Judge: ECtHR, Second Section
Citation:  ECHR 254
Summary: DD had suffered from mental disorder since the age of 16 when she discovered she was adopted. More than 20 hospital admissions had resulted in various diagnoses, the most recent being episodic paranoid schizophrenia. Her adoptive father was granted a declaration that DD was legally incapacitated and a legal guardian was appointed. Initially this was her psychiatrist and friend, DG; then her adoptive father; and ultimately a care home director.
Described as unable to care for herself, not understanding the value of money, and hungrily wandering the city streets, she was admitted to a psychiatric hospital for treatment. At the request of her father as guardian, she was then transferred to the K?dainiai care home for those with learning disabilities. From there she battled with the State authorities on a number of fronts. She sought to reopen the guardianship proceedings. A criminal inquiry was conducted into whether the circumstances surrounding the care home placement and the treatment she received there was unlawful. And she complained to various other authorities which led to further inquiries being undertaken.
With little progress made, DD’s last stand was to apply with DG’s assistance to the European Court of Human Rights (‘ECtHR’) alleging violations of Articles 2, 3, 5, 6, 8, 9, 10, and 13, claiming 300,000 Euros in compensation. In the end, the Court found violations of Articles 5(4) and 6(1) and ordered the State to pay 8000 Euros plus legal costs. Although the judgment deals with a broad range of issues, the following will focus on its discussion of Article 5.
1. Article 5(1) – “Deprivation of liberty”
DD contended that her involuntary admission to the social care home amounted to a “deprivation of liberty”, which the Government denied. They argued that the care home was providing social services, not compulsory psychiatric treatment, and that the restrictions on DD were necessary due to the severity of her mental illness, were in her interests and were no more than the normal requirements associated with the responsibilities of a social care institution taking care of inhabitants suffering mental health problems.
The factual basis upon which this DOL issue had to be determined was in dispute but, perhaps reminiscent of HL v UK, the Court held:
“146… As concerns the circumstances of the present case, the Court considers that the key factor in determining whether Article 5 § 1 applies to the applicant’s situation is that the K?dainiai Home’s management has exercised complete and effective control by medication and supervision over her assessment, treatment, care, residence and movement from 2 August 2004, when she was admitted to that institution, to this day (ibid., § 91). As transpires from the rules of the K?dainiai Home, a patient therein is not free to leave the institution without the management’s permission. In particular, … on at least one occasion the applicant left the institution without informing its management, only to be brought back by the police (see paragraph 29 above). Moreover, the director of the K?dainiai Home has full control over whom the applicant may see and from whom she may receive telephone calls (see paragraph 81 above). Accordingly, the specific situation in the present case is that the applicant is under continuous supervision and control and is not free to leave (see Storck v. Germany, no. 61603/00, § 73, ECHR 2005-V). Any suggestion to the contrary would be stretching credulity to breaking point.
147. Considerable reliance was placed by the Government on the Court’s judgment in H.M. (cited above), in which it was held that the placing of an elderly applicant in a foster home in order to ensure necessary medical care as well as satisfactory living conditions and hygiene did not amount to a deprivation of liberty within the meaning of Article 5 of the Convention. However, each case has to be decided on its own particular “range of factors” and, while there may be similarities between the present case and H.M., there are also distinguishing features. In particular, it was not established that H.M. was legally incapable of expressing a view on her position. She had often stated that she was willing to enter the nursing home and, within weeks of being there, she had agreed to stay, in plain contrast to the applicant in the instant case. Further, a number of safeguards – including judicial scrutiny – were in place in order to ensure that the placement in the nursing home was justified under domestic and international law. This led to the conclusion that the facts in
H.M. were not of a “degree” or “intensity” sufficiently serious to justify a finding that H.M. was detained (see Guzzardi, cited above, § 93). By contrast, in the present case the applicant was admitted to the institution upon the request of her guardian without any involvement of the courts.
148. As to the facts in Nielsen, the other case relied on by the Government, the applicant in that case was a child, hospitalised for a strictly limited period of time of only five and a half months, on his mother’s request and for therapeutic purposes. The applicant in the present case is a functional adult who has already spent more than seven years in the K?dainiai Home, with negligible prospects of leaving it. Furthermore, in contrast to this case, the therapy in Nielsen consisted of regular talks and environmental therapy and did not involve medication. Lastly, as the Court found in Nielsen, the assistance rendered by the authorities when deciding to hospitalise the applicant was “of a limited and subsidiary nature” (§ 63), whereas in the instant case the authorities contributed substantially to the applicant’s admission to and continued residence in the K?dainiai Home.
149. Assessing further, the Court draws attention to the incident of 25 January 2005, when the applicant was restrained by the K?dainiai Home staff. Although the applicant was placed in a secure ward, given drugs and tied down for a period of only fifteen to thirty minutes, the Court notes the particularly serious nature of the measure of restraint and observes that where the facts indicate a deprivation of liberty within the meaning of Article 5 § 1, the relatively short duration of the detention does not affect this conclusion …
150. The Court next turns to the “subjective” element … the applicant subjectively perceived her compulsory admission to the K?dainiai Home as a deprivation of liberty. Contrary to what the Government suggested, she has never regarded her admission to the facility as consensual and has unequivocally objected to it throughout the entire duration of her stay in the institution. On a number of occasions the applicant requested her discharge … She even twice attempted to escape from the K?dainiai facility … In sum, even though the applicant had been deprived of her legal capacity, she was still able to express an opinion on her situation, and in the present circumstances the Court finds that the applicant had never agreed to her continued residence at the K?dainiai Home.
151. Lastly, the Court notes that although the applicant’s admission was requested by the applicant’s guardian, a private individual, it was implemented by a State-run institution – the K?dainiai Home. Therefore, the responsibility of the authorities for the situation complained of was engaged …”
Accordingly the Court found that there was a deprivation of liberty.
2. Article 5(1)(e) – Justification
With Article 5(1) engaged, DD contended that the DOL was unlawful because the authorities had failed to consider whether less restrictive community-based arrangements would have been more suitable and because she had been excluded from the decision-making process. The Government, on the other hand, argued that her detention was lawful because her admission conformed to domestic law which enabled a person to be admitted at the request of their guardian, provided they suffered from mental disorder.
Significantly, the ECtHR applied the Winterwerp conditions to determine the legality of the placement:
“156. The Court also recalls that in Winterwerp … it set out three minimum conditions which have to be satisfied in order for there to be “the lawful detention of a person of unsound mind” within the meaning of Article 5 § 1 (e): except in emergency cases, the individual concerned must be reliably shown to be of unsound mind, that is to say, a true mental disorder must be established before a competent authority on the basis of objective medical expertise; the mental disorder must be of a kind or degree warranting compulsory confinement; and the validity of continued confinement depends upon the persistence of such a disorder.”
It found, at para 157, that DD satisfied these criteria, that no alternative measures were appropriate, and that accordingly it was lawful to confine her to the care home.
3. Article 5(4) – Review
The Court noted the following emerging principles at para 163:
(a) A person of unsound mind who is compulsorily confined in a psychiatric institution for an indefinite or lengthy period is in principle entitled, at any rate where there is no automatic periodic review of a judicial character, to take proceedings “at reasonable intervals” before a court to put in issue the “lawfulness” – within the meaning of the Convention – of his detention;
(b) Article 5 § 4 requires that the procedure followed have a judicial character and give to the individual concerned guarantees appropriate to the kind of deprivation of liberty in question; in order to determine whether a proceeding provides adequate guarantees, regard must be had to the particular nature of the circumstances in which such proceeding takes place;
(c) The judicial proceedings referred to in Article 5 § 4 need not always be attended by the same guarantees as those required under Article 6 § 1 for civil or criminal litigation. Nonetheless, it is essential that the person concerned should have access to a court and the opportunity to be heard either in person or, where necessary, through some form of representation. Special procedural safeguards may prove called for in order to protect the interests of persons who, on account of their mental disabilities, are not fully capable of acting for themselves.
The last principle was all the more true when, as here, the placement was carried out without any involvement on the part of the courts. The forms of judicial review may vary from one domain to another and may depend on the type of the deprivation liberty at issue but the Court held:
“165… It appears that, in situations such as the applicant’s, Lithuanian law does not provide for automatic judicial review of the lawfulness of admitting a person to and keeping him in an institution like the K?dainiai Home. In addition, a review cannot be initiated by the person concerned if that person has been deprived of his legal capacity. In sum, the applicant was prevented from independently pursuing any legal remedy of a judicial character to challenge her continued involuntary institutionalisation.
166. The Government claimed that the applicant could have initiated legal proceedings through her guardians. However, that remedy was not directly accessible to her: the applicant fully depended on her legal guardian, her adoptive father, who had requested her placement in the K?dainiai Home in the first place. The Court also observes that the applicant’s current legal guardian is the K?dainiai Home – the same social care institution which is responsible for her treatment and, furthermore, the same institution which the applicant had complained against on many occasions, including in court proceedings. In this context the Court considers that where a person capable of expressing a view, despite having been deprived of legal capacity, is deprived of his liberty at the request of his guardian, he must be accorded an opportunity of contesting that confinement before a court, with separate legal representation…
167. In the light of the above, the Court … holds that there has also been a violation of Article 5 § 4 of the Convention.” (emphasis added)
Comment: The facts of this particular case are clearly extreme but it is interesting to note that, in deciding that DD was deprived of her liberty, the key factor for the Court was the exercise of “complete and effective control by medication and supervision over her assessment, treatment, care, residence and movement” for over 7 years. Moreover, DD clearly felt the effects of the measures and unequivocally objected to them throughout her entire stay. One particular matter worth highlighting is the reference made at para 147 to the adequacy of safeguards, including judicial scrutiny, when determining whether restrictions are of a sufficient “degree” or “intensity” to engage Article 5(1). The implication being that the more safeguards that are in place – particularly the involvement of the court – the less intense will be the restrictions on the individual.
Unlike English law, which in RK v BCC  EWCA Civ 1305, paras 14-15 confirms that a parent may not lawfully authorise the deprivation of their child’s liberty, the ECtHR has yet to confine its decision in Nielsen v Denmark (1988) 11 EHRR 175 to history. Rather, at para 148, it continues to try to distinguish it on the basis that (a) Nielsen was a child and DD a ‘functional’ adult, (b) Nielsen was hospitalised for a limited period of time whereas DD had negligible prospects of ever leaving, (c) DD, but not Nielsen, was medicated, and (d) the State was far more involved in DD’s placement. It remains to be seen whether such distinctions are capable of standing up to scrutiny in the context of the restriction/deprivation dilemma.
Reiterating its approach in Stanev v Bulgaria (Application no. 36760/06), the Court once again employed the Winterwerp threshold in a social care context to determine the legality of the person’s detention. This calls into question whether the Court of Appeal was right to reject such an approach as a “fallacy” in G v E and others  EWCA Civ 822. Whether a person of unsound mind is detained in a psychiatric hospital or a community facility, Stanev and DD confirm that Winterwerp should be used. The crux of the matter, therefore, is whether depriving someone of their liberty because it is “best” for them (the English approach) provides more or less protection of their Article 5 rights than requiring their mental disorder to justify their detention (the Strasbourg approach).