Four weeks after the decision in Stanev v Bulgaria we had the decision in DD v Lithuania. The facts are superficially similar, both cases concern individuals with legally questioned capacity, placed under guardianship by the state and subsequently deprived of their liberty in social care homes. In DD’s case her adopted father initially agreed to act as her guardian, although he subsequently requested that he be replaced and was replaced first by her psychiatrist who was later replaced (after losing her position for unrelated misconduct) first by her adoptive father and then by the social care home in which DD was detained.
The initial procedures for determining that DD should be placed in the social care home were deemed to be sufficiently robust to comply with Art 5(1) ECHR and the provisions laid down in the decision in Winterwerp v Netherlands for the detention of ‘persons of unsound mind’. However, as in Stanev the procedures for challenging both her guardianship and her subsequent detention were inadequate and the court found violations of both Art 5(4) ECHR and Art 6(1) ECHR.
Again it is useful to have clear evidence that the ECtHR demands robust and transparent procedures for the oversight of both guardianship and deprivation of liberty. But what is more interesting about the case is what is not there.
Many of the claims DD raised were held to be manifestly unfounded and therefore inadmissible. Of most concern is the court’s analysis of Article 3 regarding freedom from torture and inhuman and degrading treatment. DD complained of three aspects of her care in the social care home which she felt amounted to inhuman or degrading treatment. The first was that she had been expected to take treatment with little or no information being provided as to why, at times she had refused and at others she had acquiesced. On one occasion she had been forcibly restrained by social workers, 10mg of the antipsychotic drug Haloperidol had been injected and she then been tied up and subject to restraint for a period of at least 15-30 minutes. Finally, she alleged that she had been served out-of-date meat which was unsafe to eat.
None of these three points was held to amount to a violation of Art 3. In the case of the third, it would seem that the minimum level of severity could not have been attained. Whilst food safety inspectors did criticise the social care home for having out of date meat in the kitchen during an inspection they did not suggest that the meat in question would have been served to residents. More generally, conditions in the home appear to have been adequate rather than poor, although the Lithuanian authorities did acknowledge that much could be done to improve them.
The ECtHR’s handling of the medical treatment question is of far greater concern. DD’s first concern is not addressed at all. The court does not explore whether being expected to take treatment without being informed what it is for or what side-effects it may cause could be degrading although many patients tell us that they find being treated in this way degrading. It is particular irritating that the court does not acknowledge the potential merits of this complaint because they find elsewhere that the fact that medical treatment is administered involuntarily and even under restraint at the home is positive evidence that DD is deprived of her liberty for the purposes of Article 5 ECHR. That does not, of course, mean that the manner in which the treatment is administered will meet the minimum level of severity necessary to justify finding a violation of Article 3 but it surely merits attention.
On the issue of the restraint and administration of Haloperidol they reiterate the formulation in Herczegfalv, that treatment will not be found to breach Article 3 if medical necessity ‘can be convincingly shown to exist’ and on this set of facts they find that the contested treatment met the Herzcegfalvy test. Two aspects of this analysis are frustrating. The first is that the medical director of the social care home admitted that the treatment had been administered ‘in breach of the applicable rules’ and without the consent of medical personnel. Although the social workers concerned appear to have sincerely believed that they were acting in DD’s best interests it is impossible to see how the treatment could have been deemed medically necessary when no medical personnel were involved in authorising it.
The court does not scrutinise this decision in detail because the event DD complained about had also been subject to criminal investigation domestically and the prosecutor had concluded that there had not been a violation of DD’s liberty or that she had suffered degrading treatment as a result of the restraint imposed upon her. The court concludes that they ‘see no valid reason to dispute their findings’. This point is not expanded upon although presumably the court does not dispute the findings of the domestic prosecutor because they consider their evidence gathering and analysis to be robust. It is also a shame that more explicit clarification is not offered as to when domestic investigations into cases concerning ‘medically necessary procedures’ can be deemed to satisfy the procedural requirements of Art 3.