Information Note on the Court’s case-law 225
January 2019
Fernandes de Oliveira v. Portugal [GC] - 78103/14
Judgment 31.1.2019 [GC]
Article 2
Positive obligations
Article 2-1
Life
Suicide of a mentally ill man voluntarily admitted to State psychiatric hospital for treatment after suicide attempt: no violation
Facts – After attempting to commit suicide on 1 April 2000, A.J., the applicant’s son, was voluntarily admitted to a State psychiatric hospital (Hospital Psiquiátrico Sobral Cid, hereafter “the HSC”) for treatment. On 27 April 2000 he escaped from the hospital premises and jumped in front of a train. He had previously been admitted to the same hospital on several occasions on account of his mental disorders, which were aggravated by an addiction to alcohol and drugs. According to his medical records, the hospital had been aware of his previous suicide attempts.
The applicant unsuccessfully sued the HSC for compensation for her son’s death.
In a judgment of 28 March 2017 (see Information Note 205), a chamber of the Court had held, unanimously, that there had been a violation of the substantive aspect of Article 2. In the Court’s view, having regard to the positive obligation to take preventive measures to protect an individual whose life was at risk, and faced with a mentally ill patient who had recently attempted to commit suicide and was prone to escaping, the hospital staff could have been expected to adopt safeguards to ensure that the patient did not leave the hospital premises and to monitor him on a more regular basis.
On 18 September 2017 the case was referred to the Grand Chamber at the request of the Government.
Law – Article 2 (substantive aspect): The present case concerned allegations of medical negligence in the context of the suicide of an inpatient who had been voluntarily admitted to a State psychiatric institution.
(a) The positive obligation to put in place a regulatory framework – the lack of security fences and walls around the HSC was in line with the Mental Health Act and the international standards which sought to create an open regime where the patient retained the right to move about freely. Further, the domestic legislation had provided for the possibility of involuntary hospitalisation where this was justified by the specific needs of the patient and had thus clearly provided the HSC with the necessary means of treatment to address A.J.’s medical and psychiatric needs.
Moreover, the staff on duty had complied with the general and individual monitoring procedure in place for voluntary inpatients, ensuring that the patients adhered to a specific timetable and were present at all meal and medication times. A more restrictive surveillance procedure was also available, applied at the beginning of a patient’s stay and whenever considered necessary by the treating doctor. Lastly, in emergency situations the HSC could have recourse to other forms of restraint, including the use of an isolation room. The existing surveillance procedure and the available restraint measures had thus provided the HSC with the tools necessary for the treatment of A.J.
The surveillance procedure applied to A.J. had been intended to respect his privacy and had been in line with the principle of treating patients under the least restrictive regime possible. A more intrusive surveillance regime could well have been challenged as being incompatible with the rights protected by Articles 3, 5 and 8 of the Convention, particularly given A.J.’s status as a voluntary inpatient.
On the date A.J. disappeared, the emergency procedure, consisting of alerting the doctor on call, the police and the patient’s family, had been triggered between 7 and 8 p.m. That procedure had been adequate and there was no causal link between any alleged deficiencies in the emergency procedures and A.J.’s death.
Lastly, the applicant had had recourse to civil proceedings, which, despite their length, had been effective and had permitted responsibility to be established regarding A.J.’s death.
Accordingly, in the circumstances of the present case, the implementation of the regulatory framework had not given rise to a violation of Article 2 of the Convention.
(b) The positive obligation to take preventive operational measures – The Court had already established that, in certain well-defined circumstances, Article 2 could impose a positive obligation on the authorities to take preventive operational measures to protect an individual from others or from himself, where the authorities had known or ought to have known of the existence of a real and immediate risk to an individual’s life. The Court found that the authorities had a general duty in respect of a voluntary psychiatric patient to take reasonable measures to protect him or her from a real and immediate risk of suicide.
The Court had previously had regard to a variety of factors – in particular a history of mental health problems and gravity of the mental condition, suicidal thoughts or threats, and signs of physical or mental distress – in order to establish whether the authorities had known or ought to have known that the life of a particular individual was subject to a real and immediate risk, triggering the duty to take appropriate preventive measures.
In the present case the HSC had long been aware of A.J.’s mental disorders and that he presented a suicide risk. A.J. had had a long history of serious mental health problems, and had been hospitalised at the HSC, on a voluntary basis, on eight occasions between 1984 and 2000. Only the last stay had followed an attempted suicide. It had been established by the domestic courts that A.J. had not displayed any signs of suicidal thoughts throughout his 25-day stay at the HSC. There had been no worrying signs in A.J.’s behaviour in the days immediately preceding his suicide.
Although A.J. had been vulnerable, he had come to know the HSC environment and staff well. He had been subject to the restrictive regime, confined to the pavilion in his pyjamas, in the first week of his stay and on previous occasions in the past when he had been hospitalised. When the HSC had considered that his symptoms were improving, he had been given the freedom to move around the hospital buildings and grounds and to return home for weekends with his family. That considerable degree of freedom of movement had been given to patients in order to increase their responsibility and optimise their return to their family environment and society itself. Moreover, A.J.’s psychiatric doctor had considered that the treatment, which had consisted of ensuring that he took his prescribed medication and received the treatment voluntarily, and establishing a relationship of trust with him, was appropriate and proportionate in the circumstances.
While a risk of suicide could not be ruled out where A.J. had been concerned, the HSC had sought to adapt to the risk posed by his changing mental state by increasing or decreasing the monitoring regime in place. That decision had been incumbent on the medical team responsible for A.J. The Court took into account the fact that, according to the expert evidence, complete prevention of suicide in patients such as A.J. was an impossible task and the conclusion of the Administrative Court that A.J.’s suicide had not been foreseeable. Moreover, the Court approached the question of risk with a view to assessing whether it was both real and immediate and noted that the positive obligation incumbent on the State had to be interpreted in a way which did not impose an impossible or disproportionate burden on the authorities. In the light of those elements, it had not been established that the authorities had known or ought to have known that there had been both a real and immediate risk to A.J.’s life in the days preceding 27 April 2000.
Accordingly, the Court did not need to assess whether the authorities had taken the measures which could reasonably have been expected of them.
Conclusion: no violation (fifteen votes to two).
The Court also concluded, unanimously, that there had been a violation of the procedural limb of Article 2, as the proceedings had lasted over eleven years for two levels of jurisdiction.
Article 41: EUR 10,000 in respect of non-pecuniary damage; claim in respect of pecuniary damage dismissed.
(See also Osman v. the United Kingdom, 23452/94, 28 October 1998; Keenan v. the United Kingdom, 27229/95, 3 April 2001, Information Note 29; Reynolds v. the United Kingdom, 2694/08, 13 March 2012, Information Note 150; Younger v. the United Kingdom (dec.), 57420/00, 7 January 2003, Information Note 49; Dodov v. Bulgaria, 59548/00, 17 January 2008, Information Note 104; De Donder and De Clippel v. Belgium, 8595/06, 6 December 2011, Information Note 147; Hiller v. Austria, 1967/14, 22 November 2016; Lopes de Sousa Fernandes v. Portugal [GC], 56080/13, 19 December 2017, Information Note 213)
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This summary by the Registry does not bind the Court.
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