DR v Lithuania
A lady in her 60s was ordered by a court to be subject to a psychiatric assessment to consider her criminal responsibility for an alleged offence. She was taken in handcuffs by police to a court psychiatric centre around 110 kilometres away, assessed, and released the same day. This breached Article 5(1)(b) as the court order had not authorised that deprivation of liberty.
Two months later, the District Court ordered that she be involuntarily detained for compulsory psychiatric treatment and this decision was upheld on appeal by the Regional Court. These decisions were based upon psychiatric evidence showing her to be of unsound mind, namely chronic schizo-affective disorder with a type of mania. But she was not examined in person by the court and, although legally represented, she was effectively excluded from personally participating in the proceedings:
91 … the Court underlines that the proceedings in question concerned the assessment of the applicant's mental condition, and thus she was not only an interested party, but also the main object of the court's examination. Her participation was therefore necessary not only to enable her to present her own case, but also to allow the judge to form a personal opinion about her mental capacity ... It further notes that there is no indication that at the relevant time the applicant's mental condition was of such a degree that her personal participation in the proceedings would have been meaningless ... The Court finds it particularly important to note that the applicant sent a letter to the TauragÄ District Court, asking to be given an opportunity to attend the hearing in her case …. However, she did not receive any response from that court. No reasons - medical or otherwise - for disregarding the applicant's wish to participate at the hearing were provided in the TauragÄ District Court's decision …. The Government were unable to provide an explanation as to why the TauragÄ District Court had not replied to the applicant's letter …."
It was held that the domestic courts did not adequately demonstrate that her condition was such as to require compulsory treatment when the decisions to hospitalise her were made. There was an at best superficial judicial analysis of the criteria for detention:
- In this connection, the Court cannot fail to notice that the decisions of the TauragÄ District Court and the KlaipÄda Regional Court were each only a few pages long (see paragraphs 28 and 32 above). They essentially reiterated the conclusions of the psychiatric assessment, without providing any independent analysis of the necessity of the applicant's hospitalisation. The Court finds it especially disconcerting that the domestic courts did not in substance address any of the applicant's and her lawyer's arguments. In particular, the KlaipÄda Regional Court stated that "the arguments in [the applicant's] appeal confirm[ed] that she [could not] critically assess her disorder [and did] not understand the danger posed by her mental condition, nor the need for treatment" (see paragraph 32 above). In the Court's view, such circular reasoning - according to which a person's reluctance to undergo psychiatric hospitalisation demonstrates his or her inability to appreciate his or her condition and thereby yields yet another reason for involuntary hospitalisation - is incompatible with the principle of effective protection of Convention rights (see PlesÃ³ v. Hungary, no. 41242/08, § 67, 2 October 2012)."
This decision emphasises the importance of enabling the person to in judicial procedures which authorise their deprivation of liberty. Not only is this necessary to enable the person to present their own case if they wish to; it also enables the judge to form their own view of the person's mental capacity. Secondly, it illustrates how important it is for the court to independently analyse the necessity – and we would suggest the proportionality – of the proposed deprivation of liberty. Perfunctory scrutiny cannot be expected to be legally valid.
What are the implications, if any, for COPDOL11/Re X process? It certainly suggests that there should be clear reasons given as to why the deprivation of liberty is required – and throws into question whether the standard recitals on the face of the orders made suffice.
We would suggest that this decision does not automatically require Court of Protection judges to personally examine P's mental capacity. But it does illustrate the importance of the consultation Annexes to Form COPDOL11. If P does wish to see the judge, or otherwise participate, this case demonstrates that P should not be excluded. Indeed, personal participation in detention proceedings would rarely, we suggest, be "meaningless". For if P wants to participate, participation has inherent meaning and the focus must be on making necessary arrangements to enable that to happen.
There is a passing reference by the court to Article 14 CRPD but nothing in the merits analysis. But what is of interest are the criticisms relating to the circular reasoning of the domestic courts. After all, how often is a person's denial of the need for treatment relied upon as a further reason to detain them? What some might call the "insight justification". Indeed, the court's reference to PlesÃ³ is a reference to the concept of insight, where the court previously held:
67 … In this refusal [to undergo hospitalisation], [the domestic courts] perceived proof of his lack of insight into his condition – rather than the exercise of his right to self-determination – which, in those courts' view, entailed the risk of his health declining. For the Court, to accept this line of reasoning would be tantamount to acquiescing in a circular argument, according to which a person reluctant to undergo psychiatric hospitalisation would thereby demonstrate his inability to appreciate his own condition and the risk of its potential worsening – which would yield yet another reason for his involuntary treatment. The Court finds that this kind of handling of such cases is incompatible with the principle of effective protection of Convention rights.