Information Note on the Court’s case-law 45
August-September 2002
H.L. v. the United Kingdom (dec.) - 45508/99
Decision 10.9.2002 [Section IV]
Article 5
Article 5-1
Lawful arrest or detention
Admission to mental hospital without any legal basis: admissible
The applicant is autistic, suffers from a severe learning disability and a “cynical mood disorder” and is prone to severe agitation and self-harm. He has spent most of his life in psychiatric care at Bournewood Hospital. From March 1994 to July 1997 he spent a relatively successful period with carers. In July 1997, however, he was transferred by the day-care centre which he attended every week to Bournewood Hospital after another crisis of self-harm and extreme agitation. He was admitted to the Intensive Behavioural Unit of the hospital. It was considered that his best interests required his admission for in-patient treatment. The applicant’s responsible medical officer, Dr M. considered that it was not necessary to detain him compulsorily under the Mental Health Act 1983 as he was compliant and did not resist admission. He was thus admitted as an “informal patient”. In or around September 1997 the applicant, represented by his cousin and next friend, applied for leave to apply for judicial review notably of the hospital’s decision to admit him. The High Court refused the application. In October 1997 the Court of Appeal, in judicial review proceedings, indicated that it would find in his favour and granted leave to appeal to the House of Lords. As a consequence, the applicant was admitted to the hospital on an involuntary basis under the 1983 Act. Shortly thereafter he was discharged to his carers by the managers of the hospital. In June 1998 the House of Lords allowed the appeal.
Inadmissible under Articles 3, 8 and 13: The applicant complained about negligent care, treatment, assessment and decision-making while he was in hospital from July 1997 until his discharge, which caused him to suffer psychological and physical harm. As regards the exhaustion of domestic remedies, it was not demonstrated that section 139 of the 1983 Act excluded a negligence action which included a claim of a lack of “reasonable care” once the consent of the High Court was obtained. A “reasonable care” requirement was not shown to be incompatible with proceedings about allegations of negligent care and treatment. In addition, this Court found a similar reasonable care requirement and the need to obtain the consent of the High Court to issue such proceedings to constitute a reasonable limitation on access to court by psychiatric patients. At worst, the applicant would have obtained reasons from the High Court as to why its consent would not be given. However, the applicant did not even seek the High Court’s consent to issue any such negligence proceedings or take any steps to obtain information as to the chances of success of any such action. As to his submission concerning the effectiveness of the remedy while he was in the hospital, as early as September 1994, he had issued and subsequently pursued complex judicial proceedings with the assistance of legal representatives. In contrast, there was no evidence of any attempt to pursue with those representatives any proceedings concerning his treatment and care concerns, despite the fact that the applicant’s carers had expressed some concern in this respect as early as August 1997. It was insufficient to rely on uncertainty as to legal aid being granted when the applicant did not even apply for such legal aid, or even for legal aid limited to obtaining counsel’s opinion. The fact that the civil burden of proof would have been on the applicant to prove his allegations would not have rendered the remedy ineffective and, in any event, it was necessary to take into account the Government’s submission concerning the application to such a case of the doctrine of res ipsa loquitur according to which where a person has suffered injury while under the control of the defendant, it will be considered that the defendant is more likely to know what happened and, in the absence of a satisfactory explanation from the defendant, a “finding of negligence will be considered to speak for itself”. While the applicant pointed out that damages would not be awarded for anguish, fear and hopelessness, a substantial part of the applicant’s complaints related to negligent care leading to physical and psychological harm. As to his doubts about whether he could have brought a successful action in negligence against the hospital and as to whether the domestic courts would have considered that it was fair, just and reasonable to impose a duty of care upon the relevant professionals, the existence of mere doubts as to the prospects of success of a remedy does not absolve the applicant from exhausting it. While the applicant submitted that he would have had difficulty in recounting his treatment in hospital, he made detailed factual submissions as regards his alleged ill-treatment to the Court. Moreover, his failure to pursue negligence proceedings meant that any evidential gap could not filled by way of discovery by the hospital of relevant medical and psychiatric records. As to the argument that the Commissioner would not have investigated had another remedy been available, only certain allegations to this Court were before the Commissioner and, further, his carers were the complainants before the Commissioner and not the applicant himself. The applicant did not assert that the complaint before the Commissioner was an effective remedy and such proceedings are not judicial and do not form part of the judicial process. In view of the above, the applicant did not demonstrate that he had exhausted all effective domestic remedies available to him.
Admissible under Article 5 § 1 and § 4, as well as Article 14 in conjunction with Article 5.
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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