Citation:  ECHR 1322
KC was 72, widowed, and under the apparent care of a social guardian, having previously been declared to be partially incapacitated. Following an application by social services to place her against her will in a social care home, the District Court visited her in her apartment where she lived alone. She made it clear that she did not want to go and told those present to get out.
Subsequently, the District Court found that no members of her family could take care of her on a permanent basis and social workers would not spend the whole day with one person or take care of them permanently. Accordingly the Court placed her in the care home on account of chronic schizophrenia and a disorder of the central nervous system. She had neglected the basic principles of hygiene and nutrition which might have led to infections or undernourishment but did not pose a direct danger to her own, or other peoples’, health or life. The psychiatrist found that she needed to be under the constant care of a third person and said:
“Through her behaviour she poses a risk to her life, i.e. in certain circumstances leaving her without constant care significantly raises the probability of risk to her life. It is not however a direct risk, but it results rather from the applicant’s neglect of basic hygiene principles, place of residence and nutrition. [The applicant is therefore exposed to] a risk of malnutrition, [and] infections.”
Both KC and her daughter challenged the compulsory placement. At one stage a psychiatrist confirmed that she could be placed in a family home provided the family was able to assure 24-hour care. The Government submitted that there was no necessity to admit her to the care home but there were no other means of providing her with the necessary help given that her daughter had refused to take care of her and there was no one else to take on the responsibility.
All parties accepted that KC was deprived of her liberty, even though she could ask to leave the care home on her own during the day:
“53. In the present case, although the applicant has been declared only partially incapacitated and although the Government submitted that she could ask to leave the social care home on her own during the day, they did not contest that she had been deprived of her liberty. She was compulsory [sic] placed in the social care home, against her will, on the basis of a court decision. Therefore, the responsibility of the authorities for the situation complained of is engaged (see Kędzior v. Poland, no. 45026/07, § 59, 16 October 2012).
54. In the light of the foregoing, the Court concludes that the applicant has been ‘deprived of her liberty’, within the meaning of Article 5 § 1 of the Convention, from 10 September 2008 to this day.”
The Court confirmed that the Winterwerp criteria applied to determine whether her detention was lawful. She had been objectively found by a psychiatrist to have a “mental disorder” which, in the initial phase, warranted her care confinement:
“69. As regards the second criterion, namely the need to justify the placement by the severity of the disorder, the Court is ready to accept that in the initial phase of the applicant’s confinement the domestic courts had reasonable grounds to believe that the applicant’s placement in a social care home which would warrant her care on permanent basis was necessary. It is true that none of the psychiatric opinions prepared in the applicant’s case mentioned that the applicant posed a direct threat to the life or health of herself or third persons. The opinion of 8 May 2008 mentions only an indirect risk to the applicant’s life resulting from her neglect of basic hygiene principles, and of her place of residence and nutrition (see paragraph 11 above). In the opinion dated 6 April 2009, prepared after the applicant’s placement in the home, the psychiatrist found no need for the applicant to be admitted to and treated in hospital. Likewise, no direct danger to the applicant’s own or a third person’s health or life was found (see paragraph 25 above). However, it was established that she had neglected herself and her apartment and failed to observe the basic principles of hygiene and nutrition. It was also confirmed that she needed constant care to be able to function normally. In its decision of 19 June 2008 the District Court stressed the need to provide the applicant with permanent assistance lack of which posed a danger to her life. Having examined the circumstances of the case the District Court found that there were no members of family or third persons who could take care of the applicant on permanent basis. In particular, the applicant’s daughter expressly refused to do it. Also the assistance by social care employees, by its nature provided on temporary basis only, had not been sufficient to secure the applicant’s basic needs (see paragraph 11 above). The District Court concluded that the applicant’s placement in a social care home was the only solution to assure her necessary care and assistance. Taking into consideration the applicant’s state of health and all the circumstances addressed by the courts at the time of the applicant’s placement in the social care home, the Court accepts that the domestic court’s decision to confine the applicant in a social care home was properly justified by the severity of disorder. It follows that also the second criterion laid down in the Winterwerp case was fulfilled in the present case.”
However, the third criterion, namely the persistence of mental disorder to justify the validity of continued confinement, had not been satisfied which resulted in a violation of Article 5(1):
“70 … the Court notes certain deficiencies in the assessment of whether the disorders persisted throughout the whole relevant period. Although the applicant was under the supervision of a psychiatrist, the aim of such supervision was not to provide an assessment at regular intervals of whether she still needed to be kept in the social care home for the purposes of Article 5 § 1 (e). Indeed, no provision was made for such an assessment under the relevant legislation … The domestic provisions do not provide for a periodic compulsory examination for the purpose of assessing whether an applicant needs to remain in a social care home. The applicant has been kept in confinement for over six years now and it has not been shown that the authorities undertake any steps which would allow assessment whether her continuous confinement in the social care home is indeed indispensable. After being admitted to the social care home, the applicant was examined by a psychiatrist for the purpose of the proceedings which her daughter had instituted to have the decision on her mother’s compulsory placement in the social care home varied. However this examination was effected on 6 April 2009 and it was the most recent psychiatric opinion given in the applicant’s case available to the Court (see paragraph 25 above). The Court concludes that the persistence of the disorder warranting the validity of the applicant’s continued confinement has not been sufficiently shown by the domestic authorities.”
The Court repeated the Megyeri principles and found that there was no violation because (1) the placement was ordered by the court; (2) in domestic law there was no obligation to carry out a systematic periodic review of the lawfulness of, and continuous need for, the deprivation of liberty of persons on the grounds of their state of mental health; but (3) those deprived in psychiatric hospitals or social care homes could at any time request a review of the detention’s lawfulness and the need to remain in the closed facility. And such a request could put in motion judicial proceedings in which the person detained would be heard and an examination by a specialist doctor would normally be ordered.
This decision is of particular interest for three reasons. The first concerns freedom to leave. The Government accepted that she was deprived of liberty even though she could ask to leave the care home on her own during the day. It is clear that she had to ask for permission to do so and, when KC asked for the court order to be varied to allow her to leave for one hour a day to go to the shop and to allow her to stay in her room all day, this request was declined by the court on the basis that it was provided for by the internal regulations of each care home. The Government’s position was also that she had never requested permission to leave on her own for a short period of time (para 51).
The second point of interest is the confirmation, if it was needed, that the Winterwerp criteria (mental disorder, warranting detention, validity of continued confinement) govern the substantive legality of a deprivation of liberty in social care. The judgment would tend to suggest that psychiatric opinion is required at the outset of detention and periodically thereafter. This may well need to be explored further in due course in the context of annual reviews under the Re X procedure. We also note the court’s acceptance that her disorder warranted confinement because she needed control and supervision and there was no alternative option available in the community. Whilst this may be pragmatic, it undermines arguments that might otherwise be made in support of independent living.
Finally, the accepted conformity of Polish law with Article 5(4) is of interest. KC, her relatives, and the care home director, could at any time request the court to change its decision to keep her in the care home. Being only “partially incapacitated” meant she was entitled to act on her own before the courts. Such a request would open the judicial proceedings and a specialist doctor would normally examine her to assess whether the grounds for her continued stay in the home still existed. Moreover, a judge had the right to enter the care home at any time to check the lawfulness of the placement and whether people needed to continue to stay there, the conditions of their placement, as well as whether their rights were being respected. This breadth of safeguards was clearly adequate to head off an Article 5(4) challenge and, interestingly, go somewhat beyond that provided for in our domestic system.