CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 3 mai 1993

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                          AS TO THE ADMISSIBILITY OF                         Application No. 14451/88                       by Kjell and Gärdh PERSSON                       against Sweden         The European Commission of Human Rights sitting in private on 3 May 1993, the following members being present:   Present:              MM.    C.A. NØRGAARD, President                  S. TRECHSEL                  E. BUSUTTIL                  G. JÖRUNDSSON                  A.S. GÖZÜBÜYÜK                  A. WEITZEL                  J.-C. SOYER                  H.G. SCHERMERS                  H. DANELIUS            Mrs.   G.H. THUNE            Sir    Basil HALL            MM.    F. MARTINEZ                  C.L. ROZAKIS            Mrs.   J. LIDDY            MM.    L. LOUCAIDES                  J.-C. GEUS                  M.P. PELLONPÄÄ                  B. MARXER                  G.B. REFFI                  M.A. NOWICKI              Mr.    H.C. KRÜGER, Secretary to the Commission         Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;         Having regard to the application introduced on 2 September 1988 by Kjell and Gärdh Persson against Sweden and registered on 8 December 1988 under file No. 14451/88;         Having regard to the written observations submitted by the Government on 29 July 1991 and the applicants' written observations in reply submitted on 22 September 1991 and 11 February 1992;         Having regard to the further information submitted by the Government on 5 January 1993 and the applicants' comments in reply submitted on 5 February 1993;         Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission;         Having deliberated;         Decides as follows: THE FACTS         The first applicant, Kjell Persson, was a Swedish citizen born in 1965. He died in 1992. The second applicant, Gärdh Persson, is a Swedish citizen born in 1937 and resident at Spånga. She was Kjell Persson's mother and appointed guardian and is now the administrator of his estate.         The application was initially lodged by both applicants. Following Kjell Persson's death Gärdh Persson declared that she wished to pursue the application both on his and her own behalf.         Before the Commission the applicants are represented by Ms. Siv Westerberg, a lawyer practising in Gothenburg.         The facts of the case, as they appear from the parties' submissions, may be summarised as follows.     Particular circumstances of the case   a.     The care order         Kjell Persson was seriously disabled from birth, both mentally and physically. He was born, inter alia, with his tongue grown to his palate, resulting in a lack of faculty of speech and great eating difficulties. When living in the applicants' home Kjell Persson was being fed by Gärdh Persson.         From 1978 to 17 November 1983 Kjell Persson was registered with the Mental Welfare Committee (styrelsen för omsorger om psykiskt utvecklingsstörda) of the County Council (landstinget) of Stockholm.         In a medical report of 13 December 1983 Dr. H.F., medical superintendent at the child rehabilitation department of St. Göran's hospital, noted that in September 1983 a physician had visited Kjell Persson in his home, had found him to be extremely underweight and had concluded that his main problem was his lack of nutrition. Gärdh Persson had been offered the possibility to have Kjell Persson admitted to a hospital, but she had refused. However, in connection with a visit to the hospital on 23 November 1983, she had been persuaded to agree to his admission. On that occasion Kjell Persson had weighed 20.9 kg. An examination of him had further shown, amongst other things, lung changes which were assumed to be of an infectious nature.         Dr. H.F. further referred to a report of 16 December 1983 by B.P., associate professor at the hospital, finding that Gärdh Persson was having a number of false notions regarding Kjell Persson's disorder and how to care for him. When Kjell Persson had been admitted to the hospital, his nutritional condition had been very unsatisfactory and had been caused by Gärdh Persson's inadequate care, in conjunction with an infection. Prof. B.P. had concluded that it was not suitable that Gärdh Persson should continue to be responsible for Kjell Persson's care.         In reaching the same conclusion, Dr. H.F. considered it established that Gärdh Persson had not satisfactorily managed to nourish Kjell Persson. Her false notions as regards Kjell Persson's throat function had played a certain part in her difficulties in feeding him. Kjell Persson's severe mental retardation combined with his physical disablement and the feeding problems therefore warranted his placement in compulsory care in accordance with the 1967 Act on the Care of Certain Mentally Handicapped Persons (lag 1967:940 angående omsorger för vissa psykiskt utvecklingsstörda; hereinafter "the 1967 Act").         Following the drawing up of a report by the social welfare authorities and a report by a psychologist, the Chairman of the Administrative Board (beslutsnämnden) of the County Council on 20 December 1983 provisionally placed Kjell Persson in compulsory care pursuant to Section 35, subsection 1 (b) of the 1967 Act.         On 28 December 1983 the Administrative Board held a meeting at which the Director of Mental Welfare Services (vårdchefen) favoured a confirmation of the interim decision. Gärdh Persson, who was present at the meeting, objected. Dr. H.F. and others were heard.         By a decision of the same day confirming the interim decision the Administrative Board found that Kjell Persson was mentally retarded, that as a consequence of his retardation he was unable to take care of himself, and that, in view of the degree of his retardation, care in a nursing home was absolutely necessary.         On 29 December 1983 Kjell Persson was admitted to the Rosenhill nursing home in Stockholm.         In a letter received by the Psychiatric Council (psykiatriska nämnden) on 11 January 1984 Gärdh Persson appealed against the care order, alleging that the reason behind it was her repeated complaints to the authorities about the allegedly improper medical and dental treatment afforded to Kjell Persson.         The Psychiatric Council provided Gärdh Persson with an opportunity to show her competence to represent Kjell Persson before the Council. On 27 March 1984 it noted that Gärdh Persson had not done so and dismissed her appeal.         After Gärdh Persson in a letter received by the Psychiatric Council on 21 August 1984 had shown that she was Kjell Persson's appointed guardian, the Council re-opened the appeal proceedings and requested the Administrative Board to submit its opinion.         In its opinion of 10 December 1984 the Administrative Board found no reasons to change the care order, the conditions for care of Kjell Persson in a nursing home under Section 35 still being fulfilled. It appears that in expressing this opinion, the Board had relied on, amongst other things, a statement by the Director of Mental Welfare Services, made after consultations with the Senior Medical Officer (överläkaren) of the Mental Welfare Committee. According to this statement Kjell Persson was still in need of care of the kind which Gärdh Persson was not able to provide him with in the applicants' home.         On 22 January 1985 the Psychiatric Council rejected Gärdh Persson's appeal with reference to Section 35, subsection 1 (b) of the 1967 Act.     b.     Kjell Persson's stay at Rosenhill from 29 December 1983 to 21       March 1988         In the Rosenhill nursing home Kjell Persson lived in a small room with a window facing the corridor, where staff members, other patients and visitors would pass. The window lacked curtains. He was being fed by nursing staff.         On 31 January 1984 a decision authorising, as from 1 February 1984, the collection of Kjell Persson's pension payments in accordance with the 1962 Ordinance on the Right in Certain Cases of a Municipality or Other Body to Collect Pension Payments (kungörelse 1962:393 om rätt i vissa fall för kommun eller annan att uppbära folkpension; hereinafter "the 1962 Ordinance") was made by the local Social Insurance Office (allmänna försäkringskassan), thereby authorising the County Council to deduct the fees for Kjell Persson's care at Rosenhill from his pension and to pay the remainder to his bank account. The decision was not appealed against.         Gärdh Persson alleges that when Kjell Persson was provisionally discharged on 21 March 1988 she was given some 2.000 SEK by the manager of the nursing home, who claimed that to be the remaining amount of the pension paid out to Kjell Persson. She was further shown a bankbook showing that staff members of the nursing home had regularly withdrawn considerable sums of money from his account. She then stated that she had never consented to those withdrawals and reported the matter to the Mental Welfare Committee.         In a letter of 5 December 1988 the Acting Director of Mental Welfare Services and the Head of the Finance Department of the Mental Welfare Committee informed Gärdh Persson that the administration of the patients' means had been subjected to regular audits by the auditors of the Mental Welfare Committee as well as to random audits by external auditors. It was further noted that from 1 January 1984 to 31 March 1988 41.847 SEK, corresponding to some 25 per cent of the total amount of his pension payments for that period, had been paid out to Kjell Persson. For the years 1986 to 1988 an account was given of how this money had been used. Due to the closing down of Rosenhill in the summer of 1988 it had not yet been possible to find the verifications pertaining to the administration of Kjell Persson's means in 1984 and 1985. The remainder, 3.438,20 SEK, had been handed over to Gärdh Persson when Kjell Persson had been provisionally discharged from Rosenhill.         Gärdh Persson then lodged a complaint with the police alleging that a large part of Kjell Persson's pension payments had been stolen by nursing staff.         The police investigation, including a control of the verifications available, disclosed nothing to support Gärdh Persson's allegations, and on 20 December 1988 the Public Prosecutor decided to close the investigation. The decision was upheld by the Regional Prosecutor of Stockholm and Gotland (regionåklagaren) on 14 April 1989 and by the Prosecutor-General (riksåklagaren) on 27 April 1989.         As regards visiting rights at Rosenhill the applicants allege that in the beginning of January 1984 Gärdh Persson was orally informed by the nursing staff that her right to visit Kjell Persson would be restricted to two hours twice a week. Soon after this her visiting rights were restricted to two hours once a week. Kjell Persson was not allowed to leave the nursing home to see Gärdh Persson. The restriction was not confirmed in writing until on 27 June 1984.         The Government submit that the restriction was imposed by the Director of Mental Welfare Services, together with other officials, and notified to Gärdh Persson in writing on 27 June 1984. It did not enter into force until 2 July 1984, it was to be applied until the end of August 1984 and allowed the applicant to visit the nursing home twice a week, i.e. Thursdays and Sundays from 1 p.m. to 3 p.m. According to the notification the restriction was imposed in view of the difficulties caused by Gärdh Persson's daily visits at Rosenhill, her lack of confidence in the nursing staff and her frequent questioning of his care there. It was not aimed at limiting Gärdh Persson's possibility of following Kjell Persson's care, but to improve the conditions for providing him with adequate care. It appears from the notification that the matter had been discussed with Gärdh Persson on 8 June 1984.         In the nursing home Kjell Persson fell ill with repeated inflammations and bleedings in his gullet, as a result of which which he had to be taken to hospital for emergency treatment on several occasions.     c.     The discharge proceedings         In a letter received by the Discharge Board (utskrivningsnämnden) of Southern Stockholm on 28 October 1987 Mr. K.W. requested, in his capacity as Kjell Persson's then counsel, that Kjell Persson's final discharge be considered.         In an opinion of 9 November 1987 the Director of Mental Welfare Services referred to a statement of the same day by the Acting Senior Medical Officer and concluded that the initial grounds for Kjell Persson's   placement in the nursing home still existed.         On 7 December 1987 the Discharge Board followed the opinion of the Director of Mental Welfare Services and refused Kjell Persson's final discharge. The Board found it necessary, however, to further examine the question of a provisional discharge and to give the parties an opportunity to designate a suitable person to supervise Kjell Persson's care under Section 39 of the 1967 Act.         Following a new request lodged by the applicants' then counsel, Ms. Westerberg, the Discharge Board on 25 February 1988 held a hearing, at which Gärdh Persson and her counsel were present. Simultaneously, an inspection of Kjell Persson's conditions in the nursing home was carried out. The Director of Mental Welfare Services, the manager of the nursing home and the Senior Medical Officer, Dr. M. B., were heard as well as Mr. K.-E.G. at the applicants' request. The Board found no reason to question the conditions at the nursing home or the manner in which Kjell Persson's care was being implemented.         The applicants submit that the hearing was adjourned in order to enable the Board to inspect the nursing home, where the hearing was to be continued. However, the Chairman allegedly ordered it to continue in a very short time so as to prevent Gärdh Persson from attending it. This attempt being unsuccessful, he allegedly refused, at the close of the hearing, to let the applicants' counsel verify whether she could attend the next hearing on 14 March 1988, and told her to send, if necessary, a substitute.         Following its hearing on 14 March 1988 the Discharge Board found no grounds for finally discharging Kjell Persson, but granted him a provisional discharge as from 16 March 1988 for a period of six weeks. Kjell Persson was to submit to medical treatment and/or medication, and was to be under the supervision of Dr. M. B. or her substitute.         The applicants did not appeal against the supervision order.         The Government submit that there is no indication in the decision or in the Discharge Board's case-file as to whether the decision relied on Kjell Persson's medical records. Where such information is relied upon it is to be made available to the parties at the hearing, unless the 1980 Secrecy Act (sekretesslag 1980:100) calls for a decision to the contrary.         On 21 March 1988 Kjell Persson returned to the applicants' home. His provisional discharge was subsequently extended.         On 5 April 1988 the Legal Aid Appeals Board (besvärsnämnden för rättshjälpen) granted Kjell Persson the right to representation by official counsel.         On 21 April 1988 the Discharge Board rejected a request that Ms. Westerberg, who resides at Gothenburg, be appointed official counsel. The Board found that her engagement in a case in Stockholm would entail substantially increased and unjustifiable costs. Instead, Ms. A-S. W., a lawyer practising in Stockholm, was appointed.         On 18 May 1988 the Legal Aid Appeals Board upheld the decision. On Kjell Persson's behalf Gärdh Persson then objected to the appointment and stated that the applicants wished to be represented by Ms. Westerberg at their own expense.         In a letter received by the Discharge Board on 10 June 1988 Gärdh Persson appealed against the initial care order of 1983.         On 30 June 1988 the Discharge Board rejected the appeal, noting that the order had already been duly examined and that, in any event, Kjell Persson's final discharge was under consideration.         On 27 July 1988 the Discharge Board again met to consider an extension of Kjell Persson's provisional discharge. Both Gärdh Persson and Ms. Westerberg had been summoned to the meeting, but neither of them attended it. The Board therefore rejected Ms. Westerberg as counsel on the ground that she had shown a lack of judgment, skill and maturity in presenting the case to the Board. It extended, however, Kjell Persson's provisional discharge until 15 December 1988.         In three submissions of 18 March, 13 July and 4 August 1988, the applicants appealed to the Psychiatric Council against the above decisions of the Discharge Board of 14 March, 30 June and 27 July 1988 demanding, inter alia, that Kjell Persson be finally discharged. They alleged, inter alia, that the first decision to place Kjell Persson in public care had been based on very vague grounds following a very summary examination carried out by Dr. M.B. and that the decision of the Discharge Council appeared to be wholly based on the opinion submitted by that doctor. They further referred to the allegedly unprofessional way in which Dr. M.B. had carried out visits to their home, for example by asking Gärdh Persson to serve her coffee, by seeming more interested in talking about personal problems than in examining Kjell Persson and, in general, by showing no respect for the applicants' private and family life. Dr. M.B. could therefore not be considered impartial when submitting her statement to the Discharge Board. Furthermore, Kjell Persson's state of health had improved considerably during his provisional discharge and his repeated vomiting of blood had come to an end. He was no longer apathetic or depressed, as he had been during his stay at Rosenhill.               On 30 August 1988 the Psychiatric Council upheld the Discharge Board's decision of 27 July 1988 to dismiss Ms. Westerberg as Kjell Persson's counsel.         On 18 October 1988 the Psychiatric Council replied to the applicants' requests that the remaining appeals be speedily decided and that Gärdh Persson be given access to Kjell Persson's medical records. With regard to the first request, the Council noted that Ms. A.-S.W., who had been appointed Kjell Persson's official counsel had, for reasons attributable to Gärdh Persson, not yet been able to fulfil her task and that, therefore, the matter could not yet be decided. With regard to the medical records the Council noted that photocopies of certain documents had already been delivered to Ms. A.-S.W., but invited Gärdh Persson to study the records at the Council's premises, where she herself could obtain copies.         On 20 December 1988 the Psychiatric Council rejected the applicants' appeals against the Discharge Board's decisions of 14 March, 30 June and 27 July 1988, stating, inter alia:         (translation from Swedish)         " ... It appears from the medical records and other       documents in the case that [Kjell Persson], who is mentally       retarded, is clearly in need of care, having regard to the       degree of [his] retardation and the fact that because of       his retardation he is incapable of taking care of himself.       ... Pursuant to ... Section 35 of [the 1967 Act] in       conjunction with Section 6 of [the 1985 Transitional Act]       conditions for [his placement in] public care thus exist       ... "     d.     Kjell Persson's admission to the Björnkulla nursing home and his       stay there (from 27 December 1988 to 29 September 1989)         During the summer and autumn of 1988 Kjell Persson's condition deterio-rated continuously. According to a medical report of 14 December 1988, issued by K.-O.S., associate professor at St. Göran's hospital, Kjell Persson had since 26 June 1988 been admitted to the hospital on six occasions, the total period of care amounting to 56 days. Kjell Persson had been suffering from constipation, vomiting and epileptic attacks and the problems in feeding him had persisted.         On 15 December 1988 the Discharge Board held a hearing in order to consider whether Kjell Persson's provisional discharge should be extended. Ms. A.-S.W. appeared before the Board in her capacity as official counsel. Gärdh Persson had been summoned to the meeting, but did not attend it. In a letter received by the Discharge Board on the same day she had stated that the applicants did not wish to avail themselves of Ms. A.-S.W.'s services.         At the hearing oral reports were given by the Director of Mental Welfare Services and Dr. M.B., and Prof. K.-O.S's report was presented.         Following the hearing the Discharge Board revoked Kjell Persson's provisional discharge, stating the following:             (translation from Swedish)         " ... It appears from the investigation that Kjell       Persson's ... conditions have now developed in such a way       that the provisional discharge should no longer continue.       The Council bases its opinion partly on the information       regarding [his] physical condition and partly on the fact       that [Gärdh Persson] does not appear competent to satisfy       [his] special need for adequate care ... "         The applicants appealed to the Psychiatric Council against the revocation of Kjell Persson's provisional discharge.         The applicants allege that on 27 December 1988 Kjell Persson was taken from their home by policemen and officials to the Björnkulla nursing home.         The Government state that they have not been able to verify whether this allegation holds true.         Gärdh Persson further alleges that upon Kjell Persson's admission to Björnkulla she was orally informed by a nurse that her visiting rights would be restricted to two hours on Wednesdays and two hours on Sundays. No written decision was given.         The Government submit that no restrictions of visiting rights seem to have been applied during Kjell Persson's stay at Björnkulla.         After a few weeks' stay Kjell Persson fell ill and started, amongst other things, to vomit blood and was taken to hospital for emergency treatment.         On 7 February 1989 the Social Insurance Office again decided to authorise the collection of Kjell Persson's pension payments pursuant to the 1962 Ordinance. The decision was reviewed on 6 March 1989 and upheld.         The decision was upheld on appeal by the Regional Social Insurance Court for Central Sweden (försäkringsrätten för Mellan- sverige) on 24 April 1990. That decision was not appealed against.         In a letter received by the Psychiatric Council on 22 May 1989 the applicants withdrew their appeal against the Discharge Board's decision of 15 December 1988 to revoke Kjell Persson's provisional discharge.     e.     Kjell Persson's final discharge from Björnkulla         Following a further request by Kjell Persson's then counsel, Mr. A.E., that Kjell Persson be finally discharged, the Discharge Board met on 1 June 1989. Gärdh Persson attended, together with her counsel. The Director for Mental Welfare Services informed the Board that an agreement had been reached according to which Kjell Persson could be fetched by Gärdh Persson every Friday and stay at home until Monday morning and that he would be staying with her for five weeks during the summer. The request for Kjell Persson's final discharge was then withdrawn.         On 29 September 1989 the Director of Mental Welfare Services finally discharged Kjell Persson from Björnkulla. As from then on he lived with Gärdh Persson until 21 June 1992, when he died at the St. Göran's hospital, where he had been taken for emergency treatment.           The Government submit that on the day of Kjell Persson's discharge Gärdh Persson was, in the presence of counsel A.E., orally informed of the revocation of his care order. No request for a decision in writing was made at that moment.     f.     Proceedings subsequent to Kjell Persson's discharge         On 6 November 1989 the Disciplinary Board of Health and Medical Care (Hälso- och sjukvårdens ansvarsnämnd) rejected a complaint by Gärdh Persson against a number of physicians who, in treating Kjell Persson, had allegedly neglected their professional duties. Among the persons complained of were the Senior Medical Officer of the Mental Welfare Committee and the physician responsible for the medical care at Rosenhill. The Board found nothing to support the allegations. Its decision was not appealed against.         Gärdh Persson submits that at her request the Mental Welfare Committee by letter of 7 March 1991 informed her that Kjell Persson's compulsory care had been discontinued on the day of his final discharge.     Relevant domestic law   a.     The 1967 Act   aa.    General provisions         The 1967 Act, in force up to 1 July 1986, related to the care of mentally handicapped persons (Section 1).         Nursing homes were to be provided for mentally handicapped in need of special care. In certain circumstances care could be given in their own homes (Section 4, subsections 1 and 2).         The management of the care rested with a Mental Welfare Committee of the County Council. In each County Council at least one Administrative Board was to be established (Section 6, subsections 1 and 5).         Each Mental Welfare Committee appointed a Chief Education Officer (särskolchef), a Director of Mental Welfare Services and a Senior Medical Officer (Section 7).         Every nursing home was to have an appointed manager and physician (Section 11, subsections 1 and 2).         The National Board of Education (skolöverstyrelsen) and the National Board of Health and Welfare (socialstyrelsen) were to supervise the activities carried out under the 1967 Act (Section 13, subsection 1).   bb.    Admission to and discharge from a nursing home         A mentally handicapped person who had attained the age of fifteen could be given compulsory care in a nursing home, if such care was absolutely necessary in view of the degree of his mental handicap and the fact that due to this handicap he was, inter alia, incapable of taking care of himself (Section 35, subsection 1).         Decisions on admission to a nursing home were to be made by the Director of Mental Welfare Services following consultations with the Senior Medical Officer and, in the case of a nursing home, with its manager. If requested by the Director of Mental Welfare Services, the Senior Medical Officer or the manager of the nursing home the matter was to be decided by the Administrative Board. The same procedure was applied if the custodian or the guardian, or the mentally handicapped person himself, if he had attained the age of fifteen, was not in agreement with the person authorised to make a decision pursuant to subsection 1.         A person admitted to a nursing home under Section 35 could be provisionally discharged, if special reasons existed and the discharge did not involve any danger to the personal safety of others or the person's own life. A provisional discharge could be granted for a specified period not exceeding six months and could be extended for not more that six months at a time. The patient could be obliged to comply with special instructions and could be placed under the supervision of a suitable person. A person who had been provisionally discharged could be readmitted to the nursing home, if the circumstances so required (Section 39).         A person admitted to a nursing home under the provisions of Section 35 was to be immediately and finally discharged, if the conditions under which care could be provided no longer existed. The fact that the patient constituted a danger to the property of others, or to any other interest protected by law which was not referred to in Section 35, subsection 1 para. (a), was not to constitute grounds for continued care, except where he had been committed to an institution by a court order (Section 40).         Under Section 41 decisions on the matters referred to in, inter alia, Sections 39 and 40 were to be made by the Director of Mental Welfare Services following consultations with the Senior Medical Officer of the Mental Welfare Committee or, with regard to patients in nursing homes, by the manager of the home following consultation with the home's physician.         Decisions on the matters referred to in, inter alia, Section 39 and Section 40 were, however, to be made by the Administrative Board:   -      if the Director of Mental Welfare Services, the Senior Medical Officer, the manager of the nursing home or the home's physician so requested;   -      if there was a disagreement between the person authorised to make a decision pursuant to subsection 1 and the custodian or the guardian or the patient himself, if he had attained the age of fifteen;   -      if the Board found that it should examine the matter for other reasons.         Police authorities were to give assistance at the request of, inter alia, the Director of Mental Welfare Services or the manager of a nursing home, where a person admitted to the home did not present himself there or did not return following a decision to readmit him to a nursing home under Section 39. Such assistance could only be given if the decision to which the requested assistance related could be immediately enforced (Section 54, subsections 1-2).     cc.    Right of appeal         Under Section 44, subsection 1 an appeal could be lodged with the Psychiatric Council referred to in the 1966 Act on Mandatory Institutional Psychiatric Care in Certain Cases (lag 1966:293 om beredande av sluten psykiatrisk vård i vissa fall, hereinafter "the 1966 Act") against, inter alia, decisions whereby:   -      a person had been admitted to a nursing home in the manner described in the present application;   -      a patient's request for permission to spend time on his own outside the nursing home had been refused or if such a permission had been withdrawn;   -      an application for discharge from, inter alia, a nursing home had been refused;   -      a person had been readmitted to, inter alia, a nursing home after a provisional discharge;   -      a patient had, in connection with a provisional discharge, been obliged to comply with special instructions or placed under supervision.         Under Section 45, subsection 1 no appeal lay against a decision of the Psychiatric Council or a decision pursuant to Section 44 of the chief supervisory authority.         Decisions regarding, inter alia, re-admission as well as decisions by an Administrative Board could be immediately enforced. However, pending its final decision, the authority examining an appeal could prohibit or suspend the execution of a decision against which an appeal had been made (Section 48).   dd. Requests for discharge         The question of discharge from, inter alia, a nursing home was to be reviewed regularly. A custodian or guardian or the mentally handicapped person himself, if he had attained the age of fifteen, could submit an application for a discharge. An Administrative Board was, however, not obliged to consider an application for a discharge until three months had passed since the consideration of a previous application (Section 51, subsections 1-3).   ee.    Notification of a final discharge from a nursing home         A decision finally to discharge a person from a nursing home could be made either by the Director of Mental Welfare Services or the Administrative Board.         With regard to the notification of a decision taken by the Director, Section 21 of the 1986 Act on Administrative Procedure (förvaltningslag 1986:223, hereinafter "the 1986 Act") is applicable as from 1 January 1987. Thus, a party is to be notified of the decision by which a matter had been finally determined, unless this is clearly unnecessary. It falls within the discretion of the authority concerned to decide on how to inform the party of the decision. However, if requested by the party, the notification shall be made in writing. If the decision has been made by a Discharge Board the party shall always be notified in writing.   b.     The 1985 Act on Special Care of Mentally Handicapped Persons and Others and the Transitional Act         The 1985 Act on Special Care of Mentally Handicapped Persons and Others (lag 1985:568 om särskilda omsorger om psykiskt utvecklingsstörda m.fl.) and the Transitional Act to that Act (lag 1985:569 om införande av lagen 1985:568 om särskilda omsorger om psykiskt utveklingsstörda m.fl.) entered into force on 1 July 1986.         The 1985 Act does not provide for any committal to an institution irrespective of consent. Upon its entry into force, the 1967 Act was repealed with certain exceptions provided for in the Transitional Act. As regards nursing homes, Section 6 of the Transitional Act provided that Section 35 and some related provisions - Sections 36-37a and 39-54 - of the 1967 Act were to remain in force. This meant that care in a nursing home could still be imposed on a person without his consent where the conditions laid down in Section 35 of the 1967 Act were satisfied.         According to Section 7 of the Transitional Act, the duties which had been incumbent upon the Senior Medical Officer and the Director of Mental Welfare Services under the 1967 Act were to be carried out by officials appointed by the County Council. Decisions which had been taken by an Administrative Board under the 1967 Act were now to be taken by a Discharge Board under the 1966 Act in certain cases. Appeals could still be lodged with the Psychiatric Council.         As from 1 January 1992 the tasks of the Discharge Boards and the Psychiatric Council have been transferred to the County Administrative Courts (länsrätter) and the Administrative Courts of Appeal (kammar- rätter).     c.     The 1966 Act   aa.    General Provisions         The 1966 Act was in force until 1 January 1992, when it was repealed and replaced by the 1991 Act on Compulsory Psychiatric Care (lag 1991:1128 om psykiatrisk tvångsvård). Under the new law the tasks which were previously incumbent on the Discharge Boards and the Psychiatric Council have been entrusted to the Administrative Courts. The following summary of the law therefore only reflects the situation as it was before 1 January 1992.         The Senior Medical Officer and the patient shall be present at the meeting of the Discharge Board, unless there are special reasons to the contrary. If the patient is represented by another person, that person shall be afforded the opportunity to attend, unless there are special reasons to the contrary (Section 30, subsection 1 of the 1966 Act).         In cases before the Psychiatric Council a hearing shall be held if the nature of the case so requires. The provisions of Section 30, subsection 1 shall then be applicable by analogy (Section 31).         In cases before a Discharge Board or the Psychiatric Council hearings may be arranged with persons who are likely to be able to supply relevant information. The patient shall be present at such hearings, unless there are special reasons to the contrary (Section 33, subsections 1-2).         Discharge Boards or the Psychiatric Council may only decide on a matter if all the members are present. The provisions of Chapter 29 of the Code of Judicial Procedure relating to votes in superior courts shall be applicable by analogy to decisions by Discharge Boards or the Psychiatric Council (Section 34, subsections 1-2).   bb.    Communication of medical records introduced in proceedings before       the Discharge Board         As from 1 January 1987 the 1986 Act became applicable to the proceedings before a Discharge Board. According to Section 16 a party has the right to have access to, inter alia, any document that has been introduced in the proceedings. The rule is subject to some exceptions which are not of relevance in the present case.     d.     The legislation and directives governing the administration of patients' means         If a patient entitled to pension payments stays in a nursing home for at least a whole month, the provider of the care may collect his pension payment for that month (Chapter 10, Section 3 of the 1962 Social Security Act; lag 1962:381 om allmän försäkring, and Section 2 of the 1962 Ordinance).         The collector of the pension payments shall hand over a certain amount of the payments received to the patient. However, if the patient himself is unable, due to his state of health, to make use of the money, it shall be used to improve his comfort or otherwise be spent for his personal benefit (Section 4 of the 1962 Ordinance).         A decision allowing for a person's pension payments to be collected is to be taken by the competent Social Insurance Office. The decision could, under the rules in force at the relevant time, be appealed to a Regional Social Insurance Court (försäkringsrätten) and, ultimately, to the Supreme Social Insurance Court (försäkrings- överdomstolen).         In a circular letter by the National Board of Health and Social Welfare of 4 January 1972 (socialstyrelsens cirkulär om medel för pensionsberättigade psykiskt utvecklingsstördas personliga behov, MF 1972:5) it is confirmed that a patient who is capable of administering cash has an absolute right to spend the money received as he wishes. A deduction from this sum of money to be spent on the general comfort in the nursing home can, thus, only take place with his consent. While there are no formal requirements for such a consent it shall, on the other hand, not be assumed to exist for certain purposes. Under no circumstances shall money be deducted for a purpose which the patient cannot benefit from.         The circular letter further prescribes that even those patients who are incapable of administering cash themselves shall receive a certain amount of money to be spent on their behalf in order to improve their comfort or otherwise for their personal benefit. In these cases it is, in principle, up to the manager of the nursing home to administer the patient's means, provided that he can benefit from any money being spent. It is "important" (angeläget) that, whenever possible and expedient, the administration and spending of money is based on consultations with the parents, the custodian or the guardian of the patient.         A general directive issued by the National Board of Health and Social Welfare on 31 January 1983 (socialstyrelsens allmänna råd om förvaltning av privata medel m.m. inom socialtjänsten, sjukvården och omsorgerna om psykiskt utvecklingsstörda, SOSFS 1983:4) prescribes that the administration of a patient's private means shall be governed by a written agreement between the provider of the care and the patient or his legal representative. Such an agreement may include a consent to withdrawals from the patient's bank account and may at any stage be renounced by the patient or his representative. Private means shall be registered, kept and administered in an adequate manner. Staff shall not keep private possessions on a patient's behalf, except when necessary for the purpose of his social training.     e.     Control mechanisms, civil and criminal liability, etc.         The activities carried out under the 1967 Act are subject to supervision by the National Board of Health and Welfare (socialstyrelsen) which may carry out inspections of, inter alia, nursing homes. This applies equally to activities carried out before 1 July 1986 and, by virtue of the 1985 Transitional Act, after that date.         Medical care provided by, or under the responsibility of, a physician of a nursing home falls under the 1980 Act on the Supervision of Health and Medical Care Staff and Others (lag 1980:11 om tillsyn över hälso- och sjukvårdspersonalen m.fl.; hereinafter "the 1980 Act"). The 1980 Act contains provisions on the duties of such staff, as well as on disciplinary sanctions that may be imposed in case of a failure to comply with those duties. Questions concerning disciplinary sanctions are to be determined by the Disciplinary Board of Health and Medical Care. A decision of this Board may be appealed to an Administrative Court of Appeal (kammarrätt) and, ultimately, to the Supreme Administrative Court (regeringsrätten).         An incident shall, for the purpose of criminal charges being brought, be reported to the police either by the National Board of Health and Social Welfare or the Disciplinary Board in cases where an official can reasonably be suspected of having committed an offence for which imprisonment is prescribed.         The authorities responsible for, and public officials carrying out, activities under the 1967 Act and the 1985 Transitional Act are subject to supervision also by the Parliamentary Ombudsman (riksdagens justitieombudsman). The task of the Ombudsman is to ensure that public authorities and officials comply with their duties and, in particular, that fundamental rights and freedoms are not violated. As a last resort, the Ombudsman is empowered to institute criminal proceedings, or disciplinary proceedings where disciplinary sanctions are provided for, against an official who has, by act or omission, wilfully or through negligence disregarded his duties.         The State, a municipality or a similar public organ is liable for personal and pecuniary damages caused by a fault or negligence committed by an official when carrying out an activity for which the organ is responsible (the 1972 Tort Liability Act; skadeståndslag 1972:207). The fault or negligence may further constitute an offence under the Penal Code (brottsbalken).     COMPLAINTS   1.     The applicants complain under Article 3 of the Convention that the implementation of the care order in the Rosenhill nursing home subjected Kjell Persson to inhuman and degrading treatment. They allege, in particular, that the general medical care afforded to Kjell Persson was inadequate and his feeding was often assigned to inexperienced nursing staff, this resulting in repeated inflammations and bleedings in his gullet requiring emergency treatment.   2.     The applicants further complain of a lack of respect for their private and family life as a result of:         a) the total deprivation of Kjell Persson's privacy due to the       fact that the window of the room in which he was staying at       Rosenhill had no curtains and was facing a corridor in frequent       use by staff, patients and visitors;         b) the restrictions of Gärdh Persson's right to visit him in the       nursing homes;         c) the supervision by Dr. M.B. of Kjell Persson's care in the       applicants' home during his provisional discharge from 16       March 1988 to 15 December 1988; and    &#