Article 5 ECHR - deprivation of liberty – practice and procedure – other
This case – rightly described by the Mental Disability Advocacy Centre as ‘Kafkaesque’ – concerned inter alia: (1) the removal of the applicant’s legal capacity; and (2) his detention in a psychiatric hospital. It merits mention in both regards.
The applicant – who had previously (but without his knowledge) been deprived of his legal capacity – was confined to a psychiatric hospital for 20 days without his consent. After 5 days, his confinement was confirmed by his guardian, the City of Brno. Relying on Stanev v Bulgaria, DD v Lithuania and Shtukaturov v. Russia, the Court found that the entirety of the period (unsurprisingly) constituted a deprivation of liberty within the meaning of Article 5(1) (paragraph 47), such that the question for the Court was whether the deprivation of liberty was lawful.
Whilst the Court accepted that there was sufficient medical evidence of the applicant’s mental disorder to satisfy the firstWinterwerp criteria, the Court found that the detention could not be considered lawful because there were insufficient safeguards against arbitrariness. The relevant Czech law deemed his admission to be voluntary as his guardian had consented, such that none of the protections against involuntary hospitalisation applied. In the circumstances, the Court observed that
"the only possible safeguard against arbitrariness in respect of the applicant’s detention was the requirement that his guardian, which was the City of Brno, consent to the detention. However, the guardian consented to the applicant’s detention without ever meeting or even consulting the applicant. Moreover, it has never been explained why it would have been impossible or inappropriate for the guardian to consult the applicant before taking this decision, as referred to in the relevant international standards (see Principle 9 [of Recommendation No. R (99) 4 of the Committee of Ministers of the Council of Europe on principles concerning the legal protection of incapable adults (adopted on 23 February 1999)]. Accordingly, the guardian’s consent did not constitute a sufficient safeguard against arbitrariness." (paragraph 68).
The Court went on to find that the applicant’s rights under Article 5(4) ECHR had been breached because (by virtue of the relevant Czech law) the domestic courts could not intervene in his confinement as he was deemed to be present there voluntarily given the consent given by his guardian.
Determination of incapacity
The applicant complained that the total removal of his legal capacity had interfered with his right to private and family life and that the proceedings depriving him of legal capacity suffered from procedural deficiencies. He relied on Articles 6 and 8 of the ECHR. The Court considered the complaint under Article 8, noting that it was common ground that the deprivation of his legal capacity constituted an interference with his private life within the meaning of Article 8 (paragraph 101).
The Court went on to set out the principles that governed the determination of mental capacity, thus:
"102. In such a complex matter as determining somebody’s mental capacity the authorities should enjoy a wide margin of appreciation. This is mostly explained by the fact that the national authorities have the benefit of direct contact with those concerned, and are therefore particularly well placed to determine such issues. However, 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. The extent of the State’s margin of appreciation thus depends on the quality of the decision-making process. If the procedure was seriously deficient in some respect, the conclusions of the domestic authorities are more open to criticism (see Shtukaturov, cited above, § 87-89). Regarding the procedural guarantees, the Court considers that there is a close affinity between the principles established under Articles 5 § 1 (e), 5 § 4, 6, and 8 of the Convention (see Shtukaturov, cited above, §§ 66 and 91).
103. Any deprivation or limitation of legal capacity must be based on sufficiently reliable and conclusive evidence. An expert medical report should explain what kind of actions the applicant is unable to understand or control and what the consequences of his illness are for his social life, health, pecuniary interests, and so on. The degree of the applicant’s incapacity should be addressed in sufficient detail by the medical reports (see Shtukaturov, cited above, §§ 93-94).
The Court held that the removal of the applicant’s capacity was disproportionate to the legitimate aim invoked by the Government (paragraph 104), but for our purposes, more relevant are the views expressed by the Court as to the procedure adopted, thus:
"107. The Court observes that the Municipal Court did not hear the applicant, either in the first round or the second round of proceedings, and indeed he was not even notified formally that the proceedings had been instituted (see Shtukaturov, cited above, §§ 69-73 and 91). The Court does not accept the Government’s argument that the applicant’s place of residence was unknown to the authorities and therefore it was difficult to deliver official mail to him. Nowhere in the case file is there anything to indicate that the Municipal Court made an attempt to inform the applicant of the proceedings and summon him to the hearings. In such circumstances it cannot be said that the judge had "had the benefit of direct contact with those concerned", which would normally call for judicial restraint on the part of this Court. The judge had no personal contact with the applicant (see X and Y v. Croatia, no. 5193/09, § 84, 3 November 2011).
108. As to the way in which the applicant was represented in the legal capacity proceedings, the Court is of the opinion that given what was at stake for him proper legal representation, including contact between the representative and the applicant, was necessary or even crucial in order to ensure that the proceedings would be really adversarial and the applicant’s legitimate interests protected (see D.D. v. Lithuania, cited above, § 122; Salontaji-Drobnjak v. Serbia, no. 36500/05, §§ 127 and 144, 13 October 2009; and Beiere v. Latvia, no. 30954/05, § 52, 29 November 2011). In the present case, however, the representative never met the applicant, did not make any submissions on his behalf and did not even participate at the hearings. She effectively took no part in the proceedings.
109. Moreover, the judgments were not served on the applicant (see X and Y v. Croatia, cited above, § 89). The judgments expressly stated that they would not be delivered to the applicant, with a simple reference to the opinion of the court-appointed expert, even though in her second report the expert in fact stated that a judgment could be sent to the applicant. Even at the hearing she did not give any warnings about adverse effects if the applicant received the judgment, but merely recommended not sending it because he would not understand it.
110. The Court, however, considers that being aware of a judgment depriving oneself of legal capacity is essential for effective access to remedies against such a serious interference with private life. Whilst there may be circumstances in which it is appropriate not to serve a judgment on the person whose capacity is being limited or removed, no such reasons were given in the present case and, indeed, in the present case, when the applicant was aware of the judgment and was able to appeal, his appeal was successful.
Therefore, had the Municipal Court respected the applicant’s right to receive the judgments, the interference would not have happened at all as the judgments would not have become final.
111. Finally, the Court observes that the 2004 decision was based only on the opinion of an expert who last examined the applicant in 1998 (see paragraph 9 above). In this context the Court cannot lose sight of the fact that development takes place in mental illness, as is also evidenced in the present case by the expert report on the applicant drawn up in 2007, on the basis of which the request to deprive the applicant of legal capacity was refused. Consequently, relying to a considerable extent on the medical examination of the applicant conducted six years earlier cannot form sufficiently reliable and conclusive evidence justifying such a serious interference with the applicant’s rights (see, mutatis mutandis, Stanev, cited above, § 156). The Court notes that the expert attempted to examine the applicant between 2002 and 2004, but he refused to cooperate. Nevertheless, in the absence of strong countervailing considerations, this fact alone is not enough to dispense with a recent medical report involving direct contact with the person concerned.
112. Overall, the Court considers that the procedure on the basis of which the Municipal Court deprived the applicant of legal capacity suffered from serious deficiencies, and that the evidence on which the decision was based was not sufficiently reliable and conclusive."
Deprivation of liberty
This case is perhaps of some assistance in teasing out the implications of a curious remark made by the European Court of Human Rights in the judgment in
Stanev where the Grand Chamber – considering the subjective element of deprivation of liberty – noted (at paragraph 110) that "there are situations where the wishes of a person with impaired mental faculties may validly be replaced by those of another person acting in the context of a protective measure and that it is sometimes difficult to ascertain the true wishes or preferences of the person concerned."
In its June 2012 discussion paper upon closing the Bournewood gap in Scotland, the Scottish Law Commission alighted upon this sentence:
"6.73 The relevance of consent to whether there is a deprivation of liberty at all has not featured to a great extent in any decision of the European Court. But the Court has commented on the possible role of a substitute decision-maker in this context:
‘The Court observes in this connection that there are situations where the wishes of a person with impaired mental faculties may validly be replaced by those of another person acting in the context of a protective measure and that it is sometimes difficult to ascertain the true wishes or preferences of the person concerned’.
It would appear that ‘valid replacement’ of the wishes of the person with incapacity would prevent the regime under which he or she is living from being a deprivation of liberty at all. It may therefore be that Scots law could make specific provision for the giving of consent by substitute decision-makers to care of a person with incapacity in conditions which, absent such consent, would amount to deprivation of liberty."
This suggestion is – frankly – somewhat alarming, not least because it would remove from the protection of Article 5 (and Article 5(4)) whole categories of people who are, objectively, deprived of their liberty. Whilst there is no equivalent move to introduce such a step into the MCA 2005 in England and Wales, we are aware of judicial mooting of the question of whether Courts could give such ‘substituted’ consent. The decision in Sýkora does not sit easily with the proposition that any substituted consent can serve to remove a deprivation of liberty from the scope of Article 5(1): if it had done so, the Court would have been considering the exercise by the guardian of their consent by reference to the question of whether there was a deprivation of liberty at all, rather than whether it could be justified.
The decision also shows that the exercise of any such substituted consent (whether exercised by a public body or, we would suggest, by a Court) would have to be surrounded by procedural safeguards to secure against the risk of arbitrariness.
Determination of incapacity
There have now been a series of cases (summarised in the extracts set out above) in which the Strasbourg Court has emphasised the importance of hearing from P in the context of determination of incapacity. All the cases have been decided in the context of legislative systems in which capacity is status based, rather than (as under the MCA) functional.2 The consequences of a declaration of partial or complete incapacity by a Court are therefore sweeping. However, the reality is that the consequence of a declaration by the Court of Protection that P lacks capacity to take one or more decisions establishes the basis for potentially serious (if justified) interferences with P’s autonomy. In the circumstances, it may well be that the Courts should consider hearing from P not just on an "occasional" basis (as Baker J recorded the position in CC v KK and STCC  EWHC 2136 (COP), but whenever P’s capacity to take material decisions or to litigate is in issue.