The "treatment criterion", has been considered by a working group appointed by the Directorate of Health as referred to in the State Report, para. 75. The working group has concluded that there is little documentation showing that coercive treatment under this criterion will help the person to function better. On the other hand – there are many patients reporting that the coercive measures itself have made them worse, and given them additional traumas as documented in several publications. This being the case, we hold that coercive treatment should not be used unless it is documented that it has a positive effect. It should otherwise be considered as experimental treatment, which requires the patient's free consent in accordance with ICCPR Article 7.
Furthermore, the treatment criterion gives the hospitals such a wide margin of appreciation to decide coercive measures that the possibility for arbitrary deprivation of liberty is too great. The courts will seldom set the opinion of the psychiatrists/clinical psychologists aside, because the psychiatrists/clinical psychologists are presupposed to be the most competent to consider these questions.
We consider that it is possible to help people as those described above without coercive measures, for instance with voluntary psychotherapy, a place to live, help with personal hygiene and social interaction. Even if such voluntary measures do not help, this does not justify involuntary hospitalization if the patient is not dangerous to himself or others. Abnormal or bizarre behaviour must be tolerated as long as it does not constitute a threat to others.
We hold that the use of coercive measures such as involuntary hospitalization is not necessary, because of the lack of documentation that it will help, because of the risks of damage to the patient, and because of the wide margin of appreciation afforded to the psychiatrists and lack of foreseeability for the citizens to know what kind of behaviour is accepted in society. The use of coercive measures are attempts to change the persons' personality and thus an interference with their right to private life, freedom of thought and religion, to hold opinions and the freedom of expression. This raises therefore also the issue of compatibility with ICCPR Articles 17, 18 and 19.