Information Note on the Court’s case-law No. 179
November 2014
Dvořáček v. the Czech Republic - 12927/13
Judgment 6.11.2014 [Section V]
Article 3
Degrading treatment
Inhuman treatment
Protective sexological treatment allegedly administered without patient’s informed consent: no violation
Facts – The applicant suffers from Wilson’s disease, a genetic disorder whose symptoms include personality changes. At the time of the diagnosis the applicant had begun to suffer from hebephilia (a sexual preference for adolescents), considered as a form of paedophilia; according to the experts, this disorder led to a personality change in the applicant which was due to the illness itself, not to any primary sexual deviance. The applicant had been prosecuted on several occasions. In 2007 the court had ordered protective sexological treatment in an institution, observing that this measure was also in the applicant’s interests and that it was up to him how long he would stay in the hospital. The applicant was hospitalised from November 2007 to September 2008. The day after his arrival the senior medical officer had noted that since the applicant refused surgical castration and anti-androgen treatment, he would probably have to remain in hospital. According to a note drawn up in December 2007, however, the applicant had agreed to undergo anti-androgen treatment, which was subsequently administered by intravenous injection once a fortnight. The treatment method was then adjusted after the applicant had voiced dissatisfaction, and no further injections were administered from July 2008 onwards.
The applicant complained to the European Court that the hospital had not provided him with the necessary treatment, particularly appropriate psychotherapy, and that he had been subjected to forcible medicinal treatment and psychological pressure to consent to surgical castration.
Law – Article 3 (substantive head): As regards whether the applicant’s complaint of alleged forcible or inappropriate medical treatment should be assessed from the angle of Article 8 the Court considered that in view of the opposition expressly voiced by the applicant, who was duly represented, it should confine itself to considering the present case under Article 3.
The main issue in the instant case is whether or not the applicant consented to treatment by anti-androgen medication.
The legislation in force at the material time had been fragmentary and unclear in this respect, so that many medical professionals, and even the courts, considered that the consent of patients subject to protective treatment ordered by a court was unnecessary. However, because this case was being assessed from the angle of Article 3, it was not incumbent on the Court to assess the quality of the legal basis but to review the circumstances and modalities of its application to the applicant.
The applicant argued in the domestic courts that he had consented to the aforementioned treatment solely for fear of remaining in hospital indefinitely, or indeed of undergoing surgical castration. He told the Court that there could be no question of free, informed consent in a situation where the only available choice was between a medical operation and indefinite hospitalisation. Firstly, it had not been established that the applicant had been pressurised into surgical castration. Furthermore, at the time surgical castration had been strictly regulated and subject to free, informed consent. On the latter point, there was no indication in the case-file that the hospital had taken action to force the applicant to undergo anti-androgen treatment. Nevertheless, the fact that the applicant was in a position to choose between taking anti-androgen drugs, which would significantly reduce the danger posed by patients and thus raise the prospect of earlier discharge, and treatment solely involving psychotherapy and sociotherapy, which required more time to eliminate that danger, could be considered as amounting to some form of pressure. Even if this was a statement of fact, choosing between the two options presented the applicant with a difficult dilemma. On the other hand, it emerges from the different expert opinions that the treatment at issue was justified on medical grounds and was particularly recommended in the present case because it was more effective than psychotherapy, which would not have prevented him from reoffending. Moreover, whenever the applicant expressed reservations about the anti-androgen treatment an alternative solution had been found, which solution had not been demonstrably imposed on him. Furthermore, the drug treatment had been backed up with occupational therapy and psychotherapy. Therefore, the medical staff of the psychiatric hospital could not be said to have failed in their duty to protect the applicant’s health. That being the case, even though the difficult choice facing the applicant might have amounted to some form of pressure, the treatment at issue corresponded, in the instant case, to a therapeutic necessity.
Nevertheless, since alternatives had in fact been proposed to that treatment, it remained to be seen whether it had been a case of informed consent. In this regard, the domestic courts drew on the hospital’s assertions that the applicant was aware of the side-effects of the anti-androgen treatment because he had previously undergone such treatment and had also been informed about it by the attending physician. While there was nothing to suggest that these assertions had been unreliable, the situation would have been clearer if the applicant’s consent had been recorded in writing in a specific form setting out all the requisite information on the benefits and side-effects of the treatment in question and informing the applicant of his right to withdraw his initial consent at any time. Such a procedure would certainly have reinforced legal certainty for all concerned. However, the omission in question was rather procedural in nature, which was insufficient to infringe the safeguards set out in Article 3 of the Convention.
Accordingly, even though it helped clarify the applicant’s alleged feelings of distress and frustration, consideration of the facts of the present case did not disclose evidence enabling one to establish beyond any reasonable doubt that the applicant had been subjected to forcible medicinal treatment.
Conclusion: no violation (unanimously).
The Court also unanimously concluded that there had been no violation of Article 3 under its substantive head concerning the applicant’s conditions of detention in the psychiatric hospital, and no violation of Article 3 under its procedural head.
(See also the Factsheet on Health)
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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