Atudorei v Romania

Summary

The applicant in this case had attended yoga classes arranged by the Movement for Spiritual Integration into the Absolute (MISA).  Apparently as a result of her involvement with MISA, her family considered that she was mentally ill and took her to hospital where she was deprived of her liberty for a short period.  Some 18 months later, the applicant's family facilitated her admission to a psychiatric hospital where she was medicated against her wishes.  The applicant's attempts to achieve redress in the domestic courts through civil and criminal actions were largely unsuccessful.

In respect of the applicant's claim for breach of Article 5, the court held that she had been objectively deprived of her liberty for 8 weeks (the duration of the second hospital admission), applying the familiar test of 'complete and effective control', and relying on the fact that if she had wanted to leave the psychiatric hospital, she would have to have asked the permission of the staff, and that the hospital dictated with whom she could have contact.   Of some note given the current debate as to meaning of freedom to leave, the court reiterated that a person can be considered to be detained for purposes of Article 5(1) even during a period when they are allowed to make certain journeys or are in an open ward with regular unescorted access to unsecured hospital grounds and the possibility of unescorted leave outside the hospital.  Accordingly, "in view of the specific situation in the present case" the Court considered "that the applicant was under continuous supervision and control and was not free to leave."

The required element of state control was made out, since although it was the applicant's mother who had requested her admission to hospital, it was implemented by a state-run institution. The court was satisfied the applicant had not consented to her admission.

In considering the lawfulness of the applicant's deprivation of liberty, the court noted that "while it is true that Article 5 § 1 (e) authorises the confinement of a person suffering from a mental disorder, such a measure must be properly justified by the seriousness of the person's condition in the interest of ensuring his or her own protection or that of others. Moreover, it may be acceptable, in urgent cases or where a person is arrested because of violent behaviour, for such an opinion to be obtained immediately after the confinement, but in all other cases prior consultation is necessary. Where no other possibility exists, for instance owing to the refusal of the person concerned to appear for an examination, at least an assessment by a medical expert on the basis of the file must be sought, failing which it cannot be maintained that the person has reliably been shown to be of unsound mind."  The evidence about the applicant's mental disorder was inadequate, and there was no convincing explanation for why she could not have been treated and monitored without being deprived of her liberty.  There was therefore a breach of Article 5(1).

The applicant's Article 8 rights had also been violated, since she had been given treatment without her consent, and the relevant domestic law about the administration of treatment without consent had not been followed.

However, the applicant's complaint under Article 3 in respect of her forced medication was deemed inadmissible, as there was insufficient evidence that the effect on her of receiving the medication reached the threshold required.  She did not suffer from the most serious side-effects of the medication, and there was no long-lasting psychological or physical effect on her after discharge from hospital.

The findings of violations of Article 5(1) and Article 8 in respect of the 8 week period of unlawful deprivation of liberty and forced medication resulted in an award of damages of 15,600 Euros (just over £12,000).

Comment

This case is of interest both as a further illustration of the circumstances in which Article 5 is engaged, and the level of damages the ECtHR considered appropriate for the violations of Articles 5 and 8 which it found had occurred.