CEDH · CASELAW;CLIN;ENG — 2 octobre 2012

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Hungary - 41242/08 Judgment 2.10.2012 [Section II] Article 5 Article 5-1-e Persons of unsound mind Forced confinement for medical reasons of man with no history of psychiatric disorders and who was no danger to himself or others: violation   Facts – The applicant was referred for medical consultation due to concerns on the part of his family about his behaviour. He was diagnosed as being a paranoid schizophrenic, and his doctor sought a court order for his mandatory institutional treatment. After a hearing at which submissions were heard from the applicant’s doctor and from parties concerned about the applicant’s behaviour, and relying on a psychiatric evaluation carried out during a forty-minute break in the hearing, the district court ordered the applicant’s confinement for treatment. Law – Article 5 § 1 (e): The Court reiterated the three minimum conditions for lawful detention on the basis of unsoundness of mind: the person concerned must reliably be shown to be of unsound mind; the mental disorder must be of a kind or degree warranting compulsory confinement; and the validity of continued confinement must depend upon the persistence of such a disorder. Detention is such a serious measure that it is only justified where other less severe measures have been considered and found to be insufficient to safeguard the individual or public interest. In the instant case, the applicant’s hospitalisation was ordered on the ground that he represented a “significant danger” to his own health.* The application here of such an imprecise legal notion in a rather improvised manner was particularly disturbing in the face of the undisputed fact that the applicant in no way represented an imminent danger to himself or others. This should have warranted a more cautious approach on the part of the authorities, given that any encroachment in the Convention rights of those belonging to particularly vulnerable groups such as psychiatric patients can be justified only by “very weighty reasons”. Instead, the district court had relied almost exclusively on the medical opinions, an approach that was difficult to reconcile with the paramount importance of independent and impartial judicial decision-making in cases pertaining to personal liberty, especially where, as here, the key opinion had been drawn up by an expert in a forty-minute court session break. Therefore, although the applicant’s detention had a formal basis in the national law, the procedure followed was not entirely devoid of the risk of arbitrariness. Further, even assuming that the condition of “lawfulness” was met in the instant case and, that the applicant was reliably shown to be of unsound mind, the Court found the Government’s arguments unconvincing as to whether the mental disorder in question was of a kind or degree warranting compulsory confinement. Given that there was not an imminent danger to the applicant’s health, and that the appropriate consideration was whether medical treatment would improve the applicant’s condition or prevent its deterioration, it was incumbent on the authorities to strike a fair balance between the competing interests emanating, on the one hand, from society’s responsibility to secure the best possible health care for those with diminished faculties and, on the other, from the individual’s inalienable right to self-determination (including the right to refuse hospitalisation or medical treatment, that is, the “right to be ill”). Since a core Convention right (personal liberty) was at stake, the State’s margin of appreciation in this area was not wide. Indeed, involuntary hospitalisation could be used only as a last resort for want of a less invasive alternative, and only if it carried true health benefits without imposing a disproportionate burden on the person concerned. No true effort to achieve the requisite fair balance had been made in the applicant’s case. No in-depth consideration was given to the rational or irrational character of his choice to refuse hospitalisation, to the actual nature of the envisaged treatment, to the medical benefits it could achieve, or to the possibilities of a period of observation or outpatient care. Lastly, no weight whatsoever had been attributed to the applicant’s lack of consent, even though he retained full legal capacity. Taking all of these criteria into consideration, it could not be said that the decision to deprive the applicant of his liberty was based on an assessment of all the relevant factors, and the Court was not persuaded that the applicant’s mental disorder was of a kind or degree that warranted compulsory confinement. Conclusion : violation (unanimously). Article 41: EUR 10,000 in respect of non-pecuniary damage. * Section 188 read in conjunction with section 200 of the Health Act provides for compulsory institutional treatment for mental patients who represent a significant danger to their own or others’ life, limb or health.   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes