Alex RKIn VI v Moldova [2024] ECHR 251, the European Court of Human Rights considered the placement of a 15 year old orphan with a perceived mild intellectual disability in a psychiatric hospital against his will. He was under the care of the State at the time. At the end of what was supposed to be a three-week placement, he was left there for another four months, with nobody coming to visit or fetch him and being treated with neuroleptics and anti-psychotics. The applicant alleged that his placement and treatment, together with the conditions in the hospital and the conduct of the medical staff and other patients, had amounted to ill-treatment contrary to Article 3 ECHR. He also complained that the investigation into his allegations had been ineffective and alleged that social stigma and discrimination against people with psychosocial disabilities and a lack of alternative care solutions had been to blame.
The court was clear as to how it approached the situation:
103. The Court would first observe that the case concerns a child, aged 15 at the time of the events, who had not reached the age of 16 or 18 – the ages at which persons may express consent for medical treatment, as required by domestic law […]. His placement in a psychiatric hospital and his psychiatric treatment were therefore subject to the consent of his legal guardian, the mayor of Ciutești. For this reason, in view of the applicant’s disagreement with the consent allegedly expressed by his legal guardian for his placement in a psychiatric hospital and his psychiatric treatment, the case concerns involuntary placement in a psychiatric hospital and psychiatric treatment […]. At the same time, the Court notes that the applicant turned 16 one month before his discharge from the hospital and that the authorities had not assessed the validity of the consent for his placement in the psychiatric hospital and his treatment there.
The court found that the authorities had failed to investigate the circumstances in which the applicant had been placed in the psychiatric hospital, and whether the relevant legal safeguards relating to involuntary placement and psychiatric treatment had been respected, and whether there had been any justification for in-patient treatment in the first place. They had not tried to clarify what impact the treatment with neuroleptics and anti-psychotics had had on him, nor whether that treatment had been warranted from a medical point of view or whether it had simply been used as chemical restraint. Moreover, the investigation had not factored in the applicant’s vulnerability, his age or the disability aspects of his complaints.
The court also found that the Moldovan legal framework fell short of the state’s positive obligation to establish and apply effectively a system providing protection to intellectually disabled persons in general, and to children without parental care in particular, against serious breaches of their integrity, contrary to Article 3 of the Convention. The court found that it had not been proven that there was any medical need for him to be placed there at all. It emphasised that it was “important to point to the national and international standards which provide that an intellectual disability is in itself insufficient ground for placement in a psychiatric hospital, psychiatric treatment and the deficient practice, in particular in the Republic of Moldova, of placing persons with psychosocial disabilities in metal health institutions in the absence of any therapeutic purpose” (paragraph 136). The court was also troubled at the absence of any consideration of the applicant’s views. In the absence of safeguards against an unlimited hospital stay, the applicant had been made to stay there for a further four months despite there being no medical need for him to be there. The Court held that all of these aspects together with his transfer to the adult’s section, his being subjected to what amounted to chemical restraint, and the material conditions there, constituted violations of Article 3 ECHR.
Importantly, the court also went on to consider the position by reference to Article 14 read together with Article 3. It noted that:
173. Turning to the circumstances of the present case, the Court observes that various authorities – the school administration, the Nisporeni doctor, the legal guardian, the child protection authority and the hospital doctors – all with statutory duties of care towards the applicant, unanimously agreed to his placement in a psychiatric hospital and psychiatric treatment in the absence of any therapeutic purpose, as already found above by the Court. Administrative and medical admission documents consistently referred to the applicant’s intellectual disability as ground for placement in a psychiatric hospital and psychiatric treatment, which attests to the authorities’ perception that an intellectual disability was a mental disorder which required treatment. This “defectology” approach is further confirmed by the way the authorities subsequently argued, on the basis of new assessments, that the applicant was “normal” and therefore should not have been subjected to placement in a psychiatric hospital and psychiatric treatment (see paragraph 35 above).
174. The Court also notes that the prosecutor agreed with the applicant that his placement in a psychiatric hospital had been related to the absence of alternative care options. However, the investigators never went further to identify the underlying discriminatory reasons for the applicant’s placement in a psychiatric hospital. Moreover, the Court observes that the domestic investigations relied significantly on the absence of quantifiable traumatic consequences for the applicant (see paragraphs 38, 48-49 and 117 above), thus failing to properly factor in his vulnerability due to his intellectual disability when interpreting his perception of what he had experienced. The authorities’ failure to attempt to correct such inequality through different treatment was also discriminatory.
175. In the Court’s opinion, the combination of the factors above clearly demonstrates that the authorities’ actions were not simply an isolated failure to protect the applicant’s physical integrity and dignity, but in fact perpetuated a discriminatory practice in respect of the applicant as a person and, particularly, as a child with an actual or perceived intellectual disability. The applicant’s social status as a child without parental care only exacerbated his vulnerability. (emphases added)
It is perhaps worth noting that the applicant did not raise any specific issue under Article 5 ECHR, although, given the tenor of the balance of the judgment, one would expect that, had he done so, the court would have been likely to have found that he was unlawfully deprived of his liberty as well.
Comment
It is important to note that the ECtHR went perhaps further than it has done previously in terms of its observations about the acceptability or otherwise of compulsory placement and treatment. At paragraph 98 it noted that:
[t]he legal instruments and reports adopted by the United Nations indicate that forced placement in a psychiatric hospital and psychiatric treatment, especially in respect of persons with existent or perceived intellectual disability, as well as administration of neuroleptics without medical necessity may amount to ill-treatment prohibited under the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
However, and in line with its previous jurisprudence, it did not rule out that compulsory admission or compulsory treatment could, in principle, be acceptable if there was a proper therapeutic basis. Nor, given its framing of the applicant’s ability to express his views, can the case necessarily be said to shed any direct light on the approach to be taken where a person lacks the mental capacity (to use the English law term) to make decisions about admission and treatment. Nonetheless, it is relatively easy to see that the time is coming when the court may well determine that compulsory admission and treatment in the face of a person’s capacitous refusal is simply not allowed under the ECHR.
Whilst grounded in the factual situation of Moldova, the observations of the European Court are of wider importance, both as regards its clear statement that intellectual disability itself cannot justify detention in a psychiatric hospital, and also as regards the “calling out” of the discrimination against those with actual or perceived intellectual disabilities. Translated to the United Kingdom context, the observations undoubtedly raise the stakes (yet) higher for the legal frameworks which allow for detention in psychiatric hospital on the basis of intellectual disability. And any suggestion that discrimination is something which is only a problem for other countries would be entirely hollow, not least in light of the recent report of the UN CRPD Committee on its follow-up to the inquiry concerning the United Kingdom of Great Britain and Northern Ireland.
