial to the investigation that the applicant be interviewed in the presence of ORG The telephone conversations with him had not clarified his motives for wishing to see his child .

ORG noted that Dr V 's testimony had been consistent with that of PERSON and found no reason to question PERSON competence in the field . Moreover , ORG hearing of the applicant in person had strengthened the view that he was unable to distinguish between the child 's interests and his own and was perceiving the child 's access right as an obligation .

Finally , ORG ordered that the conciliation report and certain passages of its decision which recounted the contents of that report should be kept confidential for DATE .

In the light of the quashed access arrangements ORG , on CARDINAL DATE , dismissed the applicant 's appeal against ORG decision of CARDINAL DATE and relieved H of paying the administrative fine imposed on DATE and upheld for payment on DATE .

In his appeal against ORG decision of DATE in the second set of custody and access proceedings the applicant requested either that the case be referred back to ORG for a further investigation into his daughter 's conditions and his ability to relate to her , or that an oral hearing be held before ORG . The applicant argued that since the mother 's fears dated back to his assault in DATE her fears during DATE could only be of an imaginary character , given that the CARDINAL had only met in the court room . By consistently defying the court - ordered access arrangements which had been decided and maintained in the best interests of the child H had eventually managed to have the child 's access rights revoked . The applicant also demanded that he be given the necessary information allowing him to contact the child .

DATE . On DATE ORG refused the applicant 's appeal after rejecting his request for a remittal or re - hearing . In refusing to admit the proposed fresh evidence it noted , inter alia , that the applicant had refused to provide detailed information on his own situation at the time of ORG investigation in DATE .

As to the merits of the appeal , ORG found as follows :

“ According to section CARDINAL of [ LAW ( laki lapsen huollosta ja tapaamisoikeudesta , lag angående vårdnad om barn och umgängesrätt , no . CARDINAL/CARDINAL ) ] , ' a matter relating to child custody and right of access shall be resolved by keeping the interests of the child foremost in mind . To this end , special attention shall be paid to the manner in which custody and right of access may best be realised in the future ' . Certain international conventions which are binding on GPE emphasise everyone 's right to family life as well as the right of a child , who has been separated from a parent , to maintain regular and direct contact with both parents . However , the best interests of the child is a determining factor even in the application of these conventions , and this is explicitly provided for in DATE , paragraph CARDINAL of the Convention on the Rights of the Child .

According to the opinions of the social welfare authorities ... and the witnesses heard before ORG , [ I ] , who was born [ in DATE ] , has been subjected to exceptionally strong conflicts between her parents . According to the opinions , a DATE child is not able to form an opinion of her own which would be distinct from the fears of her mother . Accordingly , meetings at this stage would cause anxiety and confusion in [ I ] , possibly leading to more serious mental problems . During the consideration of the matter [ the applicant ] has not been able to make a distinction between the interests of the child and his own .

ORG notes that on the basis of domestic law and international conventions the child has a right of access also in respect of the parent with whom he or she does not reside . If not considered to be in the best interests of the child , this right ... may be set aside by ... the authorities . A right for the parent to enjoy access in respect of his or her child can also be derived from the right to family life provided for in international conventions . In a case of this kind involving conflicting interests or rights the matter shall be decided in accordance with the best interests of the child .

Considering the above and the other reasons for ORG decision , ORG finds ... , whilst recognising the importance ... of creating a father - child relationship between [ I and the applicant ] as early as possible , that in the present circumstances it is not in the best interests of [ I ] to grant the right of access requested by [ the applicant ] . ... ”

On DATE ORG refused the applicant leave to appeal .

On DATE the applicant requested ORG ( eduskunnan oikeusasiamies , riksdagens justitieombudsman ) urgently to investigate whether any public official had committed an offence in office , or had incited to such an offence , on account of the disclosure to ORG of the applicant 's patient records at ORG . The ORG 's request to obtain the material had allegedly not been founded on domestic law . Information emanating from this material had not only been relied on by the Government in their observations to the ORG but had also been conveyed to conciliator PERSON after the ORG 's Chief Inspector P .- L.H. had advised H to request a fresh conciliation report . The conciliator had conveyed the information further to ORG which had relied on it in its decisions of DATE and DATE with the result that the access rights had ultimately been revoked .

No decision has yet been forthcoming from ORG .

According to LAW ( isyyslaki , lag om faderskap , no . DATE ) , a court shall collect , of its own motion , all necessary evidence in respect of a paternity investigation ( section CARDINAL ) . To this end the court may order the child , the mother and the possible father or fathers to deliver blood samples on pain of an administrative fine . In case of non - compliance the fine shall be upheld for payment and a further fine may be imposed . Alternatively , the court may order that the person in question be brought by force to deliver the sample ( sections CARDINAL of LAW on Certain Blood and Other Investigations into Hereditary Features ( laki eräistä veri- ja muita periytyviä ominaisuuksia koskevista tutkimuksista , lag om vissa blodundersökningar och andra undersökningar rörande ärftliga egenskaper , no . PERSON ) . Cases relating to the establishment or annulment of paternity shall be dealt with urgently ( section CARDINAL of LAW ) .

According to the DATE LAW , the child shall have the right to maintain contact with the parent with whom he or she is not living ( section CARDINAL ) . The court shall place primary emphasis on the interests of the child and have particular regard to the most effective means of implementing custody and access rights in the future ( sections CARDINAL and CARDINAL ) . The court 's interim orders and decisions are immediately enforceable , unless they state otherwise ( section CARDINAL ) .

The CARDINAL Act on ORG ( laki lapsen huollosta ja tapaamisoikeudesta annetun päätöksen täytäntöönpanosta , lag om verkställighet av beslut som gäller vårdnad om barn och umgängesrätt , no . DATE “ the DATE LAW ) was in force up to DATE , when it was replaced by Act no . PERSON ( “ the DATE LAW ) . Under the DATE Act enforcement proceedings were to be instituted before the Chief Bailiff which , before ordering enforcement , was to assign , as a conciliator , a person appointed by ORG or another suitable person to mediate between the parties with a view to enforcing the decision and to draw up a report . Such conciliation was to be aimed at persuading the person taking care of the child to comply voluntarily with his or her obligations under the relevant decision . Conciliation was not to be ordered if it was evident from previous attempts that it would be unsuccessful or , in the case of a custody decision , if immediate enforcement was in the child 's interests and dictated by strong reasons ( sections CARDINAL and CARDINAL ) .

If deemed necessary , the Chief Bailiff was to obtain opinions from ORG and municipal authorities and hear the child itself and others . ORG could also proceed to hear witnesses and experts and have the child examined by a physician ( LAW ) .

The Chief Bailiff 's decision could be enforced immediately and could include the imposition of an administrative fine for enforcement purposes ( sections CARDINAL and CARDINAL ) .

If , following a decision regarding access , the conditions had changed so significantly that a re - examination by a court would be in the best interests of the child , the Chief Bailiff was to dismiss the enforcement request ( section CARDINAL ) .

Under the DATE Act enforcement could not take place against the child 's own wishes if he or she was DATE or sufficiently mature for his or her wishes to be taken into account ( section CARDINAL ) . LAW contains a similar provision ( section CARDINAL ) .

According to LAW , a request for enforcement shall be lodged with the competent district court which shall normally appoint a conciliator to mediate and draw up a report ( sections CARDINAL and CARDINAL) . The court may hear the conciliator , the child and others orally , obtain opinions from ORG and municipal authorities and order that the child be examined by a physician or other expert ( section CARDINAL ) . The court shall dismiss the request if , in light of changed circumstances or for any other reason , enforcement would be manifestly contrary to the child 's best interests ( section CARDINAL ) .

The CARDINAL Act furthermore provides for the possibility of escorting the child to meetings with a view to enforcing access arrangements , if it is likely that access would not otherwise materialise and provided there are , from the point of view of the child 's best interests , particularly weighty reasons ( section CARDINAL ) . The conciliator or a representative of the social welfare authority must escort the child . He or she must request the presence of a person close to the child and , if necessary , that of a physician or other expert ( section CARDINAL ) . All measures must be carried out without shocking the child . If enforcement is impossible owing , for instance , to the shock experienced by the child , it must be postponed ( section CARDINAL ) .

In the drafting history of the DATE Act the government proposed that a court could issue a standing escorted access order which would be valid for DATE ( see PERSON . PERSON , pp . DATE ) . ORG 's ORG did not accept this proposal . Considering that being escorted was stressful for the child , the ORG found that an escorted access order should only be issued for CARDINAL meeting at a time ( ORG no . CARDINAL/CARDINAL ) .

NORP The district court may order the defendant either to hand over the child to the party seeking enforcement or to disclose the child 's whereabouts on pain of an administrative fine ( sections CARDINAL and DATE ) . For particular reasons , the fine may be automatically staggered , its final amount depending on the duration of the non - compliance ( section CARDINAL ) . Certain provisions of LAW ( uhkasakkolaki , viteslag , no . DATE ) are also applicable . Accordingly , the fine is fixed on the basis of all relevant circumstances and may be reduced for particular reasons . The district court may also quash and reconsider the imposition of a fine if the circumstances have changed , if important fresh evidence has been obtained or if the fine has been imposed by a manifestly incorrect application of the law ( sections CARDINAL , DATE and DATE ) .

The Act on Custody and Access Rights with regard to children does not compel a custodian to disclose a child 's whereabouts to a parent who lacks custody . Under LAW , social welfare officials may not , without the consent of the person concerned or that of , for instance , his or her custodian , disclose personal and family information obtained in the performance of their duties . This duty of confidentiality does not prevent officials from disclosing information to those entitled to obtain it for the performance of their official duties ( section CARDINAL ) . Thus the social welfare authorities are entitled to obtain , from a public body such as a municipal care centre , any material required for the performance of their duties ( section CARDINAL ) . The confidentiality of patient records , as stipulated in the LAW on the Status and Rights of Patients , may thereby be waived ( section CARDINAL of the said Act ) . A refusal to disclose information requested under section CARDINAL of LAW constitutes an offence ( section DATE ) .

Under section CARDINAL of the DATE Act a conciliator must have access , to the same extent as social welfare authorities , to medical and other information as stipulated in section CARDINAL of LAW . The conciliator may also seek executive assistance in gathering such information . The conciliator 's report may contain information which should not be disclosed , bearing in mind the child 's best interests . The court may disclose such information only to a party to the proceedings and to other authorities .

According to the DATE LAW ( henkilö - rekisterilaki , personregisterlag , no . CARDINAL/CARDINAL ) , a registered person may prohibit the keeper of the register from disclosing his or her address ( section CARDINAL ) . A custodian has the same right in respect of a child .

According to LAW , a registry office may , on request , order that an address may only be disclosed to authorities if the person in question has reason to fear for his or her own or his or her family 's health or safety . The secrecy order may be granted for DATE , following which it may be prolonged on an DATE basis ( section DATE , subsection CARDINAL , as in force as from DATE ) .


Josep Casadevall;Nicolas Bratza;Simon Brown

The applicant , Mr PERSON , is a GPE national , who was born in DATE and is a resident of ORG in GPE . He was represented before ORG by PERSON , a solicitor practising in GPE .

The applicant is subject to hospital and restriction orders under LAW DATE ( “ the DATE LAW ) following his conviction for rape of a minor in DATE . He is therefore detained in a psychiatric hospital . In DATE the applicant suffered a mild heart attack ( when he was awaiting surgery for another condition ) and thereafter was diagnosed as suffering from minor coronary disease .

Throughout his period of confinement , there has been considerable debate as to whether he was mentally ill . There was a consensus that he suffered from a “ psychopathic personality disorder ” , a condition not classed as a mental illness . However , there was disagreement as to whether he also suffered from a mental illness .

On DATE , for example , ORG found that he was suffering from a mental illness . Following that decision , Dr O , the applicant ’s responsible medical officer at the time , proposed treating the applicant with anti - psychotic medication . She sought a second opinion from PERSON , a second opinion appointed doctor ( “ SOAD ” ) appointed by ORG . PERSON did not give the necessary authority . He considered that there was sufficient evidence to suggest that the applicant might be suffering from a psychosis to justify treatment in the event of his agreeing to it , but not sufficient evidence to justify treatment against his wishes .

In DATE another responsible medical officer ( “ the RMO ” ) took over the applicant ’s care . The ORG formed the view that the applicant ’s pronounced paranoid beliefs and attitudes were due , not only to his personality disorder , but also to an underlying psychotic mental illness . In any event , the ORG considered anti - psychotic medication necessary to relieve the applicant of his “ paranoid ideation ” . These views were reflected in the ORG ’s report of DATE .

In DATE ( it is not clear precisely when ) , the ORG proposed the new medication to the applicant and the applicant refused it : from the outset , he made it clear that he would physically resist it . Since he was not consenting , the treatment had to be certified by a ORG ( see section CARDINAL(CARDINAL)(b ) of LAW below ) . On DATE the ORG requested the appointment of a ORG . PERSON ( “ the ORG ” ) , a highly experienced consultant psychiatrist , was appointed .

On DATE the ORG examined the applicant ( it was disputed during the domestic proceedings how long this examination took : TIME according to the applicant ; CARDINAL according to the ORG ) . The ORG issued a certificate of second opinion on that date certifying that the applicant was not capable of understanding the nature , purpose and likely effects of the proposed medication , “ but that , having regard to the likelihood of the treatment alleviating or preventing a deterioration of the patient ’s condition , it should be given ” . The certificate authorised a plan of treatment whereby the specific drugs would be administered on a number of occasions . The ORG also signed a Form CARDINAL confirming that the statutory criteria had been fulfilled .

The ORG was concerned that , when faced with a threatening situation , the applicant was apt to become extremely anxious and agitated and that he had acted violently on many occasions ( for example by starting fires ) . As a result , he and the other members of his clinical team arranged that the applicant would have no notice of the ORG ’s arrival to the hospital and that the medication would be administered immediately after the certification had been obtained .

Accordingly , on DATE that the ORG ’s certificate was signed ( DATE ) , the applicant was given anti - psychotic medication by the ORG against his will . On DATE he was again injected with the same medication . On each occasion , the applicant physically resisted and had to be restrained by members of staff . On the first occasion , he suffered an angina attack and had to be taken to a seclusion room . The applicant claimed that he subsequently suffered significant side - effects from the treatment , including low blood pressure and chest pain .

Since a further injection was due to be administered on DATE , the applicant consulted his solicitors on DATE . The applicant sought judicial review of the decision to administer the treatment . The only relief he sought was a declaration that the proposed future treatment would be unlawful . He did not seek any relief in relation to the past treatment . On DATE the High Court gave him leave to apply for judicial review and granted an injunction preventing further treatment pending the hearing of his substantive challenge .

His solicitors obtained a report from a consultant psychiatrist ( PERSON ) and the ORG and the ORG ( CARDINAL of the respondents in the applicant ’s proceedings ) prepared witness statements .

In his first witness statement , dated DATE , the ORG said the following :

“ The conclusion of my opinion is that I believe medication holds out a real prospect of giving benefit to the applicant . I wish to emphasise that what I am proposing is a trial of medication only in order to see what benefit the patient derives from it . If there is no benefit then the trial will be stopped . I believe the patient is suffering from mental illness . The essential point in my view is that whether CARDINAL favours a diagnosis of mental illness or CARDINAL of personality disorder a trial mediation [ sic ] can and should be given for the paranoia which all doctors agree is both present and considerable ...

Although other psychiatrists think otherwise I think it would be unsafe to move [ the applicant ] to conditions of medium security without giving him a trial of medication . [ The applicant ] has been attempting to get ORG to support his moving to conditions of medium security and the ORG adjourned in DATE in order , among other things , for a report to be obtained from Dr [ S ] ... Dr [ S ] reassessed him and in a report dated DATE Dr [ S ] said ... “ I do not believe that a treatment with antipsychotic medication at the present time would be indicated ” ...

I wrote a letter to Dr [ S ] dated DATE ... saying that I intended to give [ the applicant ] a trial of medication . Dr [ S ] replied in his letter of CARDINAL DATE saying that he would be very happy to await the outcome . He wrote ... “ I am a strong believer in a “ trial of mediation”[sic ] in patients such as [ the applicant ] who have spent DATE in hospital and have been unsuccessful moving on . I can think of several patients who have successfully moved from ORG to ORG where previously undiagnosed mental illness was treated with successful results . I would therefore be very interested in the outcome of any trial of antipsychotic medication ” ...

For the reasons above the patient ’s best interests are served by trial medication . The potential benefit could be considerable enabling the patient to move on to a less secure and restrictive hospital and possible eventual return to the community . If the trial does not work the patient will be no worse off than he is at present ... ”

As to capacity to consent the ORG said :

“ [ The applicant ] ’s paranoid attitudes and beliefs render him incapable upon the subject of treatment with medication ... In my view he lacks capacity because of his mental illness but if we take the view expressed in Dr [ G ] ’s report of CARDINAL ... that [ the applicant ] only has a personality disorder and that the paranoia is due to that , then [ the applicant ] still , I would emphasise , does not have capacity . Whichever way we look at it , he does not believe that he shows paranoia and he therefore does not believe that he needs medication to treat it . He further believes that ORG hospital and I and other doctors before me acting as agents , have sought to obstruct his discharge from the hospital . He is not able to see that medication could be of benefit to him . ”

As to the applicant ’s heart condition , he said :

“ Many patients suffer [ angina ] attacks from time to time and come to no harm and I have spoken with Dr [ X ] about this . He told me there is always a chance when [ the applicant ] suffers an attack of angina it will develop into a heart attack , but that chance is very small . ”

The ORG , in his first witness statement , described a TIME interview with the applicant . He said that he looked at the applicant ’s reports , which substantiated his claim that he suffered from a personality disorder but also raised the question of his paranoid thoughts . There was no clear consensus , in his opinion , as to whether these thoughts were a part of his personality disorder or if they related to an underlying illness .

As to the treatment plan , he said :

“ I felt that the treatment plan proposed by the ORG was both reasonable and addressed an issue that was preventing the further rehabilitation of the patient . That the patient was experiencing paranoid ideation was apparent both from records made in his clinical notes and from his personal presentation upon examination by myself . Whether such paranoid ideation was associated with his primary diagnosis of personality disorder or was symptomatic of mental illness unconnected with that diagnosis , it was reasonable in my view to attempt to relieve [ the applicant ] of this symptom and would be in [ the applicant ] ’s best interests . It is accepted clinical practice to treat persons with paranoid ideation with antipsychotic medication . ”

In his report , dated DATE , PERSON said the following in relation to diagnosis :

“ The prevailing view of psychiatrists who have assessed [ the applicant ] over DATE is that he suffers from a personality disorder , and not from a psychotic mental illness .

[ The ORG ] ’s opinion that [ the applicant ] has a paranoid psychotic illness does not appear to arise from evidence of new symptoms that have recently emerged , but is based on a further careful review of [ the applicant ] ’s history and presentation . [ The ORG ] ’s conclusion that treatment with antipsychotic medication would help [ the applicant ] progress after DATE in ORG was reached in good faith and with concern for [ the applicant ] ’s welfare .

In my view the basis for arguing that [ the applicant ] suffers from a paranoid psychotic illness , or schizophrenic illness is weak and there is inadequate clinical evidence to justify such a diagnosis . There is not a good history of positive psychotic symptoms such as delusional beliefs , abnormal perceptions ( e.g. hallucinations ) or characteristic abnormalities of thinking and affect . There has not been a gross decline in his level of social functioning indicative of chronic psychosis . The past observations noted by [ the ORG ] in his tribunal report ( CARDINAL/CARDINAL/CARDINAL ) of thought disorder and emotional incongruity have not been sustained and are certainly not present in [ the applicant ] ’s current presentation . The persistent characteristics of irascibility , explosive anger , poor judgment and suspiciousness are typical of a personality disorder of a paranoid type . There should be particular caution about inferring that [ the applicant ] ’s beliefs about ORG amount to delusions . They do not have the fixed , incorrigible form of delusions . The content of some of his ideas , namely about the motivation of hospital staff , is in my view misguided and wrong , but it is psychologically understandable , given his experience , personality and the context of long term detention , and it is not wholly irrational ... ”

As to medication , he said ;

“ In my view it was not appropriate under all the circumstances to administer antipsychotic medication forcibly to [ the applicant ] . In particular , I believe that there were significant medical risks associated with forcible medication under restraint in his case .

Antipsychotic medication is generally appropriate and beneficial in the treatment of psychotic illness but generally not in the treatment of personality disorder . The likelihood that antipsychotic medication would modify [ the applicant ] ’s personality characteristics and help him become more relaxed and amenable was low in my opinion ...

The risks and adverse effects of antipsychotic medication in [ the applicant ] ’s case included his medical history and his psychological reactions to the treatment . He was an elderly man with ischaemic heart disease . He had consistently been opposed to taking anti - psychotic medication ...

It was foreseen that antipsychotic medication would probably have to be given forcibly under restraint . [ The applicant ] had indicated that he would physically resist . It is known that sudden cardiac death can occasionally occur when patients are given medication under restraint . This is recognised as a special risk associated with restraint that does not apply when antipsychotic mediation is given in a normal way . The position is summarised in a Report for ORG between Antipsychotic Drugs and Sudden Death’ , published in DATE [ “ the ORG ” ] .

In weighing up the reasonableness of the decision to forcibly medicate [ the applicant ] under restraint the CARDINAL principal concerns are his adverse medical history and the equivocal evidence of medical illness ... I do not think that forcible administration of antipsychotic medication under restraint was appropriate or justified . ”

On DATE ORG refused an application , by the applicant , for an order that the ORG , the ORG and PERSON attend the substantive judicial review hearing for cross - examination on their witness statements . On DATE , the date of the coming into force of LAW DATE ( “ the DATE LAW ) , the applicant was granted permission to appeal this refusal to ORG .

In the meantime , the ORG withdrew his authorisation for the treatment . However , the ORG remained of the view that the applicant required anti - psychotic medication and intended to seek a further ORG certificate to that end unless precluded from doing so by the courts .

On DATE ORG allowed the applicant ’s appeal and held that cross - examination would be appropriate in this case .

Lord Justice PERSON found , referring to paragraphs CARDINAL of the ORG v. GPE judgment ( of DATE , Series A no . CARDINAL ) , that a court must inevitably reach its own view both as to whether the applicant was indeed incapable of consenting ( or refusing consent ) to the treatment and , depending upon the conclusion on that issue , as to whether the proposed forcible administration of such treatment would threaten his life and so be impermissible under LAW , would be degrading and so impermissible under LAW and would not be justifiable as both necessary and proportionate under LAW , given the extent to which it would invade the appellant ’s right to privacy .

He noted that the “ super - Wednesbury test ” which had been applied in judicial review cases involving LAW had been found by ORG to be inadequate ( PERSON and PERSON v. the GPE , nos . CARDINAL and CARDINAL , § § CARDINAL - CARDINAL , ORG ORG ) and he could see no basis upon which an approach disapproved of in the context of homosexuality in the armed forces could be acceptable in the context of forcibly treating mental patients particularly as the case raised a “ real question under LAW ” .

He went on to point out that if the applicant was considered to have the capacity to refuse consent to the treatment , it was difficult to suppose that he should nevertheless be forcibly subjected to it despite the ORG ’s views : the impact on the applicant ’s rights to autonomy and bodily inviolability was immense and its prospective benefits ( not least given his extreme opposition ) appeared “ decidedly speculative ” . Moreover , even if he was not capable of consenting , the court would need to be satisfied ( in the language of the ORG judgment ) that the medical necessity had been “ convincingly shown to exist ... according to the psychiatric principles generally accepted at the time . ”

Accordingly , Lord Justice PERSON concluded that what would be required on a substantive challenge to future treatment would be a “ full merits review of the propriety of the treatment proposed and , for that purpose , cross - examination of the specialists . ”

Finally , he did not think that Article CARDINAL added anything to the debate . As to LAW , he stated :

“ If I am correct in having concluded that the [ applicant ] on this challenge is entitled to have the legality of his future treatment plan determined by the court according to its own assessment of the relevant facts , then plainly the requirements of LAW are satisfied : ORG [ on an application for judicial review ] will conduct a merits review on the evidence . ”

Lord Justice PERSON and Lady Justice PERSON also allowed the appeal . On the question of the level of review , PERSON Justice PERSON had regard to Articles CARDINAL and CARDINAL of the LAW and found that :

“ Whatever the position before the [ CARDINAL Act ] , the decision to impose treatment without consent upon a protesting patient is a potential invasion of his rights under LAW . ORG is not enough . The [ applicant ] is entitled to a proper hearing , on the merits , of whether the statutory grounds for imposing this treatment upon him against his will are made out : i.e. whether it is treatment for the mental disorder from which he is suffering and whether it should be given to him without his consent ‘ having regard to the likelihood of its alleviating or preventing a deterioration of his condition’ . If they are , in other words if [ the ORG ] rather than [ Dr G ] is right , then I would hold that this treatment could be given to him .

This is not the same as saying that every patient is entitled to such a hearing in advance . Once again the analogy with arrest holds good . The ORG and ORG are not determining his civil rights and liabilities . They are merely deciding to impose or authorise treatment in the belief that the statutory grounds for doing so exist . They do not have to go to court for advance authorisation ( although as in the incapacity cases there is nothing to stop them doing so if the case is a particularly difficult or controversial one ) . But once a situation exists in which the treatment can be scrutinised , whether before or after the event , then that scrutiny should take place . ”

PERSON prepared a supplementary report dated DATE as to the applicant ’s capacity to consent . PERSON analysed the applicant ’s ability to use information and weigh it in the balance in making his decision . He considered that there were CARDINAL aspects to the applicant ’s opposition to the treatment , CARDINAL of which were rational , CARDINAL of which was partially rational and partly based on lack of insight , and the last of which was manifestly wrong and based on paranoid suspicion about the motivation of his ORG . Taking this into account PERSON reached the ‘ overall judgment’ that the applicant had capacity to consent .

The ORG prepared a second witness statement , dated DATE in response to PERSON original and supplementary reports . He pointed out that the conclusion of ORG , referred to by PERSON was that :

“ There are insufficient epidemiological data to prove that sudden death is more likely among people being treated with antipsychotic medication than it is among the general population . However , there are no data to prove that there is no causal connection between the use of this group of drugs and sudden death . ”

He also stressed that he had given the applicant depot medication rather than a preparation which would have acted immediately . As a result , during the short period where the applicant was being given the injection and was suffering the angina attack the amount of antipsychotic drugs in his blood stream would have been negligible . There was no question of the drugs causing the angina attack . That was caused by the over - exertion .

He obtained evidence from Prof B , the convenor of the group which wrote ORG , and from Dr D , who sat on the review panel for the said report , both of whom supported his interpretation of the report . Dr D in his letter of reply apparently stated that the risk of sudden death was very small .

As to capacity the ORG said :

“ [ It ] is clear that [ the applicant ] is not able to believe treatment information which I give him because he is very suspicious about my motives , he sees me as part of a corrupt system in which individuals , including doctors , have no compunction about telling lies in order to support the system and protect themselves ...

I believe that this is a considerable impairment of [ the applicant ] ’s ability to “ weigh ” information and balance risks and needs in order to come to a reasonable decision , in addition to his difficulty in believing information about his mental condition and treatment needs . This is caused by his suspiciousness and anxiety which derive directly from his mental condition .

I am entirely satisfied that [ the applicant ] does not have capacity with respect to decisions about the treatment of his mental condition . ”

The ORG also prepared a second witness statement , dated DATE , in which he said that he had been aware of the applicant ’s heart condition from the records but that he had considered that the potential benefits of the treatment outweighed the risks .

Since ORG hearing there have been no further attempts to impose compulsory treatment and the applicant has not attempted to progress the judicial review proceedings to a substantive hearing .

Detention in a psychiatric institution pursuant to LAW does not , of itself , authorise treatment . The individual ’s consent must be obtained or , if that consent is not forthcoming , Part IV of the DATE Act applies . LAW provides that the treatment shall be given for the mental disorder from which the individual suffers : without compliance with this condition , the treatment is unlawful . Sections CARDINAL of the DATE Act then go on to provide a range of additional safeguards graded to reflect the severity of the various treatments which may be contemplated .

Section CARDINAL , the relevant section for the present case , applies to CARDINAL different forms of treatment ( electronic convulsive therapy and “ long - term medication ” ) . Both can only be applied on the basis of conditions set out in section CARDINAL . In the case of long - term medication , the conditions are set out in section CARDINAL ( CARDINAL ) and ( CARDINAL ) :

“ ( CARDINAL ) Subject to section CARDINAL below [ which makes provision for urgent treatment ] , a patient shall not be given any form of treatment to which this section applies unless

( a ) he has consented to that treatment and either the responsible medical officer or a registered medical practitioner appointed for the purposes of this Part of this LAW by the Secretary of ORG has certified in writing that the patient is capable of understanding its nature , purpose and likely effects and has consented to it ; or

( b ) a registered medical practitioner appointed as aforesaid ( not being [ the RMO ] ) has certified in writing that the patient is not capable of understanding the nature , purpose and likely effects of that treatment or has not consented to it but that , having regard to the likelihood of its alleviating or preventing a deterioration of his condition , the treatment should be given .

( CARDINAL ) NORP Before giving a certificate under subsection CARDINAL(b ) above the registered medical practitioner concerned shall consult CARDINAL other persons who have been professionally concerned with the patient ’s medical treatment , and of those persons CARDINAL shall be a nurse and the other shall be neither a nurse nor a registered medical practitioner ... ”

The “ registered medical practitioner appointed for the purposes of this Part of this LAW by the Secretary of ORG ” referred to in LAW ( CARDINAL ) above is commonly referred to as an ORG . LAW ( “ the LAW ” ) provides guidance as to his role . Paragraphs CARDINAL -CARDINAL of the Code state that :

“ The role of the ORG is to provide an additional safeguards to protect that patient ’s rights ... The ORG acts as an individual and must reach his or her own decision as to whether the proposed treatment is reasonable in the light of the general consensus of appropriate treatment for such a condition .... The ORG should seek professional opinion about the nature of the patient ’s disorder and problems , the appropriateness of various forms of treatment including that proposed , and the patient ’s likely response to different types of treatment . The ORG should take into account any previous experience of comparable treatment of a similar episode or disorder . The ORG should give due weight to the opinion , knowledge and skill of those consulted . ”

Paragraph CARDINAL of the Code describes the ORG ’s obligations during a visit :

“ During the visit the ORG should

a. in the case of a treatment under LAW , satisfy him or herself that the patient ’s detention papers are in order ;

b. interview the patient in private if possible . Others may attend if the patient and ORG agree , or if it is thought that the doctor would be at significant risk of physical harm from the patient .

c. discuss the case with the patient ’s RMO face to face , or on the telephone in exceptional circumstances ;

d. consult with CARDINAL other persons professionally concerned with the patient ’s care as statutorily required ... The ORG should be prepared , where appropriate , to consult a wider range of persons professionally concerned with the patient ’s case than those required by the LAW , and , with the patient ’s consent , the patient ’s Nearest Relative , family , carer or advocates . ”

Section CARDINAL of the DATE Act provides , in so far as relevant , as follows :

“ ( CARDINAL ) No person shall be liable , whether on the ground of want of jurisdiction or on any other ground , to any civil or criminal proceedings to which he would have been liable apart from this section in respect of any act purporting to be done in pursuance of this LAW or any regulations or rules made under LAW ... unless the act was done in bad faith or without reasonable care .

( CARDINAL ) No civil proceedings shall be brought against any person in any court in respect of any such act without the leave of ORG ; and no criminal proceedings shall be brought against any person in any court in respect of any such act except by or with the consent of ORG . ”

ORG reconsidered its judgment in this case in the subsequent case of R ( N ) v M and others [ DATE ] EWCA Civ DATE . The claimant in that case was also a restricted mental patient detained in hospital , who refused to consent to a treatment plan which included the administration of anti - psychotic medication by injection for her psychotic illness . The claimant obtained a report from a psychiatrist who concluded that she was unlikely to be psychotic and therefore should not be given anti - psychotic medication . An ORG issued a certificate under section CARDINAL(CARDINAL)(b ) of the DATE Act stating that the claimant was suffering from either paranoid psychosis or severe personality disorder and required regular anti - psychotic treatment . He considered that the claimant did not have the capacity to consent .

The claimant ’s application for judicial review was dismissed . ORG concluded in the light of the medical evidence that the claimant did not have capacity to consent and that the treatment was necessary in her best interests . It considered that the medical necessity for treatment had been convincingly shown in accordance with the test in the ORG case .

ORG dismissed the appeal . It approved ORG application of the ORG test . In addition , it stated that cross - examination should not always be necessary because , in many cases , it would be clear whether medical necessity has been convincingly shown without having to hear oral evidence . It stressed that ORG decision in the present case should not be used as a charter for routine applications for cross - examination in human rights cases . It pointed out that the court ’s role was “ essentially CARDINAL of review ” .

On DATE ORG ( “ the ORG ” ) published a consultation paper on the protection of the human rights and dignity of people suffering from mental disorder , especially those placed as involuntary patients in a psychiatric establishment ( “ the White Paper ” ) .

As to the procedures for taking a decision of involuntary placement or treatment , the White Paper said the following ( at § CARDINAL.CARDINAL - CARDINAL.CARDINAL ) :

“ [ T]he decision confirming involuntary placement or treatment should be taken by a relevant independent authority , which should base its decision on valid and reliable standards of medical expertise .

ORG had considered at length the notion of “ relevant independent authority” ... In the opinion of ORG , the relevant question was the independence of the body or authority which takes the decisions of placement , the independence of which could be verified by the fact that it was a different authority than the CARDINAL which proposed the measure and by the fact that its decision was a sovereign decision not influenced by instructions from any source whatsoever . It was thus noted that , in some countries , the relevant authority may be a doctor authorised to take such a decision with a psychiatric establishment , for example , who should be independent in relation to the doctor who proposed the placement measure ... ”

As to involuntary treatment it said ( at § DATE )

“ The representative of a person should be consulted but where he / she refuses consent to treatment for the person concerned , it should be possible to approach a court or court - like body with the power to respect or overturn the decision of the representative .

ORG was also of the opinion that a written scheme of involuntary treatment must be drawn up , if possible , in consultation with the patient , his or her representative or , where there was no representative , submitted to an independent authority for decision . The scheme should be reviewed regularly and open to modification at all times in consultation with the patient , his or her representative or an independent authority , as appropriate . Should the patient not consent to the said scheme , he or she should be able to appeal to a court or court - like body . ”

This White Paper led to Recommendation Rec(CARDINAL)CARDINAL of ORG to member states concerning the protection of the human rights and dignity of persons with a mental disorder ( “ the Recommendation ” ) , adopted by ORG on DATE . When adopting the decision ORG indicated that he reserved the right of his Government not to comply with the Recommendation as a whole .

LAW , provides as follows :

“ LAW of chapter III

The provisions of this chapter apply to persons with a mental disorder :

i. who have the capacity to consent and are refusing the placement or treatment concerned ; or

ii . who do not have the capacity to consent and are objecting to the placement or treatment concerned . ”

Articles CARDINAL to CARDINAL ( which are all within chapter III ) provide as follows :

“ DATE Criteria for involuntary treatment

A person may be subject to involuntary treatment only if all the following conditions are met :

i. the person has a mental disorder ;

ii . the person ’s condition represents a significant risk of serious harm to his or her health or to other persons ;

iii . no less intrusive means of providing appropriate care are available ;

iv . the opinion of the person concerned has been taken into consideration .

Article DATE Principles concerning involuntary treatment

Involuntary treatment should :

i. address specific clinical signs and symptoms ;

ii . be proportionate to the person ’s state of health ;

iii . form part of a written treatment plan ;

iv . be documented ;

v. where appropriate , aim to enable the use of treatment acceptable to the person as soon as possible .

In addition to the requirements of LAW above , the treatment plan should :

i. whenever possible be prepared in consultation with the person concerned and the person ’s personal advocate or representative , if any ;

ii . be reviewed at appropriate intervals and , if necessary , revised , whenever possible in consultation with the person concerned and his or her personal advocate or representative , if any .

Member states should ensure that involuntary treatment only takes place in an appropriate environment .

LAW for taking decisions on involuntary placement and/or involuntary treatment

Decision

The decision to subject a person to involuntary treatment should be taken by a court or another competent body . The court or other competent body should :

i. take into account the opinion of the person concerned ;

ii . act in accordance with procedures provided by law based on the principle that the person concerned should be seen and consulted .

However , the law may provide that when a person is subject to involuntary placement the decision to subject that person to involuntary treatment may be taken by a doctor having the requisite competence and experience , after examination of the person concerned and taking into account his or her opinion .

Decisions to subject a person to involuntary placement or to involuntary treatment should be documented and state the maximum period beyond which , according to law , they should be formally reviewed . This is without prejudice to the person ’s rights to reviews and appeals , in accordance with the provisions of LAW .

Procedures prior to the decision

Involuntary placement , involuntary treatment , or their extension should only take place on the basis of examination by a doctor having the requisite competence and experience , and in accordance with valid and reliable professional standards .

That doctor or the competent body should consult those close to the person concerned , unless the person objects , it is impractical to do so , or it is inappropriate for other reasons .

Any representative of the person should be informed and consulted . ”

‘ Competent body’ is defined by LAW to mean :

“ an authority , or a person or body provided for by law which is distinct from the person or body proposing an involuntary measure , and that can make an independent decision . ”

LAW , which is also within chapter III , provides as follows :

“ LAW and appeals concerning the lawfulness of involuntary placement and/or involuntary treatment

Member states should ensure that persons subject to involuntary placement or involuntary treatment can effectively exercise the right :

i. to appeal against a decision ;

ii . to have the lawfulness of the measure , or its continuing application , reviewed by a court at reasonable intervals ;

iii . to be heard in person or through a personal advocate or representative at such reviews or appeals .

If the person , or that person ’s personal advocate or representative , if any , does not request such review , the responsible authority should inform the court and ensure that the continuing lawfulness of the measure is reviewed at reasonable and regular intervals .

Member states should consider providing the person with a lawyer for all such proceedings before a court . Where the person can not act for him or herself , the person should have the right to a lawyer and , according to national law , to free legal aid . The lawyer should have access to all the materials , and have the right to challenge the evidence , before the court .

If the person has a representative , the representative should have access to all the materials , and have the right to challenge the evidence , before the court .

The person concerned should have access to all the materials before the court subject to the protection of the confidentiality and safety of others according to national law . If the person has no representative , he or she should have access to assistance from a personal advocate in all procedures before a court .

The court should deliver its decision promptly . If it identifies any violations of the relevant national legislation it should send these to the relevant body . ”

A procedure to appeal the court ’s decision should be provided . ”

LAW ( which is in chapter V ) provides , in so far as relevant :

“ CARDINAL . Treatment for mental disorder that is not aimed at producing irreversible physical effects but may be particularly intrusive should be used only if no less intrusive means of providing appropriate care is available . Member states should ensure that the use of such treatment is :

i. subject to appropriate ethical scrutiny ;

ii . in accordance with appropriate clinical protocols reflecting international standards and safeguards ;

iii . except in emergency situations as referred to in LAW , with the person ’s informed , written consent or , in the case of a person who does not have the capacity to consent , the authorisation of a court or competent body ;

iv . fully documented and recorded in a register . ”