Ximenes-Lopes v. Brazil

Damião Ximenes-Lopes, a person with mental illness, was hospitalized for psychiatric treatment at a private psychiatric clinic that operated within Brazil’s public health system. Ximenes-Lopes died three days following hospitalization while undergoing psychiatric treatment. He endured “inhuman and degrading” conditions and died under violent circumstances in the hands of hospital staff.

Ximenes-Lopes’ sister filed a petition with the Inter-American Commission on Human Rights.  The Commission issued a report on the merits and found violations of the right to life, right to humane treatment, right to judicial protection, and right to a fair trial. The Commission made recommendations to the State for addressing the violations. The State failed to comply with the Commission’s recommendations.  Thereafter, the Commission brought the case before the Inter-American Court on behalf of Ximenes-Lopes and his next of kin, asserting that the State had failed to comply with its obligations under Articles 4 (Right to Life), 5 (Right to Humane Treatment), 8 (Right to a Fair Trial) and 25 (Right to Judicial Protection) of the American Convention on Human Rights, to the detriment of Ximenes Lopes. The Commission claimed that these violations stemmed from hospitalization conditions of the victim, the treatment he received from the personnel at the hospital, his death while undergoing psychiatric treatment, and the alleged lack of investigation on the part of the government.

The Court held that the State of Brazil had violated Articles 4 (right to life) and 5 (right to humane treatment) of the American Convention on Human Rights to the detriment of Ximenes Lopes.  The Court found that there existed a pattern of violence in the treatment of patients in the hospital. The Court recognized State's duty to ensure the "conditions required" to prevent the violation of the "inalienable" right to life and the State's duty to adopt the necessary measures to create a legal framework to protect the right, "an effective system of justice" to address any infringements on the right by public and private individuals; and to guarantee access to a decent life, including positive measures to protect the right to life.

The Court also recognized the State's duty to provide "effective health care services to all persons with mental illness" and the State's duty to ensure "access to access to basic health care to all persons, the promotion of mental health, the provision of such services in the least restrictive possible way, and the prevention of mental illness." Specifically, the Court highlighted the special protection that the government must provide persons with mental illness and emphasized that the treatment administered "should aim at achieving the patient´s welfare and the respect for his or her dignity as a human person, which is translated into the duty to adopt the respect for the intimacy and autonomy of persons as guiding principles for administering psychiatric treatment."

The Court also observed that the conditions at the hospital failed to meet those required to protect the "personal integrity and life" of the individual and the obligation of the state to regularly supervise and regulate health care institutions, private and public alike, as well as investigate human rights violations.

The Court found that the government violated Article 5 (humane treatment) with respect to the victim's family, as they had undergone significant mental distress caused by the victim's death.

The Court held that the government violated Articles 8 and 25. The criminal investigation continued to be pending and the trial court had not yet issued a judgment.

"Pursuant to Article 2 of the Convention [on Human Rights], the States must create an appropriate legal framework to establish the standards of treatment and hospitalization to be complied with by health care institutions." para. 98

"States are responsible for regulating and supervising at all times the rendering of services and the implementation of the national programs regarding the performance of public quality health care services so that they may deter any threat to the right to life and the physical integrity of the individuals undergoing medical treatment. They must, inter alia, create the proper mechanisms to carry out inspections at psychiatric institutions, submit, investigate, and solve complaints and take the appropriate disciplinary or judicial actions regarding cases of professional misconduct or the violation of the patients´ rights." para. 99.

"[T]he Court must go on record to emphasize the special attention the States must give to the persons with mental disabilities for they are particularly vulnerable." para. 101.

"[A]ny person who is in a vulnerable condition is entitled to special protection, which must be provided by the States if they are to comply with their general duties to respect and guarantee human rights. The Court reaffirms that not only should the States refrain from violating such rights, but also adopt positive measures, to be determined according to the specific needs of protection of the legal person, either because of his personal condition or the specific situation he is in, such as his disabilities." para. 103.

"States should take into consideration that the groups of persons who live in adverse conditions and have few resources, such as those who live in extreme poverty, children and teenagers who are at risk, and indigenous communities, are at a higher risk to suffer from mental disabilities […]. The link between the disability, on the one hand, and poverty and social exclusion, on the other, is direct and significant. [… A]mong the positive measures to be adopted by the States are those which are necessary to prevent all types of disabilities which may be prevented, and to give the persons with mental disabilities the preferential treatment which is most suitable to their condition." para. 104.

"States must take legislative, social, educational, occupational, and any other type of action as may be necessary as to prevent all types of discrimination associated with mental disabilities, and to promote the full integration of such persons in society." para. 105.

"[P]ersons with disabilities, who live in psychiatric institutions or are undergoing treatment therein, are particularly vulnerable to torture and other types of cruel, inhuman or degrading treatment.[…] In the context of health care institutions, whether they are public or private centers, the staff in charge of the care of patients exercise a strong control or dominance over the persons who are under their custody. This intrinsic imbalance in power between hospitalized patients and the persons having authority over them is usually greater in psychiatric institutions. Torture and other forms of cruel, inhuman, or degrading treatment, when inflicted on these people, affect their psychic, physical, and moral integrity, entail an insult to their dignity, and seriously restrict their autonomy, which could aggravate their condition." paras. 106-07.

"The States have the duty to supervise and guarantee that in all psychiatric institutions, either public or private, the patients´ right to receive a worthy, human, and professional treatment be preserved and that said patients be protected against exploitation, abuse, and degradation.[…] Mental health care should be available to every person who needs it. Any treatment of persons with mental disabilities should serve the patient best interest, aim at preserving his dignity and autonomy, reducing the impact of his illness, and improving his life quality." paras. 108-09.

"Upon examining the violations to life and personal integrity to the prejudice of Mr. Damião Ximenes-Lopes, the Court shall refer to the Inter-American Convention on the Elimination of All Forms of Discrimination against Persons with Disabilities […] as a source of interpretation to determine the duties of the State regarding the American Convention in the instant case. […T]he main standards applicable to mental health treatment have been established within the scope of the World Health Organization and of the Pan-American Health Organization. The Court considers that such instruments as the UN Principles for the Treatment of People with Mental Health Disabilities and the Improvement of Health Care and the Standard Rules on the Equalization of Opportunities for Persons with Disabilities [and] the technical standards provided for in the Caracas and the Madrid Declarations are of particular importance for the analysis and careful examination of the compliance of the treatment given to Mr. Damião Ximenes-Lopes with the existing international standards in this field." paras. 110-11.

"[T]he right to life is an essential human right, whose enjoyment is a prerequisite for the exercise of all other human rights. Due to the essential nature of the right to life, no restrictive approaches thereto are to be admitted." para. 124.

"States have the duty to ensure the creation of the conditions required to prevent the violations of [the] inalienable right [to life], and particularly, the duty to prevent their agents from infringing it. In essence, Article 4 of the Convention [on Human Rights] guarantees not only the right of every human person not to be deprived of his life arbitrarily, but also, the duty of the States to adopt such measures as may be necessary to create a legal framework which allows deterring any threat to the right to life; to establish an effective system of justice which can investigate, punish, and redress any act of deprivation of life by the State agents or private individuals; and to safeguard the right to have access to the conditions which guarantee a decent life, which includes the adoption of positive measures which prevent the violation of this right." para. 125.

"[The] infringement of the right to physical and psychological integrity of the human person is a type of violation which has a varying connotation and which encompasses torture and other types of mistreatment or cruel, inhuman, or degrading treatment whose physical and psychological consequences may have different degrees of intensity according to the extrinsic and intrinsic factors which should be proved in each specific situation.' That is, the personal features of an alleged victim of torture or cruel, inhuman, or degrading treatment should be taken into consideration when determining whether his or her personal integrity has been violated, for such features may change the insight of his or her individual reality and, therefore, increase the suffering and the sense of humiliation when the person is subjected to certain types of treatment." para. 127.

"The States have the duty to guarantee the provision of effective health care services to all persons with mental illness. This duty entails the obligation of the State to ensure the access to basic health care to all persons, the promotion of mental health, the provision of such services in the least restrictive possible way, and the prevention of mental illness. […] Due to their psychological and emotional condition, persons with mental illness are particularly vulnerable to any health treatment, and such vulnerability is greater when they are admitted to mental health institutions. This increased vulnerability is due to the imbalance of power between patients and the medical staff responsible for their treatment, as well as to the high degree of intimacy which is typical of the treatment of psychiatric illnesses. […] The Court considers that any health treatment administered to persons with mental illness should aim at achieving the patient´s welfare and the respect for his or her dignity as a human person, which is translated into the duty to adopt the respect for the intimacy and autonomy of persons as guiding principles for administering psychiatric treatment. The Court concedes that the foregoing principle is not absolute, since the patients´needs themselves may sometimes require the adoption of measures without their consent. Notwithstanding, mental illnesses should not be understood as a disability for determination and the assumption that persons with mental illness are capable of expressing their will, which should be respected by both the medical staff and the authorities, should prevail. When the patients´inability to give their consent has been proven, their next of kin, legal representatives or pertinent authorities will give the consent required as regards to the treatment to be administered thereto." paras. 128-30.

"The Court considers that the precarious operating conditions of Casa de Reposo Guararapes, both regarding the general conditions of the place and the medical care provided therein, were quite far from being adequate to administer a decent health treatment and were in and of themselves incompatible with the appropriate protection of personal integrity and life, particularly as they affected persons who were extremely vulnerable due to their mental illness." para. 132.

"[T]he Court deems it necessary to bear in mind […] the special position as guarantor the State has in regard to the persons who are in its custody or under its care and with whom the State has the positive duty to provide the necessary conditions to lead a decent life. […T]he Court considers that the foregoing is particularly true of persons who are under health treatment, since the ultimate purpose of the provision of health services is the improvement of the patient´s physical or mental condition, which significantly increases the duties of the State and requires it to adopt such measures as are available and necessary to prevent the impairment of the patient´s condition as well as to optimize his or her health. […T]he care every person who is under health treatment is entitled to is particularly required in the case of patients with mental illness, given their vulnerability when they are admitted to psychiatric institutions." paras. ¶¶ 138-40.

"The Court has established that the duty of the States to regulate and supervise the institutions which provide health care services, as a necessary measure aimed at the due protection of the life and integrity of the individuals under their jurisdiction, includes both public and private institutions which provide public health care services, as well as those institutions which provide only private health care […]. Particularly, regarding the institutions which provide public health care services, such as the Casa de Reposo Guararapes, the State should not only regulate and supervise them, but also take care of the persons admitted to such institutions." para. 141.

"The State has international liability in the instant case due to its failure to take care and prevent the breach of the right to life and humane treatment, as well as of its duty to regulate and monitor health care services, which are special duties derived from its obligation to guarantee the rights enshrined in Articles 4 and 5 of the American Convention." para. 146.

"[D]ue to its failure to comply with the duties of respect, prevention, and protection regarding the death and cruel, inhuman, and degrading treatment suffered by Mr. Damião Ximenes-Lopes, the State is liable for the violation of the rights to life and humane treatment enshrined in Articles 4(1), 5(1) and 5(2) of the Convention." para. 150.