CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 15 septembre 2020

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DENMARK (Application no. 45439/18)     JUDGMENT   Art 3 • Inhuman and degrading treatment • Applicant’s strapping to a restraint bed for almost twenty-three hours in a psychiatric hospital not strictly necessary and not respectful of his human dignity • Applicant suffering from paranoid schizophrenia and sentenced to a psychiatric hospital owing to criminal conviction for incidents of violence • Domestic courts’ demonstration of the applicant’s immobilisation as a matter of last resort and as the only means available to prevent immediate or imminent harm to others • Domestic courts silent on several issues crucial for the assessment of whether the continuation of the restraint, and its duration for almost twenty-three hours, was “strictly necessary” to prevent immediate or imminent harm to others   STRASBOURG 15 September 2020   FINAL   15/12/2020   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Aggerholm v. Denmark, The European Court of Human Rights (Second Section), sitting as a Chamber composed of:   Marko Bošnjak, President,   Jon Fridrik Kjølbro,   Valeriu Griţco,   Egidijus Kūris,   Arnfinn Bårdsen,   Darian Pavli,   Ivana Jelić, judges, and Stanley Naismith, Section Registrar, Having regard to: the application against the Kingdom of Denmark lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Danish national, Mr Niels Lund Aggerholm (“the applicant”), on 13 September 2018; the decision to give notice to the Danish Government (“the Government”) of the application; the parties’ observations; Having deliberated in private on 7 July 2020, Delivers the following judgment, which was adopted on that date: INTRODUCTION The applicant suffers from paranoid schizophrenia. After being convicted of various incidents of violence and threats of violence, he was sentenced to committal to a psychiatric hospital . There, on 8   February 2013, he was strapped to a restraint bed for approximately twenty-three hours. He complains that this measure was in breach of Article 3 of the Convention. THE FACTS 1.     The applicant was born in 1985 and lives in Aarhus. He was represented by Mr Tobias Stadarfeld Jensen, a lawyer practising in Aarhus. 2.     The Government were represented by their Agent, Mr Michael Braad, from the Ministry of Foreign Affairs, and their Co-Agent, Mrs Nina Holst ‑ Christensen, from the Ministry of Justice. 3.     In 1999 the applicant was diagnosed with paranoid schizophrenia. 4.     On 28 June 2005 he was convicted under the Penal Code of five incidents of violence against a civil servant acting in his official function and threats of violence. He was sentenced to committal to a psychiatric hospital . 5.     From 2007 to 2011 the applicant was in a high-security psychiatric unit under a so-called “dangerousness decree”. Subsequently, he was treated in an open psychiatric ward, but was moved to a closed ward, called P4, in September 2012. 6.     On 3 January 2013, while in P4, the applicant was strapped to a restraint bed with a belt and wrist and ankle straps (also called a five-point restraint ( fempunktsfiksering ). The case before the Court does not concern that coercive measure. 7.     On 8 February 2013 at 1.15 p.m. the applicant was once again strapped to a restraint bed with a belt and wrist and ankle straps, and he was restrained until 9 February 2013 at 12.05 p.m., thus for twenty-two hours and fifty   minutes. The case before the Court concerns this coercive measure. 8.     The applicant appealed to the Psychiatric Patients’ Complaints Board ( det Psykiatriske Patientklagenævn ) in respect of both incidents when he had been restrained, and the board heard him on 19 March 2013. 9.     H.H., the chief physician who had decided on the measures, had made a brief written statement on15 March 2013. Owing to illness, she could not attend the meeting before the board on 19 March 2013. 10.     On 21 March 2013 the Psychiatric Patients’ Complaints Board, basing itself on the applicant’s written complaint and oral statement as well as H.H.’s written statement, found that both measures had been unlawful. It stated as follows: “The Psychiatric Patients’ Complaints Board has reviewed the case and the statements made at the meeting. [The board] has found that the conditions for physical restraint with a belt and straps were not fulfilled. ... Concerning the [use of] physical restraint on 8 February 2013, the board has taken into account that you [the applicant] did not want to participate in a medical consultation with the doctor and that you have been described as very angry. Based on the above, the board has found that it has not been documented that you exposed yourself or others to an immediate risk of harm to body or health [ legeme eller helbred ]” 11.     On 7 November 2013, referring to the decision of the Psychiatric Patients’ Complaints Board, the applicant requested that the State Administration award him compensation for non-pecuniary damage. Additionally, he claimed that there had been a violation of Article 3 of the Convention. 12.     On 5 December 2013 the State Administration dismissed the applicant’s claim, finding that no violation of Article 3 of the Convention had occurred. 13.     On 13   June 2014 the applicant lodged a complaint against H.H. with the Health Authority ( Sundhedsstyrelsen ) in respect of , inter alia , t he measures of physical restraint at issue. 14.     On 30 August 2014 H.H. made the following written statement to the Health Authority: “While [the applicant] was in the psychiatric ward, restraint [measures were] used three times. ... The second time that a restraint measure was used was on 8 February 2013, when [the applicant] had a lot of pent-up anger because [I] went against him because I insisted on telling him that he could not go on day release when he was so angry. I approached him three times; his anger remained the same, so I decide to use a restraint measure before anyone got hurt. That decision was declared unlawful by the Patients’ Complaints Board. The third time was when I decided to use a restraint measure in order to raise [the applicant’s] clozapine treatment to an efficient level. The board accepted unanimously [that I was justified in doing so]. As a forensic psychiatrist, I must, of course, pursue the optimal treatment; however, I must also consider civil rights and due process considerations in my treatment, and I must make sure that I minimise the risk of recidivism. Reoffending will always prolong the time period during which a patient is treated in the forensic psychiatric system, and that is not to the advantage of either the patient or any of the victims.” 15.     On 19 December 2014 the Health Authority sent a letter to H.H., concluding as follows: “... the Health Authority does not find grounds for deciding that you acted with a lack of care or conscientiousness.” 16.     In the meantime, on 20 June 2014 the applicant had brought an action before the City Court ( Retten i Roskilde ), claiming that the State Administration should acknowledge having violated his rights under Article   3 of the Convention and therefore pay him 50,000   Danish Kroner (DKK) or a lower amount determined by the court. 17.     The applicant’s daily records were submitted to the City Court. In so far as relevant, they included the following. 18.     On 7 February 2013 at 7.38 p.m. (the evening before the measure of physical restraint at issue was applied) Doctor S.S. wrote: “This evening, [the applicant] has been very frustrated and has expressed his anger and indignation about the treatment, in front of the group. This has led to other patients feeling insecure and the staff feeling abused ...” On 7 February 2013 at 7.56 p.m. M.K., an educator ( pædagog ), wrote: “[Description of what had happened between 5 and 6 p.m.] ... [the applicant] came into the dining room as the patient from room 6 sat talking loudly about his frustration about everything. [The applicant] made some negative comments. I asked him to stop, [but] he did not comply and continued [by saying] ‘We need to do something about her [H.H.]’. I informed him that this could be understood as a threat and [the applicant] replied ‘Go and write a lie.’ ...” On 7 February 2013 at 9.34 p.m. M.H.L., a social and healthcare assistant, wrote: “From the beginning of the shift [the applicant] (and the other patient from his room) seemed negative and ready to argue about restrictions in the ward. My colleague heard [the applicant] make remarks about H.H., the chief physician, which could be understood as threats against her. See the note from 7.56 p.m. H.H. was informed and she subsequently got in touch with the doctor on call, S.S., who had a conversation with [the applicant] afterwards, in the presence of my colleague. See the doctor’s note. After the conversation with the doctor [the applicant] seemed to be calm and quiet, and he made no further comments about the doctor or the staff or [demonstrated] frustration/anger towards them. ...” 19.     The following day, on 8 February 2013 at 1.15 p.m. H.H. wrote: “At the start of today, last night’s situation was discussed among the staff. It was decided that it was not safe for [the applicant] to be allowed to go out on his own [only] accompanied by one of the staff when he was so angry. It was decided that he should be told about this and that his [medication] should be increased. [The applicant] was asked to go into the consultation room. He did not want to sit down. [Still] standing, he leaned over the table and said that he did not want to talk to us. [The applicant] was very white in the face, his mouth was set in a straight line, and one sensed a lot of pent-up anger. [The applicant] walked out and I just managed to tell him that his [permission to go on] day release had been revoked. We went after him with the aim of entering into a dialogue ( vi går efter mhp. at få en dialog i gang ) and [the applicant] said that we should not put him under pressure. This happened again at 11.30 a.m., and when we tried again later [the applicant] said that he did not want to talk to us and he did not want to be put under pressure. After one and a half hours [the applicant] was still extremely angry, [and] we decided to summon the staff from Enggården, as [he] was considered to be dangerous to those around him. He was very angry, it was not possible to correct him, and the slightest approach seemed to provoke him severely. Hence, it was decided that [the applicant] should be physically restrained with a belt, because of his dangerousness. He came to the belt room voluntarily and lay down on his own. ... I informed him that his behaviour made us afraid and that I had to increase his medication. ...”. 20.     At 3.30 p.m. the applicant’s guardian [ bistandsværge ] was informed that the applicant had been restrained with a belt. 21.     From the daily records it appears that throughout the period when the applicant was restrained there was always a social and healthcare assistant present with him. They regularly entered their observations in the daily records. For example, on 8 February 2013 at 9.11 p.m. E.F., a carer, wrote that the applicant felt that he was being unfairly treated, but the tone of his voice was calm and quiet, and on 9   February   2013 at 6 a.m. M.O., another carer, wrote that the evening had been quiet and the applicant had slept throughout the night. 22.     After the belt restraint measure had been implemented at 1.15 p.m., doctors checked on the applicant four times. 23.     During the first check on the applicant at 2.45 p.m., H.H. tried to engage him in a dialogue. She decided that the applicant still had a great deal of pent-up anger and appeared to have some latent aggression. 24.     There was a second check at 6.55 p.m., carried out by Doctor B.E., who noted that the applicant still did not comprehend why he had been restrained. He appeared to be more “quiet” and “talkative”, and for that reason B.E. agreed to release one foot strap and to also release the applicant in connection with toilet visits and personal hygiene. 25.     The third check on the applicant was at 10.46 p.m., and was carried out by B.E., who noted that the applicant had made progress but he was still potentially dangerous to other people because of his instinctive anger. 26.     The following day, on 9 February 2013 at 10.30 a.m. B.E. checked on the applicant again. As the applicant was cooperative and had complied with all requests and instructions from the staff, B.E. assessed that it was safe to release him from the restraint bed. B.E. subsequently conferred with H.H., and it was decided that the applicant should be released at 12.05 p.m. 27.     Before the City Court, the Medico-Legal Council ( Retslægerådet ) was consulted. On 2 June 2016 it stated the following: “... on the basis of the documents available, including the statement of 30   August   2014 from H.H., the chief physician, the Medico-Legal Council [observes] that since 1999 [the applicant] has been suffering from schizophrenia characterised by delusions. Because of violence in 2005, he was sentenced to placement in a psychiatric ward. In 2013 the High Court upheld the measure. From 2007 to 2011 [the applicant] was placed in the high-security psychiatric unit ... under a dangerousness decree. Subsequently, he was treated in an open psychiatric ward, but owing to [his] irritability and threatening behaviour, he was moved to a closed ward in September 2012. Afterwards, despite treatment with a potent anti-psychotic drug, [his] condition was described as fluctuating, with [the applicant having] a tendency to be aggressive [and] paranoid, and to overrate himself in an unrealistic manner. [The applicant had] no understanding of [his] illness, and his ability to have contact [with people] was compromised. ... On the evening of 7 February 2013 [the applicant] made threatening remarks about the chief physician responsible for the treatment. When she talked to him on 8 February 2013 he was completely dismissive, would not sit down, would not answer, and was white-faced and kept his mouth tightly shut, and he seemed to be affected by pent-up anger. Conversation with him was unsuccessful and, apart from being aggressive, he displayed a lack of logic, owing to [his] paranoid misinterpretation of hostility from the chief physician. He was considered to be dangerous, and at 1 p.m. the decision about physical restraints was made. Once he had the belt strapped around him he appeared to be very vocal and angry at first glance, but after a few hours he calmed down more, and consequently a foot strap was released and toilet visits were allowed. However, at around 11 p.m. he was still considered to be full of pent-up anger and potentially dangerous. At 12 noon on the following day he was released from the belt. The Medico-Legal Council must thus answer the given questions [as follows]: Question 1: The Medico-Legal Council is asked to give a statement concerning the physical restraints applied to [the applicant] in the period from 3 January 2013 at 7.08 p.m. to 5 January 2013 at 3.15 p.m., and from 8 February 2013 at 1.15 p.m. to 9 February 2013 at 10.30 a.m. In this connection, the Medico-Legal Council is asked to assess whether the material conditions for physical restraints were present in relation to each incident. The Medico-Legal Council finds that the conditions for physical restraints were present in the given periods, as it was necessary to avoid [the applicant] subjecting others to an immediate risk of harm to body or health. Question 2: For each of the periods in question, the Medico-Legal Council is asked to state whether a sufficient assessment of the continued presence of the conditions for physical restraints was made, including whether [the applicant] was assessed with the required frequency. The Medico-Legal Council finds that during the periods when [the applicant] was restrained, medical assessments were made with the required frequency to assess if the conditions for the restraint continued to be present. Question 3: For each of the periods in question, the Medico-Legal Council is also asked to state whether the assessment of the continued presence of the conditions for physical restraints made by the chief physician could give grounds for the chief physician being blamed for reckless treatment, or if the responsible doctor was justified in assessing that the conditions for physical restraints were present in the above ‑ mentioned periods. The Medico-Legal Council finds that the chief physician’s assessment of the conditions for physical restraints was correct, and thus that the chief physician’s assessment was justified. Question 4: For each of the periods in question, the Medico-Legal Council is asked to state whether the case gives grounds for any other comments from the Medico-Legal Council and, if so, which? No.” 28.     Before the City Court, the applicant, the chief physician H.H., and two social and healthcare assistants were heard. 29.     The applicant stated, among other things: “... in general, there were major problems with H.H. She was keen on using power and, almost from day one, she took away my day release, and instead of staying in the ward for a month I ended up staying one and a half years. There was to be a meeting between me and H.H. ..., [who] made me anxious ... She informed me that my [permission to go on] day release had been revoked. I went back, sat down, and continued eating. I was asked to come back to the meeting, but I refused. I wanted to make a call from a phone box. I wanted to talk to M. and my mother. Suddenly, ten people were outside and I was told that I was going to be restrained by a belt, which happened subsequently. The physical restraint was [employed] as usual. I knew that I should stay calm and quiet and then I would get justice later. I did not utter any threats ...” 30.     H.H., the chief physician, explained that she had worked in psychiatry since 1983. In November 2012 she had become the chief physician at P4 (the closed ward where the applicant had been placed). “On 7 February 2013, the previous evening, the staff had called me on the phone. This was because [the applicant] had once again been very angry. He had made threats against me personally and had been very abrasive towards the staff. During patient rounds the following day, it was discussed whether [he] should be allowed to go on day release outside the ward. It was decided that he should not be granted permission to go on day release, as he had so much anger inside him. As the chief physician responsible, I had to tell [the applicant] that he would not go on day release. [The applicant] did not want to speak to me, but I had to inform him that there would be no day release [for him]. [The applicant] became extremely angry. He seemed to have a lot of pent-up anger and seemed aggressive. [The applicant] was in his room and I left the room to give him a time-out. This was in order to avoid my presence increasing his aggression. However, his aggression and tension was building up to such an extent that I did not dare to [leave] him [un]restrained by a belt. I feared that [everything] would go terribly wrong and escalate into violence, and that someone would get hurt. I decided that there was a significant risk of [the applicant] resorting to violence, and there was also [the applicant] himself to consider, so that there would not be a risk of him ending up assaulting someone else. The threats against me were ‘We have to do something about her’. [The applicant] had said this and the staff had perceived this to be threats against me. I knew that [the applicant] did not like me. [He] had a lot of anger inside him which was directed against me, and the threat might mean that there was a risk of me being assaulted. I already knew the details of the course of [the applicant’s] illness and treatment over the years, and I knew that [he] had previously assaulted staff and other patients in psychiatric wards, which was, in part, what he had been sentenced for. Among other things, there had been an aggravated assault on a carer. Thus, I knew that [the applicant] might react violently if he was feeling bad. I have since decided that in the period January to February [2013] [the applicant] was probably not correctly medicated. It is likely that there was a failure in the medication at the beginning of 2013. In March 2013 I applied for permission to increase [his] dosage, which was given. It is probable that [the applicant] did not receive sufficient medical treatment until the summer of 2013. It was also problematic that there was some medicine that he did not tolerate, and that he might not have been taking everything. From the summer of 2013 onwards and in the following months there was a decisive improvement, after the medication had been increased. I was ill on the day when the Patients’ Complaints Board dealt with [the applicant’s] complaint. Hence, I did not come to the meeting of the Patients’ Complaints Board. To assist the board with that procedure, I had made a statement, although it was a very brief statement. I heard from a nurse who was present [at the meeting] that [the person] who attended the meeting with the board on behalf of the psychiatric hospital did not say anything, so [the applicant’s] version of the events was unchallenged. If I had been present, I would have had an opportunity to elaborate on my rather brief statement. I no longer work at P4. I am now employed at ... Being presented with [the applicant’s] statement about [me] being power-hungry, I would say that I am very aware of the power given to me as the treating chief physician. I have always tried to manage this in a proper way. A major characteristic of the history of [the applicant’s] illness has been his difficulty to relate to being ill and needing help ... In general, [the applicant] was very angry at the system. ... [for continued physical restraint, the issue of whether the person in question has insight into the course of the events] is not [decisive, what is decisive is the danger]. The danger must have ended before the restraints are released. It was not the first time in the course of [the applicant’s] illness that people had been very afraid of him and he had had no understanding of it. It is also all right to be angry, and that, in itself, cannot lead to physical restraint. I also understand that one can be angry about the situation. However, when the anger is of such a nature and extent that there is a fear that someone will be hurt, you must physically restrain a patient. Before this happens, there is a time when you try to talk to the person in question and try to avert the anger. Physical restraint is a last resort in order to calm the situation, and only if no other measure is possible. It is also all right that a patient and a doctor have different opinions on a course of events. This is not, in itself, a reason for continued restraint. ... On 8 February 2013 when I was at work there was an immediate risk to others, and that was the reason for deciding to use physical restraint. Of course, I also had [the applicant] himself in mind and the fact that he should be prevented from using violence against other people. Physical restraint is not a treatment measure. Physical restraint only happens when you cannot use other measures and when you are afraid that something serious will happen if you do not use it. [The applicant’s] behaviour was seriously aggressive, threatening and worrying. It was his body language and attitude. When [the applicant] was so angry, the wrong remark might easily have led to [him] using physical violence. This is also the reason why I chose to walk away as a kind of time-out when I had informed him that he would not go on day release. When I returned to him one and a half hours later his fierceness and aggression had not changed, and the smallest remark could result in the risk of physical violence. I am also entirely sure that [the applicant] was offered a sedative before being physically restrained with the belt.” 31.     M.H.L., a social and healthcare assistant, explained: “... I was also working on 7 and 8 February 2013. I remember that [the applicant] was very angry with the chief physician. He believed that everything was her fault. He made remarks about her being an idiot and [said] that she should have ‘a bullet through her head’. I also heard him say directly ‘We have to do something about her’. I wrote the remarks down in the medical record and also contacted the chief physician. [The applicant] seemed very convinced when he said that something should be done about her. It would usually be like this when he had those thoughts, and then he would be completely convinced that this was the way it should be. The decision about physical restraint itself was made by the doctor. Other colleagues apart from myself heard [the applicant] say on 7 and 8 February 2013 that the chief physician should have a bullet through her head and that someone should do something about her. I interpreted this as meaning that [the applicant] wanted to get at the chief physician, not that she should be fired.” 32.     The other social and healthcare assistant who testified before the City Court gave an explanation about the incident on 3 January 2013. 33.     On 24 March 2017 the City Court found against the applicant. It stated as follows: “It appears from section 14(2)(i) of the Act on the Use of Coercion in Psychiatry – see the wording of Act no. 1729 of 2 December 2010 applicable at the time of the decision made by the Patients’ Complaints Board on 21 March 2013 – that physical restraint can only be used to the extent necessary in order to prevent a patient from exposing himself or others to an immediate risk of harm to body or health. In accordance with section 4(2) of the Act, the use of coercion must be proportionate to the purpose sought [through the use of that coercion]. If less intrusive measures are sufficient, they must be used. It appears from the statement made to the Health Authority by H.H., the chief physician, on 30 August 2014 that ... [see paragraph 14 above] It further appears from the statement that on 8   February   2013 [the applicant] had a lot of pent-up anger because the chief physician had gone against him and insisted on telling him that he could not go on day release while he was so angry. It appears from the letter of 19 December 2014 from the Health Authority that the authority stated that there was no basis for assuming that the chief physician had acted negligently or with a lack of conscientiousness. ... It appears from the medical records of the evening of 7 February 2013, among other things, that [the applicant] was described as very frustrated and he expressed his anger and indignation about the treatment in front of the group. The patients felt insecure and the staff felt abused. Further, it appears that later on [the applicant] said ‘We have to do something about her’. It appears from the medical records of 8 February 2013 that he did not want to sit down in the interview room. ‘His face was white, his mouth was set in a straight line, and one sensed a lot of pent-up anger’. Dialogue was not possible. After one and a half hours he was still very angry and unable to modify his behaviour. As regards the applicant’s mental state, he was assessed as ‘having mental capacity, objectively speaking. [He was] alert and awake, paranoid with an inverted [sense of] logic, very angry, with latent aggression, and threatening.’ It further appears from the medical records that he continued to be very angry and vocal while he was restrained by the belt. At 2.45 p.m. it was noted that ‘a lot of pent-up anger and feelings of injustice appeared, [the applicant] seemed to be seriously deteriorating and had latent aggression’. The foot strap was released after a few hours and visits to the toilet were permitted. At around 11.00 p.m. it was decided that he was still potentially dangerous to other people and [still] had pent-up anger. After a conversation with the doctor on 9   February 2013 he was assessed as being calm and cooperative, and he was freed on the same day at 12.05 p.m. ... Concerning the course of the events leading up to the use of physical restraint on 7   February 2013, the witness [H.H.] stated, among other things, that there had been threats against her personally from [the applicant] and he had been very abusive towards the staff. [The applicant] was seriously angry; he seemed to have a lot of pent-up anger and was very aggressive. His aggression and tension were of a nature which caused the witness to fear that [everything] would go terribly wrong and escalate into violence and that someone would get hurt. The witness decided that there was a significant risk of [the applicant] resorting to violence. The witness stated that she already had a detailed knowledge of the course of [the applicant’s] illness and treatment over the years, and she knew that [he] had previously assaulted staff and other patients in psychiatric wards, which was, in part, what he had been sentenced for. Among other things, there had been an aggravated assault on a carer. Thus, she knew that [the applicant] might react violently if he was feeling bad. ... Likewise, on 8 February 2013 there was, according to H.H., the chief physician, a course of events leading up to the physical restraint, during which time she tried to withdraw in order not to increase [the applicant’s] aggression. Furthermore, on the basis of the medical records [and] the statements of M.H.L. and the chief physician H.H. about [the applicant’s] behaviour in the course of the events leading up to and during the two instances of physical restraint, together with the Medico-Legal Council’s statement, the court considers that the instances of physical restraint and the duration [of those instances] were necessary in order to avoid [the applicant] subjecting others to an immediate risk of [harm to] body or health. Consequently, [the State Administration] has documented that the conditions under section 14(2)(i) of Act no. 1729 of 2 December 2010 on [the Use of] Coercion in Psychiatry were fulfilled for both the instance of physical restraint from 3   January 2013 to 5   January 2013, and the instance of physical restraint from 8 February 2013 to 9 February 2013, and likewise it has been documented that measures less intrusive than physical restraint were not possible, see the principle of the least intrusive measure in section 4 of the Act.” 34.     The applicant appealed against the judgment, but only in respect of the instance of restraint on 8   February 2013. 35.     By a judgment of 9   November 2017 the High Court of Eastern Denmark ( Østre landsret ) approved the measure whereby the applicant had been restrained, finding that there were no reasons to disregard the chief physician’s assessment at the time of the incident, that it had been necessary to strap the applicant to a restraint bed in order to avoid an imminent risk to others, and that while he had been restrained the staff had assessed with sufficient frequency whether the conditions for keeping him restrained were still present. In particular, the court stated: “ ... Based on the information before it, including the statement from the Medico ‑ Legal Council, the High Court finds no reasons to overrule the chief physician’s assessment, according to which it was necessary to physically restrain [the applicant] to prevent him from subjecting other people to an immediate risk of harm to body or health. Based on the same, the High Court finds that while [the applicant] was physically restrained, medical evaluations were made with sufficient frequency to assess whether the conditions for the measure were still present. Hence, the physical restraint of [the applicant] with a belt as well as wrist and foot straps from 8 February 2013 at 1.15 p.m. to 9 February 2013 at 10.30 a.m. was legal under section 14 of the Act on the Use of Coercion in Psychiatry.” 36.     Leave to appeal to the Supreme Court ( Højesteret ) was refused on 15   March 2018. 37.     In the meantime, on 12 April 2016 the High Court had found that the applicant’s sentence could be changed to treatment at a psychiatric hospital (instead of committal), with the possibility of hospitalisation if the chief physician made a decision in this regard. 38.     On 10 December 2018 the High Court revoked the applicant’s sentence. RELEVANT LEGAL FRAMEWORK AND PRACTICE 39.     The relevant provisions regulating the use of compulsion in psychiatry are set out in the Act on the Use of Coercion in Psychiatry ( Lov om anvendelse af tvang i psykiatrien ), hereafter “the Mental Health Act” ( Psykiatriloven ). At the relevant time, section 4 provided for the overall framework, and read: Section 4 “1. Compulsion must not be used until everything possible has been done to obtain the patient’s voluntary participation. When conditions allow for this, the patient shall have an appropriate reflection period. 2. The use of compulsion shall be proportionate to what is sought to be achieved by [the use of compulsion]. If less restrictive measures are sufficient, these must be used. 3. Compulsion shall be used as sparingly as possible and with maximum consideration for the patient, so that there is no unnecessary violation or inconvenience. 4. Compulsion must not be used to a greater extent than is necessary to achieve the purpose which is sought. 5. After the cessation of any compulsory measure, the patient shall be offered one or more consultations. The Danish Health Authority is authorised to determine rules in this regard.” 40.     The preparatory notes to section 4 ( Betænkning no. 1109/1987) set out: “ To ensure that compulsion is not used until all means of obtaining the patient’s consent have been exhausted, section 4(1) provides that the patient’s consent shall be sought and that, apart from in acute situations, the patient shall be given an appropriate reflection period in order to take a position on this issue. This may, inter alia , entail encouraging the patient: to let himself be admitted voluntarily; to voluntarily submit to treatment; or to voluntarily refrain from showing a specific type of behaviour. If encouraging the patient to participate voluntarily is unsuccessful and the use of compulsion is considered – provided that the conditions for [the use of compulsion] are present – ‘the principle of the least intrusive measure’ applies, which shall be observed in connection with any use of compulsion. This specific formulation of the principle of proportionality would apply without any explicit provisions in this regard, but the [drafting] committee, by codifying the rules [which provide] that compulsion must not go beyond the scope of the purpose [sought], and that compulsion in itself must be proportionate to what is sought to be achieved by the [use of] compulsion, wished to underline the importance of compliance with this principle, so that the use of compulsion under this Act is limited to what is strictly necessary. Reference is made to section 4(2) to (4). In contrast to the above, the committee considered it superfluous to codify [provisions setting out] that the use of compulsion and force must not be used to punish patients, just as degrading and humiliating treatment is prohibited. When compulsion must be used as sparingly as possible and without causing unnecessary violation or inconvenience, this means that punitive measures and degrading treatment are all the more prohibited, see section 4(3). Patients have a right to be treated equally as fellow human beings, and with all the consideration that their mental illness also requires.” 41.     More detailed requirements for the use of restraint are set out in sections 14 to 16 of the Mental Health Act: Section 14 “1. Only belt[s], wrist and ankle straps and hand control mittens shall be used as measures of compulsory restraint.   2. Compulsory restraint must only be used to the extent that it is necessary to prevent a patient: i) from exposing himself or others to an imminent risk of harm to body or health, ...” Section 15 “1. Decisions to use compulsory restraint must be made by a doctor after [he or she] has checked on the patient. 2. A decision on whether to use wrist or ankle straps in addition to a belt shall, however, be made by the chief physician. 3. If, in the event of a situation covered by section 14(2)(i), it would be unsafe to await the doctor’s examination, on account of the patient’s own safety or the safety of others, the healthcare staff may decide on their own to restrain the patient in question. The doctor shall then be summoned immediately and make a decision as regards the use of compulsory restraint by a belt.” Section 16 “A patient who is restrained by a belt shall have somebody keeping a constant watch [over him or her].” 42.     The preparatory notes to section 14 (Bill L76, submitted on 26   October 1988) set out: “Section 14(1) provides an exhaustive list of the measures that are allowed for compulsory restraint when the conditions of subsection 2 are met. No other compulsory measures – other than belt[s], wrist and ankle straps and hand control mittens – may be used. If, on the grounds mentioned in section 14(2), it is decided that it is necessary to use a belt made out of leather or fabric, the procedure under section 15 involving prior instructions [from a doctor] shall be followed in every case. This applies to all patients who are admitted to a psychiatric ward ... Section 14(2) provides for the substantive circumstances under which compulsory measures may be used. Subsection 2(i) [covers] the most serious cases of imminent risk of harm to body or health ... [and] the largest group of protected persons is provided for here. The rule covers not only restraints used with a view to protecting fellow patients, but also [those used] to protect staff, visitors and all other people who frequent the ward, as well as the patient himself or herself. The rule thus provides the legal basis for intervention in cases of self-destructive behaviour. The criterion [for the use of restraint] is danger. For a danger to be considered imminent, it must be specific, present and demonstrable. Danger manifesting itself in destructive actions is not a prerequisite for intervention.” 43.     The preparatory notes to section 14 ( Betænkning no. 1109/1987) set out, inter alia : “... The criterion is danger. For a danger to be considered imminent, it must be specific, present and demonstrable. However, a latent danger that may manifest itself under certain conditions or circumstances that may occur later will not suffice.” 44.     Under the Mental Health Act, the Danish Health Ministry adopted supplementary rules about compulsory restraint in Act no. 1338 of 2   December 2010 on the use of other kinds of compulsion other than deprivation of liberty in psychiatric wards, such as: Section 19 “... 3. Prior to the specific use of compulsory restraint, there must be instructions [from a doctor] after the doctor has checked on the patient. 4. It is a prerequisite for the instructions [from the doctor] that the doctor, on the basis of the patient’s present condition, has decided that compulsory restraint is necessary and that the use of other measures, for example increased supervision, has proved to be insufficient or impossible as a consequence of the patient’s condition. 5. A decision on whether wrist or foot straps shall be used in addition to a belt shall be made by the chief physician. In the absence of the chief physician, the decision can be made by another doctor. In such cases, the chief physician shall subsequently review the decision as soon as possible. ...” Section 21 “1. A patient who is restrained by a belt shall have somebody keeping a constant watch [over him or her]. 2. [A person] keeping a constan