Martinez Fernandez v Hungary – 30814/22 (Article 5 – Right to liberty and security – Involuntary detention and treatment of an elderly woman with dementia: Second Section)

This case is of interest to litigation friends in the Court of Protection. An elderly woman with moderate dementia was living at home with 24-hour supervision provided by her family and paid carer. She was urgently admitted to hospital feeling unwell and detained in a psychiatric hospital for 6 days. Although she had authorised her son under a power of attorney to represent her during the court review of her hospitalisation, this did not relieve the court-appointed guardian ad litem (ie litigation friend) to represent her interests. There were issues regarding the effectiveness of her legal representation and the impact of sedative medication on her ability to meaningfully participate in what was a 17-minute court hearing.

(i) Legal representation

The court noted that the general principles with regard to the deprivation of liberty of persons with mental health issues were summarised in Rooman v. Belgium ([GC], no. 18052/11, §§ 190-93, 31 January 2019) and Denis and Irvine v. Belgium ([GC], nos. 62819/17 and 63921/17, §§ 134-137, 1 June 2021). Specifically in relation to legal representation it observed:

58… Effective participation means, among other things, being able to put forward matters in support of a person’s claims… Mental health issues may entail restricting or modifying the manner of exercise of that participation, but they cannot justify impairing the very essence of it, except in very exceptional circumstances, when the person concerned is entirely unable to express a coherent view or give proper instructions to a lawyer…

59… The Court reiterates that the mere appointment of a lawyer who does not actually provide legal assistance in the proceedings does not satisfy the requirements of necessary “legal assistance” for persons deprived of their liberty under the head of “unsound mind”, under Article 5 § 1 (e) of the Convention… Meaningful contact between the representative and the applicant is crucial in order to ensure that her legitimate interests are protected and that all her arguments are put and tested, in an adversarial manner. In addition, effective legal representation of persons with disabilities requires an enhanced duty of supervision of their legal representatives by the competent domestic courts…

The court had “serious doubts that the guardian was able to provide sufficient meaningful information to the applicant”:

65.  In any event, the Court considers that the role of the representative is twofold: not only to inform the person of her rights and to advise her on the most appropriate course of action, but also to explore her wishes and to seek her instructions in order to defend effectively her position and safeguard her interests throughout the proceedings.

The guardian failed to visit her before the hearing, as required by domestic law, and there was no indication that he had familiarised himself with her situation or circumstances. Although physically present at the hearing, he made no submissions on her behalf and at the end endorsed the hospital’s request for involuntary hospitalisation, considering it was necessary for protecting her health. [66] The court noted that the “underperformance of guardians ad litem is a systemic problem” in Hungary and contrary to their statutory purpose and role:

68. The Court emphasises that such attitude is also incompatible with the requirement of effective legal representation under the Convention. The Court has already underlined in previous cases that the mere appointment of a lawyer who does not provide legal assistance in the proceedings does not satisfy the requirements of necessary “legal assistance” under Article 5 § 1 (e) of the Convention (see cases cited in paragraph 59 above). The Court has also emphasised that effective representation in cases of this type requires meaningful communication between the representative and the represented person and that the domestic courts exercise close supervision of the legal representatives.

69. However, these requirements were not met in the present case. The Court finds that the guardian ad litem unconditionally endorsed the hospital’s application without attempting to understand and represent the applicant’s wishes. This was a serious defect in her representation in which domestic courts saw no fault and which they made no attempt to remedy.

(ii) Meaningful participation

As well as the shortcomings in her legal representation, the court further doubted whether, given the tranquilising medication given for restlessness and agitation, the authorities had paid sufficient attention to facilitating her meaningful participation in the proceedings:

73. The Court is aware that the primary aim of therapy following a patient’s admission is to eliminate his or her perceived immediately dangerous behaviour (see paragraph 25 above). However, it observes that if a patient is given tranquillising medication on or after admission, that may not only make it difficult for the court to benefit from hearing the patient in person so as to properly assess his or her current mental state and conduct, but also may make it difficult for the patient to communicate with his or her representative and to participate actively in the proceedings. Consequently, the issue of medication and its effects requires careful consideration by both mental health professionals and the courts, but the Court sees no evidence that this has been done in the present case.

Accordingly, the court held that the domestic authorities’ failure to comply with their own procedural requirements breached Article 5(1)(e) and awarded EUR 4000 (compensation) and EUR 5000 legal costs and expenses.

Analysis

This is a helpful European reminder of how important it is for litigation friends to safeguard P’s interests throughout the proceedings by understanding and ascertaining P’s wishes, to ensure that they are P’s litigation friend, not foe. For a detailed discussion of the issues, see this free academic paper to which Alex and Neil contributed. The case also raises interesting questions, rather than answers, as to the impact of sedative medication on participation in court proceedings. At the least, it requires “careful consideration”, both to properly assess the person’s mental state and their ability to communicate with the legal representative.