In Fernandes de Olivera v Portugal  ECHR 106, the Grand Chamber of the European Court of Human Rights, in a majority decision, has identified the obligations arising under Article 2 ECHR in the context of voluntary patients at risk of suicide, accompanied by a fascinating part-dissent from two judges.
The applicant complained under Article 2 ECHR that her son had been able to take his own life as a result of the negligence of the psychiatric hospital where he had been hospitalised on a voluntary basis. Under Article 6 ECHR she also complained about the length of the civil proceedings she had instigated against the hospital.
As the court observed, this meant that:
two distinct albeit related positive obligations under Article 2, already developed in the jurisprudence of the Court, may be engaged. First, there exists a positive obligation on the State to put in place a regulatory framework compelling hospitals to adopt appropriate measures for the protection of patients’ lives […]. Second, there is a positive obligation to take preventive operational measures to protect an individual from another individual or, in particular circumstances, from himself.
As the Grand Chamber noted, it had recently pronounced upon the first obligation (those observations being rapidly translated into English law in the (Parkinson) v HM Senior Coroner for Kent  EWHC 1501 (Admin), discussed in the July 2018 Mental Capacity report). It found on the facts that the manner in which the regulatory framework was implemented did not give rise to a violation of Article 2 in the circumstances of the present case. It noted, in particular, that the lack of security fences and walls around the hospital was in line with the legislation in place at the time, which:
117. […] indicated that mental-health care should be provided in the least restrictive environment possible. These general principles mirrored the therapeutic desire to create an open regime where the patient retained the right to move about freely. This approach is in line with the international standards which have been developed in recent years on treating psychiatric patients (see the International Law section above and see also Hiller, cited above, § 54).
As regards the second, and as it had previously hinted it might (Reynolds v. the United Kingdom (Application no. 2694/08, 13 March 2012), the Grand Chamber extended the scope of the ‘operational’ duty to voluntary psychiatric patients, albeit on a specific basis:
124. 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 in paragraphs 108-115 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.
In deciding whether the operational duty had arisen and breached in the instant case, the court had regard to the following criteria drawn from previous case-law concerning the assessment of suicide risk: “a history of mental health problems; the gravity of the mental condition; previous attempts to commit suicide or self-harm; suicidal thoughts or threats; signs of physical or mental distress” (citations omitted).
Taking account of the facts that “according to the expert evidence, complete prevention of suicide in patients such as A.J. was an impossible task […] and that the Coimbra Administrative Court found that A.J.’s suicide was not foreseeable” and that the “question of risk [must be approached] with a view to assessing whether it is both real and immediate and notes that the positive obligation incumbent on the State must be interpreted in a way which does not impose an impossible or disproportionate burden on the authorities,” the court “conclude[d] that it has not been established that the authorities knew or ought to have known that there was an immediate risk to A.J.’s life in the days preceding 27 April 2000.” The Grand Chamber did not therefore need to go on to decide whether the duty had been breached.
However, and not least as the Portuguese government conceded that the proceedings brought by A.J.’s mother had taken excessively long to conclude, the Grand Chamber found that there had been a violation of the procedural limb of Article 2 ECHR.
In a separate, part-dissenting, and part-concurring judgment, Judge Pinto de Albuquerque (the Portuguese judge), joined by Judge Harutyunyan, attacked what he perceived to be the majority’s pursuit of an “ideologically charged minimalist approach to the State’s positive obligations in the sphere of health care to its limits, this time regarding the particularly vulnerable category of psychiatric inpatients under State control. The effect is that of downgrading the level of Convention protection to an inadmissible level of State inertia.” He was particularly scathing of the Grand Chamber’s decision to apply a less strict standard of scrutiny to voluntary patients, noting that there had been no justification, in face of the unanimous Chamber view to the contrary:
21. The argument that there is an emerging trend to treat persons with mental disorders under an “open door” regime is not decisive […]. First, it only shows one side of the coin, because there is also a counter-trend to increase State obligations with regard to suicide prevention, which is totally neglected by the majority […] The core of the problem today lies precisely in the inter-relationship between these two different trends of international health law and practice, which the majority do not even seek to consider. Moreover, as put by Judge Iulia Antoanella Motoc, dissenting in Hiller, “the duty to protect the right to life should not be sacrificed in an attempt to comply with the above-mentioned recent trend in healthcare” […]. The right to life prevails over the right to liberty, especially when the psychopathological condition of the individual limits his or her capacity for self-determination. It is nothing but pure hypocrisy to argue that the State should leave vulnerable suicidal inpatients in State-run psychiatric hospitals free to put an end to their lives merely in order to respect their right to freedom. At the end of the day, what really drives the majority is not the concern for more or less freedom of psychiatric inpatients interned in public hospitals, but the strict financial interest in safeguarding the hospital authorities from legal challenges to “excessively restrictive measures” […], while “bearing in mind the operational choices which must be made in terms of priorities and resources in providing public healthcare and certain other public services”. […] Ultimately, this reflects a hidden social-welfare disengagement policy, which aims at the maximum commodification of health-care services and above all at the protection of health professionals in an untouchable legal bubble, shirking State responsibility for health-system and hospital-related death or serious injury under the Convention and consequently limiting the Court’s jurisdiction in this area.
Judge Pinto de Albuquerque also conducted a tour d’horizon of the relevant international law norms in play, noting that it is “confusing, to say the least, signaling tough ongoing discussions on the matter.”
For English domestic purposes, voluntary and involuntary psychiatric patients at risk of suicide have been assumed to be essentially interchangeable from the perspective of Article 2 ECHR since the decision of the Supreme Court in Rabone. The Grand Chamber’s decision shows that Lord Dyson and Lady Hale were largely right to infer in 2012 that the obligations under Article 2 ECHR as applied to detained patients would be applied by Strasbourg to informal patients if the question came before it. However, it is interesting to note the nuanced fashion in which the Strasbourg court approached the question when it actually came for determination before it.
First, the Grand Chamber expressly held that it could apply a higher standard of scrutiny where the detention was involuntary (which would apply equally whether the detention was authorised judicially, as in Portugal, or administratively, as in England and Wales). The potential for such a differential approach attracted the scorn of the dissenters in Strasbourg, but will no doubt need to be translated into domestic jurisprudence in due course here.
Second, and making express reference to the CRPD, the Strasbourg court also took into account “the therapeutic desire to create an open regime where the patient retained the right to move about freely. This approach is in line with the international standards which have been developed in recent years on treating psychiatric patients” (paragraph 117). Perhaps because of the facts of the Rabone case, and the way in which evidence had been put before it, the Supreme Court’s decision in retrospect is conspicuous for the starkness of the binary contrast it set up between keeping Melanie Rabone in hospital (and therefore, by definition, alive) and allowing her to go home and take her own life. One of the (no doubt) inadvertent consequences of this contrast and one that greatly exercised the independent review of the Mental Health Act 1983, has been the potential for increased risk aversion on the part of professionals. The Grand Chamber’s decision, as in the earlier (2016) decision in Hiller v Austria, arguably points the way towards a better calibration of the positive obligations imposed under Article 2 ECHR in this context.
There are, of course, elephant traps in that calibration exercise. Some might doubt the dissenters’ suggestion that there is a “hidden social-welfare disengagement policy” at play in the thinking of the majority of the Grand Chamber. Not least in light of Rabone, it is also not immediately obvious, at least in England & Wales, that healthcare professionals either sit or perceive themselves to sit “in an untouchable legal bubble.”
However, there is undoubtedly a very real potential danger of social-welfare disengagement, albeit from a slightly different direction to that identified by the dissenters. A key consideration in the ‘confidence tests’ developed by the MHA review for purposes of determining recommendations for the future direction of travel, was the fear expressed by at least some service users that moving to a capacity-based model would lead to refusal of services on the basis that “you have capacity, and it’s your choice what you do.” This refusal of services could sometimes (as the Review noted) represent “a reaction from overstretched staff (these examples often came from crisis services or A&E) with a very limited or non-existent choice of alternative services.” In other words, pushing capacity-based mental health legislation unsupported by state-level obligations to provide alternative services meeting the needs of the individuals in question could very well lead to catastrophic “social-welfare disengagement.”
Finally, it is perhaps of note that the Grand Chamber, in full knowledge of the CRPD Committee’s views upon mental capacity, had no hesitation in relying upon the concept (at paragraph 127) in founding a conclusion that Article 2 was engaged. The day may well be coming when the Strasbourg court concludes that detention and/or treatment in the face of capacitous refusal cannot stand with the ECHR, but there is no sign from this judgment that it is likely to abandon the validity of the concept of mental capacity as a factor in deciding where the balance lies between protection and autonomy.
 Including an admission of negligence by the Trust.
 Lord Dyson’s observations are particularly striking here, holding at para 28 that “[t]he statutory powers of detention are the means by which the hospital is able to protect the psychiatric patient from the specific risk of suicide.”
 See pp.213-218.