ECHR 63 (Application No 33117/02)
Mental capacity – assessing capacity
In these proceedings, the European Court of Human Rights considered a challenge by Mr Lashin, who suffered from schizophrenia, against the decision of the Omsk Regional Court in August 2000 upholding a finding that he lacked capacity. Following that decision, Mr Lashin had sought on more than one occasion and with the support of his father who had been appointed as his guardian, to have his capacity restored. However, this was repeatedly declined.
In 2002, the applicant was admitted to hospital. His father was subsequently stripped of his status as legal guardian, partly as he had unsuccessfully tried to confer that appointment by way of power of attorney on a third party, but also on the basis that the applicant had not received appropriate medical treatment and his condition had worsened. The applicant nonetheless again challenged his hospitalisation and demanded a re-examination by independent experts. However, in December 2002, the hospital was appointed as Mr Lashin’s guardian and, acting in this capacity revoked its request for authorisation to confine the applicant. The Court closed the proceedings without a hearing on the grounds that the applicant was thereafter treated as a voluntary patient and his only legal guardian was no longer presenting a dispute.
The applicant submitted that his inability to have his legal capacity reviewed breached his rights under Article 8 of the Convention. He further challenged the manner in which the decisions that he lacked capacity had been taken up until December 2002, namely in his absence and without an examination by an independent panel of experts as the applicant had himself requested.
The government accepted that, in principle, the decision that a person lacks capacity can amount to an interference with their rights under Article 8 ECHR. However, given Mr Lashin’s schizophrenia, it maintained the decision was necessary and proportionate in the circumstances.
As regards the complaints arising from the decisions that he lacked capacity up until December 2002, the Court held the following:
- a decision that a person lacks capacity can infringe their rights under Article 8 ECHR, applying Matter v. Slovakia, no. 31534/96, § 68, 5 July 1999, and Shtukaturov v. Russia, no. 44009/05, § 83, ECHR 2008;
- depriving someone of his legal capacity and maintaining that status may pursue a number of legitimate aims, such as to protect the interests of the person affected by the measure. In deciding whether legal capacity may be restored, and to what extent, the national authorities have a certain margin of appreciation. It is in the first place for the national courts to evaluate the evidence before them; the Court’s task is to review under the Convention the decisions of those authorities, Winterwerp v. the Netherlands, 24 October 1979, § 40, Series A no. 33; Luberti v. Italy, 23 February 1984, Series A no. 75, § 27; and Shtukaturov v. Russia, § 67);
- the extent of the State’s margin of appreciation in this context depends on two major factors. First, where the measure under examination has such a drastic effect on the applicant’s personal autonomy (as in the case of Mr Lashin) the Court is prepared to subject the reasoning of the domestic authorities to a somewhat stricter scrutiny. Second, the Court will pay special attention to the quality of the domestic procedure. Whilst 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 of the interests safeguarded by Article 8 (see Görgülü v. Germany, no. 74969/01, § 52, 26 February 2004).
On the facts, the ECtHR found that the decision not to restore Mr Lashin’s capacity was taken without seeing him or hearing from him. Whilst the Court accepted that there were possible exceptions from the "rule" of personal presence, it noted (at paragraph 82) that a departure from this rule is possible only where the domestic court carefully examined this issue. This was not the case on the facts before it, and the Court noted (ibid) that "a simple assumption that a person suffering from schizophrenia must be excluded from the proceedings is not sufficient."
A second aspect of concern was the failure to commission a fresh psychiatric assessment. More than a year and a half had elapsed since the original assessment and the applicant had requested that his mental condition be re-evaluated. Where the opinion of an expert is likely to play a decisive role in the proceedings, as in the case at hand, the Court found (at paragraph 87) that expert’s neutrality becomes an important requirement which should be given due consideration. Lack of neutrality may result in a violation of the equality of arms guarantee under Article 6 of the Convention. An expert’s neutrality is equally important in the context of incapacitation proceedings, where the person’s most basic rights under Article 8 are at stake.
The Court concluded that the confirmation of the applicant’s incapacity status in 2002 based on the report of 2000 breached his rights under Article 8.
In relation to the applicant’s alleged inability to have his mental capacity reviewed, the Court reiterated the need for periodic reassessment given that "it is recognised that in the vast majority of cases where the ability of a person to reason and to act rationally is affected by a mental illness, his situation is subject to change" (paragraph 97).
The Court cited its decision in Stanev, in which the Court had observed that "there is now a trend at European level towards granting legally incapacitated persons direct access to the courts to seek restoration of their capacity" (§ 243), and noted that in Russia at the time the law neither provided for an automatic review nor for a direct access to the court for an incapacitated person. In those circumstances, the applicant was fully dependant on his guardian in this respect. Where, as in the present case, the guardian opposed the review of the status of his ward, the latter had no effective legal remedy to challenge the status. Having regard to what was at stake for the applicant, the Court concluded that his inability for a considerable period of time to assert his rights under Article 8 was incompatible with the requirements of that provision of the Convention. Consequently, there was a violation of Article 8 of the Convention.
The facts giving rise to this claim were extreme and the procedural history indicates that the applicant had tried to avail himself of many different avenues to challenge the finding as to his lack of capacity. Moreover, and reiterating a point that we have addressed previously, caution must be exercised before reading across too directly dicta from decisions reached in the context of legal systems where capacity is a matter of status.
However, too much can be made of the difference between ‘status’ based systems and that enshrined in the MCA 2005. After all, a decision that P lacks capacity in one or more respects gives the Court of Protection a wide-ranging jurisdiction to take decisions in P’s best interests as regards those matters. Alternatively, in the case of (for instance) sexual relations, a decision by the Court of Protection that P lacks the capacity to consent to such relations, represents a significant – if no doubt justified – legal circumscription of P’s autonomy.
In the circumstances, this decision is of relevance to English practitioners because the Court chose to examine the issue of the steps taken by the Courts regarding the applicant’s capacity by reference to Article 8 as opposed to Article 6 (as in X and Y v Croatia (Application No. 5193/90, decision of 3.11.11)). The approach taken was, however, essentially identical to that adopted in X and Y and indicates the concern that the Court is manifesting to ensure that decisions relating to the capacity of adults are reached after due consideration - and following a ‘rule’ of personal presence to be departed from only after the domestic Court has made a specific investigation of whether so to depart.
The emphasis upon Article 8 is of importance because of the relationship identified by the Court between an individual’s capacity and their ability to enjoy their private life. It chimes also with the emphasis placed by the Court upon Article 8 in the context of those deprived of their liberty in psychiatric institutions: see Munjaz v United Kingdom (Application No. 2913/06, decision of 17.7.12)
It is also of note that the Court highlighted the imperative of updated neutral expert evidence based on an examination of the patient when conducting a review of that patient’s mental condition. This is potentially relevant to any case where the patient has an unstable mental condition or where his capacity may fluctuate. Mihailovs v Latvia  ECHR 65 (Application no. 35939/10)
Article 5 ECHR – deprivation of liberty
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 Īle and then in Lielbērze after it was relocated in 2010. M claimed he was detained against his will and numerous applications for his release were refused.
Centre in Īle
There was a factual dispute between M and the government as to whether the centre in Īle 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 Īle 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 Īle.
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 Īle 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 Lielbērze
However, the Court declined to find that M was deprived of his liberty from 2010 onwards, after the centre relocated to Lielbērze. 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 Lielbērze 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 Lielbērze); 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 Īle). The Court concluded (at paragraph 139):
"These factors, in contrast to those [pertaining at the centre in Īle] are sufficient for the Court to consider that the Government have shown that the applicant had tacitly agreed to stay in the Īle Centre in Lielbērze. 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 Īle Centre in Lielbērze."
No separate issues were found to arise under Article 8.
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 Īle, 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 Lielbērze. 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 Lielbērze, 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.