D.D. v Lithuania

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 Finally, she alleged that she had been served out-of-date meat which was unsafe to eat.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 Whilst food safety inspectors did criticise the social care home for having out of date meat in the kitchen during an inspection they did not suggest that the meat in question would have been served to residents.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.

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6 thoughts on “D.D. v Lithuania

  1. 15 April 2012
    I find this a disturbing instance regarding forcible medication. I have had a long battle regarding an issue of forcible Haloperidol injection against a patient’s will, without consent and in a situation where the administration of haloperidol was actually not safe for a person with endstage renal and cariac failure EXCEPT if it was for palliative purposes or that the person could be “deemed” to be needing it “psychiatrically”. This has been a campaign by me to get proper understanding of psychiatric drugs and medication.

    It is about time that all information that is known about these potentially lethal drugs is properly acknowledged as, in my opinion, they are far more dangerous than a person smoking or drinking because with nicotine and alcohol the dangers are well-known, but the same cannot be said about many of the commonly-prescribed psychiatric drugs for depression, schizophrenia and dementia.

  2. Pingback: ECHR Cases on Denial of Legal Capacity to Persons with Disabilities - Human Rights in Ireland

  3. Pingback: ECHR Cases on Denial of Legal Capacity to Persons with Disabilities | Disability Law & Policy News

  4. ‘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.’
    ——————–
    Dear Neil Munro, first of all big thanks to you, I,m ‘psychiatrist who was later replaced (after losing her position for unrelated misconduct)’ (? – I losed my position for help ant empathy to D.D.as a victim of Soviet psychiatry, and that,s documented…), ant I would be happy to comment many many things in DD case, which application I wrote and sent to ECHR as D.D. has no possibility to write application, but even have a pensil… But first of all I,ll be happy to comment this one little apostrophe ‘conditions in the home appear to have been adequate rather than poor’ – yes, that,s right, but this about home transferred already into new place, Slapaberze, but DD was 2004 incarcerated in Apytalaukis, old and wonderful comt’s Zabiela building where she was placed in 12 persons room together with murders, and ‘meat in question would have been served’ such a way, that if you do not eat this meat – sentinnels looking in the canteen – the dosis of psychotropic drugs will be doubled or tripled, or even ‘fixation’ used… When somebody came into this forlorn place to visit DD, police from Kedainiai was called ‘not to disturb’, it happened also for us one time, but what about the ‘meat’ – 2005 we visited DD, and she complained us, sorry, vomiting. DD and we were afraid not only for DD,s health, but for much more terrible thing – vomiting because of ‘meat in question’ in this home meant also … exacerbation of Schizophrenia and transfer to maximum security hospital because of this ‘exacerbation’… And why not ‘exacerbation’ of ‘Schizophrenia’ if there are no symptoms of Schizophrenia? That is question of DIAGNOSIS – of Sluggish Schizophrenia…

  5. A huge amount of misdiagnoses (in 1988 about 2 million persons were taken from ”register” in former USSR) raises curiosity, concerning the diagnostic criteria used (broad Schizophrenia concept), but in the political misusings (psychiatric expertises directed by KGB, for example) axiological differences, up to antipodal of such human values, as spirituality, conscience, activity, self-esteem, moral philosophy, God — the Higher Power, and also medical ethics, are evident, comparing Western and Soviet societies, the latter being represented by diagnosing psychiatrists. A method of semantic analysis of KGB interrogators’ motivation for dissidents’ psychiatric examination, and forensic psychiatry statements (evidences), written by leading Soviet psychiatrists, also in comparison with the same axiological concepts, as they appear in literature and philosophy of Lithuanian emigrants to USA, Australia and France of the same time, is being used.Analysis suggests, that the differences in identifying psychic illness, appearing between Western and Soviet (also post-soviet) psychiatric practises, are determined not only by different diagnostic criteria, but also axiological difference of concepts of human values.
    http://www.ingentaconnect.com/content/els/09249338/1996/00000011/90000004/art88796 ingentaconnect Soviet mentality and psychiatric diagnosis: some …
    http://www.ingentaconnect.com/content/els/09249338/1996/…/art88796
    cituojant DM Gerulaitiene – 1996
    1 Jan 1996 – Abstract: A huge amount of misdiagnoses (in 1988 about 2 million persons were taken from ”register” in former USSR) raises curiosity, … European Psychiatry, Volume 11, Supplement 4

    Soviet mentality and psychiatric diagnosis: some semantic and semiotic aspects
    Author: Gerulaitiene D.M.
    Source: European Psychiatry, Volume 11, Supplement 4, 1996 , pp. 265s-265s(1)
    Publisher: Elsevier
    This article is hosted on another website.
    You may be required to register, activate a subscription or purchase the article before you can obtain the full text.
    Abstract:
    A huge amount of misdiagnoses (in 1988 about 2 million persons were taken from ”register” in former USSR) raises curiosity, concerning the diagnostic criteria used (broad Schizophrenia concept), but in the political misusings (psychiatric expertises directed by KGB, for example) axiological differences, up to antipodal of such human values, as spirituality, conscience, activity, self-esteem, moral philosophy, God — the Higher Power, and also medical ethics, are evident, comparing Western and Soviet societies, the latter being represented by diagnosing psychiatrists. A method of semantic analysis of KGB interrogators’ motivation for dissidents’ psychiatric examination, and forensic psychiatry statements (evidences), written by leading Soviet psychiatrists, also in comparison with the same axiological concepts, as they appear in literature and philosophy of Lithuanian emigrants to USA, Australia and France of the same time, is being used.Analysis suggests, that the differences in identifying psychic illness, appearing between Western and Soviet (also post-soviet) psychiatric practises, are determined not only by different diagnostic criteria, but also axiological difference of concepts of human values.
    Language: English
    Document Type: Abstract
    DOI: 10.1016/0924-9338(96)88796-7
    Affiliations: 1: Kaunas Red Cross Hospital policlinic, Psychotherapeutic Department, Mickeviciaus 4, Kaunas, 3000, Lithuania
    Publication date: 1996-01-01

    1/ Gerulaitiene, Dalia M. Psychological and psychiatric consequences of compulsory neuroleptic treatment of non-psychotic individuals European Psychiatry, Volume 13, Supplement 4, 1998, Page 318.
    Negative attitude towards medicine and medicaments, disappointment (projection, generalization), disorders (neurotic, personality) fixation, self-esteem, interpersonal and marital problems and global functioning as result of violence, biological manifestation of stress and stigmatization, are compared in 3 groups of individuals, treated by neuroleptics:1. Hospitalized under civil proceedings, when various degrees of pressure took place (Method: interview in nonclinic (are afraid of until now) setting after announcement in Kaunas newspaper Group Exploring Misusings in Psychiatry had been organized, screening upon ICD-9 diagnostic criteria (1992): from 61 persons who came to tell about their horrible experience 19 were found as being schizophrenics;2. Dissidents, convicted to be treated by Soviet Lithuania Supreme Court at KGB intention (Method: Interview ”Victims of Psychiatric Abuse – after Their Point of View”);3. Patients with neurotic disorders, treated in psychiatric departments by tranquilizers, antidepressants and neuroleptics with Akathisia symptoms (Method; clinical observation and interview).Results suggest, that the most dangerous action of compulsory neuroleptic treatment in the absence of psychosis to the individual took place, when he was young, had no support in the family, or had psychological problems.

    http://www.ingentaconnect.com/content/els/09249338/1998/00000013/90000004/art80664 , spausti Psychological and psychiatric consequences of compulsory … http://www.ingentaconnect.com/content/els/09249338/1998/…/art80664 cituojant DM Gerulaitiene – 1998 1 Jan 1998 – Abstract: Negative attitude towards medicine and medicaments, disappointment (projection, generalization), disorders (neurotic, personality) … Psychological and psychiatric consequences of compulsory neuroleptic treatment of non-psychotic individuals / Author: Gerulaitiene D.M. Source: European Psychiatry, Volume 13, Supplement 4, 1998 , pp. 318s-318s(1) Publisher: Elsevier Buy & download fulltext article: This article is hosted on another website. You may be required to register, activate a subscription or purchase the article before you can obtain the full text European Psychiatry, Volume 13, Supplement 4

  6. One more question arises reading 16th February 2012 ECHR decision ECHR case No 13469/06 D.D. v Lithuania:

    The Civil Code of Lithuania Republic rules that even recognised as incompetent persons with psychiatric disabilities or disorders can be detained in psychiatric institutions without the court decision no more than 2 days:

    Article 2.26. Prohibition to Restrict the Freedom of a Natural Person
    1. Freedom of a natural person shall be inviolable. A capable person may be placed under any supervision or imposed any restrictions only after his consent has been given as well as in other cases prescribed by law.
    2. Where a person’s life is endangered or he has to be hospitalised to protect the public interests person’s consent to the medical care shall not be required.
    3. Psychiatric examination of a person may be conducted only with his consent or after the authorisation of the court has been granted. Consent to conduct psychiatric examination of an incapable person may be given by his guardian or by the court. Where a person’s life is seriously endangered urgent psychiatric care may be taken without person’s consent.
    4. A person may be confined in a psychiatric institution only with his consent and after the authorisation of the court has been granted. Where a person is seriously ill with a mental disease and where there is a real danger that his actions may cause considerable damage to his or other people’s health or life and property, the person may be hospitalised in a compulsory manner for the period not exceeding two days. Compulsory hospitalisation may be extended only after the authorisation of the court in accordance with the procedure prescribed by law has been granted. Where a person is incapable, his guardian may give his consent to the said person’s compulsory hospitalisation for the period not exceeding two days. Compulsory hospitalisation of an incapable person may be extended only after the authorisation of the court following the procedure prescribed by law has been granted.
    5. Persons who unlawfully imposed restrictions on the freedom of a natural person shall have to redress property and non-pecuniary damage incurred on the said person.
    ——————
    Subsequently all capable and incapable persons, detained in Lithuanian social care homes (farmer called psychoneurological pensions, or PENSIONATAI) without a court decision to be detained and compulsory treated there, are detained un lawfully, but ECHR decided that upon domestique laws they are detained lawfully.. IGRORING domestique laws – the Article 2.26 of Civil Code of Lithuania Republic ‘Prohibition to Restrict the Freedom of a Natural Person’

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