Patients at risk: revisiting the extent of public bodies' duties
While establishing that all psychiatric patients, regardless of status, are owed the same duty, the European Court of Human Rights has also minimised the meaningfulness of its decision in practice, says Laura Davidson
In 2012, the Supreme Court considered in Rabone & Another v Pennine Care NHS Foundation Trust  UKSC 2 that the state’s positive obligation under Article 2 of the European Convention on Human Rights (ECHR) would likely apply to voluntary and involuntary patients alike. Seven years later, this has been confirmed in Fernandes de Oliveira v Portugal (No. 78103/14, 31 January 2019).
AJ was an alcohol-dependent depressed schizophrenic patient who had been voluntarily admitted on eight occasions to the Hospital PsiquiÃ¡trico Sobral Cid (HSC) in Coimbra, Portugal. His final admission in April 2000 followed an overdose. Despite a supposedly initial restrictive regime, he managed to return home without permission in his first week, wearing his pyjamas. The regime was relaxed, and AJ was seen on his last day calm and walking outside the pavilion. He ate a late afternoon snack, but failed to attend dinner. His doctor and the police were informed. However, still wearing his pyjamas, AJ had jumped in front of a train at 5.37pm.
The civil action brought by AJ’s mother before the Coimbra Administrative Court criticised the hospital’s lack of physical security, which had only one guard and a back exit leading to a railway station platform twenty minutes’ walk away. The courtheld that the open regime was “in line with modern theories of psychiatric science” (para.38). AJ’s binge drinking two days prior to his death was characterised as reckless, rather than a suicide attempt. The Administrative Supreme Court dismissed an appeal, despite the Deputy Attorney-General’s criticism of the absence of a surveillance framework adapted to AJ’s mental health and associated suicide risk.
Real and immediate risk
The applicant complained to the European Court of Human Rights (ECtHR) of a breach of AJ’s right to life under Article 2 arising from negligent supervision, inadequacy of emergency procedure, and insufficient fencing. Delay within the proceedings was raised under Article 6 (subsequently considered under the Article 2 procedural requirement). The Article 2 obligations were two-fold. First, a regulatory framework was required that ensured the adoption of measures sufficient to protect patients’ lives. Secondly, the inevitable restrictions of hospitalisation gave rise to a general operational duty to take reasonable measures to protect psychiatric patients – whose capacity to make rational decisions about ending life might be impaired – from a real and immediate risk of suicide (para.103). Although that included voluntary patients, disappointingly the ECtHR concluded that “a stricter standard of scrutiny” might apply to patients detained following judicial order (para.124).
The court identified five factors in paragraph 115 that commonly triggered the duty to take appropriate preventive measures: (1) a mental health history; (2) its severity; (3) previous suicide attempts or self-harm; (4) suicidal ideation; and (5) signs of physical or mental distress. The ECtHR emphasised that the positive obligation must not “impose an impossible or disproportionate burden on the authorities” (paras.111 and 113), and acknowledged that “the immediacy” of suicide risk may vary (para.131). It found that the monitoring regime had been altered appropriately in accordance with AJ’s changing mental state and concomitant risk. Despite certain evidential inconsistencies, the ECtHR accepted the domestic court’s findings, including that no suicidal behaviour or ideation had manifested in AJ’s last days. Thus, HSC neither knew nor ought to have known that AJ posed a real and immediate risk of suicide, and consideration of the second part of the Osman/Keenan test– namely, whether the hospitalhad taken all reasonable measures to prevent the risk materialising – was not required (Osman v. the United Kingdom, 28 October 1998, Reports of Judgments and Decisions 1998'‘VII ; Keenan v. the United Kingdom, no.27229/95, ECHR 2001).
Nonetheless, the adequacy of the measures available for suicide prevention was considered under the state’s positive Article 2 obligation to establish a regulatory framework. Oral evidence at first instance had identified a restrictive regime (with patients unable to leave the pavilion and remaining in pyjamas), and a general regime (with access to the grounds only after informing the duty nurse). Patients had a clear daytime schedule, withattendance checked at meals and medication provision. In emergencies, restraint, including the isolation room, could be utilised. Whilst written “mechanical restraint” guidelines for psychiatric patients were not introduced until 2007 (with that protocol replaced in 2011), the ECtHR held that an informal surveillance procedure could still be an effective regulatory framework to protect a patient’s life (para.18). No deficiencies in any procedure had caused AJ’s death. However, the procedural obligation under Article 2 in the context of health care required prompt court investigation to remedy potential deficiencies. The “excessively long” delay within the domestic proceedings (more than eleven years) violated Article 2’s procedural limb, with EUR 10,000 awarded for distress and frustration.
In a scathing partly dissenting opinion, Judge Pinto De Albuquerque of Portugal joined by Judge Harutyunyanaccuse the ECtHR of “pure hypocrisy” and “a wrongful assessment of the legal and factual background…and a misreading of the Court’s own case-law”. The judgment is described as “the result of a creative exercise of judicial adjudication for an imagined country” (Minority Opinion (MO) para.1), with the ECtHR’s findings on the surveillance procedure (para.120), “an inventive description of a virtual reality” (MO, para.16). They reproach the majority for “downgrading the level of Convention protection to an inadmissible level of State inertia” (MO, para.2), and highlight discrepancies between AJ’s case and other decisions. The diagnosis of paranoid schizophrenia in De Donder and De Clippel v. Belgium (No.8595/06) was considered to involve a “high and foreseeable risk of suicide”, founding an Article 2 violation despite no previous suicide attempts. In Renolde v. France (No.5608/05, para.86) the failure to provide medication was considered relevant to the “real” suicide risk where an eighteen day gap existed between two suicide attempts (MO, para.22). That gap was 26 days in AJ’s case, combined with a serious self-harm episode two days before death. Further, the evidence established that he had not been medicated for over twenty-four hours (MO, para.36).
The minority judges describe the allegedly protective regulatory framework identified by the majority as a fiction, emphasising that the ad hoc surveillance regime criticised by the European Committee for the Prevention of Torture lacked “clear procedures and safeguards”, with no centralised hospital register to record restraint. The Portuguese judge emphasised that his country still had no regulations or legislation covering “what types of regimes could be applied, under what circumstances, by whom and until when” (MO, para.44). Even if the supposed monitoring regime had been sufficient, significant operational failings occurred. AJ had, in fact, no medical plan. After escaping to abuse alcohol two days prior to his death, no risk assessment was carried out to consider possible enhanced measures (such as video surveillance or voluntary tagging). A 16-hour gap in supervision was identified before AJ’s suicide.
The dissenting judges also criticise the quality of the domestic court findings fully accepted by the ECtHR. Inconsistencies in oral evidence were ignored, no reference was made to the Convention on the Rights of Persons with Disabilities (CRPD), and an expert report was adopted which “praised the possibility of suicide!... portraying it as an act of “freedom and liberation”” and implying that Article 2 encompassed a right “to take a rational decision” to commit suicide (para.53). The appellate court merely rubberstamped the decision (MO, para.54). The minority Opinion ends with an ominous warning: “many psychiatric inpatients with a suicidal risk will die an avoidable death, like AJ” due to the erroneous majority reasoning (MO, para.56).
Differentiation of treatment
While acknowledging for the first time that the state’s operational duties under Article 2 apply to all psychiatric patients regardless of status, simultaneously the ECtHR has attempted to rein in that principle. In doing so, it is hard to resist the minority view that voluntary patients have been treated as “second class patients” (MO, para.23), given that a “stricter standard of scrutiny” may be applied in the case of “patients…hospitalised following a judicial order, and therefore involuntarily”. The majority had accepted that “specific measures” were required pursuant to Article 2’s general operational duty, yet held that their content “will often differ” depending on the patient’s status (para.124). The minority rightly criticise the lack of reasoning for “this differentiation of treatment”(MO, para.20). Indeed, it contrasted starkly with the Grand Chamber’s recognition of voluntary patients as “under the same care and supervision of the hospital”, with equal duties due from the state. As it observed, “[t]o say otherwise would be tantamount to depriving voluntary inpatients of the protection of Article 2” (para.84).
The majority’s differentiation between voluntary and involuntary patients was evident in its blatant balancing of competing rights with Article 2. Being satisfied that a regulatory framework existed (albeit not in writing), the ECtHR considered that it met AJ’s medical and psychiatric needs and respected his privacy in the least restrictive environment in accordance with Articles 3, 5 and 8 of the ECHR, “particularly given his status as a voluntary inpatient” (para.121). Yet, both Article 2 and Article 3 are absolute rights, whereas AJ’s voluntary status can only have been relevant with respect to qualified rights. The fact that the monitoring methods complied with Articles 5 and 8 is irrelevant if the Article 2 operational measures failed to protect AJ’s life. As the minority point out,“[t]his argument leads to the illogical conclusion that the more important (Article 2) right merits less protection than the less important (Article 5) one” (MO, para.15).
No written guidelines
Similarly, the majority limited the relevance of the lack of written restraint guidelines (subsequently introduced in 2011) for voluntary patients to an assessment of the quality of the law under the Article 5 right to liberty to test for arbitrariness.
The dissenting judges consider it “astonishing” that such an absence was not even considered a “deficiency” under Article 2 (MO, para.18). The court held that the failure to put the surveillance procedure in writing was “not determinative of its efficiency” in protecting a patient’s life (para.119). Nonetheless, the lack of precise and foreseeable regulation of restraint measureswas a factor which, cumulatively with others, might have established a violation of Article 2. Curiously, the ECtHR again considered AJ’s voluntary status relevant here, concluding no further examination of the issue was needed.
The ECtHR’s most obvious error, however, was its failure to apply case law which established that, even if the state did not know and could not have known about any real and immediate suicide risk, (emphasis added)it had a duty under Article 2 to take “certain basic precautions…to minimise any potential risk of self-harm and suicide attempts” (MO, para.28). Identifying this shortcoming (citing Eremiasova and Pechova v. the Czech Republic No.23944/04 and Kellerv. Russiano.26824/04), the minority highlights case-specific facts, rather than universally applicable principles. Further investigation of these “basic precautions” by the ECtHR will no doubt take place in future cases.
Laura Davidson is a London Barrister at No.5 Chambers specialising in human rights and mental health law