Spivak v Ukraine [2025] ECHR 136 is a very helpful and important reminder of the increasing focus that Strasbourg is placing upon non-consensual psychiatric admission and treatment. It is particularly timely for those in England & Wales as the Mental Health Bill is at Committee stage in the House of Commons – a key part of its proposals being tightening of the criteria for both. In this post, I summarise its key conclusions in relation to Articles 5(4) and 3 ECHR.
Article 5(4)
The court made clear, as a starting point that:
136. […] under its case law, the person subjected to compulsory medical treatment should have access to a court and the opportunity to be heard either in person or through some form of representation. The Article 5 § 4 review of the lawfulness of the detention is not required to be automatic, but should rather be an opportunity for proceedings to be initiated by the patient himself or herself (see Gorshkov v. Ukraine, no. 67531/01, § 39, 8 November 2005, with further references). Article 5 § 4 therefore requires, in the first place, an independent legal device by which the detainee may appear before a judge who will determine the lawfulness of the continued detention. The detainee’s access to the judge should not depend on the goodwill of the detaining authority, activated at the discretion of the medical corps or the hospital administration (ibid., § 44).
137. Although it is not always necessary that the procedure under Article 5 § 4 be attended by the same guarantees as those required under Article 6 § 1 of the Convention in respect of criminal or civil litigation, it must have a judicial character and provide guarantees appropriate to the kind of deprivation of liberty in question (see Idalov v. Russia[GC], no. 5826/03, § 161, 22 May 2012). In particular, in the proceedings in which an appeal against a detention order is being examined, “equality of arms” between the parties, the prosecutor and the detained person must be ensured (see Dimitrios Dimopoulos v. Greece, no. 49658/09, § 47, 9 October 2012).
On the facts of the particular case, the court was very concerned as to the ineffectiveness of the regular court reviews provided for under Ukrainian law:
143. In particular, there is no indication that the District Court attempted to scrutinise the reliability of the arguments on the basis of which the applicant – who had been declared free from any psychiatric illness by forensic experts and the Dniprovskyi District Court of Dniprodzerzhynsk – was later diagnosed with a psychiatric disorder by the Dnipro hospital doctors, who controlled his liberty and treatment. At no point was a second independent medical opinion sought in order to confirm or refute the Dnipro hospital’s conclusions about the applicant’s mental state. The Court has in the past found such an opportunity to benefit from a second, independent psychiatric opinion to constitute an important safeguard against possible arbitrariness in decision-making where the continuation of confinement in compulsory care is concerned (see X v. Finland, cited above, § 169; M. v. Ukraine, cited above, § 66; and Anatoliy Rudenko v. Ukraine, no. 50264/08, § 117, 17 April 2014). In this connection the Court also refers to the CPT’s recommendation that periodic review of an order to treat a patient against his or her will in a psychiatric hospital should involve a psychiatric opinion that is independent of the hospital in which the patient is detained (see paragraph 114 above).
Article 3
As the court noted at the outset of its substantive consideration of this issue:
168. According to the Court’s well-established case-law, medical intervention to which a person is subjected against his or her will (including for the purposes of psychiatric assistance) may under certain conditions be regarded as constituting treatment prohibited by Article 3 of the Convention. In particular, the Court has held that a measure that is a therapeutic necessity from the point of view of established principles of medicine cannot in principle be regarded as inhuman and degrading. The Court must nevertheless satisfy itself that a medical necessity has been convincingly shown to exist and that procedural guarantees for the decision exist and are complied with (see, for example, V.I. v. the Republic of Moldova, no. 38963/18, § 95, 26 March 2024; Gorobet v. Moldova, no. 30951/10, §§ 47-53, 11 October 2011; Akopyan v. Ukraine, no. 12317/06, § 102, 5 June 2014; and V.C. v. Slovakia, no. 18968/07, §§ 100-120, ECHR 2011 (extracts), with further references therein).
169. For the purposes of Article 3, ill-treatment must attain a minimum level of severity. The assessment of this minimum level is relative: it depends on all the circumstances of the case, such as the duration of the treatment, its physical and mental effects and, in some cases, the sex, age and state of health of the victim (see, Bouyid v. Belgium[GC], no. 23380/09, § 86, ECHR 2015). In assessing evidence, the Court has generally applied the standard of proof “beyond reasonable doubt”. However, proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact (see Yerokhina v. Ukraine, no. 12167/04, § 52, 15 November 2012).
170. The Court has previously noted that the position of inferiority and powerlessness that is typical of patients confined in psychiatric hospitals calls for increased vigilance in reviewing whether the Convention has been complied with. While it is for the medical authorities to decide, on the basis of the recognised rules of medical science, on the therapeutic methods to be used (if necessary by force) to preserve the physical and mental health of patients who are entirely incapable of deciding for themselves and for whom they are therefore responsible, such patients nevertheless remain under the protection of Article 3, whose requirements permit no derogation (see Herczegfalvy v. Austria, 24 September 1992, § 82, Series A no. 244).
171. The Court has considered that States have positive obligations under Article 3 of the Convention, which comprise, firstly, an obligation to put in place a legislative and regulatory framework of protection; secondly, in certain well-defined circumstances, an obligation to take operational measures to protect specific individuals against a risk of treatment contrary to that provision; and, thirdly, an obligation to carry out an effective investigation into arguable claims that such treatment has been inflicted. Generally speaking, the first two aspects of these positive obligations are classified as “substantive”, while the third aspect corresponds to the State’s positive “procedural” obligation (see X and Others v. Bulgaria[GC], no. 22457/16, §§ 178-79, 2 February 2021).
Interestingly, and taking the law further forward than previously, when applying the law to the facts of the case:
174. The Court observes at the outset that one of the fundamental principles in modern medical ethics and international human rights law – as widely emphasised across various international instruments, including those of the Council of Europe (see paragraphs 111, 117, 119, 120 and 121 above) – is that no medical intervention may take place without the patient’s free and informed consent (see also Pindo Mulla v. Spain[GC], no. 15541/20, §§ 137‑139, 17 September 2024). This principle is a cornerstone of personal autonomy, as it ensures that individuals maintain control over decisions regarding their medical treatment, with a full understanding of the associated risks, benefits, and alternatives. This principle holds particular significance in the field of mental healthcare, where patients are often in vulnerable situations and at heightened risk of treatments being administered without their full understanding or agreement.
175. The Court acknowledges that the issue of informed consent becomes more complex in cases involving compulsory medical measures imposed by court order. The very concept of “compulsory medical measures” appears to conflict with the principle of personal autonomy. At the same time, the justification for such measures often lies in the need to protect either the individual’s health or public safety – considerations that are seen as outweighing and overriding the usual requirement for free and informed consent.
176. Nonetheless, the Court emphasises that even when compulsory medical measures are considered necessary, they must be subject to rigorous oversight to prevent potential abuse and to ensure that the interference with personal autonomy is proportionate and justified. In particular, it is essential that the treatment provided is appropriate and necessary. Without such safeguards, the automatic authorisation of treatment without consent risks undermining the individual’s rights in a manner that may be incompatible with the rule of law in a democratic society.
On the facts of Mr Spivak’s case, the court found that
189. […] the Ukrainian legal framework existing at the time fell short of the requirement inherent in the State’s positive obligation to establish and apply effectively a system providing protection to patients undergoing compulsory medical treatment in mental care facilities against breaches of their integrity, contrary to Article 3 of the Convention. The absence of proper legal safeguards deprived the applicant of the minimum degree of protection to which he was entitled under the rule of law in a democratic society (see, mutatis mutandis, Herczegfalvy, cited above, § 91, and Narinen v. Finland, no. 45027/98, § 36, 1 June 2004; see also X v. Finland, cited above, § 221).
Further:
200. In view of the foregoing considerations and on the basis of the available evidence, the Court is not in a position to find that the medical necessity for the applicant’s retention in the hospital and his treatment with neuroleptics has been convincingly shown to exist. Moreover, the District Court decision delivered on 13 October 2014, which ordered the cessation of coercive medical measures and which was ignored by the hospital until the Ombudsperson and prosecutor intervened, tends to support this conclusion. The Court therefore considers that it can draw inferences in support of the applicant’s version of events.
201. The Court further observes that neuroleptics are commonly understood to be a class of drugs used to manage psychotic conditions such as schizophrenia, particularly symptoms such as delusions and hallucinations. In light of their significant effects on the central nervous system and the risk of serious side effects – including metabolic disturbances, movement disorders, and sedation – their use raises concerns when there is no confirmed diagnosis of a severe psychotic disorder that may pose a danger to the patient or others. The legal instruments and reports adopted by the United Nations indicate that the administration of neuroleptics without medical necessity may amount to ill‑treatment that is prohibited under the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (see paragraphs 120 and 121 above).
202. While the applicant has not claimed that the use of neuroleptics had any long-term or irreversible effects on his health, the Court considers that the mere fact of being subjected to psychiatric treatment with neuroleptics against his will, for almost two years and without proven medical necessity – coupled with a lack of effective legal safeguards against arbitrariness and abuse by the medical staff, and given the immediate cognitive effects of the neuroleptic drugs – was such as to arouse in the applicant a sense of fear, anxiety, and inferiority that was capable of humiliating and debasing him (see and compare Bataliny v. Russia, no. 10060/07, § 90, 23 July 2015). The treatment in issue constituted a fundamental disregard for the applicant’s human dignity, amounting to inhuman and degrading treatment within the meaning of Article 3 of the Convention.
The court further found that the very conditions of Mr Spivak’s detention gave rise to a breach of Article 3.
Comment
Whilst many of the passages above may be familiar to afficionados of Strasbourg jurisprudence in this area (reviewed comprehensively in this book), the observations in relation to informed consent do take matters further forward. They do, however, not go as far as the CRPD Committee would like – Strasbourg has firmly set its face against the proposition that all treatment must always be consensual, recognising that there may be other interests in play. However, it is clear that (rightly) the court will scrutinise with increasing care and concern (1) the frameworks around such treatment; and (2) the application of those frameworks to the facts of individual cases. The observations in relation to Article 5(4) are also a very important reminder that reviews of detention must actually be effective – and what counts as an effective review will depend upon the circumstances.
