Mihailovs v Latvia 35939/10 [2013] ECHR 65, [2013] MHLO 15

"The applicant alleged, among other things, that he had been held against his will in a State social care institution for more than ten years, that he could not obtain release, and that he had been fully dependent on his wife, who had been his guardian, had not represented his interests, and had opposed all attempts by him to defend his rights."

MHLR

The summary below has been supplied by Kris Gledhill, Editor of the Mental Health Law Reports. The full report can be purchased from Southside Online Publishing (if there is a "file not found" error, it means this particular report is not yet available online). More similar case summaries from the year 2014 are available here: Text:MHLR 2014.

Whether there was a deprivation of liberty for the purposes of Art 5(1) ECHR; whether there were adequate protections against the risk of arbitrariness; whether Art 5(4) was breached in the absence of court reviews of detention; whether Art 8 was breached as a result of the placement under guardianship - Mihailovs v Latvia – [2014] MHLR 87

Points Arising: (1) Whether there is a deprivation of liberty in breach of Art 5 turns on the type, duration, effects and manner of implementation of the measure in question; it requires confinement in a restricted space for a non-negligible period of time (which is objective), a lack of valid consent (which is subjective), and imputation to the state. (2) An objection revealing a lack of consent can be made by a person who understands their position even if they have no de jure capacity. Hence, there may be a deprivation of liberty if a person declared legally incompetent tries to leave where they have been placed, or where consent is withdrawn, or the person is incapable of consenting, or where a person can only leave with permission. (3) Domestic law regulating detention must contain adequate safeguards against arbitrariness. (4) Mental disorder has to be reliably established by objective medical opinion, and be of a nature or degree that warrants compulsory confinement and persist; the ECtHR reviews the decisions of the domestic authorities and may assess the sufficiency of the evidence. (5) Whilst welfare may be a relevant factor in the necessity of a placement in an institution, the need for accommodation and social assistance cannot cause detention. (6) Protective measures must reflect the expressed wishes of the individual so far as possible, and so close scrutiny will be had if there has been no consultation in light of the risk of an abuse of rights. Very weighty reasons are required to encroach on the rights of particularly vulnerable groups such as persons with disabilities. (7) Detention on the basis of unsound mind for an indefinite or lengthy period requires a right to test the lawfulness of detention at reasonable intervals before a court, at least when there is no automatic periodic review. Any such review must have a judicial character and appropriate procedural guarantees, involving hearing the person or their representative. This applies when detention is authorised by a court, and a fortiori if no court was involved at the outset.

Facts and Outcome: This case involved the placement of a man deprived of capacity (in light of epilepsy and various psychological traits) in a state social care institution on the application of his wife (as his guardian) with the support of doctors from a psychiatric hospital where he had been placed for a report on his condition in the capacity proceedings. It focussed on the conditions at the places where he had been accommodated. The ECtHR determined that, on the relevant principles, one of the placements (but not another one) involved 8 years of constant supervision and not being able to leave without permission, such that it amounted to detention (objective), to which GM did not consent (subjective) and which was in a state-run institution (so leading to state responsibility). It complied with domestic law (based on the consent of the guardian), but there was no objective medical evidence that justified detention on the basis of mental disorder, and no evidence of danger to self or others, that treatment would not be accepted voluntarily, that other measures had been tried and found wanting. In addition, there was no process for assessing whether the condition persisted. As such, the legal structure breached Arts 5(1) and (4). The placement of 8 years led to an award of €15,000 as just satisfaction.

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