Mental Capacity Case

Mihailovs v Latvia

ECtHR, Fourth Section

Summary: M challenged his confinement at a centre for people with mental disorders in Latvia on the grounds that it violated Articles 5 and 8 ECHR. A psychiatric examination in 2000 concluded that M was suffering from epilepsy with psychotic syndromes and symptoms but was not suffering from a mental illness. In 2002 he was admitted to the centre following an application made by his guardian. He had remained at the centre since that time, first in ?le and then in Lielb?rze after it was relocated in 2010. M claimed he was detained against his will and numerous applications for his release were refused.

Centre in Ile - There was a factual dispute between M and the government as to whether the centre in Ile was "open" or "closed" in nature. The Court emphasised that this question was not determinative of the issue and reiterated that the key factor was whether the management of the centre exercised "complete and effective control over his treatment, care, residence and movement" (at paragraph 131). The Court concluded the objective limb of the test was met as M was under constant supervision and was not free to leave the institution without permission whenever he wished (at paragraph 132).

In relation to the subjective element of the test, the Court reiterated (paragraph 134) the statement first made in Shtukaturov (Application No. 44009/05, decision of 27.3.08) that the fact that a person lacks de jure legal capacity to decide matters for himself does not necessarily mean that are de facto unable to understand their situation. It found that M was a person whose true wishes and feelings it was possible to ascertain. The Court recorded that the documents presented to the court showed that M "subjectively perceived his compulsory admission to the ?le Centre as a deprivation of liberty" (at paragraph 134), having never regarded his admission as consensual and having objected to it during his stay there. The Court accordingly found that M was deprived of his liberty at the centre in ?le.

The government failed to satisfy the Court that the conditions in Article 5(1)(e) were met as it had not proved the existence of "objective medical opinion" that M was suffering from a "true" mental disorder at the time he was placed in the centre (at paragraphs 147-148). The Court observed that the other requirements of Article 5(1)(e) were not met as it was not clear that M posed any danger to himself or others or would not submit to treatment voluntarily and insufficient consideration given to other less restrictive means of social assistance and care (at paragraph 149).

The Court went on to find that Article 5(4) was breached during M's time in Ile as the regulatory framework for placing individuals in social care centres did not provide the necessary safeguards and he was prevented from pursuing any legal remedy of a judicial character to challenge his continued "involuntary institutionalisation" (at paragraphs 151 and 156).

Centre in Lielberze - However, the Court declined to find that M was deprived of his liberty from 2010 onwards, after the centre relocated to Lielberze. It rejected this aspect of his claim (addressing both the objective and subjective elements together), on the basis that M had acknowledged the centre at Lielberze was an "open institution;" had refused to move to another branch of the centre (saying that he was satisfied with his stay at the centre in Lielberze); was able to leave the centre on several occasions and did not approach any domestic authority with a view to obtaining his release or complaining about any breaches of his rights (which he had done whilst at the centre in Ile). The Court concluded (at paragraph 139):   "These factors, in contrast to those [pertaining at the centre in Ile] are sufficient for the Court to consider that the Government have shown that the applicant had tacitly agreed to stay in the Ile Centre in Lielberze. The Court would add, in this respect, that it is not without importance that the applicant's representative conceded that the applicant's complaints related to the events in the past, thereby implicitly confirming that he did not have any objections to the current state of affairs in the Ile Centre in Lielberze."

No separagraphte issues were found to arise under Article 8.

Comment: This case is perhaps noteworthy, in the first instance, not so much for the conclusion that M was deprived of his liberty at the centre in Ile, as this was largely for the reasons given in Stanev v Bulgaria, Grand Chamber (Application No. 36760/06), but for the conclusion that M was not deprived of his liberty at the Centre in Lielberze. It is not entirely clear upon what basis this conclusion was reached because of the way in which the Court approached the objective and subjective elements compendiously; it appears, though, that the Court's primary reason for finding there to have been no deprivation of liberty was that the subjective element was not made out.

Whilst M had perhaps been less vociferous in his objections to remaining at the centre in Lielb?rze, and may have found it preferable to being moved to another branch of the centre, there may be some room for doubt as to whether he in fact wished to stay there. The Court's finding that M had tacitly accepted his placement is, in this respect, difficult to square with efforts that had been made (though possibly not fully pursued) by his newly-appointed guardian for M to be allowed to leave the centre (see for example paragraphs 50 and 51). Considering the weight that the Court attached to M's representative agreeing that his complaints related to events in the past, there is perhaps a lesson here for all lawyers not to concede any potentially material point lightly!

More broadly, perhaps, the decision raises the question of precisely how the European Court of Human Rights is currently interpreting the subjective element of the Article 5 trinity, namely that the person has not validly consented to the confinement in question (Storck v Germany (2006) 43 EHRR 6). The Court has consistently referred back to the HL v UK judgment in its recent jurisprudence, describing it – accurately – as a case where "the applicant was an adult legally incapable of giving his consent to admission to a psychiatric hospital, which, nonetheless, he had never attempted to leave" (paragraph 129 of M's case). The Court in HL was not impressed with arguments based upon Mr L's compliance – and indeed, it was precisely because it found that the arrangements for the treatment of the compliant incapacitated were not in compliance with Article 5 that it was necessary for the DOLS regime to be enacted. The Court has also emphasised (in Stanev at paragraph 119), and relying on HL that it has "held that the right to liberty is too important in a democratic society for a person to lose the benefit of Convention protection for the single reason that he may have given himself up to be taken into detention especially when it is not disputed that that person is legally incapable of consenting to, or disagreeing with, the proposed action."

In the circumstances, therefore, it seems at first sight curious that the Court now appears to be examining whether or not individuals who are considered by their own legal systems to lack the requisite capacity to decide upon their living arrangements are or are not content with those arrangements.

The answer, we would suggest, is that in all the recent cases in which the Court has undertaken this exercise, the Court has been concerned with a status-based system, where the person can be wholly or partially divested of legal capacity by an appropriate body (often, it would appear, in circumstances which have caused considerable concern to the Court). In such instances, the Court has therefore been at pains to secure as effective as possible a respect for the autonomy of the individual in question by allowing the possibility that, notwithstanding the fact that they have been formally divested of their capacity, they may still be in a position to understand their position and to act upon that understanding. This requires the Court - in essence - to undertake a rudimentary capacity assessment of its own in relation to the specific question of whether the person has capacity to consent to the confinement in question (or, to use the Court's words, express their "true wishes and preferences"). Depending on the result of that assessment, the Court can then decide whether or not the person has 'validly consented' to their confinement.

Conversely, in the English system, where capacity is issue specific, we would suggest that the question of whether or not the subjective element is satisfied can be equated directly with the question of whether the person has capacity to decide whether to be accommodated in the place in question (and there to be subject to the restrictions which, objectively, amount to a deprivation of their liberty). In other words, for purposes of Schedule A1, a person who meets the mental capacity requirement set down in paragraph 15 is by definition a person who cannot validly consent to the confinement in question, even if they are compliant.