Mental Capacity Case
Jivan v Romania (application no. 62250/19)
Judge
N/A (fourth section)
Citation
[2022] ECHR 125
- Summary
- The European Court of Human Rights ("ECtHR") considered an alleged violation of (inter alia) Article 8 in the context of an elderly, disabled man who had become bedridden. The complaint arose from the domestic authorities' classification of his disability as "medium-level", which meant he was not entitled to a personal assistant. Only if his situation was categorised as a case of severe disability, pursuant to Romanian law, would he qualify for a personal assistant.
- The applicant was in his late eighties in 2017 and had had his leg partially amputated in 2015. He had a range of medical conditions, including cataracts, hearing loss and incontinence. He had recently become bedridden because he had lost his strength to move his wheelchair; and he lived on the fourth floor of a building. He was supported by his son. It was noted, in 2015, that he weighed 40-45 kg. He died in 2020 and his son pursued the application on his father's behalf.
- He had been assessed by social services as being totally dependent and requiring a personal assistant to meet his most basic needs. The Commission for the Assessment of Adults with Disabilities had, however, classified his disability as medium-level. At first instance, the domestic court had determined that he had a severe disability but that was overturned on appeal.
- The complaint was that by denying him the benefit of a personal assistant – a right which he should have been entitled to in accordance with Romanian law – his Article 8 rights had been breached because he had been deprived "of his autonomy and of access to the outside world, thus forcing him into isolation". [28]
- The court determined that Article 8 was applicable to the case. His conditions were severe: "he was old, immobilised, partially incontinent, and needed help for his daily activities". [34] The authorities' assessments had impacted on his personal autonomy and dignity.
- The court reiterated that Article 8 is principally concerned with protecting the individual against arbitrary interference by public authorities. There are positive and negative obligations pursuant to Article 8 – the latter may involve the adoption of measures to ensure respect for private life. In considering those obligations, regard must be had to the fair balance between the competing interests and a state's margin of appreciation.
- In this case, the court was concerned with funding for care and medical treatment: the relevant obligation was therefore the positive obligation. Generally, the margin of appreciation is wide in issues of healthcare and economic policy (McDonald v. the United Kingdom, no. 4241/12), but where the restriction impacted a particularly vulnerable group, such as the elderly and persons with disabilities, the margin is significantly narrower.
- The court acknowledged that that establishing a person's level of disability involves a personalised and complex evaluation and that it does not, in accordance with the principle of subsidiarity, fall on the court to substitute its views for those of the national authorities. However, the state's obligation requires that the domestic courts interpret domestic law in a manner that is compliant with the Convention. The domestic court focused on the partial amputation and failed to engage with his broader situation, both medical and social, particularly his autonomy and dignity.
- The court concluded that the domestic authorities act reasonably in the circumstances to ensure the effective protection of his right to respect for private life. There had been a violation of Article 8. The court awarded, on an equitable basis, the applicant EUR 8,000 for pecuniary and non-pecuniary damage.
- Comment
- The facts of this case are extreme. Indeed, the court specifically noted that (para 31):
- Article 8 cannot be considered applicable each time an individual's everyday life is disrupted, but only in the exceptional cases where the State's failure to adopt measures interferes with that individual's right to personal development and his or her right to establish and maintain relations with other human beings and the outside world. It is incumbent on the individual concerned to demonstrate the existence of a special link between the situation complained of and the particular needs of his or her private life (see Zehnalovà and Zehnal v. the Czech Republic (dec.), no. 38621/97, ECHR 2002-V).
- The court's approach in this case was informed, in particular, by the United Nations Convention on the Rights of Persons with Disabilities ("CRPD"). The CRPD specifically recognises:
- the equal right of people with disabilities to live independently and be included in the community (Article 19);
- that states shall take effective measures to ensure personal mobility with the greatest possible independence for persons with disabilities (Article 20); and,
- the right of persons with disabilities to an adequate standard of living and social protection (Article 28).
- Furthermore, the court considered that this case was not a choice between basic care or additional, more expensive care (which would fall within the state's margin of appreciation because it concerns resource allocation) but ensuring the applicant had the appropriate level of care and dignity. Thus, a violation of Article 8 was established.
