K represented by guardian M
The National Social Appeals Board
The provisions of the Danish Act on Social Services on use of force meant that a woman who was incapable of giving her consent could not be moved to a new home closer to her husband and children
As a result of a suicide attempt, a woman (K) had been brain-damaged to such a degree that it was not possible to make contact with her. For that reason, K had been moved to a home in Jutland, situated just about halfway between her husband and children’s home and her parents’ home. Subsequently, the husband (M) had moved to Funen with the children. M, who had been appointed the guardian of K, sent a request to the local authorities to have K moved to a home on Funen. The local authorities and the Social Board rejected M’s request on the grounds that K was incapable of deciding whether she wanted to be moved, and that the conditions of the Danish Act on Social Services for a forced move had not been met. To move K would, thus, be unlawful use of force. The National Social Appeals Board, the City Court and the High Court all agreed that there was no authority in the law to move K.
Furthermore, the Supreme Court agreed it was not possible to move K under the Act on Social Services.
Before the Supreme Court the parties agreed that K was one of the persons which the provisions on the use of force are supposed to protect, that K was incapable of giving her informed consent, and that the conditions for a forced move had not been met. However, M submitted that the case did not concern use of force, as it was the guardian who had requested the move based on the family’s wishes and needs. If the judgment was affirmed, it would mean that people in K’s condition could never be moved, just as M submitted that it was in contravention of Article 8 on the right to respect for family life in the European Human Rights Convention.
Even though it had to be regarded as questionable whether it had been the intention to rule out the possibility of a decision in a situation like this to move a person who like K was incapable of making her own decisions, the Supreme Court did not believe the wording of S. 129 of the Act on Social Services on forced move could be entirely disregarded. It was up to the legislature to consider whether the provision was more restrictive than intended. In addition, the Supreme Court did not find that there was basis for concluding that the judgment was in contravention of Article 8 on the right to respect for family life in the European Human Rights Convention.
Against this background, the Supreme Court affirmed the High Court’s judgment.