Judge: European Court of Human Rights (First Section)
Citation:  ECHR 63
Summary: In these proceedings, the European Court of Human Rights considered a challenge by Mr Lashin, who sufferedfrom schizophrenia, against the decision of the Omsk Regional Court in August 2000 upholding a finding that he lacked capacity. Following that decision, Mr Lashin had sought on more than one occasion and with the support of his father who had been appointed as his guardian, to have his capacity restored. However, this was repeatedly declined.
In 2002, the applicant was admitted to hospital. His father was subsequently stripped of his status as legal guardian, partly as he had unsuccessfully tried to confer that appointment by way of power of attorney on a third party, but also on the basis that the applicant had not received appropriate medical treatment and his condition had worsened. The applicant nonetheless again challenged his hospitalisation and demanded a re-examination by independent experts. However, in December 2002, the hospital was appointed as Mr Lashin’s guardian and, acting in this capacity revoked its request for authorisation to confine the applicant. The Court closed the proceedings without a hearing on the grounds that the applicant was thereafter treated as a voluntary patient and his only legal guardian was no longer presenting a dispute.
The applicant submitted that his inability to have his legal capacity reviewed breached his rights under Article 8 of the Convention. He further challenged the manner in which the decisions that he lacked capacity had been taken up until December 2002, namely in his absence and without an examination by an independent panel of experts as the applicant had himself requested.
The government accepted that, in principle, the decision that a person lacks capacity can amount to an interference with their rights under Article 8 ECHR. However, given Mr Lashin’s schizophrenia, it maintained the decision was necessary and proportionate in the circumstances.
As regards the complaints arising from the decisions that he lacked capacity up until December 2002, the Court held the following:
a. a decision that a person lacks capacity can infringe their rights under Article 8 ECHR, applyingMatter v. Slovakia, no. 31534/96, § 68, 5 July 1999, and Shtukaturov v. Russia, no. 44009/05, § 83, ECHR 2008;
b. depriving someone of his legal capacity and maintaining that status may pursue a number of legitimate aims, such as to protect the interests of the person affected by the measure. In deciding whether legal capacity may be restored, and to what extent, the national authorities have a certain margin of appreciation. It is in the first place for the national courts to evaluate the evidence before them; the Court’s task is to review under the Convention the decisions of those authorities, Winterwerp v. the Netherlands, 24 October 1979, § 40, Series A no. 33; Luberti v. Italy, 23 February 1984, Series A no. 75, § 27; and Shtukaturov v. Russia, § 67);
c. the extent of the State’s margin of appreciation in this context depends on two major factors. First, where the measure under examination has such a drastic effect on the applicant’s personal autonomy (as in the case of Mr Lashin) the Court is prepared to subject the reasoning of the domestic authorities to a somewhat stricter scrutiny. Second, the Court will pay special attention to the quality of the domestic procedure. Whilst Article 8 of the Convention contains no explicit procedural requirements, the decision-making process involved in measures of interference must be fair and such as to ensure due respect of the interests safeguarded by Article 8 (see Görgülü v. Germany, no. 74969/01, § 52, 26 February 2004).
On the facts, the ECtHR found that the decision not to restore Mr Lashin’s capacity was taken without seeing him or hearing him. Whilst the Court accepted that there werepossible exceptions from the rule of personal presence, it noted (at paragraph 82) that a departure from this rule is possible only where the domestic court carefully examined this issue. This was not the case on the facts before it, and the Court noted (ibid) that “a simple assumption that a person suffering from schizophrenia must be excluded from the proceedings is not sufficient.”
A second aspect of concern was the failure to commission a fresh psychiatric assessment. More than a year and a half had elapsed since the original assessment and the applicant had requested that his mental condition be re-evaluated. Where the opinion of an expert is likely to play a decisive role in the proceedings, as in the case at hand, the Court found (at paragraph 87) that expert’s neutrality becomes an important requirement which should be given due consideration. Lack of neutrality may result in a violation of the equality of arms guarantee under Article 6 of the Convention. An expert’s neutrality is equally important in the context of incapacitation proceedings, where the person’s most basic rights under Article 8 are at stake.
The Court concluded that the confirmation of the applicant’s incapacity status in 2002 based on the report of 2000 breached his rights under Article 8.
In relation to the applicant’s alleged inability to have his mental capacity reviewed, the Court reiterated the need for periodic reassessment given that “it is recognised that in the vast majority of cases where the ability of a person to reason and to act rationally is affected by a mental illness, his situation is subject to change” (paragraph 97).
The Court cited its decision in Stanev, in which the Court had observed that “there is now a trend at European level towards granting legally incapacitated persons direct access to the courts to seek restoration of their capacity” (§ 243), and noted that in Russia at the time the law neither provided for an automatic review nor for a direct access to the court for an incapacitated person. In those circumstances, the applicant was fully dependant on his guardian in this respect. Where, as in the present case, the guardian opposed the review of the status of his ward, the latter had no effective legal remedy to challenge the status. Having regard to what was at stake for the applicant, the Court concluded that his inability for a considerable period of time to assert his rights under Article 8 was incompatible with the requirements of that provision of the Convention. Consequently, there was a violation of Article 8 of the Convention.
Comment: The facts giving rise to this claim were extreme and the procedural history indicates that the applicant had tried to avail himself of many different avenues to challenge the finding as to his lack of capacity. Moreover, and reiterating a point that we have addressed previously, caution must be exercised before reading across too directly dicta from decisions reached in the context of legal systems where capacity is a matter of status.
However, too much can be made of the difference between ‘status’ based systems and that enshrined in the MCA 2005. After all, a decision that P lacks capacity in one or more respects gives the Court of Protection a wide-ranging jurisdiction to take decisions in P’s best interests as regards those matters.Alternatively, in the case of (for instance) sexual relations, a decision by the Court of Protection that P lacks the capacity to consent to such relations, represents a significant – if no doubt justified – legal circumscription of P’s autonomy.
In the circumstances, this decision is of relevance to English practitioners because the Court chose to examine the issue of the steps taken by the Courts regarding the applicant’s capacity by reference to Article 8 as opposed to Article 6 (as in X and Y v Croatia (Application No. 5193/90, decision of 3.11.11)). The approach taken was, however, essentially identical to that adopted in X and Y and indicates the concern that the Court is manifesting to ensure that decisions relating to the capacity of adults are reached after due consideration – and following a ‘rule’ of personal presence to be departed from only after the domestic Court has made a specific investigation of whether so to depart.
The emphasis upon Article 8 is of importance because of the relationship identified by the Court between an individual’s capacity and their ability to enjoy their private life. It chimes also with the emphasis placed by the Court upon Article 8 in the context of those deprived of their liberty in psychiatric institutions: see Munjaz v United Kingdom (Application No. 2913/06, decision of 17.7.12)
It is also of note that the Court highlighted the imperative of updated neutral expert evidence based on an examination of the patient when conducting a review of that patient’s mental condition. This is potentially relevant to any case where the patient has an unstable mental condition or where his capacity may fluctuate.