IN v Ukraine
Summary
Mr IN brought criminal proceedings for libel after his employment record noted that he had been dismissed for theft. Following his numerous complaints to the town prosecutor's office for failing to investigate his case, the prosecutor requested his placement in a psychiatric facility. Two psychiatrists studied Mr IN's complaint letters which contained evidence of a "high probability of socially dangerous behaviour". Paramedics, a psychiatrist, and police officers visited his home and he was taken to hospital in an ambulance. There was conflicting evidence as to the extent to which he allowed them into his home and whether he went with them voluntarily.
The following day he was examined by a panel of four doctors, including the two psychiatrists that were initially involved, and was involuntarily detained. He alleged that (i) his psychiatric confinement from March to December 2000 had breached Article 5(1), (ii) he had had no enforceable right to compensation under Article 5(5), and (iii) the civil proceedings for redress had been unreasonably long contrary to Article 6(1). The court upheld his complaints and he was awarded EUR 15,000. It found that there were no fair and proper procedure for his deprivation of liberty and stated:
81 … [T]he vulnerability of persons with alleged mental disorders and the fact that they are under the control of the psychiatric facility personnel, requires clear effective guarantees against arbitrary involuntarily hospitalisation (see, mutatis mutandis, M.S. v. Croatia (no. 2), no. 75450/12, 19 February 2015), especially when, as in the present case, the confinement was initiated by a prosecutor exclusively on the basis of the applicant's letters to State bodies in the absence of any known complaints about the applicant's behaviour from other persons. Moreover, in the present case the panel of psychiatrists was composed of four doctors, two of whom were the same doctors who had initially decided to admit the applicant to hospital (see paragraph 13 above). This undermined the guarantees of independence of the health-care professionals, whose decision was the only basis for the applicant's deprivation of liberty. With all respect to their professional expertise, the broad powers vested in health-care professionals are to be counterbalanced by procedures aimed at preventing indiscriminate involuntary hospitalisation (see H.L. v. the United Kingdom, § 121, and L.M. v. Latvia, § 51, both cited above). (emphasis added)
Comment
We mention this decision because of the potential implications it has for the Law Commission's forthcoming Draft Bill to amend the Mental Capacity Act 2005 and replace the deprivation of liberty safeguards. Under DoLS, in hospitals and care homes the urgent authorisation lacks such independence but is time-limited to 7 days' detention, extending to 14 days in total if there are exceptional reasons. But within that timeframe, an independent assessor must determine best interests. This "should be seen as a cornerstone of the protection that the DOL safeguards offer to people facing deprivation of liberty if they are to be effective as safeguards at all": LB of Hillingdon v Neary [2011] EWCOP 1377, at [174]. In terms of the present authorisation process, it will be recalled that in Neary Peter Jackson J held:
The responsibilities of a supervisory body, correctly understood, require it to scrutinise the assessment it receives with independence and a degree of care that is appropriate to the seriousness of the decision and to the circumstances of the individual case that are or should be known to it. (emphasis added)
The Court of Protection similarly provides an independent judgment for deprivations of liberty occurring elsewhere. Similarly, under the Mental Health Act 1983 an approved mental health professional exercises their own independent judgment as to whether a person ought to be detained in hospital. According to the Commission's revised approach, it appears that commissioning bodies would authorise themselves to detain which, depending on the authorisation arrangements, raises potential risks of arbitrariness. Its interim position states:
1.42 … we are considering whether a defined group of people should receive additional independent oversight of the deprivation of their liberty, which would be undertaken by an Approved Mental Capacity Professional. Owing to the vast number of people now considered to be deprived of their liberty following Cheshire West, it would not be proportionate or affordable to provide such oversight to all those caught by article 5 of the ECHR. Whilst we are still working to develop the precise criteria that would operate to identify this group, we envisage that this group would consist of those who are subject to greater infringement of their rights, including, in particular, their rights to private and family life under article 8 of the ECHR. (emphasis added)
There is a real risk that the significantly larger proportion of the population that are seen as deprived of their liberty will result, for economic reasons, in a drastic watering down of the current Article 5 safeguards. Ironically, it seems that the bar is so low, and the number of people deprived of liberty is so high, that providing that independent check may now be unaffordable. In Cheshire West Lady Hale referred to the need for a "periodic independent check on whether the arrangements made for them are in their best interests", although the court may have had Article 5(4) more in mind. But in H.L. v. the United Kingdom, the ECtHR held:
- The Court observes that, as a result of the lack of procedural regulation and limits, the hospital's health care professionals assumed full control of the liberty and treatment of a vulnerable incapacitated individual solely on the basis of their own clinical assessments completed as and when they considered fit: as Lord Steyn remarked, this left "effective and unqualified control" in their hands. While the Court does not question the good faith of those professionals or that they acted in what they considered to be the applicant's best interests, the very purpose of procedural safeguards is to protect individuals against any "misjudgments and professional lapses" (Lord Steyn, paragraph 49 above). (emphasis added)
- In the present case, having had regard to the conclusion of the panel of psychiatrists …, it is evident that in actual fact the experts diagnosed the applicant's condition and automatically prescribed further hospitalisation. With all respect to their professional expertise, the broad powers vested in health-care professionals are to be counterbalanced by procedures aimed at preventing indiscriminate involuntary hospitalisation (see H.L., § 121, cited above).
Frustratingly, the judgment does not expressly refer to whether the initial psychiatrist could sit on the panel or whether all members of the panel had to be independent of the initial decision. But the point is an important one. If the ECtHR is suggesting that Article 5(1) requires some guarantee of independence (as we have currently), this may pose challenges to a scheme which empowers commissioners of detention to authorise such detention. This point of legal principle is certainly something to bear in mind when we see the draft Bill at the end of this year.
[Note: in light of the commentary upon the Law Commission's Mental Capacity Deprivation of Project, to which Alex is a consultant, this note was drafted by Neil Allen.]
