CEDH · CASELAW;JUDGMENTS;GRANDCHAMBER;ENG — 31 janvier 2019

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font-size:8pt; vertical-align:super; color:#000000 } .sB343B0AA { font-family:Arial; font-size:6.67pt; vertical-align:super; color:#000000 } .s11AD46B1 { font-family:Arial; font-size:7.33pt; vertical-align:super; color:#0069d6 } .s83BE5C30 { font-family:Arial; font-size:8pt; vertical-align:super } .sF6A12959 { width:33%; height:1px; text-align:left } .s2EB42ED2 { margin-top:0pt; margin-bottom:0pt; font-size:10pt } .sC36A6361 { font-family:Arial; color:#000000 } .s3DC36BA9 { font-family:Arial; text-decoration:underline; color:#0069d6 }       GRAND CHAMBER                 CASE OF FERNANDES DE OLIVEIRA v. PORTUGAL   (Application no. 78103/14)                   JUDGMENT     STRASBOURG   31 January 2019             This judgment is final but it may be subject to editorial revision.   In the case of Fernandes de Oliveira v. Portugal, The European Court of Human Rights, sitting as a Grand Chamber composed of:   Guido Raimondi, President,   Angelika Nußberger,   Linos-Alexandre Sicilianos,   Robert Spano,   Luis López Guerra,   Işıl Karakaş,   Paulo Pinto de Albuquerque,   Branko Lubarda,   Yonko Grozev,   Síofra O’Leary,   Carlo Ranzoni,   Mārtiņš Mits,   Armen Harutyunyan,   Alena Poláčková,   Pauliine Koskelo,   Jolien Schukking,   Péter Paczolay, judges, and Françoise Elens-Passos, Deputy Registrar, Having deliberated in private on 7 March and on 14 November 2018, Delivers the following judgment, which was adopted on the last ‑ mentioned date: PROCEDURE 1.     The case originated in an application (no. 78103/14) against the Portuguese Republic lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Portuguese national, Ms Maria da Glória Fernandes de Oliveira (“the applicant”), on 4 December 2014. 2.     The applicant was represented by Mr J. Pais do Amaral, Ms   A.   Pereira de Sousa and Ms C. Botelho, lawyers practicing in Coimbra. The Portuguese Government (“the Government”) were represented by their Agent, Ms M.F. da Graça Carvalho. 3.     The applicant complained under Article 2 of the Convention that her son, A.J., had been able to commit suicide as a result of the negligence of the psychiatric hospital where he had been hospitalised on a voluntary basis. Under Article 6 she also complained about the length of the civil proceedings she had instigated against the hospital. 4.     The application was allocated to the Fourth Section of the Court (Rule   52 § 1 of the Rules of Court). On 28 March 2017 a Chamber of that Section, composed of the following judges: Ganna Yudkivska, President, Nona Tsotsoria, Paulo Pinto de Albuquerque, Krzysztof Wojtyczek, Egidijus Kūris, Iulia Antoanella Motoc, and Marko Bošnjak, and also of Andrea Tamietti, Deputy Section Registrar, declared the application admissible. In its judgment, delivered on the same date, the Chamber found unanimously that there had been a violation of the substantive and procedural aspects of Article 2. On 27 June 2017 the Government requested the referral of the case to the Grand Chamber in accordance with Article   43 of the Convention. On 18 September 2017 the panel of the Grand Chamber granted that request. 5.     The composition of the Grand Chamber was determined according to the provisions of Article 26 §§ 4 and 5 of the Convention and Rule 24 of the Rules of Court. Luis López Guerra, whose term of office expired in the course of the proceedings, continued to deal with the case (Article   23 §   3 of the Convention and Rule 24 § 4). Péter Paczolay, substitute judge, replaced Helena Jäderblom who was unable to take part in the further consideration of the case (Rule 24 § 3). 6.     The applicant and the Government both filed further written observations (Rule 59 § 1 read in conjunction with Rule 71 § 1). 7.     A hearing took place in public in the Human Rights Building, Strasbourg, on 7 March 2018 (Rule 59 § 3).   There appeared before the Court: (a)     for the Government Ms   M.   de   Fátima da Graça Carvalho ,   Agent, Ms   A. Garcia Marques, Dr   A. José Pires Preto,   Advisers; (b)     for the applicant Ms   A. Pereira de Sousa,   Counsel, Ms   C. Botelho, Dr   C. Fernandes da Silva,   Advisers.   The Court heard addresses by Ms da Graça Carvalho, Ms Pereira de Sousa and Dr Pires Preto and their replies to the questions of the judges. THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 8.     The applicant was born in 1937 and lives in Ceira (Portugal). 9.     The facts of the case, as established by the domestic courts and submitted by the parties, may be summarised as follows. A.     The background to the present case 10.     The applicant’s son, A.J., was born on 29 May 1964. 11.     A.J. suffered from several mental illnesses, with a number of possible diagnoses being considered over the years such as schizophrenia and major depression. He also had a pathological addiction to alcohol and prescription drugs ( medicamentos) and was sometimes violent towards his mother and sister. According to the expert medical opinion obtained after his death and during the domestic proceedings (see paragraph 33 below), A.J. may also have suffered from borderline personality disorder. 12.     A.J. was hospitalised in the Sobral Cid Psychiatric Hospital ( Hospital Psiquiátrico Sobral Cid , hereinafter “the HSC”) in Coimbra on eight occasions on a voluntary basis from: 1.     5 to 8 August 1984; 2.     15 March to 3 April 1985, when he was prevented from leaving the pavilion building at least for part of his stay; 3.     15 to   28   November 1985; 4.     10 to 18 January 1993, after being accompanied to the HSC by the police who had been called to his home following a family dispute. He was released at his request, having filled out a release form; 5.     1 to 12 February 1993; 6.     1 to 3 September 1999, when he was urgently admitted to hospital on 1   September (diagnosed with chronic alcoholism), and signed his own release form on 3 September 1999 against medical advice; 7.     12 December 1999 to 14 January 2000, when he was hospitalised after a delirious episode, and referred to the HSC by the emergency department. At the beginning of his stay he was forbidden to leave the pavilion building where he was confined; 8.     2 to 27   April 2000, during which period he left the pavilion twice – on 3 and 27 April 2000 – without permission. 13.     The medical files show that his degree of dependence on medical assistance ( grau de dependência ) varied during these stays between being a patient in need of partial assistance and a patient requiring intensive or full assistance. At other times the degree of dependence was not noted, as was the case for his last stay in 2000. Between some of these stays he saw a doctor at the HSC as an outpatient but on an infrequent basis. 14.     According to the Government, these stays followed emergencies or bouts of alcoholic intoxication, and only the last stay followed a suicide attempt. 15.     During some of the periods he spent in hospital, A.J. was authorised to spend weekends at home with his family – three weekends during the period from 12 December 1999 to 14 January 2000, and two weekends during the period from 2 to 27 April 2000. B.     The events prior to A.J.’s death 16.     In March 2000 A.J. went to Lisbon to try to renew his driving licence for heavy vehicles. However, he was unsuccessful. On 1   April 2000 he attempted to commit suicide by taking an overdose of prescription drugs. He was taken to the emergency department of Coimbra University Hospital. 17.     On 2 April 2000 A.J. was voluntarily admitted to the HSC from the emergency department (this was the last of his stays at the HSC (see paragraph   12 above). He was treated by Dr A.A., who had been his psychiatric doctor since December 1999. According to the clinical records dated 2 April 2000 and the witness statement of Dr A.A., the suicide attempt may have been the result of his failure to renew his driving licence. According to her, he had become depressed and thought his life no longer had any value, he felt marginalised and also powerless to achieve any aim in life. 18.     For the first week of his stay at the HSC, he was placed under a restrictive regime, even though he was a voluntary inpatient (see paragraph   54 below). He was confined - in his pyjamas - to pavilion 8, where the Male General Psychiatric Clinic (Hospitalisation of Acute Cases) was located, and was not allowed to leave the pavilion. However, the clinical records show that on 3 April 2000 he left the pavilion after lunch and went home. He was brought back to the HSC by his brother-in-law at around 1.30   p.m. In the second and third week of that stay at the HSC, given an improvement in A.J.’s condition, the restrictive regime was lifted and he was allowed to circulate outside the pavilion and within the HSC grounds. This regime remained unchanged up until his death on 27   April 2000   (see paragraph   28 below). During that period he was allowed to spend two weekends at home. 19.     During the second weekend A.J. was allowed to go home to spend Easter with the applicant and other members of his family. He left the HSC at 10   a.m. on Friday 21 April 2000 after his breakfast, and was due to return on Wednesday 26 April 2000 after breakfast. Dr A.A. was on holiday over that period (she had left on 19 April 2000) and was replaced by Dr   E.R. Dr   E.R. saw A.J. twice before the latter spent the Easter weekend at home. 20 .     At around 10.30 p.m. on Tuesday 25 April 2000, the applicant took A.J. to the emergency department of the Coimbra University Hospital because he had drunk a large amount of alcohol. The observation record completed by the emergency department at around midnight on 25   April 2000 read as follows: “patient hospitalised in HSC, being seen by doctor A.A; he spent the weekend outside and must have behaved recklessly because he got drunk. History of mental weakness, depressive episodes and recurrent suicide attempts, those characteristics were not observed during the weekend. Sent back to the HSC where he is hospitalised.” He was prescribed medication in case of emergency, and it appears from his clinical records that he was given emergency medication at around 2   a.m. on 26 April 2000 at the HSC. 21.     The clinical record from 8 a.m. to 4 p.m. on 26 April 2000 shows that A.J. stayed in bed and only got up to eat. He received phone calls and a visit from his sister. There is no clinical record for the shift from 4 p.m. to midnight and for the shift from midnight to 8 a.m. the next day. The domestic courts accepted that the applicant’s son had been medicated for the whole day, whereas the applicant contested that fact on the basis of the lack of any clinical record. 22.     The clinical record resumes at 8 a.m. on 27 April 2000. The nurse noted that between 8 a.m. and 4   p.m. A.J.’s behaviour had been calm and he had been walking around outside pavilion 8. According to the oral statement of one nurse and the clinical record, he had eaten well, including his afternoon snack at around 4.45   p.m. 23.     The clinical records do not mention that A.J. was seen by the doctor on call on returning to the HSC. Dr E.R. stated in his oral evidence that he had assumed that A.J. was fine since the nurses had not requested any assessment (see paragraph   35 below). 24.     At around 4   p.m. the applicant called the hospital. She was told to call back later, during the afternoon snack, as her son was not inside the building at that time. She was assured that some minutes earlier he had been standing at the door and he looked fine. 25.     At around 7 p.m. it was noticed that A.J. had not appeared for dinner. The coordinating nurse was informed of his absence. The hospital staff then started searching the areas where patients were allowed to walk about freely, such as the cafeteria and the park. 26.     At some time between 7 p.m. and 8 p.m. the coordinating nurse reported the disappearance to Dr M.J.P., who was on call that day (but not at the HSC at that time), and contacted the National Republican Guard. 27.     At around 8 p.m. the coordinating nurse spoke on the telephone to the applicant and told her that A.J. had not appeared for dinner. 28.     It is not known at what precise time A.J. left the pavilion and the hospital grounds after he had taken his afternoon snack and thereafter followed a footpath towards the applicant’s house. At 5.37   p.m., dressed in his pyjamas, A.J. jumped in front of a train running between Lousã and Coimbra. C.     Domestic proceedings against the hospital 29 .     On 17 March 2003 the applicant lodged a civil action with the Coimbra Administrative Court ( Tribunal Administrativo do Círculo de Coimbra ) against the HSC under the State Liability Act (Legislative Decree no. 48051 of 21 November 1967) seeking pecuniary and non-pecuniary damages of 100,403 euros (EUR). 30.     The applicant claimed that her son had been treated at the HSC for mental disorders on several occasions. He had been admitted to the hospital as a voluntary inpatient on 2 April 2000 because he had attempted to commit suicide. She alleged that he had made another attempt over the Easter weekend when he was at home with her. The fact that her son had been able to leave the hospital grounds on 27   April 2000 had led the applicant to conclude that the hospital staff had acted negligently in the performance of their duties. Because of his suicide attempts and mental condition, her son should have been under medical supervision and the hospital staff should have prevented him from leaving the hospital grounds. She maintained that her son’s suicide had been caused by the poor organisation of the hospital services. The poor organisation was reflected in three aspects: a) the lack of fencing around the boundaries of the hospital, which allowed inpatients to leave the hospital easily without any supervision, b) the lack of a mechanism for checking the presence of inpatients which would allow the hospital staff to notice an absence immediately, and c) the lack of an emergency procedure capable of detecting an inpatient’s absence, which would allow the hospital staff to adopt the effective measures required to ensure that the inpatient was returned safely without endangering the lives of others or his own life. The applicant relied on the specific background leading to A.J.’s hospitalisation since the beginning of April as well as details from his clinical record, notably his repeated excessive consumption of alcohol, his mental illness, and his earlier suicide attempt. She maintained that on account of all those circumstances, the monitoring measures should have been enhanced in order to prevent him from leaving. 31.     On 29 October 2003 the court gave a preliminary decision ( despacho saneador ) specifying the facts considered to be established and those which remained to be established. 32 .     On 5 July 2005 the court ordered that an expert report be drawn up on A.J.’s clinical condition and the supervision measures required as a result of that condition. 33 .     On 27 September 2006 a psychiatrist appointed by the Medical Association ( Ordem dos Médicos ) submitted his report, which was based on an analysis of photocopies from the clinical files of the HSC. The relevant parts of the report read as follows: “... Although alcohol dependence was the predominant diagnosis, several other diagnoses were considered. In particular, dependent personality ( personalidade dependente ); delirious outbreaks ( surto delirante ); schizophrenia; manic-depressive psychosis ( psicose maníaco-depressiva )... A.J.’s clinical history enables us to consider him an ill person with recurring relapses into excessive alcohol consumption ... but also another kind of symptomatology... He was an individual who was “very violent and aggressive when he was drunk, and even in those moments when he had not been drinking he was a conflictual young man, easily irritable”... ... There is no detailed reference in his clinical records to his psychopathological condition on 26 April 2000 (after the alcohol intoxication episode which led him to the emergency services on 25 April 2000), 27 or 28? April 2000... ... The [plaintiff’s] son suffered from disturbances which caused depressive behaviour with a significant inclination to suicide. Taking into account the clinical documents, his clinical condition may have led to another attempt to commit suicide, which turned out to be fatal. In addition, the polymorphism of the patient’s psychiatric condition should be emphasised. A psychopathological condition such as the patient’s has a bad prognosis and suicide is frequently preceded by an attempt (or attempts) to commit suicide. ... Indeed, it must be clarified that ... he may have been suffering from a borderline personality disorder [ perturbação de personalidade borderline ]... ... There is reference to a multiplicity of diagnoses, all of them capable of enhancing the risk of the patient’s suicide (and also of suicidal behaviour). ... The clinical history and psychopathological framework [ quadro psicopatológico ], for the reasons already mentioned, would predict future suicidal behaviour; thus the occurrence of suicide is not surprising. With regard to prevention, containment and surveillance measures must without a doubt be adopted. But with a patient like this one, these measures are difficult to adopt (see for example his requests to be discharged despite the doctor’s opinion, which is substantiated) and never sufficient because of the high potential for suicide. ... We can assume or assert the increased suicide potential of an individual when he is suffering from a psychopathological framework such as schizophrenia, major depression, chronic alcoholism; all these pathologies are mentioned in the patient’s clinical records. This potential is also increased if the patient is suffering from Borderline Personality Disorder, as we mentioned; an illness which cannot be excluded with regard to this patient. The prevalence of suicide is significant among patients suffering from these pathologies. Therefore, what happened is not unusual. The fact that the patient had been on antidepressant treatment for more than two weeks, had wandered around the hospital without ever endangering his life, and the fact that there is nothing in the medical records on suicidal thoughts, does not mean that the probability of that event (suicide) was negligible. However, it was hardly avoidable. [Fully effective] Prevention of suicide in these patients is an impossible task. In a patient who wanders around the hospital and whose symptomatology is not suggestive of imminent suicide, where that probability (of suicide) is higher but is not so increased at that moment (considering the background and the characteristics of the patient), prevention is much more difficult.” 34 .     The first hearing took place on 8 October 2008. The applicant and the psychiatrist who had issued the above medical opinion gave evidence at the hearing. 35.     At five hearings (namely on 8 and 9 October 2008, on 14 January 2009, and on 9 and 13 February 2009) the court heard evidence from different witnesses, including: the applicant’s daughter (A.J.’s sister); nurses, doctors and medical auxiliaries who had worked for or were still working for the HSC, some of whom had started their shift at 4 p.m. on 27   April 2000; a social worker employed by the HSC since 1995, who had had contact with A.J.; and the train driver. Dr A.A., who had been A.J’s psychiatric doctor at the HSC, gave evidence that his treatment consisted of taking the prescribed medication, ensuring that he received the treatment voluntarily, and establishing a relationship of trust with him in order for him to receive therapy. She confirmed that voluntary inpatients could have their freedom of movement restricted if it was thought necessary. In these circumstances inpatients would be forbidden from leaving the pavilion and would remain in their pyjamas. Dr E.R. (who had been replacing Dr A.A. at the relevant time) confirmed that on 27 April 2000 there had been no mention on the information board in pavilion 8 of any restrictive measures in respect of A.J. In other words, he had been free to leave the pavilion, although to leave the grounds of the HSC he would have needed medical permission. Dr M.J.P., who had been the emergency doctor on call on 27   April 2000, explained that had the nurses in the pavilion seen a problem with A.J.’s behaviour on that day they would have called her, which they had not done. The court also analysed several documents attached to A.J.’s clinical file from the HSC. 36.     On 9 March 2009 the court conducted an on-site inspection (see paragraph 48 below). 37.     On 7 January 2010 the court held a hearing at which it adopted a decision concerning the facts. The court considered, inter alia , that it should not explicitly define A.J.’s pathology. Regarding the episode on 25   April 2000, the court decided to view it simply as an abuse of alcohol, taking into account his underlying chronic alcoholism and the fact that the drinking had taken place in the afternoon and mainly at a café. 38 .     On 25 April 2011 the Coimbra Administrative Court delivered a judgment in which it ruled against the applicant. With regard to the applicant’s argument that the hospital should have erected fences or other barriers around the hospital grounds, the court pointed out that the current approach in the treatment of mentally ill patients was to encourage social interaction. The existence of fencing would lead to the stigmatisation and isolation of mentally disabled inpatients. In this regard it held that the lack of security fences or walls was: “in line with modern theories of psychiatric science according to which the treatment of patients suffering from mental disorders must take place in an atmosphere of trust and mobility of movements, in physical conditions which promote the freedom and autonomy of movements, and which favours the interaction and the conviviality between patients and the staff in order to encourage [the patient’s] reintegration; monitoring of these patients must be conducted in a discreet way”. 39.     As to the applicant’s complaint regarding the lack of a mechanism capable of checking the presence of inpatients, the court found that the HSC had a surveillance procedure in place which consisted of verifying the inpatients’ presence at meal and medication times; this was in compliance with recent psychiatric science and respected the inpatients’ right to privacy and dignity. Additionally, the court found that the inpatients in respect of whom a specific restrictive regime of hospitalisation was adopted were given more attention by the nursing team and the medical assistants, who verified their presence inside the building where they were hospitalised or in the areas surrounding the building’s entrance, as the case may be. With regard to the applicant’s argument that no emergency procedure existed, the Coimbra Administrative Court noted that it consisted of alerting the police and the inpatient’s family in the event of absence. It found this procedure to be appropriate. 40.     As regards the applicant’s complaint that her son had committed suicide as a result of the absence of permanent monitoring, the court held that his suicide had not been foreseeable. It was true that her son had been suffering from a mental illness which had never been properly diagnosed, either because the symptoms were complex or because he had been addicted to alcohol and prescription drugs. In this regard, the court pointed out that over the years the applicant’s son had been diagnosed with schizophrenia and major depression. However, it was only after his death and as a consequence of an expert opinion requested from the Medical Association during the proceedings (see paragraph 33 above) that a probable diagnosis of borderline personality disorder had been made. The court established that A.J. had last been admitted as an inpatient after a suicide attempt. However, it considered that despite the possibility that inpatients diagnosed with mental diseases such as those of the applicant’s son might commit suicide, during the last days before his death he had not shown any behaviour or mood which could have led the hospital staff to suspect that 27 April 2000 would be different to the preceding days. According to the Coimbra Administrative Court, the fact that he had been admitted to the emergency department of the Coimbra University Hospital because he had consumed a large amount of alcohol had not been the result of a suicide attempt but of reckless behaviour. The Coimbra Administrative Court found that, having returned to the HSC, he had been kept under medical supervision the whole day, was medicated and accompanied by the medical staff, and that his health had improved. The court thus concluded that there were no circumstances that would have made it possible to predict the tragic outcome that had occurred. It was not possible to affirm that his suicide had been predictable, nor was there anything in the case file that could have justified the adoption of the involuntary treatment procedure in the days preceding the tragedy, since it was not foreseeable that he would commit suicide. According to the court, A.J.’s behaviour had been “absolutely unexpected and unforeseeable”, given the concrete circumstances of the case. 41.     On 12 May 2011 the applicant appealed to the Administrative Supreme Court, claiming that the first-instance court had wrongly assessed the evidence, that its findings of fact had been incorrect, and that it had wrongly interpreted the law. 42 .     On 26 September 2012 the Deputy Attorney-General attached to the Administrative Supreme Court was asked to provide an opinion on the appeal. He recommended that the first-instance judgment should be reversed. The opinion focused on the failure to put in place a surveillance framework specifically adapted to A.J.’s mental health problems and risk of suicide, as well as the alleged failure of the HSC to comply with its obligation to prevent suicide. It stated that: “.... with regard to patients with a tendency to commit suicide only the prescription and application of enhanced monitoring ( vigilância acrescida ) could be considered adequate. In A.J.’s medical report there are references to suicide attempts; the last one occurred on 1 April 2000, some days before 26 April 2000 when he went back to HSC after being treated at [Coimbra University Hospital] due to the consumption of a large amount of alcohol; the possibility of a suicide attempt was thus a “probable risk” or, among the possible risks, one which could be anticipated in so far as it could be expected by a prudent assessor ( avaliador prudente ). Therefore, in our opinion, the impugned judgment has erred in considering for the purpose of assessing the level of monitoring required from the defendant, that A.J.’s suicide was an absolutely unexpected and unforeseen fact and by holding that there were no grounds to increase the monitoring in the particular case. The [HSC] never prescribed or put in place a regime to reinforce the monitoring of A.J. – a regime which could be suited to preventing any possible exit from the hospital, ... This enhanced surveillance, which aims at protecting the patient, is part of the therapeutic obligation of the hospital and it does not conflict with the open-door regime as a treatment method applied to patients in the circumstances in which it is considered suitable.” 43.     Regarding the facts which the applicant had relied on concerning several HSC inpatients who had left without permission and the resulting tragic consequences, the opinion noted that those elements should not be taken into consideration. According to the opinion: “the degree of surveillance that ought to be established must take into consideration “all the probable risks” and all those “which can fall within the expectations of a prudent assessor”. A.J.’s medical report, alone, already had references to suicide attempts, one of which had occurred twenty-five days earlier. Thus it was possible to predict a repetition of those. It is therefore possible to conclude that the defendant did not establish or put in place any monitoring measure which could be considered adequate to the status of a psychiatric hospital and to A.J.’s characteristics as a patient – it could and should have done so.” 44.     On 29 May 2014 the Administrative Supreme Court dismissed the applicant’s appeal by two votes to one, upholding the legal and factual findings of the Coimbra Administrative Court. The Administrative Supreme Court found that the facts relied on by the applicant before the lower court concerning similar cases of inpatients who had left the HSC without permission were irrelevant to the decision in the instant case. The court rejected the applicant’s argument that A.J. had exhibited depressive behaviour with a “strong” tendency towards suicide, which he had attempted on different occasions. It upheld the finding of the lower court which had established only one suicide attempt on 1 April 2000. 45.     The Administrative Supreme Court considered that the practice of counting of inpatients at meal and medication times was sufficient and had allowed the hospital staff to verify A.J.’s attendance during lunch and the afternoon snack on 27 April 2000. It rejected the applicant’s argument that counting the inpatients when they were given their meal trays with their meals was “deeply amateurish”. As to the foreseeability of the suicide, the Administrative Supreme Court held that the HSC had not breached any duty of care, as there had been no indication which could have led the hospital staff to suspect that the applicant’s son would try to commit suicide that day, namely by leaving the hospital grounds. The Administrative Supreme Court took into account that during previous periods of hospitalisation the applicant’s son had also left the hospital grounds, and that no link had been established between that behaviour and a particular risk of suicide in so far as they had only been able to establish the existence of a single suicide attempt, namely on 1 April 2000. 46.     In a dissenting opinion, one of the judges stated that the hospital should have secured the grounds in some way in order to fulfil its duties of care and supervision. By not doing so, it had allowed inpatients to leave easily without being discharged, thus breaching those duties. That omission had been the cause of the “escape” and suicide of the applicant’s son. D.     Background information concerning the HSC 47.     The HSC is a psychiatric hospital located outside Coimbra on seventeen hectares of land. It is part of the Coimbra University Hospital and is State-run. 48 .     According to an on-site inspection made by the Coimbra Administrative Court on 9 March 2009 in the course of the proceedings against the hospital, the HSC had eighteen buildings (one for each hospital department). On the basis of information before the Court it appears that different types of patients were hospitalised in these different buildings depending on their gender and the type and extent of their illness. The grounds of the HSC were not bordered by security fences or walls of any other kind. The buildings were surrounded by green areas with trees and other vegetation, and the different buildings were accessed by means of roadways and paths, which were also surrounded by trees and other vegetation. The main entrance to the HSC had a barrier and a security guard. One of the possible exits from the hospital grounds led to a shortcut towards a railway station platform. This shortcut was accessed by taking the road behind building no. 9. The station platform was around a fifteen to twenty-minute walk from that part of the HSC’s grounds. 49.     In accordance with the guidelines prepared by the HSC, meals were taken in the hospital cafeteria and inpatients had to remain there until the end of the meal. There was a User’s Guide intended for inpatients which set out the rules governing their hospitalisation. Inpatients were not allowed to leave the pavilion without informing the relevant nurse in advance. Inpatients were also forbidden to leave the hospital grounds without the authorisation of a specialist. If an inpatient wished to leave the hospital before authorisation had been given, a discharge form had to be signed. 50.     The following schedule was in place during A.J.’s stay in April   2000: i.     Wake-up time: between 7 a.m. and 8 a.m.; ii.     Bedtime: flexible, from 10 p.m. the inpatient must remain silent and with the lights out; iii.     Meals: 1.     Breakfast: from 8.35 a.m. to 9.30 a.m.; 2.     Lunch: from 12 noon to 1 p.m.; 3.     Afternoon snack: 4.45 p.m.; 4.     Dinner: from 7 p.m. to 8 p.m.; 5.     Evening snack: 10 p.m. 51.     A mechanism was in place, as recognised by the domestic courts, for checking an inpatient’s presence, by counting the inpatients at each meal time (five times a day) and at medication time. In addition to this, an inpatient’s presence was checked at bedtime. Inpatients under a restrictive hospitalisation regime were monitored more closely by the nursing team. 52.     An emergency procedure was triggered when the absence of a patient was noticed. This procedure consisted of alerting the police, the doctor on call and the inpatient’s closest relatives. 53.     During hospitalisation an inpatient was accompanied by a therapeutic team made up of a doctor, a nurse, a social worker, and a medical auxiliary. 54.     A distinction was made between voluntary and involuntary hospitalisation (see paragraph 58 below). Under voluntary hospitalisation, an inpatient could abandon treatment at any moment. However, according to the doctors who testified in the domestic proceedings and the Government’s observations, there were two types of regime for voluntary inpatients: a restrictive regime, according to which inpatients were not allowed to leave the pavilion, and a general regime, allowing inpatients to leave the building after informing the duty nurse, although they were still not allowed to leave the grounds of the HSC without permission. Inpatients under the restrictive regime were generally dressed in pyjamas and a dressing gown, while inpatients under the general regime seem to have had a free choice as to what they wore. It appeared that inpatients were often kept on the restrictive regime at the beginning of a hospital stay, even if they were admitted on a voluntary basis. There was an isolation room for inpatients who were very agitated and aggressive and this room could also be used for voluntary inpatients. 55.     The applicant submitted news articles to the Court referring to inpatients who had apparently managed to leave the HSC’s grounds. The first five articles below had already been submitted to the domestic authorities (see paragraph 44 above where the Administrative Supreme Court found the information contained therein to be irrelevant to the decision in the instant case): (i)     on 9 March 2008 the body of an inpatient who had escaped two weeks earlier was found close to the hospital grounds (in Diário de Coimbra ); (ii)     on 29 October 2008 a man escaped from the HSC and was hit by a car after jumping in front of it (in Diário das Beiras ); (iii)     on 31 July 2008 the body of an inpatient who had escaped from the hospital the previous month was found in a river (in Diário de Coimbra ); (iv)     on 14 August 2008 a patient who had been involuntarily hospitalised in the HSC escaped (in Diário de Coimbra ); (v)     in early March 2010 three different inpatients escaped from the hospital; one of them was located by the police after stealing a car and another was found dead in a nearby river (in Bombeirospontopt ); (vi)     on 16 October 2011 an inpatient escaped from the HSC’s grounds and attacked two police officers with a hoe (in Correio da Manhã ); (vii)     on 1 March 2015 two inpatients escaped from the HSC and stole a car   (in Tvi24 ). II.     RELEVANT DOMESTIC LAW AND PRACTICE A.     The Health Act 56.     The Health Act (Law no. 48/90 of 24 August 1990) provides that health care is dispensed by State services and establishments and by other public or private, profit-making or non-profit entities under State supervision. Under Basic Principle XIV of the Act, users of the health-care system have, among other rights, the right to freely choose their doctor and health-care establishment, the right to receive or refuse the treatment offered, the right to be treated in an appropriate and humane manner, promptly and with respect, the right to be informed about their condition, of possible alternative treatments and of the likely development of their condition, and the right to complain of the manner in which they have been treated and to receive compensation for any damage suffered. 57.     The Health Act is regulated by Legislative Decree no. 11/93 of 15   January 1993, which approved the National Health-Care System Regulations. Under Article 38, the State has the task of supervising health ‑ care establishments; the Ministry of Health is responsible for setting health ‑ care standards, without prejudice to the functions assigned to the Medical Association and the Pharmacists’ Association. B.     The Mental Health Act 58.     The Mental Health Act (Law no. 36/98 of 24 July 1998) sets out the general principles of mental-health policy and regulates the voluntary and involuntary hospitalisation of inpatients with psychiatric disorders. The relevant provisions read as follows: Section 3 – General principles of mental health “... a)     The provision of mental-health care is carried out in the community in order to avoid the removal of patients from their usual environment and to facilitate their rehabilitation and social integration; b)     Mental-health care is provided in the least restrictive environment possible. ...” Section 7 - Definitions “... a)     Involuntary hospitalisation ( Internamento compulsivo ): hospitalisation [ordered] by judicial decision regarding a patient with a severe mental disorder; b)     Voluntary hospitalisation ( Internamento voluntário ): hospitalisation at the request of the patient with a mental disorder or at the request of the legal guardian of a minor under the age of fourteen years old. ...” Section 12 - Requirements “1 - A patient with a severe mental disorder who creates, due to that disorder, a situation of danger for legally protected interests ( bens jurídicos ) of significant value, belonging to him or herself or others, of a personal or patrimonial nature, and refuses to undergo the necessary medical treatment, may be interned in an appropriate establishment. 2 - A patient with a severe mental disorder who does not possess the necessary discernment to assess the meaning and scope of the consent may also be interned where the absence of treatment seriously damages his or her state.” Section 13 - Locus standi “1 - The legal representative of a patient with a severe mental disorder, any person with legal standing to lodge prohibition ( interdição ) proceedings, the public health authorities and the State Attorney’s Office ( Ministério Público ) has the legal standing to request compulsory hospitalisation. 2 - Whenever a doctor in the exercise of his or her functions diagnoses a mental disorder with the effects set forth in section 12, he or she may communicate that diagnosis to the competent public health authority for the purposes of the previous paragraph. 3 - If the diagnosis is made during voluntary hospitalisation, the clinical director of the establishment also has the legal standing to request involuntary hospitalisation.” C.     Legislative Decree no. 48051 of 21 November 1967 59.     Legislative Decree no. 48051, in force at the time the proceedings were instituted by the applicant, governed the State’s non-contractual civil liability. It contained the following provisions of relevance to the instant case: Article 2 § 1 “The State and other public bodies shall be liable to compensate third parties in civil proceedings for breaches of their rights or of legal provisions designed to protect the interests of such parties caused by unlawful acts committed with negligence (culpa) by their agencies or officials in the performance of their duties or as a consequence thereof.” Article 4 “1.     The negligence (culpa) of the members of the agency or of the officials concerned shall be assessed in accordance with Article 487 of the Civil Code. 2.     If there are several persons responsible, the provisions of Article 497 of the Civil Code shall apply.” Article 6 “For the purposes of this Decree, legal transactions which infringe statutory provisions and regulations or generally applicable general principles, and physical acts which infringe such provisions and principles or the technical rules and rules of general prudence that must be observed, shall be deemed unlawful.” 60.     According to domestic case-law concerning the State’s non-contractual liability, the State is required to pay compensation only if an unlawful act has been committed with negligence and there is a causal link between the act and the alleged damage. D.     Legislative Decree no. 35/99 of 5 February 1999 61.     Legislative decree no. 35/99 of 5 February 1999, in force at the time of A.J.’s last stay in hospital, contains provisions on the organisation of psychiatric and mental health care. The preamble reads as follows: “... Thus considering, in particular, the recommendations of the United Nations and of the World Health Organization regarding the priority of promoting the provision of care at the community level in the least restrictive way and, in the specific context of psychosocial rehabilitation, the provision of care in day-care centres and in accommodation structures appropriate to the patients’ specific degree of autonomy, the urgency to overhaul the mental health policy and to subsequently revise the model of services’ organisation, which Legislative Decree no. 127/92 did not succeed in doing, has become even more pressing since the mid-1990s.” The relevant provisions provide as follows: Article 1 - Object “This decree lays down the guiding principles for the organisation, management and assessment of the psychiatry and mental health services, hereinafter referred to as ‘mental health services”. Article 2 – General principles “... 6 – The provision of mental health care shall focus on the specific needs and circumstances of the persons according to their age and it shall be promoted primarily at the community level in the least restrictive way; the hospitalisation units shall preferably be located in general hospitals.” Article 16 – Tasks of psychiatric hospitals “1 – Psychiatric hospitals are responsible for: ... c)     Ensuring the necessary care of long-term evolution patients ( doentes de evolução prolongada ) hospitalised therein, and promoting the humanisation and the i