Shakulina & Ors v Russia
Summary
This case concerned six Russians who had been deprived of their capacity; four complained of serious irregularities in the court proceedings whereby they had been deprived of their legal capacity. One applicant also complained of her involuntary confinement in a psychiatric facility.
Articles 6 and 8 ECHR
The Strasbourg court took the opportunity to undertake a useful recap of the provisions of Articles 8 ECHR in the context of deprivation of legal capacity, emphasising that such constitutes a serious interference with a person's private life, leading (in the applicants' case) to the loss of their "autonomy in almost all spheres of their life for an indefinite period of time."
Whilst the ECtHR emphasised that "in such a complex matter as determining someone's mental capacity, the national authorities should have a wide margin of appreciation because they have the benefit of direct contact with the persons concerned and are therefore particularly well placed to determine such issues," the court reminded us that the extent of the State's margin of appreciation depends on two major factors:
- the nature of the issues and the importance of the interests at stake. Thus, very serious limitations in the sphere of private life or restrictions on the fundamental rights of a particularly vulnerable social group may warrant stricter scrutiny.
- the quality of the domestic procedure which resulted in the interference. Although 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 for the interests safeguarded by Article 8.
- whether or not the person concerned had had a possibility to participate personally and/or had had some form of representation in the incapacitation proceedings;
- whether the person concerned had been able to appeal against the incapacitation decision;
- whether, after the lapse of a certain period of time, an automatic review of the legal status or direct access to the court had been available to incapacitated people; and
- whether the experts assessing the state of health of the incapacitated people had been neutral.
- the national courts had relied on an up-to-date medical expert report;
- whether the medical experts and subsequently the national courts had not only found the existence of a mental disorder, but had also assessed the nature or degree of the disorder as warranting legal incapacitation; and
- whether the national courts had examined evidence other than the medical expert report and analysed other factors in their determination of a person's legal capacity.
Applying those principles to the cases before it, and on facts that are not directly relevant for our purposes, the court had little hesitation in finding that the Article 8 rights of the individuals concerned had been breached. The court further noted that noted that the different nature of the interests protected by Articles 6 and 8 of the Convention may require separate examination of the claims lodged under these provisions, but that in the present cases having regard to the findings under Article about procedural defects in the incapacitation proceedings it was not necessary to consider Article 6 separately.
Article 5
Ms Shakulina also complained of her involuntary psychiatric confinement. An emergency doctor had ordered the her urgent hospitalisation on account of her deteriorating state of health. In particular, she had been living in insanitary conditions, had not been paying utility charges, had been using an open fire, had been cooking on a radiator, and had delusional ideas about her neighbours. Her brother, who was her legal guardian at the time, consented to her hospitalisation. The psychiatric hospital then became her guardian, and consented to the hospitalisation. She was then subsequently detained on the basis of an order of the District Court, acting on expert opinion to the effect that she had schizophrenia.
In a further addition to the small but important body on the nature of consent to confinement (analysed in Alex's paper here), the court noted that it appeared that the government was claiming the applicant's treatment in the psychiatric hospital had been voluntary because her guardians had consented to it and that, thus, the applicant was not deprived of her liberty within the meaning of Article 5(1) of the Convention. Relying on its analysis in the earlier Shtukaturov case, the court found that: "even though the applicant was legally incapacitated, it did not preclude her from understanding her situation and expressing her opinion on the matter [and that] she was able to understand her situation and did not agree to her psychiatric confinement. Therefore, she was deprived of her liberty for the purposes of Article 5 § 1 of the Convention."
Whilst the court found that Ms Shakulina was undeniably suffering from a mental disorder and thus could be considered "a person of unsound mind," there had not been any proper analysis of the kind or degree of the applicant's mental disorder and a number of serious procedural defects in the judicial authorisation of her continued involuntary psychiatric confinement. Her deprivation of liberty was therefore unlawful.
Comment
On one view, the observations of the court in relation to incapacitation relate to a far-off legal procedure of which we know little. However, the reality is that appointment of a deputy under the MCA or a guardian under the Adults with Incapacity Act may[1] have the effect of amounting to legal incapacitation of the individual in question, at least in respect of all decisions within the scope of the deputy/guardian's authority.
This judgment should again make us ask whether the changes in the Court of Protection Rules in (now) rule 1, introducing the menu of options for P's participation – which were introduced in large part in response to the earlier case-law of the court – go far enough? And what of the position in Scotland in relation to guardianship applications?
This judgment is also of interest for the fact that no reference is made to the CRPD, despite the fact that the case was brought by the admirable MDAC (now Validity), who have been assiduous in other cases in highlighting its provisions. In any event, however, the judgment does not suggest that the Strasbourg court considers that measures to remove or limit legal capacity on the basis of (in CRPD terms) psychosocial disability are per se unlawful. Rather, the court proceeds on the basis that they constitute a serious interference with the rights of the individual, must proceed on the basis of proper evidence and suitable procedural protections, and, crucially, represent a tailor-made solution to the circumstances of the individual. It would be interesting to see how the Strasbourg court reacted to the provisions of s.5 MCA 2005 which, as they stand, represents both a much less draconian – and more tailor-made – way of responding to temporary or permanent impairment of capacity, but, conversely, a measure which is surrounded with very few procedural safeguards.
Finally, it is difficult when reading the discussion of whether Ms Shakulina was consenting to her confinement not to have in mind the recent blog by Mark Neary about the capacity assessment being undertaken for his son for purposes of the 'community DOLS' application being prepared by Hillingdon. If the 'test' that was being set was whether was able to express a view on the matter, one might think that he both could and does – and that, on this test, he should not be considered to be deprived of his liberty.
[1] We say "may" because we note that Strasbourg appeared to consider that that the Finnish system, which allows for a "mentor" to represent a "ward" in relation to matters pertaining to their person only where the latter is "unable to understand its significance" did not amount to a deprivation of restriction of legal capacity, because "the interference with the applicant's freedom to choose where and with whom to live that resulted from the appointment and retention of a mentor for him was therefore solely contingent on the determination that the applicant was unable to understand the significance of that particular issue. This determination in turn depended on the assessment of the applicant's intellectual capacity in conjunction with and in relation to all the aspects of that specific issue." (AM-V v Finland [2017] ECHR 273).
