Alex RKStrasbourg means what it says in relation to the tightening of the criteria for admission and detention in the context of mental disorder that has been a feature of its case-law since Rooman v Belgium [2019] ECHR 105. This is made very clear in its first judgment of 2024, Miranda Magro v Portugal [2024] ECHR 1. The case concerned a Portuguese man who had bene convicted on charges of criminal damage, making threats and sexual harassment he was sentenced to a “preventive detention measure” on the basis of a serious mental illness and held in a prison hospital. The applicant did not dispute that he had a serious mental health condition at the time, but complained of the conditions of his detention, and submitted that he should have been held in a psychiatric facility in order to have access to the requisite medical care. He complained under both Articles 3 and 5 ECHR.
In relation to his claim under Article 3, the ECtHR noted that:
80. In this connection, the Court observes that the Government in the present case did not provide any evidence, such as medical reports or a copy of the applicant’s individual therapeutic plan, attesting that he had received individualised, continuous and specialised care and follow-up treatment, and that appropriate therapy and medication had been prescribed and provided to him (compare Strazimiri v. Albania, no. 34602/16, § 108, 21 January 2020). For instance, no information has been provided to indicate that he had regular and continued psychiatric follow-up aimed at adequately treating his illness, preventing its worsening, or carrying out preparatory work towards the applicant’s release and reintegration into the community. The Court notes, therefore, that the Government have failed to demonstrate that the applicant received the therapeutic treatment required by his condition (see Murray v. the Netherlands[GC], no. 10511/10, § 106, 26 April 2016; Rooman, cited above, §§ 146-47; and Strazimiri, cited above, §§ 108-12; and contrast Moxamed Ismaaciil and Abdirahman Warsame v. Malta, nos. 52160/13and 52165/13, § 95, 12 January 2016), as it has not been shown that the administration of drugs with long-lasting effects was complemented by the implementation of a comprehensive treatment strategy. In circumstances such as these, where the Government have failed to refute the applicant’s consistent allegations with convincing evidence, the Court is prepared to accept the applicant’s account of the conditions of his detention in the psychiatric unit of the Caxias Prison Hospital (see the case-law quoted in paragraph 74 above).
81. The Court accepts that the very nature of the applicant’s psychological condition rendered him more vulnerable than the average detainee and that his detention in the conditions described above may have exacerbated to a certain extent his feelings of distress, anguish and fear. In this connection, the Court considers that the failure of the authorities to provide the applicant with appropriate assistance and care has unnecessarily exposed him to a risk to his health and must have resulted in stress and anxiety (see, mutatis mutandis, Sławomir Musiał v. Poland, no. 28300/06, § 96, 20 January 2009) (emphasis added)
The court therefore found a violation of Article 3 ECHR.
Turning to Article 5 ECHR, the court found that, at first sight, the detention met the three minimum criteria under Article 5(1)(e) were met, as the applicant had been diagnosed with a mental disorder warranting detention, and detained pursuant to a procedure prescribed by the law (paragraph 91). However, that was not the end of the story:
92. […] the Court notes that the conditions in which a person suffering from a mental health disorder receives treatment are also relevant in assessing the lawfulness of his or her detention within the meaning of Article 5 of the Convention (see Rooman, cited above, §§ 194 and 208). In order to determine whether the detention of the applicant as a “person of unsound mind” has been “lawful” in the present case, the Court, taking into account its findings under Article 3, will assess the appropriateness of the institution in which he was detained, including whether an individualised treatment plan was put in place. Such a plan should have taken account of the specific needs of his mental health and have been aimed specifically, in so far as possible, at curing or alleviating his condition, including, where appropriate, bringing about a reduction in or control over the level of danger posed, with a view to preparing him for possible future reintegration into society (ibid., § 208).
92. The Court notes that between 14 April and 18 October 2021, the applicant, who was found to be not criminally responsible, was detained in the psychiatric unit of the Caxias Prison Hospital (see paragraph 14-15 above); the prison hospital is primarily aimed at serving the ordinary prison community suffering from mental illness and is not part of the health system (see paragraphs 39 and 47 above). The Court accepts that the mere fact that the applicant was not placed in an appropriate facility does not, per se,render his detention unlawful (see Rooman, cited above, § 210). However, the Court reiterates that keeping detainees with mental illnesses in the psychiatric ward of ordinary prisons pending their placement in a proper mental health establishment, without the provision of sufficient and appropriate care, as appears to have been the case with the applicant, is not compatible with the protection ensured by the Convention for such individuals.
93. Having considered the submissions of both parties and in view of its findings in paragraphs 77-82 above, the Court is not convinced that the applicant was offered appropriate treatment or that the therapeutic environment he was placed in was suitable for his condition. In this connection, the Court reiterates that the level of care provided must go beyond basic care. Mere access to health professionals, consultations and the provision of medication cannot suffice for treatment to be considered appropriate and thus satisfactory under Article 5 of the Convention (see Rooman, cited above, § 209). Also, as already found in paragraph 80, the Government did not present the therapeutic plan for the applicant or other documents in this respect. Furthermore, having regard to the applicant’s state of health and special vulnerability, the Court also takes note of the impact his detention had on him, namely in aggravating his state of confusion and fear owing to the restrictive and anti-therapeutic environment that detention in a prison facility entailed. (emphasis added)
The court therefore found there was a violation, also, of Article 5 ECHR.
Rooman has been domesticated in England & Wales (surprisingly) recently in SF v Avon and Wiltshire Mental Health Partnership [2023] UKUT 205 (AAC). There are also interesting moves afoot in Wales to seek to draw a more direct statutory link between detention and treatment, and I anticipate that this case may well be referred in that context.
It is perhaps, though, important to emphasise that it would be very unlikely that the Strasbourg court would be sympathetic to anyone seeking to rely upon this (important) tightening of the criteria to deny care to a person seeking it.
