Tue, 06 Aug 2019
This article first appeared here and is republished with the kind permission of New Law Journal
How far does the state's duty of care extend in protecting detained patients--both voluntary and involuntary--from self harm? Laura Davidson investigates
It was recently confirmed in Fernandes de Oliveira v Portugal  ECHR 106 (no.78103/14, 31 January 2019) that a state’s positive obligation under Article 2 of the European Convention on Human Rights (ECHR) applies not only to compulsorily detained patients, but also to those in hospital. However, there was a disappointing caveat. The European Court on Human Rights (ECtHR) concluded that “a stricter standard of scrutiny” might be applied to patients detained “involuntarily” following judicial order (para.124). Indeed, no Article 2 violation was found. In a partly dissenting Minority Opinion (MO), Portugal’s Judge Pinto De Albuquerque and Judge Harutyunyan describe the decision scathingly as “the result of a creative exercise of judicial adjudication for an imagined country” (MO, para.16). This article analyses the case law the ECtHR failed to apply, contends that the decision is plainly wrong, and argues that no differentiation between voluntary and involuntary patients can be justified.
AJ, a schizophrenic patient with major depression, was voluntarily admitted to the Hospital Psiquiátrico Sobral Cid (HSC) in Coimbra, Portugal, following an overdose. Several weeks later, he left hospital in his pyjamas and leapt in front of a train. His mother complained that his Article 2 right to life had been violated due to insufficient relational and physical security and an inadequate emergency procedure. The ECtHR held that HSC neither knew nor ought to have known that the risk of AJ’s suicide was real and immediate. It proceeded to consider the state’s positive Article 2 obligation to establish a regulatory framework. Although ‘mechanical restraint’ guidelines for Portuguese psychiatric hospitals were not introduced until seven years after AJ’s death, it was held that an informal surveillance procedure could amount to a regulatory framework effective in protecting patients’ lives (para.118). No violation of Article 2 was found in that respect either, because AJ’s death had not resulted from procedural deficiencies.
Suicide risk in psychiatric detainees
Keenan v. United Kingdom (no.27229/95, ECHR 2001‑III) emphasised that the mentally ill are “particularly vulnerable” to suicide (para.113. See also Rivière v. France, no.33834/03, 11 July 2006, para.63). Thus, arguably, every psychiatric patient should be considered at “real” risk of suicide. The ECtHR held that “a risk of suicide could not be excluded in inpatients such as AJ, whose psychopathological conditions were based on a multiplicity of diagnoses” (para.131). It is unclear why comorbidity (or perhaps diagnostic uncertainty) might be thought key in determining suicide risk. Nevertheless, the ECtHR recognised that those with “severe mental health problems”, especially when hospitalised and therefore subject to inevitable restraints, were “particularly vulnerable even when treated on a voluntary basis” (para.124; all emphases added unless otherwise stated). It listed the “variety of factors” suggestive of suicide risk in other cases said to trigger “the duty to take appropriate preventive measures”. These included a history of mental disorder (and its severity), previous self-harm episodes and/or suicidal ideation, threats or attempts, and signs of physical or mental distress (para.115). All of these factors applied to AJ. In particular, he was admitted to HSC following an overdose, and a few days prior to his demise he escaped to abuse alcohol. Furthermore, he suffered from co-morbid mental disorders sufficiently grave to require hospitalisation eight times. HSC was aware of all these matters, the ECtHR’s conclusion that it neither knew nor ought to have known that AJ’s suicide risk was real and immediate, the “immediacy” of AJ’s risk might have varied (para.131).
The duty to take basic precautions in every case
The minority judges considered AJ to be a known suicide risk, censured the majority for declining to probe the domestic court findings, and declared the Judgment fatally flawed for failing to apply relevant case law. Eremiasova and Pechova v. Czech Republic (no.23944/04, at para.110), and Keller v. Russia (no.26824/04, at para.88) established that, even when the state neither knew nor ought to have known about a suicide risk, it had a duty to take “cert+ain basic precautions” (para.28) in order “to minimise any potential risk” of suicide or self-harm. The principle appears to have had its genesis in Mižigárová v. Slovakia (no.74832/01, 14 December 2010, para.89). It concerned LS who was shot in the abdomen by an interrogating police officer’s loaded firearm when in custody for bicycle theft, and subsequently died in hospital from complications. The ECtHR held that “there are certain basic precautions which police officers and prison officers should be expected to take in all cases in order to minimise any potential risk” of death by police or prison firearm (para.89). LS’s death had resulted from the negligent failure to take reasonable measures to protect his health and well-being while in custody (para.89).
Ordinarily, taking obvious “basic precautions” within the criminal justice system has little relevance to psychiatric inpatients. However, identifying what appears to be a separate duty, the ECtHR held in Mižigárová that a state “is also under a positive obligation to take all reasonable measures to ensure that the health and well-being of persons in detention are adequately secured”. That duty incorporates the minimisation of “a known suicide risk” (para.86) and “clearly encompasses an obligation to take reasonable measures to protect them from harming themselves” (para.89; Keenan, para.97). This duty makes no mention of immediacy, which makes sense; the measures are safeguards against the variation in the immediacy of risk, which may be sudden and unanticipated. Of import, a violation of Article 2 was still found in Mižigárová, despite an insufficiency of evidence to conclude that the authorities knew or ought to have known that LS was a suicide risk.
In Eremiasova and Pechova v. Czech Republic, the ECtHR elided the “basic precautions” principle with the second duty identified in Mižigárová (para.117), finding that, “even where it is not established that the authorities knew or ought to have known about any such risk, there are certain basic precautions which police officers and prison officers should be expected to take in all cases in order to minimise any potential risk to protect the health and well-being of the arrested person” (para.110). VP died during police questioning for burglary. Having escorted him to toilets with barred windows in recognition of his absconding risk, the officers “should have acted with more care to prevent VP from jumping” through a closed, unbarred window on the mezzanine floor (although the boundaries of such care were not delineated). In Keller, VK also died after jumping from a police station window following his arrest for theft of two bicycles. Referring to the “obligation to protect the life of arrested and detained persons from a foreseeable danger”, the ECtHR identified “basic precautions” which would have minimised “any potential risk of attempts to escape” (para.88).
Limitations on a state’s responsibility
What were the “basic precautions” that HSC ought to have taken? The minority judges list seven (MO, paras.29-39). For example, plainly, supervision was insufficient as AJ was able to leave hospital in his pyjamas several times during his last admission. After escaping to abuse alcohol a few days prior to his suicide, he was seen by no doctor, and no risk assessment was undertaken to consider any need for enhanced supervision. Further, the evidence established that AJ had not been medicated in the twenty-four hours prior to his death. Additionally, fencing and surveillance systems to prevent unauthorised leave - present in other Portuguese psychiatric hospitals. All these failures appear negligent on the facts.
Applying Mižigárová and its subsequent case law, even if HSC’s alleged unawareness of AJ being at real and immediate risk of suicide was true, the state’s custodial obligation to ensure his health and well-being required the taking of “all reasonable measures” to prevent self-harm. Did the hospital fail to take those reasonable measures which would have prevented AJ’s death? The minority judges answer this question resoundingly in the affirmative (see paras.28-39).
Nonetheless, the precautions a state must take can only be “basic” and “reasonable”. The duty to provide adequate relational security will always be tempered by resource restraints. There are necessary “operational choices which must be made in terms of priorities and resources in providing public healthcare and certain other public services” (para.111. See also Osman v. United Kingdom, 28 October 1998, ECHR 1998‑VII, para.116). Thus, “such an obligation must be interpreted in a way which does not impose an impossible or disproportionate burden on the authorities”. Furthermore, “the unpredictability of human conduct” would make it unfair to hold states inevitably accountable where self-harm ensues. Accordingly, “not every claimed risk to life can entail for the authorities a Convention requirement to take operational measures to prevent that risk from materialising”. Finally, bearing in mind competing rights, “the authorities must discharge their duties in a manner compatible with the rights and freedoms of the individual concerned and in such a way as to diminish the opportunities for self-harm, without infringing personal autonomy” (para.112).
Additional measures necessary where risk of self-harm exists
Yet, as Renolde v. France (no.5608/05, para.83) emphasised, “general measures and precautions” exist “to diminish the opportunities for self-harm, without infringing personal autonomy”. Although the ECtHR made no reference to the Mižigárová case law, arguably the phrase “general measures and precautions” has the same meaning as “basic precautions”. Whether “more stringent measures are necessary in respect of a prisoner [or other state detainee] and whether it is reasonable to apply them” will depend on the circumstances of the case (Keenan, para.92), which according to the ECtHR would include “whether the patient is voluntarily or involuntarily hospitalised” (para.124). However, the need for more stringent measures (referred to as “special measures” in Renolde, para.98) to safeguard a patient ought to be contingent upon their clinical presentation and needs, regardless of hospital admission status. The ECtHR recognised the vulnerability of all psychiatric patients, given that hospitalisation “inevitably involves a certain level of restraint”. Accordingly, it was entirely arbitrary to conclude that “in the case of patients who are hospitalised…involuntarily, the Court…may apply a stricter standard of scrutiny” (para.124) upon an Article 2 complaint. The Judgment means that right to life violations are less likely to be found upon the death of an involuntarily detained patient like AJ, even though a breach of Article 2 must depend on the factual matrix. The duty to take reasonable measures to prevent a person from self‑harm exists with respect to both categories of hospitalised patient. The minority judges “fail to see the reason for this differentiation of treatment”, pointing out that “the majority do not even make the effort to provide one” (MO, para.1). Similarly, the unanimous decision of the Chamber was that no distinction could be warranted in terms of patient status, since “[a] voluntary inpatient was under the same care and supervision of the hospital and accordingly the State’s obligation…was the same as its obligation towards an involuntary inpatient”. In the Chamber’s view, “[t]o say otherwise would be tantamount to depriving voluntary inpatients of the protection of Article 2 of the Convention” (para.84). Worryingly, that is exactly what the ECtHR has done in this case.
Laura Davidson is a barrister at No5 Barristers' Chambers specialising in human rights, mental disability and mental health law.