The decision of the European Court of Human Rights in Clipea & Grosu v Moldova [2024] ECHR 867 is the second decision in short order concerning Moldova with much wider ramifications. This case concerned two individuals with intellectual disabilities who were periodically undergoing treatment at a psychiatric hospital, on what was said to be a voluntary basis. Their application concerned: (1) whether the conditions to which they were subjected at the hospital gave rise to Article 3 ill-treatment; and (2) whether the fact that their complaints were dismissed without investigation gave rise to discrimination contrary
The ECtHR noted that:
63. […] the applicants were hospitalised on a voluntary basis. This distinction between voluntary and involuntary hospitalisation is an important factor in assessing the scope of the State’s obligations under the Convention. Voluntary patients are generally presumed to have consented to treatment and to retain a greater degree of autonomy than those who are involuntarily detained. However, this voluntary status does not relieve the State of its duty to protect persons in vulnerable situations. Mental health patients, even when admitted voluntarily, may still be in a fragile state due to the very nature of their illness. In this connection, albeit in the context of the States’ obligations under Article 2 of the Convention (see Fernandes de Oliveira v. Portugal[GC], no. 78103/14, § 124, 31 January 2019), the Court has previously held that:
“There is no doubt that as a person with severe mental health problems A.J. was in a vulnerable position. The Court considers that a psychiatric patient is particularly vulnerable even when treated on a voluntary basis. Due to the patient’s mental disorder, his or her capacity to take a rational decision to end his or her life may to some degree be impaired. Further, any hospitalisation of a psychiatric patient, whether involuntary or voluntary, inevitably involves a certain level of restraint as a result of the patient’s medical condition and the ensuing treatment by medical professionals. In the process of treatment, recourse to further kinds of restraint is often an option. Such restraint may take different forms, including limitation of personal liberty and privacy rights. Taking all of these factors into account, and given the nature and development of the case-law referred to … above, the Court considers that the authorities do have a general operational duty with respect to a voluntary psychiatric patient to take reasonable measures to protect him or her from a real and immediate risk of suicide. The specific measures required will depend on the particular circumstances of the case, and those specific circumstances will often differ depending on whether the patient is voluntarily or involuntarily hospitalised. Therefore, this duty, namely to take reasonable measures to prevent a person from self‑harm, exists with respect to both categories of patient. However, the Court considers that in the case of patients who are hospitalised following a judicial order, and therefore involuntarily, the Court, in its own assessment, may apply a stricter standard of scrutiny.”
64. Bearing in mind the above considerations, the Court notes that in the present case neither of the applicants was formally subjected to involuntary treatment, which required a court decision. However, there is nothing in the case file to confirm that the applicants signed any documents giving their free and informed consent to their treatment at the hospital (see paragraphs 5 and 37 above; see also Article 25(d) of the CRPD, cited in paragraph 39 above, and Article 5 of the Oviedo Convention, cited in paragraph 40 above). Assuming that such documents were signed, it is unclear whether the applicants had benefitted from any assistance in fully understanding their situation, at a time when their state of mind required their urgent hospitalisation into a psychiatric hospital, so as to express a truly informed consent.
65. In any event, as noted by the Court (see paragraph 63 above) and as pointed out by the Council of Europe Commissioner for Human Rights (see paragraph 56 above), hospitalisation of a psychiatric patient, whether involuntary or voluntary, inevitably involves a certain level of restraint. Even persons who are admitted to psychiatric treatment voluntarily often lose control over their treatment choices once they enter the system, with institutional and coercive logic taking over. Patients in such situations often have no means of challenging these practices.
Turning to the specifics of the case:
65. […] This appears to have been the case with the applicants, since they were denied access to outside walks and, as the first applicant alleged, he was sometimes tied to his bed and force was used against him (see paragraphs 9, 14 and 15 above). He had to submit to an injection of a sedative or face possible use of force (see paragraph 16 above). The testimony of another patient (V.B., see paragraph 13 above) and of one of the doctors (V.F., see paragraph 15 above), confirms that there was a general policy of restricting certain rights, such as taking walks in the fresh air because of a lack of staff. The practice of assigning code numbers to patients, which restricted their rights to varying degrees was unofficial, unrecorded and therefore not open to challenge in any way (idem). The closed nature of the institution is also illustrated by the inability of a State authority specialising in the protection against discrimination to assess the conditions in the hospital after having informed it in advance of its visit (see paragraph 7 above). Finally, it is noted that the Government have not provided any evidence that the applicants were informed of their right to leave the hospital at their own discretion.
66. Given the findings above, the Court concludes that, even assuming that the applicants were admitted to the relevant hospital voluntarily, there were sufficient elements of coercion so as to treat their subsequent stay and treatment there as being de facto involuntary.
The court found that Article 3 was breached as regards the way in which their complaints were investigated. In respect of the first applicant’s complaints as to the conditions at the hospital, the Government made the somewhat bold argument that “nobody would voluntarily return to an institution where conditions were inhuman,” to which the Strasbourg court responded:
76. […] In this regard, the Court refers to its finding that although the applicants’ treatment at the hospital was voluntary, they could not be considered to have given their consent to continue their treatment completely freely (see paragraph 65 above). It also notes that during his treatment at the hospital, it was considered that the first applicant might try to escape, even when accompanied by his mother, and this was the reason for advising her not to take him out for a walk in the fresh air (see paragraph 9 above). The “escape” or departure from the hospital of a voluntary patient in control of his or her state of mind would not be an event worth warning somebody about. It follows that the hospital doctors considered that the first applicant was a danger to himself and/or others while he was treated there. In such circumstances, his mother had no real choice but to consent to his treatment. Moreover, the Government did not show that in the event of an emergency such as a crisis necessitating a quick response, a person in the applicants’ situation would have had a real option to choose which specialist institution the ambulance would take them to. Since both applicants were treated at the same hospital on a regular basis, they would presumably usually be taken there instead of to other institutions. Similarly, the second applicant’s last hospitalisation was requested by the police with her mother’s consent, since she was irritable and had attacked her mother (see paragraph 34 above). It is finally worth mentioning that the Chișinău Clinical Psychiatric Hospital was the only such institution in the city.
77. The Court finds that the unavailability of walks in the fresh air and the poor sanitary conditions of the bathrooms and toilets in the relevant units, lasting each time three to four weeks and when viewed in the light of the applicants’ particular vulnerability, exceeded the minimum threshold of applicability of Article 3 (see paragraph 60 above).
78. There has accordingly been a violation of Article 3 of the Convention in respect of the material conditions in which the first applicant was treated.[1]
Not least because of the way in which the investigation had been conducted, the Court could not draw a conclusion as to whether the first applicant was subjected to ill-treatment by the staff and/or other patients in the hospital.
In relation to the applicants’ complaints about the way in which their complaints had been addressed by the Moldovan authorities, the court noted that, whilst the core element of each is the alleged failure of the authorities to take sufficient measures to protect the applicants’ physical integrity and dignity, this failure was said not to be an isolated occurrence but “was due to the general stereotypes held by the Moldovan authorities in respect of persons with intellectual disabilities,” and therefore fell to be considered separately (para 87).
As the court went on to note:
91. Having regard to the arguments advanced by the applicants, the Court notes that the alleged difference in treatment of persons with intellectual disabilities in the Republic of Moldova did not result from the wording of any statutory provisions, but rather a de factopolicy by State agents. Accordingly, the issue to be determined in the instant case is whether the manner in which the legislation was applied in practice resulted in the applicants’ being subjected, on grounds of disability or of perceived disability, to different treatment without objective and reasonable justification.
92. The Court notes that in the initial phase of the investigation both the prosecution service and the courts relied on the applicants’ diagnosis in order to uphold the discontinuation of the investigation. In particular, they found that the applicants were “persons with limited legal capacity, [who] in these circumstances, … [were] not always able to fully and correctly understand the things that happen[ed] in certain circumstances” (see paragraphs 23 and 32 above).
The Strasbourg court was clear that:
93. […] the reasoning given by the judicial authorities reveals a difference in treatment between the applicants and other alleged victims of inhuman and degrading treatment (“the comparator”, see T.H. v. Bulgaria, no. 46519/20, § 109, 11 April 2023). That difference was based on the applicants’ intellectual disabilities and was one of the reasons for rejecting their complaints as unfounded (the ground of the alleged distinction, ibid. § 109; Fábián v. Hungary [GC], no. 78117/13, § 96, 5 September 2017).
As it went on to note:
94. The first phase of the investigation consisted of hearing, on the one hand, the applicants and, on the other hand, four heads of units at the hospital. No other investigative action had taken place before discontinuing the investigation (see paragraph 19-21 above). The prosecutor solved the resulting discrepancy in the versions submitted by the two sides by referring to the applicants’ psychological disabilities which, he found, prevented them from fully understanding the circumstances of their treatment at the hospital, and thus undermined the credibility of their claims. Their refusal to undergo a psychiatric and psychological examination to confirm or refute that conclusion was another major reason for discontinuing the investigation.
95. This type of argument would apparently suggest that persons with intellectual disabilities are unable to understand and are thus unreliable witnesses (see, mutatis mutandis, Luca v. the Republic of Moldova, no. 55351/17, § 105, 17 October 2023), unless they prove their ability to comprehend by undergoing psychiatric and psychological examinations.
The court was entirely unimpressed by this:
95. In the Court’s view, there was no objective and reasonable justification for rejecting the applicants’ complaints on the sole basis of their disability and in the absence of any investigative actions other than hearing the party most interested in discontinuing the investigation. In Cînța, cited above, §§ 68 et seq.) the Court found that “relying on mental illness as the decisive element or even as one element among others may amount to discrimination when, in the specific circumstances of the case, the mental illness does not have a bearing on the [substantive issue in question]”. In the Court’s view, when ill-treatment happens, a victim’s intellectual disability cannot affect that objective fact. It is true that such a disability may distort an alleged victim’s perception of reality and cause that person to wrongly believe that he or she was ill-treated. However, as with other alleged victims, once a prima facie case is established indicating that inhuman treatment may have happened, any dismissal of such a complaint must be based on an objective analysis of all the evidence obtained as part of an effective investigation. In other words, the fact that a person complaining of such treatment has an intellectual disability is no reason for shifting the focus of the investigation from objectively verifying the facts to determining whether the person fully understands what happens to him or her. (emphases added).
The court had little hesitation in finding that there was a violation of Article 14 taken in conjunction with Article 3.
Judge Derenčinović (from Croatia), dissented, on the basis that the matters concerned of simply did not reach the threshold for Article 3 ill-treatment, but also that:
[T]he evidence presented before the Court seems insufficient to conclude that the applicants’ treatment was involuntary. The applicants did not rely on this assumption, as they did not complain of illegal detention or unlawful deprivation of liberty under Article 5 of the Convention. Moreover, this assumption has not been confirmed by the doctors and nurses at the hospital and remains unsubstantiated in the absence of court documents pertaining to the applicants’ legal capacity or guardianship. The argument based on the inherently restraining nature of the treatment cannot be accepted as the pivotal factor that changes hospitalisation or treatment from voluntary to de facto involuntary. This would mean that all treatment and hospitalisation become de facto involuntary unless accompanied by a court decision finding a lack in legal capacity, in which case treatment or hospitalisation would be de iure involuntary. This would effectively render the distinction between voluntary and involuntary treatment meaningless and create significant complications for the States’ obligations towards hospitalised persons and margin of appreciation. It would also undermine a person’s freedom to make individual and informed choices about his or her (mental) health, such as choosing to undergo or terminate voluntary treatment or rehabilitation.
Comment
As with the decision in ET v Moldova [2024] ECHR 858, the Strasbourg court took an approach that would be regarded by the CRPD Committee as rather CRPD-lite, as it did not move from concluding that the applicants were not in the hospital voluntarily to finding that that was, per se, a violation of their rights under the ECHR (which would have been the position the CRPD Committee would take in relation to the CRPD). It also side-stepped the proposition advanced before it by the Council of Europe’s Commissioner for Human Rights that “coercion could no longer be taken for granted in psychiatry; the free and informed consent of the persons concerned had to be the basis for decisions taken in relation to them” (paragraph 56). However, its observations about the thin line between formal and informal patients and the shadow of coercion are powerful ones. In the English context, they might be thought to reinforce the importance of the proposal in the Mental Health Bill to extend the provision of Independent Mental Health Advocates to informal as well as formal patients (as already happens in Wales).
Equally powerful are the court’s very clear conclusions as to the unacceptability of simply dismissing complaints by those with cognitive impairments on the basis that the person has an impairment. There are so many situations in which those with responsibility for acting on complaints (whether – in the UK – they be NHS bodies, local authorities or the police, depending on the nature of the issue) do, indeed, not seek objectively to verify the facts, but simply start examining whether the person is a reliable or a credible witness. This judgment makes crystal clear just how unacceptable that is.
[1] Although this section of the judgment does not refer to the second applicant, it is clear from the end that her complaint in this regard was also upheld.
