Judge: ECtHR (Fifth section)
Citation: (Application no. 32863/05)
Summary: Between July 2005 and January 2006, L.M., who suffered from a psychotic disorder, was admitted to closed and open wards in two psychiatric hospitals. The Strasbourg Court found violations of Article 5(1) with regard to her confinement in the open ward of the Ljubljana Psychiatric Hospital and her involuntary confinement in the closed wards of both hospitals. There were also violations of Articles 5(2), 5(4), 5(4) and 8.
Open ward of the Ljubljana Psychiatric Hospital
L.M. spent four months and sixteen days in the open ward. She had been transferred from the closed ward in hospital pyjamas, with her clothes not being returned to her for ten days thereafter. With the legal proceedings concerning the closed ward admission still ongoing, she was given the impression that she was not allowed to leave or that she might be brought back by force. She had to get permission from staff to leave the ward. But she was able to spend a few hours on leave on 20, 23 24, 27 and 28 October, and 9, 11, 13 and 30 November 2005, during which time her psychiatrists noted that she was disciplined in her outings and always returned to hospital at the designated time. Towards the latter half of her stay, she was able to spend some weekends at her father’s home, on condition that he would take her and supervise her medication.
Finding that L.M. had been deprived of her liberty during this period, the Court observed that “that the general setting of control exercised by the hospital staff exceeded considerably the measures required to monitor the applicant’s comings and goings”. It reiterated that the applicability of Article 5 did not depend solely on whether she was held in a “locked” ward but on whether the healthcare professionals exercised complete and effective control and supervision over her care and movements. Resonating with HL v United Kingdom, Article 5(1) was breached for the following reasons:
“135. The Court notes that the parties were in agreement as to the absence of any formal procedure for admissions to and medical treatment in open wards of psychiatric hospitals at the material time. There existed no regulatory framework, written or unwritten, which would determine the conditions of the applicant’s confinement in the open ward, such as the reasons for which it could be ordered, the medical evidence that should be obtained in this regard, the time-limits of confinement, or which authority was competent to decide thereupon, and nor was there any regulation of the medical treatment administered during confinement. This absence of any legal provision justifying the applicant’s confinement was, again, clearly at variance with the requirements of legal certainty and the protection from arbitrariness.”
Closed wards of both hospitals
Under Slovenian law, hospitals had to inform the local court within forty-eight hours of an involuntary admission. A person was defined as “involuntary” if either they had capacity to express their wishes and were unwilling to consent, or they lacked capacity to express their wishes, or they were a minor or legally incompetent. The local court was then required promptly, but no later than three days after receiving notification, to visit the person and to order their examination by an independent psychiatrist. A decision as to the necessity of the confinement was required without delay, but no later than thirty days after receiving notification.
In essence, moving L.M. from the closed to the open wards had the effect of disrupting the involuntary confinement proceedings. It meant that the local court did not determine the necessity for confinement and allowed for possible abuses of psychiatric confinement. The lack of adequate safeguards and legal certainty failed to protect her from arbitrariness contrary to Article 5(1).
The Court reiterated well-established principles that those deprived of liberty must be told in simple, non-technical language that she can understand, the essential legal and factual grounds in order to be able to make effective use of her right to have the lawfulness of her detention decided speedily. If she is unable to understand her situation, the information about the confinement and its implications should be given to her representative. The Court held that a four-day interval and an eight-day interval between the confinement and the giving of reasons were not sufficiently prompt and in breach of Article 5(2).
After helpfully restating the general principles (paragraphs 152-155), the Court held that Article 5(4) had been breached, principally because the local courts had not determined the legality of L.M.’s confinement following her transfer from the closed to open wards:
“158 … [O]nce the applicant was no longer considered deprived of her liberty under domestic law, she was unable to obtain a decision on the lawfulness of her earlier confinement. In this regard, the Court reiterates that, even assuming that the applicant was no longer involuntarily confined, she would still be entitled to obtain a decision on the lawfulness of her earlier confinement…”
Noting – importantly – that not actively resisting medication cannot alone be considered as indicative of consent, the Court held that L.M. had clearly expressed an objection to receiving treatment which thereby interfered with Article 8. To be compatible with the rule of law, the forced administration of medication (in this case antipsychotics) required proper legal safeguards against arbitrariness which were found wanting. She had been deprived “of any effective procedural possibility, judicial or otherwise, of influencing the course of her treatment or having it reviewed by an independent authority” (see X v. Finland, § 220).
Finding also a breach of Article 5(5), L.M. was awarded EUR 10,000 for non-pecuniary damage and costs.
Comment: This Slovenian Bournewoodesque case is of interest in four respects. First, it illustrates how a hospital patient on an open ward can be considered deprived of liberty despite being able to spend hours, sometimes weekends, in the community. We note that L.M.’s inadequately detailed claim that she was de facto deprived for four days in the open ward of the Idrija hospital was rejected; the difference perhaps being that the hospital was not intent on preventing her from leaving and she did in fact leave at her own request (paragraph 97-98).
Second, there may be a parallel problem between the Slovenian procedure and s.4B of the Mental Capacity Act 2005. The former required the local court to determine the necessity for confinement within thirty days from being first notified of the confinement. The Strasbourg Court held:
“125 … even assuming that the rules of domestic law were complied with, the Court considers that the legislation allowing for such an extensive amount of time to pass before a decision was made on confinement raises serious concerns under Article 5 § 1, as it implies a lack of procedural safeguards.
126 … the Court considers that while the applicant’s mental condition might have justifiably been considered by the hospital staff to necessitate urgent hospitalisation, the initial decision made by them to confine her should have been replaced by a decision of the competent authority, that is, the local court, in the shortest possible time.” (emphasis added)
MCA s.4B authorises a deprivation of liberty if, inter alia, it is necessary to prevent a serious deterioration in P’s condition while a decision is sought from the Court of Protection. This provides an important breathing space between the deprivation occurring and the decision of the competent authority as to its necessity. However, it contains no time limit. Indeed, it can take weeks – sometimes months – before the Court determines the necessity for a deprivation of liberty, even on an interim basis with sufficient evidence of the relevant matters having been filed. L.M. v Slovenia demonstrates that a thirty-day breathing space implies a lack of procedural safeguards and that a more speedy judicial process is required to prevent arbitrariness. Hopefully the anticipated decision of the President will overcome this.
Third, paragraph 158 may serve to assist those who wish to challenge the legality of a MCA Schedule A1 authorisation after it has been terminated. If they are “entitled to obtain a decision on the lawfulness of [their] earlier confinement”, this clearly raises issues regarding regulation 5(g)(ii)(aa) of the Civil Legal Aid (Financial Resources and Payment for Services) Regulations 2013 (SI 2013/480) which exempts P or their RPR from means tested legal aid but only if “an authorisation is in force” under Schedule A1. Whether this should read “is or was in force” may need to be reconsidered in due course.
Finally, building on the decision of X v Finland, we note that vulnerability to challenge of s.63 of the Mental Health Act 1983. With some minor exceptions, involuntary hospitalisation of a psychiatric patient for more than 72 hours under the MHA contains an automatic authorisation to treat their mental disorder, even against their capacitous will (aside from electro-convulsive therapy). No consent or second opinion is required. No assessment of capacity or, if found wanting, of best interests is required on a literal reading. This would now clearly appear to be at odds with Article 8. To minimise the risk of such a breach, strict adherence to the MHA Code of Practice paragraphs 23.37 and 23.41 and to the MCA Code of Practice paragraph 13.30 is therefore required.