SECOND SECTION
DECISION
Application no. 41242/08
by Tamás PLESÓ
against Hungary
The European Court of Human Rights (Second Section), sitting on 17 January 2012 as a Chamber composed of:
Françoise Tulkens, President,
Danutė Jočienė,
Isabelle Berro-Lefèvre,
András Sajó,
Işıl Karakaş,
Paulo Pinto de Albuquerque,
Helen Keller, judges,
Stanley Naismith, Section Registrar,
Having regard to the above application lodged on 21 August 2008,
Having regard to the decision of 11 March 2011 to give notice of the application to the respondent Government,
Having regard to the parties’ submissions on the admissibility and the merits of the case,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Tamás Plesó, is a Hungarian national who was born in 1975 and lives in Dunakeszi. His original application was introduced by Dr B. Benkó, Ms B. Bukovská and Mr J. Fiala, staff lawyers acting on behalf of the Mental Disability Advocacy Center (“MDAC”), Budapest. Subsequently, his representation was taken over by MDAC acting through Mr Fiala alone. The respondent Government are represented by Mr L. Höltzl, Agent, Ministry of Public Administration and Justice.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
At the time of introducing the application, the applicant, a university dropout and unemployed, lived on financial support from his mother and grandmother.
On 12 September 2006 the applicant’s mother consulted her psychiatrist, Dr M., complaining of suffering from distress due to the “strange behaviour” of her son. According to the mother’s medical file, she stated that the applicant “kept wandering in town”, “did not have any friends” and “did not look after himself”. In response, Dr M. informed her of the possibilities either to commit the applicant to a psychiatric hospital for emergency treatment or to initiate a procedure for obtaining his mandatory institutional treatment, if necessary.
On 6 November 2006 the mother informed Dr M. that the reason for her having previously moved out of their common flat was the applicant’s “strange behaviour” and that she was afraid of returning. On 4 December 2006 Dr M. noted in the mother’s medical file that she was discussing with her the problems concerning the applicant, whom his mother perceived as psychotic.
During their subsequent consultations, the mother repeatedly mentioned to Dr M. that the reason for her anguish was that the applicant had not taken up a proper job and still lived on financial support from his family. In her medical file Dr M. reiterated the view that the mother’s problem originated in her son’s conduct perceived as psychotic by the mother.
On 17 September 2007 the applicant was called on to meet Dr M. They discussed the applicant’s dropping out of university and his inability to meet his mother’s expectations. Dr M.’s diagnosis was “paranoid schizophrenia under observation”.
Subsequently Dr M. gave the applicant an appointment for a psychological examination, which took place on 22 September 2007. On that day, Dr L. examined the applicant and found that he was characterised “by schizoid isolation, sensitive attitude and paranoid behaviour”.
Further sessions involving the applicant, Dr M. and Dr L. took place on 24 and 28 September and 3 and 5 October 2007. At these sessions he expressed his interest in politics and voiced ambitions to be elected Mayor of Budapest. Dr M. was trying to find out the reasons for his social isolation and convince him about the need to reconcile his projects with reality. The applicant missed two sessions scheduled for 12 and 19 October 2007.
Having noted that the applicant’s ideas had remained megalomaniac, on 24 October 2007 Dr M. confronted the applicant with her view that his social isolation was due to a psychiatric disorder.
On 31 October 2007 the applicant renounced further counselling by Dr M. About the same time, he also stopped seeing Dr L.
On 5 and 6 November 2007 the mother complained to Dr M. that she, in despair because of the applicant’s condition, was unable to pay her utility bills, exorbitant due to the applicant’s habit of using too much water for “ritual bathing”. Dr M. explained to her that the applicant was expected to seek treatment voluntarily.
Since the applicant did not do so, on 26 November 2007 Dr M. requested the Dunakeszi District Court to order his mandatory institutional treatment. This application consisted of a pre-printed form stating that there was a possibility that the applicant’s conduct would become dangerous because of a mental disorder. Dr M. completed the form by adding that the applicant’s mother asked her for assistance since she had the suspicion that her son was mentally ill, that the applicant had contacted Dr M. upon notice, that he had not worked for eight years, was supported by his mother, lived an isolated life, and did not get in touch with anyone, and finally that he was short‑tempered towards his mother, who had moved away from the flat as the patient’s behaviour was threatening.
On 11 December 2007 the Dunakeszi District Court held a hearing. For the purposes of the ensuing proceedings, a guardian ad litem was appointed for the applicant. The District Court heard Dr M. In her testimony, she repeated in essence the elements contained in the application for mandatory treatment. She stated that she had suspected that the applicant might have a psychiatric illness when, on 12 September 2006, the mother had told her that the applicant had refused to use a micro-wave oven for fear of its radiation, and that she had concluded that the applicant was psychotic on 24 September 2007 when he had mentioned his idea of getting elected Mayor of Budapest.
Dr M. related that, in addition to the applicant’s mother, his grandmother and her partner, living next door to the applicant, were also concerned about his odd conduct. She stated that she had the suspicion that the applicant suffered from paranoid schizophrenia. She also mentioned that the applicant had on several occasions visited a psychologist, Dr L., who had observed stress and paranoid symptoms which, however, did not amount to a pathological or psychotic mental state, although the applicant had been capable of disguising his symptoms.
Dr M. specified that she had instituted proceedings for the applicant’s mandatory treatment after he had refused to be counselled by her.
The District Court then heard the applicant. It noted that his replies were disoriented and erratic. He was asked questions about his lifestyle and hobbies, his relationship with his grandmother, his willingness to take up a job as well as any illnesses he had. He said he was considering the necessity of a job and of seeking advice from social workers or medical help from health professionals, even from Dr M.
During the hearing the court ordered a forensic psychiatrist, Dr H., to prepare a medical opinion about the applicant’s condition. This psychiatric evaluation was done during the break in the court hearing, in approximately forty minutes. Neither the guardian ad litem nor the applicant had the opportunity to learn about the expert opinion prior to the resumed hearing. Dr H. did not produce any written opinion at this stage; she presented her testimony to the court verbally following the break. Its written version was faxed to the court on 13 December 2007.
Dr H. considered that the applicant suffered from delusional schizophrenia, characterised by grandiose delusions, bizarre elements of lifestyle and partial insight of his condition. She specified that she considered the applicant’s treatment necessary since otherwise his health would decline, whereas a compulsory treatment would improve his condition. She was of the view that the applicant could not take care of himself, by which he represented significant danger to himself.
On 18 December 2007 the District Court held another hearing, at the beginning of which Dr H.’s report was handed over to the applicant and his guardian ad litem. Dr M. was summoned but failed to appear. The guardian argued in essence that the applicant’s behaviour was not dangerous and that he posed no significant threat either to himself or others. He noted that neither Dr M.’s nor Dr H.’s testimony contained elements pointing to the applicant’s representing any danger.
On the same day the District Court ordered the applicant’s mandatory institutional treatment. According to the reasoning, the applicant posed a danger to his own health by failing voluntarily to subject himself to psychiatric treatment and by not looking after himself. The court affirmed that “appropriate medical treatment would improve [the applicant’s] condition”. The court accepted that the applicant suffered from schizophrenia with grandiose delusions. Its decision was based on the Supreme Court’s leading case (EBH2004.1130, see below).
On 27 December 2007 Dr H. submitted to the court her opinion in hard copy. On the same day the applicant contacted Dr Benkó of the MDAC in order to seek advice regarding the possible judicial remedies against the court order. She advised him to file an appeal against the decision. During the second-instance proceedings, the applicant continued to be represented by the guardian ad litem appointed for him by the District Court, whereas Dr Benkó provided him with additional legal advice.
On 14 January 2008 the guardian ad litem appealed to the Pest County Regional Court. He argued that the conditions for mandatory treatment as required by Act no. CLIV of 1997 on Health Care (“the Act”, see below) were not fulfilled, since the evidence provided by the two psychiatrists involved did not prove the applicant’s significant dangerous character but consisted of no more than vague predictions of an eventual deterioration in the applicant’s condition. The decision was not in conformity with the Act, since the District Court had established the applicant’s dangerous character relying on his lifestyle rather than a mental illness and its symptoms; in fact, the forensic expert had merely suspected the presence of a mental disorder and her opinion did not contain a proper diagnosis or substantiate that the degree of the applicant’s mental illness warranted mandatory treatment.
On 12 February 2008 the Regional Court dismissed the applicant’s appeal and upheld the first-instance decision, endorsing in essence its reasoning. This decision was served on the applicant on 4 March 2008; the time-limit to file a petition for review by the Supreme Court accordingly expired on 3 May 2008.
On 7 March 2008 the applicant consulted Dr Benkó on the prospects of pursuing a petition for review. On 12 March 2008 Dr Benkó enquired with the applicant about his intentions to pursue a petition. This letter contained potential arguments to be presented to the Supreme Court. The applicant forwarded the letter to his guardian ad litem, who alone was entitled to proceed before the Supreme Court, in the absence, at that stage, of a qualified attorney retained by the applicant. On 24 March 2008 the guardian ad litem confirmed to Dr Benkó that he was to file a petition on the applicant’s behalf.
On 27 March 2008 the applicant’s treatment commenced at Vác Hospital. On admission, he was held in the closed ward of the psychiatric department. Two weeks later he was transferred to the regular ward of the department.
On 22 April 2008 the applicant retained Princz Kornél Law Office to represent him.
On 25 April 2008 the geographically competent Vác District Court conducted a review of the applicant’s hospitalisation. Relying on the opinion of forensic expert Dr T. – according to whom the applicant suffered from schizophrenia hallmarked by residual symptoms of a psychotic state, but he represented no actual danger – it held that the conditions for mandatory treatment were no longer met in the applicant’s case and ordered his release.
On 6 May 2008 Dr Benkó attempted to obtain a copy of the petition for review from the court for MDAC’s record and found out that it had never been lodged by the applicant’s guardian ad litem.
B. Relevant domestic law
The relevant provisions of Act no. CLIV of 1997 on Health Care (“the Health Act”) read as follows:
Section 188
“... b) Dangerous conduct is constituted by a condition in which a patient, due to his disturbed state of mind, may represent a serious danger to his or others’ life and limb or health, but, given the nature of the illness, ‘urgent hospitalisation’ [within the meaning of section 199] is not warranted.”
Section 197 – Voluntary treatment
“(1) The treatment may be considered voluntary if, prior to admission to the psychiatric institution, the [mentally] competent patient has consented to it in writing.
(2) A partly or fully incompetent patient may be subjected to treatment in a psychiatric institution at the request of the person referred to in sections 16(1) and 16(2).”
Section 198
“(1) In cases under sections 197(1) and 197(2), the court shall regularly review the necessity of hospitalisation. Such review shall take place every 30 days in psychiatric hospitals and every 60 days in psychiatric rehabilitation institutions.”
Section 199 – Urgent hospitalisation
“(1) The doctor in charge shall directly make arrangements to commit a patient to an appropriate psychiatric institution, if the patient’s conduct is imminently dangerous because of his psychiatric or addictive disease and can only be controlled by urgent treatment in a psychiatric institution. ...
(2) The head of the psychiatric institution shall, within 24 hours of the patient’s admission, notify the court thereof and shall thereby initiate steps to establish the necessity of the patient’s admission and the order of compulsory psychiatric treatment. ...
(5) The court shall order the compulsory treatment of a patient subjected to urgent hospitalisation if the patient’s conduct is dangerous and his treatment in an institution necessary.
(6) Before deciding, the court shall hear the patient and obtain the opinion of an independent expert psychiatrist. ...
(8) The court shall review the necessity of the treatment every 30 days.
(9) The patient must be released from the psychiatric institution if his treatment in an institution is no longer necessary.”
Section 200 – Compulsory treatment
“(1) The court shall order the compulsory institutional treatment of a patient whose conduct is dangerous because of his psychiatric or addictive disease but whose urgent treatment is not warranted. ...
(2) Proceedings for ordering compulsory institutional treatment shall be initiated by the specialist of the psychiatric health care institution which established the necessity of this treatment ... by notifying the court; s/he shall make a proposal as to the psychiatric institution which should administer the treatment.
(3) The court shall decide whether to order compulsory institutional treatment within 15 days following receipt of the notification.
(4) Before giving its decision, the court shall hear the patient and an independent ... forensic expert psychiatrist ... as well as the psychiatrist who has initiated the proceedings. ...
(7) The court shall review the necessity of compulsory institutional treatment at the intervals specified in section 198. ...
(8) A patient subjected to compulsory institutional treatment must be released once his treatment is no longer warranted. ...”
Section 201 – Common procedural rules
“(1) In the proceedings outlined in this chapter, the court shall proceed by way of non-contentious proceedings. Unless required otherwise by this Act or the non‑contentious nature of the proceedings, the court shall apply the provisions of Act no. III of 1952 on Civil Procedure as appropriate. ...
(4) In the court proceedings, appropriate representation must be secured for the patient. ... .”
Act no. III of 1952 on the Code of Civil Procedure provides as follows:
Judicial Review
Section 270
“(2) A petition for the review of a final judgment or a final ruling adopted on the merits of the case may be submitted to the Supreme Court on the ground of a breach of the law ...”
Section 273
“(3) A petition for review has no suspensive effect concerning the enforcement of the decision; however, the Supreme Court may suspend enforcement upon request, under special circumstances...”
Section 275
“(4) If a decision is found unlawful, except for [an immaterial] breach of procedural regulations ..., the Supreme Court shall quash the unlawful decision in whole or in part, and ... shall adopt a new decision or ... remit the case.”
Supreme Court leading case no. EBH2004. 1130 contains the following passages:
“The court ... ordered [Mrs X’s] mandatory inpatient psychiatric treatment and committed her to the Psychiatric Ward of Sz. J. Hospital. The court was of the opinion that [Mrs X] was suffering from a psychiatric disease imperatively requiring inpatient treatment, this being the only way to improve her health status. The patient refuses medical help or medicines, thereby endangering her own health.
Against the final order a petition for review was filed by [Mrs X]. ... She [argued that she had] refused medical help only because her trust in doctors had been shattered. Her letters written, sometimes in injurious tone, to various authorities could be evaluated as the outrages of a person having grown tired of seeking the truth but could not represent imminent endangering behaviour or a ground for committing her to imminent inpatient psychiatric treatment. There had been no elements whatsoever indicating that the life or health of others had been in imminent danger. She endangered solely her own health; and the authorities’ measure restricting personal liberty could not override her right to self-determination enjoyed as a person of full capacity .... On this question of law, an issue of principle, the Supreme Court has to date not taken a published decision of principle and in the interest of developing the jurisprudence it is necessary to carry out a review of the final order. ...
The Health Act contains sui generis regulation in respect of psychiatric patients. Because of the nature of the disease, the law contains a system of special and interlinked provisions. These provisions allow, among other measures, for deprivation of personal liberty subject to sufficient statutory guarantees.
Under the Health Act, psychiatric patients may be subjected to inpatient treatment in three cases: if they consent thereto, if they are in a state endangering other persons and therefore in need of emergency inpatient treatment, and if mandatory inpatient treatment is ordered in a court decision ...
Under the Health Act, emergency treatment (section 199) is linked to imminent endangering behaviour whereas mandatory inpatient treatment (section 200) is linked to endangering behaviour. Circumstances giving rise to imminent endangering behaviour or endangering behaviour are differentiated on the basis of acute disturbance or disturbance of the patient’s psychic status, respectively. If, in consequence of an acute disturbance of the patient’s psychic status, the patient imminently and seriously endangers his or others’ life or limb (imminent endangering behaviour) or, in consequence of a disturbance of the patient’s psychic status, the patient may significantly endanger his or others’ life or limb, but the nature of the disease does not justify emergency treatment, the court may order mandatory inpatient treatment (Health Act, section 188 (b) (c)).
The Health Act, however, contains sufficient legal safeguards in respect of all the three options of admission into institutional care (including voluntary admission) and requires court proceedings and a judicial decision as to whether the treatment is justified ...; mandatory institutional treatment may be ordered [only] by a court (Health Act, section 200(1)) ...
Thus, as to the applicability of sections 199 and 200, a distinction is to be made not on the basis of the degree, let alone the severity of the disease, but on the basis of the urgent nature of the treatment required ...
The patient’s right to self-determination and her personal liberty was not violated, given that a treatment appropriate for her health status – to be carried out in an institution – had to be ordered, since the treatment previously voluntarily received by the patient could not be continued because of the patient ...
According to the expert opinion and the opinion of the Institute’s medical practitioner, the endangering behaviour required for such a decision indeed existed in the patient’s case, since due to her lack of capacity to understand and appreciate her illness, she failed to appear for treatment for some half a year. The deterioration of her health status as a result of the absence of treatment was ... medically foreseeable ...
This constitutes health-endangering behaviour on the part of the patient, and the right to self-determination of a person otherwise enjoying full capacity cannot be violated when the proceedings are being conducted before a court and a judicial decision is taken on the basis of provisions containing legal guarantees ... (Supreme Court no. Pfv.III.20.304/2004.)”
COMPLAINT
The applicant complained under Article 5 § 1 (e) of the Convention that his involuntary hospitalisation at a psychiatric department was not justified, because he was not reliably shown to be a person of unsound mind, his mental disorder was not of a kind or degree warranting compulsory confinement and his detention was not lawful.
THE LAW
1. The Government argued that the applicant had not exhausted domestic remedies as required by Article 35 § 1. The applicant contested this view.
Article 35 § 1 provides as relevant:
“The Court may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law...”
The Government pointed out in particular that, by not pursuing a petition for review, the applicant failed to exhaust domestic remedies. They argued that even if this had been explained by an omission of the guardian ad litem, nothing had prevented the applicant from instructing his lawyer, retained on 22 April 2008, to file a petition (see, mutatis mutandis, Bocsi v. Hungary, no. 24240/94, Commission decision of 21 May 1998). They recalled that even where there was a doubt about the effectiveness of a remedy, the issue should be tested before the courts (see Roseiro Bento v. Portugal (dec.), no. 29288/02, ECHR 2004-XII (extracts)).
The applicant argued that the Supreme Court review was not an effective remedy in the circumstances as it served only to unify the interpretation of domestic law and offered very little prospect of success. That court’s relevant jurisprudence spelled out that the domestic law “contains sufficient legal safeguards in respect of [mandatory] admission into institutional care ... and requires court proceedings and a judicial decision as to whether the treatment is justified” (EBH2004.1130, see above). However, in general, little heed was paid to the practical application of those safeguards. It was true that the applicant’s case was formally in compliance with the Supreme Court’s jurisprudence; however, in his view, it was this jurisprudence itself that fell below the Convention standards. In particular, according to that jurisprudence, the possibility of deterioration of a patient’s health satisfied the substantive criterion of involuntary hospitalisation, whereas a court hearing and the involvement of an expert psychiatrist satisfied the procedural one. In any case, certain steps had been taken to exhaust this remedy, which had been discussed with MDAC. However, since until his retaining a lawyer on 22 April 2008 it had been only his guardian ad litem who could have filed a petition for review, which he had promised but had not done, the non-pursuit of the petition could not be held against him.
The Government replied to these arguments emphasising that the applicant’s assertion about the Supreme Court review being reserved to the unification of domestic law was a misconception of the law and reflected a state of legislation that had no longer been valid at the material time.
The Court considers that it is not necessary to address in the instant case the parties’ arguments concerning the effectiveness of a Supreme Court review, since the application cannot be rejected for non-exhaustion of domestic remedies for the following reasons. The applicant was represented throughout the impugned proceedings by a court-appointed guardian ad litem. This guardian ought to have, but failed to file a petition for review on behalf of the applicant. Neither did he inform the applicant of his reluctance to do so, which the applicant found out only through MDAC’s enquiry after the expiry of the relevant time-limit.
The Court reiterates that the responsibility of a State under the Convention may arise for acts of all its organs, agents and servants. As is the case in international law generally, their rank is immaterial since the acts by persons accomplished in an official capacity are imputed to the State in any case. In particular, the obligations of a Contracting Party under the Convention can be violated by any person exercising an official function vested in him (see Wille v. Liechtenstein [GC], no. 28396/95, § 46, ECHR 1999‑VII). The Court is satisfied that this consideration applies to the applicant’s guardian ad litem. It considers that this guardian should have, in principle, pursued all the remedies available in the applicant’s case or else informed the applicant of his intention not to pursue a petition for review, and this independently of the underlying reasons. By not doing so in good time, that is, before the expiry of the relevant time-limit, he effectively deprived the applicant of the possibility to pursue a remedy (see Gregório de Andrade v. Portugal, no. 41537/02, § 41, 14 November 2006), whereas the Government based their objection on this very omission. For the Court, it is immaterial that the applicant had meanwhile retained a lawyer, since the latter was misinformed with regard to the guardian’s non-pursuit of the case either. In these circumstances, the Court considers that the absence of a Supreme Court review cannot be held against the applicant, especially in view of the fact that the applicant’s detention had been put in place before the expiry of the relevant time-limit. The application therefore cannot be rejected for non-exhaustion of domestic remedies.
2. The applicant complained that his involuntary psychiatric treatment amounted to an unjustified deprivation of liberty in breach of Article 5 § 1 (e). The Government contested this view.
Article 5 § 1 provides as relevant:
“Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:
...
(e) the lawful detention of ... of persons of unsound mind ...”
1. The applicant’s arguments
The applicant submitted that he had not been “reliably shown to be a person of unsound mind” for the purposes of Article 5 § 1 (e) of the Convention (cf. Varbanov v. Bulgaria, no. 31365/96, § 45, ECHR 2000‑X). His involuntary treatment was based on three opinions, notably that of Dr M., who had never established any actual diagnosis, that of Dr L., who was a psychologist rather than a psychiatrist, and that of the expert Dr H., who had examined the applicant summarily in a 40-minute court session break. The latter is particularly shocking given that there was no element of emergency in the case. In his view, none of these opinions qualified as the requisite objective medical expertise.
Moreover, as regards the question of dangerous character, the applicant argued that his representing a danger to himself had not been properly addressed by the courts; those courts had simply been satisfied with finding that, if not treated, his condition might deteriorate. However, in his view, there was no element in the case showing that the absence of treatment might “represent a serious danger to his or others’ life and limb or health” for the purposes of section 187 (b) of the Health Act, the considerations about oddities in his lifestyle not amounting to such danger. This was also demonstrated by the fact that at Vác Psychiatric Department he had been transferred to the open section after two weeks and released after another two weeks – on account of the fact that he had not represented any danger. In sum, the applicant’s position was that the notion of “dangerousness” in domestic law could not have been substituted for by considerations about his unconventional lifestyle, partial insight of his condition or unwillingness to subject himself to hospitalisation – especially because the authorities could have availed themselves of less stringent measures, such as outpatient care or prolonged observation (cf. Witold Litwa v. Poland, no. 26629/95, § 78, ECHR 2000‑III).
2. The Government’s arguments
The Government submitted that under Hungarian law mandatory institutional treatment of mental patients could be ordered if they endangered their own health by refusing to seek treatment voluntarily and that therefore the applicant’s treatment had been ordered in accordance with the law. The deprivation of liberty of a person of unsound mind within the meaning of Article 5 § 1 (e) of the Convention was justified if he was reliably shown to be of unsound mind and the mental disorder was of a kind or degree warranting compulsory confinement (see e.g. Winterwerp v. the Netherlands, 24 October 1979, § 39, Series A no. 33). Furthermore, Hungarian law provided for sufficient guarantees against arbitrary psychiatric detention: mandatory institutional treatment could be ordered only by a judicial authority; the person concerned must be examined by an independent medical expert; he must have a legal representative (either an attorney or a State-appointed guardian ad litem); the court’s decision must give detailed reasoning and be subject to appeal; the decision of the second instance court was susceptible to a review by the Supreme Court on grounds of legality.
The applicant had been examined by an independent medical expert, Dr H., who had diagnosed him with paranoid schizophrenia. Her diagnosis had been based on her own examination of the applicant and supported by the earlier findings of another two professionals, Dr M. and Dr L. Therefore, the applicant had been reliably shown to be a person of unsound mind, which had been corroborated later on by the expert Dr T., who had endorsed the discontinuation of the mandatory treatment not because the applicant had never had a mental disorder but because he had no longer been unwilling to seek treatment voluntarily.
The applicant’s mandatory institutional treatment had been ordered to prevent further deterioration of his health, as he had not been willing to subject himself to psychiatric treatment voluntarily. Under these circumstances, no measures less severe than mandatory treatment had been available or sufficient to achieve the aim of protecting the applicant’s health. In the Government’s view, such a treatment was warranted inter alia when it was the patient’s mental health which was at risk of further deterioration if he could not be provided with appropriate treatment for lack of his willingness to cooperate, that is, to accept hospitalisation voluntarily. This approach was justified by the fundamental difference between “ordinary” patients, aware of their illness and capable of appreciating the consequences of non-treatment, and mental patients whose refusal of medical treatment was based on the denial of the illness itself. The latter could not make a free, informed and responsible decision on the refusal of their psychiatric treatment, and therefore the State’s positive obligation to protect their health required that the courts be empowered to decide on the necessity of the treatment. Those courts had the benefit of direct contact with all persons concerned and were in a better position than the Court to establish the relevant facts and evaluate the evidence before them.
The Court finds that the applicant’s complaint raises serious questions of fact and law which are of such complexity that their determination should depend on an examination of the merits. This complaint cannot, therefore, be regarded as manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention, and no other grounds for declaring it inadmissible have been established.
For these reasons, the Court unanimously
Discontinues the application of Article 29 § 1 of the Convention;
Declares the application admissible, without prejudging the merits of the case.
Stanley NaismithFrançoise Tulkens
RegistrarPresident
Full & Egal Universal Law Academy