[2012] ECHR 1819 (Application no. 37679/08)

Restraint

Summary

The European Court of Human Rights was asked to consider a claim brought against the Government of the Czech Republic alleging that the Applicant (Mr Bureš) had been ill-treated in a sobering-up centre in violation of Article 3 of the Convention and further had been detained in a psychiatric hospital in violation of Article 5 of the Convention.

The applicant had been diagnosed as having a psycho-social disability. He had previously been treated in Italian psychiatric hospitals as a voluntary patient and was using psychiatric medication. On 9 February 2007 he inadvertently overdosed on his medication and left his home wearing only a sweater. He was picked up by a police patrol who took him to a hospital. He was then transferred to a sobering up centre. The precise events which then occurred at the sobering up centre were in dispute. The Applicant’s case was that he had been strapped tightly and left unchecked overnight causing a reduction in blood circulation to his arms. The Government alleged that he had been initially restrained for two hours as he was restless but was checked. Subsequently his behaviour had become destructive requiring further restraint.

On 10 February 2007 the applicant was transferred to the Intensive Psychiatric Care Unit where, according to the admission record, he had visible abrasions on the front of his neck, both wrists and both ankles, caused probably by friction against textile, and abrasions of an unspecified different type on his knees. He complained about his treatment in the sobering-up centre to the hospital authorities, but they did not take any action. On 15 February 2007 the applicant was examined by a neurologist, who stated that as a result of the use of straps the applicant suffered severe paresis of the left arm and medium to severe paresis of the right arm. He began a course of intensive treatment at the Rehabilitation Unit. The applicant remained in the hospital involuntarily until released on 13 April 2007. However, because of his two-month hospitalisation, he was confused and was not able to fully take care of himself. He voluntarily returned to the hospital on 14 April 2007 and remained there until 1 July 2007.

The Claimant subsequently made a complaint to the police which was investigated but no prosecution was brought. He challenged his detention in civil proceedings but the Constitutional Court rejected his appeal on the ground that he had not exhausted all remedies before the Regional Court.

The European Court of Human Rights noted that whilst they had doubts as to the Government’s version of events at the sobering up centre, the Applicant’s description was also not fully supported by the evidence. Accordingly, they proceeded to consider the claim on the basis that the Government’s account was accurate.

The Court nevertheless proceeded to uphold the claims of both a violation of the substantive rights protected by Article 3, and also a violation of the procedural right to an effective investigation. In particular, the Court held the following:

  1. The medical staff in the sobering up centre should be regarded as agents of the State such that their actions could be attributed to the State – the Centre was a public body and the applicant was subject to the complete control of the Centre’s staff. Further, the key issue was not the applicant’s injury as an unintended negative consequence of medical treatment, as submitted by the Government, but rather the use of the restraints itself. The applicant’s injury was only incidental to the intentional treatment. Accordingly, medical negligence case precedent relied upon by the Government was not relevant but cases concerning the use of restraints on persons in detention, which the Court has always considered from the point of view of negative obligations, were;
  2. The Court had previously recognised the special vulnerability of mentally ill persons in its case-law and the assessment of whether the treatment or punishment concerned is incompatible with the standards of Article 3 has, in particular, to take into consideration this vulnerability (see Keenan v. the United Kingdom, no. 27229/95, § 111, ECHR 2001 III, Rohde v. Denmark, no. 69332/01, § 99, 21 July 2005 and Renolde v. France, no. 5608/05, § 120, ECHR 2008 (extracts));
  3. In respect of persons deprived of their liberty, recourse to physical force which has not been made strictly necessary by their own conduct diminishes human dignity and is in principle an infringement of the right set forth in Article 3 of the Convention (see Krastanov v. Bulgaria, no. 50222/99, § 53, 30 September 2004). In the context of detention in a sobering-up centre, it is up to the Government to justify the use of restraints on a detained person. Aggressive behaviour on the part of an intoxicated individual may require recourse to the use of restraining belts, provided of course that checks are periodically carried out on the welfare of the immobilised individual. The application of such restraints must, however, be necessary under the circumstances and its length must not be excessive (see paragraph 86);
  4. The position of inferiority and powerlessness which is typical of patients confined in psychiatric hospitals calls for increased vigilance in reviewing whether the Convention has been complied with. Nevertheless, it is for the medical authorities to decide, on the basis of the recognised rules of medical science, on the therapeutic methods to be used, if necessary by force, to preserve the physical and mental health of patients who are entirely incapable of deciding for themselves and for whom they are therefore responsible. The established principles of medicine are in principle decisive in such cases; as a general rule, a measure which is a therapeutic necessity cannot be regarded as inhuman or degrading. The Court must nevertheless satisfy itself that the medical necessity has been convincingly shown to exist (see Herczegfalvy v. Austria, 24 September 1992, § 82, Series A no. 244) (see paragraph 87).

On the facts, the Court found that the strapping of the Applicant reached the minimum degree of severity required to engage Article 3. As to the justification for the use of restraint, in line with domestic and international guidance, the Court found that strapping a patient to a bed for two hours could not be justified by "mere restlessness." Whilst aggressive behaviour could justify restraint in principle, strapping should be a mechanism of last resort. Patients who are restrained must be kept under close supervision. Further, European and national standards require proper recording of every use of restraints, which, among other things, facilitates any subsequent review of whether their use was justified. In the applicant’s case, restraint had been applied as a matter of routine and the Government had not justified its use as proportionate in the circumstances of the case. There was therefore a substantive breach of the Applicant’s Article 3 rights. The Court also found that there was a breach of the procedural aspect of Article 3, for reasons which need not detain us here.

The complaints of alleged breaches of Article 5 of the Convention were rejected as inadmissible on the grounds that the Applicant had not exhausted domestic remedies.

Comment

This case provides a useful synopsis of the jurisprudence of the European Court of Human Rights in relation to the treatment of mentally ill patients whilst they are being deprived of their liberty. Whilst the judgment focuses on the use of restraint, which on the facts resulted in a significant and permanent injury to the applicant, it serves equally as a reminder that additional attention should be paid by state authorities to ensure that the Article 3 rights of mentally ill individuals are upheld in hospital settings where they are particularly vulnerable. As such, it serves as a useful parallel to the case of Col Munjaz, discussed in a previous edition of the newsletter, in which the ECtHR emphasised the importance of Article 8 rights to those who are deprived of their liberty and in consequence the greater part of their autonomy.