M v. Ukraine

The applicant was hospitalized for mental illness four times between 1999 and 2006. The first time, the applicant received in-patient treating in a state-run hospital. In 2000, the applicant was registered as a person with potential mental problems with the Odessa Region Psychoneurological Dispensary.

Three years later, the applicant was again involuntarily hospitalized. A doctor assessed her and referred her for in-patient treatment for a serious mental disorder. The applicant ignored the referral and returned home to her mother. Soon after, the applicant’s mother and the housing maintenance authority complained to the hospital about the applicant’s worsened condition and aggressive behavior. A psychiatrist assessed the applicant and concluded that she needed to be hospitalized for a serious mental disorder. A panel of three psychiatrists assessed the applicant and concluded that she was a danger to society due to her serious mental disorder. As a result, the hospital lodged an application with a local court to seek authorization for compulsory admission to hospital in accordance with sections 14 and 16 of Ukraine’s Psychiatric Assistance Act. Following a hearing in which the applicant was not present, the court allowed the application.

The applicant was compulsory confined and released after treatment was completed. She alleged that the sanitary and hygienic conditions during her stay were unsatisfactory.

One year later, the applicant was again assessed by a doctor and referred for in-patient treatment for a serious mental disorder. The applicant again refused the treatment, and the housing maintenance authority again complained to the hospital about her behavior. The applicant was taken to the hospital by ambulance and assessed by a psychiatrist, who concluded she was a danger to society and required in-patient treatment. The hospital again applied to the court for an order for compulsory admission. The court allowed the application after a hearing during which the applicant was again absent. She was discharged from the hospital after completing treatment.

Two years after her third hospitalization, a doctor yet again assessed her and concluded her mental disorder had recurred. The applicant made a written application for admission to the hospital for treatment, but the applicant alleged that this application was only made because she was threatened that she would never be discharged from the hospital if she did not sign it. Moreover, she alleged that she had been in poor health at the time. She further alleged that while in hospital, she was kept to a strict regime, was forced to stay in the hospital for the whole day, was restricted in her movements within the premises, and was only allowed a small number of personal belongings which were inventoried.

The applicant sought reinstatement of her position as a doctor and payment of her salary through a labor dispute. She also alleged that her right to liberty under Article 5 § 1 of the European Convention on Human Rights (“Convention”) was violated during her involuntary and voluntary hospitalizations in a mental health facility. She also complained of violations of Articles 3, 9, 10 and 14 of the Convention in relation to her hospitalizations. She further complained under Articles 4 and 6 of the Convention that the proceedings in her labor dispute were unfair.

The Court held that the applicant’s right to liberty under Article 5 § 1 of the Convention had been violated. The Court reasoned that, under the Convention, it is not sufficient that the deprivation of liberty is executed in conformity with national law; it must also be necessary in the circumstances. In this case, while the Court accepted that there was adequate evidence suggesting that the applicant suffered from a mental disorder, which might have required in-patient treatment, under § 22 of the Psychiatric Assistance Act, the reviewing courts, which authorized the applicant’s compulsory admission, should have conducted their hearing in the presence of the applicant. Moreover, the reviewing courts did not examine alternative, less severe, measures that might have been sufficient in the circumstances.

Additionally, the Court found that no subsequent review of the applicant’s status had occurred once she was compulsorily admitted. As such, there were inadequate safeguards against arbitrary deprivation of liberty in, and it was not demonstrated that the applicant’s retention in the hospital was justified by the mental illness throughout the whole period of her second and third hospitalizations.

As to the fourth hospitalization, the Court noted that detention may violate Article 5 even when the person concerned has agreed to be detained. The Court found that the applicant’s consent to the fourth hospitalization was not valid and lawful for purposes of the Convention. There was neither evidence suggesting that the applicant’s mental ability to consent was established, nor that the consequences of her consent were explained to her, nor that the relevant information on placement and treatment was provided to her. As such, the Court concluded that the government failed to show that the applicant’s retention in the hospital was justified by the mental illness throughout the period of her fourth hospitalization.

The Court found that the applicants complained violations of Articles 3 4, 6, 9, 10, and 14 were manifestly ill-founded.

“Assessing the court decisions from the standpoint of the necessity of the compulsory hospitalisation, the Court notes that at no point did the courts examine other, less severe, measures that might have been sufficient for the protection of the applicant’s and the public interests. In this context another question arises as to the degree of the intensity of the impugned measures. Different types and levels of mental disorders call for varying approach in selecting a regime under which a particular patient is to be kept. The courts did not address this issue, however.” Para. 63.

“Accordingly, the Court takes the view that a person’s consent to admission to a mental health facility for in-patient treatment can be regarded as valid for the purpose of the Convention only where there is sufficient and reliable evidence suggesting that the person’s mental ability to consent and comprehend the consequences thereof has been objectively established in the course of a fair and proper procedure and that all the necessary information concerning placement and intended treatment has been adequately provided to him. In the present case the applicant’s hospitalisation was conducted on the basis of the consent given by the applicant who, at the relevant time, had been diagnosed with a mental disorder. The only document evidencing the applicant’s consent is her admission application. While section 13 of the Psychiatric Assistance Act requires that consent to hospitalisation should be signed by the person concerned and a psychiatrist, no such consent countersigned by a psychiatrist has been presented to the Court. There is no evidence suggesting that her mental ability to consent was established, that the consequences of the consent were explained to her or that the relevant information on placement and treatment was provided to her.” Paras. 77-78.