The decision of the European Court of Human Rights in ET v Moldova [2024] ECHR 858 is one with ramifications extending significantly beyond Moldova. It concerned the inability of the applicant, who had been declared totally incapacitated owing to her mental illness, to bring a court action aimed at restoring her legal capacity and the alleged discrimination against her on the basis of her intellectual disability. “Incapacitation” is a phenomenon which is still relatively widespread, by which a court declares that a person is (in effect) a non-person legally, such that their actions have no legal consequences.
It is a matter which greatly concerns the Committee on the Rights of Persons with Disabilities, who have regularly challenged states in which such frameworks exist. In ET, the ECtHR made a specific point of referring to the Committee’s General Comment 1 on Article 12 (on the right to legal capacity).
Article 6
At the time that the material events occurred in Moldova, Moldovan law did not provide for any intermediary solutions in respect of varying degrees of incapacitation, i.e. by reference, for instance, to the degree of the person’s cognitive impairment. It only provided for total incapacitation. As the court noted:
46. Aside from the negative effect on a person’s rights under Article 8 of the Convention (see Shtukaturov v. Russia, no. 44009/05, § 95, ECHR 2008), such a rigid rule not allowing the domestic courts to take into account the degree of a person’s incapacitation also resulted in the total limitation of his or her access to a court. “
This clearly engaged Article 6, on the basis that proceedings for restoration of legal capacity are directly decisive for the determination of “civil rights and obligations” (paragraph 42).
The Strasbourg court noted that:
47. It is true that the right of access to a court is not unlimited. In particular, there may be relevant reasons for limiting an incapacitated person’s access to a court, such as for the person’s own protection, the protection of the interests of others and the proper administration of justice (see Nikolyan, cited above, § 91). However, the importance of exercising these rights will vary according to the purpose of the action which the person concerned intends to bring before the courts. In particular, the right to ask a court to review a declaration of incapacity is one of the most important rights for the person concerned since such a procedure, once initiated, will be decisive for the exercise of all the rights and freedoms affected by the declaration of incapacity (see Shtukaturov, cited above, § 71). The Court therefore considers that this right is one of the fundamental procedural rights for the protection of those who have been partially deprived of legal capacity. It follows that such persons should in principle enjoy direct access to the courts in this sphere (see Stanev, cited above, § 241), which was not the case in the Republic of Moldova at the time of the events (see paragraph 16 above, notably Article 308 of the Code of Civil Procedure).
48. The State remains free to determine the procedure by which such direct access is to be realised, while ensuring that the courts are not overburdened with excessive and manifestly ill-founded applications. This problem may be solved by other, less restrictive means than automatic denial of direct access, for example by limiting the frequency with which applications may be made or introducing a system for prior examination of their admissibility on the basis of the file (ibid., § 242).
49. The Court also notes the importance which international instruments for the protection of people with mental disorders attach to granting them as much legal autonomy as possible (see paragraphs 22 and 23 above). In particular, a growing trend has been the replacement of systems based on depriving a person of all legal capacity in his or her “best interests” with a system of supported decision-making which is capable of taking into account the person’s own will and preferences. In this connection, it is to be noted that in the present case the applicant argued that she had had strained relations with her guardian. The latter may have experienced a conflict of loyalties between, on the one hand, the applicant’s former husband in supporting his application to deprive her of legal capacity and, on the other hand, the applicant in supporting her wish to recover her capacity (see Ivinović v. Croatia, no. 13006/13, § 45, 18 September 2014). Nevertheless, the applicant had no direct means to initiate court proceedings to recover her capacity and the courts rejected the court action brought by the lawyer whom she had authorised (see paragraph 11 above).
The court also noted that the Moldovan Constitutional Court had, itself found that the domestic legal provisions limiting the right of access to a court by incapacitated persons to be unconstitutional as well as amendments to the legislation improving the situation. It is therefore not entirely surprising that it then found ET’s Article 6 rights to have been breached.
Articles 8 and 14
Interestingly, the Strasbourg court then went on to consider the applicant’s complaint that she had “been discriminated against as compared with other persons temporarily unable to understand their actions but whose legal capacity remained intact” (paragraph 53). It found that there had been differential treatment:
65. The Court notes that under Article 20 of the Moldovan Constitution […] all persons have the right of access to justice. However, as the law stood at the time of the events, one category of persons – those affected by intellectual disability – could be deprived of their legal capacity and as a result completely lose their right of defending in court their rights, such as those protected under Article 8. The Court considers that this shows the existence of a difference of treatment of this category in comparison to all other persons.
It found that this differential treatment had been based on an identifiable characteristic, “namely the state of mental health of the individual, which is to be considered as a form of “other status” within the meaning of Article 14 of the Convention” (paragraph 66). This then meant it had to consider whether there was an objective and reasonable justification for this treatment:
68. In this connection, the Court reiterates that there is a European and worldwide consensus on the need to protect people with disabilities from discriminatory treatment (see Glor v. Switzerland, no. 13444/04, § 53, ECHR 2009).
69. It accepts that mental illness may be a relevant factor to be taken into account in certain circumstances, such as when assessing parents’ capability of caring for their child (see Cînța, cited above, § 68). In view of the obligation mentioned above, the Court finds that the domestic authorities had the power, and even the obligation to take action which was aimed at protecting the interests of such persons, notably through ensuring reasonable accommodation to their needs. There are, therefore, valid reasons for treating differently persons with mental illnesses, always with the aim of offering additional protection to them, to the extent that they need such protection, and while ensuring that taking into account their will and preferences remains at the heart of any arrangements made. Accordingly, the Court concludes that the reasons advanced by the Government – of protecting the rights and interests of persons affected by intellectual disabilities – constitute an objective and reasonable justification for the measure taken.
That was, however, not the end of the story, because it had to consider whether the methods used were proportionate to the aim of protecting the rights and interests of persons with intellectual disabilities.
71. In the present case the applicant found herself in a situation where she could no longer decide even in respect of the smallest matters or most intimate aspects of her life and was never heard in order to find out whether she had any wishes or preferences.
72. Furthermore, although the applicant had a home in which she had lived before T.A. [her former husband] had applied to have her declared incapacitated, she was moved elsewhere without being asked. Even though the Government submitted that the Cocieri centre in which the applicant had been treated had not prevented anyone from leaving, they did not comment on the applicant’s argument that in practice, patients had not been properly informed of their right to leave. In view of the especially vulnerable situation of persons with intellectual disabilities, such information was essential for them to have any realistic chance of exercising their right to leave.
73. It is also apparent that the applicant was not only prevented from deciding on where to reside, but also on with whom to live. Under the law in force at the time, she were to live with her guarantor M.M., but the latter asked that the applicant be admitted in a specialised institution. Moreover, after being declared incapacitated, she was separated from her two daughters, without any additional judicial review of the need for such a separation (see Cînța, cited above, § 76). Although T.A. argued before the court that the applicant had been aggressive with her daughters, no specific evidence was relied on to confirm the existence of such aggressiveness. During her internment, the applicant could not realistically hope to conduct other social relations, except with other persons being treated at the hospital.
74. In this context, the Court refers to General Comment No. 1 of the Committee on the Rights of Persons with Disabilities, which interpreted Articles 12 and 19 of the United Nations Convention on the Rights of Persons with Disabilities (the CRPD) as requiring, inter alia, that a person with disabilities should be able to express his or her will and preferences, including in respect of such issues as where to live and with whom (see paragraph 23 above).
75. It is to be noted that the States Parties to the CRPD, including the Republic of Moldova, were invited as early as in 2014, that is, before the time frame of the present case, to replace substitute decision-making regimes (whereby a person with intellectual disability is placed under guardianship and the guardian has the power to take all decisions concerning that person) with supported decision-making (see paragraph 23 above). By choosing to continue with a substitute decision-making regime, the Moldovan authorities allowed the most serious interference with the applicant’s rights by depriving her of all legal capacity and thus of any participation in decision-making processes concerning every aspect of her life. The Court finds that this failure on the part of the domestic authorities amounted to disproportionate measures stemming from the legislation itself. It is apparent that less drastic steps were possible, as exemplified by the new protection system introduced by the Republic of Moldova in 2017 and 2018 (see paragraph 20 above).
The conclusion was therefore perhaps inevitable:
76. The Court finds that the Moldovan authorities deviated from what was required to ensure the reasonable accommodation of the applicant’s needs in the form of supporting her in the decision-making process, by denying her any role in organising her own life (see paragraphs 59 and 60 above). The domestic court’s decision of 22 July 2015 (see paragraph 11 above) was based exclusively on the criterion of her mental health status, without any consideration to her actual abilities. The law allowed an interference with the applicant’s rights that was not only not imposable on any other category of persons, but also did not permit the domestic courts to take into consideration the varying levels of intellectual disability and the possibility that, at least in some respects of their lives and with proper assistance, persons in such situations could both understand and take meaningful decisions. Moreover, in the absence of periodic review of the applicant’s capacity to comprehend, the measure taken in her respect could be considered as being taken for an indefinite period of time.
77. With the passage of time, the initial measure taken has become increasingly burdensome on the applicant, causing her discomfort in her daily life while at the same time preventing her from being able to obtain directly in court the right to take at least some decisions on her own, unlike other persons (see paragraphs 59 and 60 above).In the face of this disproportionate means of achieving the otherwise acceptable aim of protecting the rights of persons with disabilities, the Court finds that the measure taken amounted to discriminatory treatment.
Comment
CPRD “absolutists” will no doubt find the judgment in ET to be problematic, given that (in effect) the Strasbourg has adopted a CRPD-lite approach, recognising, as it has done previously, that (in English legal terms) concepts such as capacity and best interests are valid, and also by interpreting “supported decision-making” as respecting, rather than being directed by the person’s will and preferences. Others might find that Strasbourg has sought to interpret the provisions of the ECHR through the prism of what the CRPD actually requires.
In any event, it may be thought that “legal incapacitation” is something that is irrelevant in England & Wales, as no-one is ever incapacitated in the way ET was. However, such would be a brave assertion, as the appointment of a deputy (whether for property and affairs or for health and welfare) might be thought to come very close. So paragraphs 71-75 of the judgment in this case make required reading for anyone who blithely asserts that all is rosy in the garden of the MCA 2005. What they may clear is that anyone acting as a deputy must (not just to comply with the MCA 2005, but also with Article 8 read together with Article 14):
- Take all practicable steps to support that person to make their own decisions in relation to the relevant matters, and revisit the question of their capacity on an ongoing basis.
- Pay close attention to the person’s known wishes and feelings (in CRPD language, their will and preferences) when determining what course of action to take in their best interests in respect of any given decision.
Similarly, anyone relying on the “informal incapacitation” that occurs when s.5 MCA 2005 is relied upon to provide care and treatment must equally be mindful of the same factors. And those who might be required to assist individuals access the Court of Protection in the context either of deputyship (to challenge the appointment or scope of appointment of a deputy) or of DoLS (to the challenge the de facto incapacitation inherent in the authorisation process) need to be astute to observations made about the vital importance of being able to access a court to be able to exercise their rights under Article 6 ECHR.
