Suicide on the train of a voluntarily enclosed patient in a Psychiatric Hospital. Equal protection between voluntary and unvoluntary patients. Legal delays in a new role. The violation of the reasonable time of damages actions for death violates the procedural part of the right to life
GRAND CHAMBER JUDGMENT
Fernandes de Oliveira v. Portugal 31.01.2019 (no. 78103/14)
The case concerned the suicide of the applicant’s adult son while he was a voluntary inpatient at a
psychiatric hospital and the civil proceedings for damages the applicant, his mother, pursued
following his death.
The Court held that the regulatory framework for the care of the applicant’s son was in line with
Convention requirements for protecting patients under Article 2.
Evolving its case-law, it held that States must take reasonable measures to protect voluntary
psychiatric inpatients, as well as those who are involuntarily placed in hospital. In this case, the
authorities had provided sufficient safeguards given the lack of a clear and imminent risk of suicide.
However, the Government had failed to give convincing reasons for the length of the domestic
compensation proceedings – more than 11 years – and accordingly there had been a violation of the
procedural aspect of this provision of the Convention.
THE IMPORTANCE OF THE CASE
The ECtHR in this decision gives another dimension to the violation of the reasonable time of the proceedings. In the event of death, the delay in legal proceedings for damages is another violation beyond the normal reasonable time of Article 6 (1) of the ECHR. The additional violation, with the stamp of the Broad Facility’s decision, is the procedural aspect of the right to life (Article 2 of the ECHR). The Court’s decision is interesting and particularly useful for the serious and complex consequences of a reasonable time offense in court proceedings
The applicant, Maria da Glória Fernandes de Oliveira, is a Portuguese national who was born in 1937
and lives in Ceira (Portugal).
Ms Fernandes de Oliveira’s son, A.J. (born in 1964), suffered from mental illnesses and was
repeatedly admitted to the Sobral Cid Psychiatric Hospital in Coimbra over a number of years.
On 2 April 2000 he was admitted as a voluntary inpatient to the same institution because he had
attempted to commit suicide. On 27 April 2000 he left the hospital without notifying the hospital
authorities and committed suicide by jumping in front of a train.
Ms Fernandes de Oliveira lodged a civil action for damages against the hospital in March 2003,
claiming that her son should have been under medical supervision and that the hospital staff should
have prevented him from leaving. Her claim was dismissed by the Coimbra Administrative Court in
April 2011, as was her appeal to the Administrative Supreme Court, in May 2014.
The courts held that the hospital’s system for monitoring patients was sufficient and that there had
been no breach of the hospital’s duty of care as it had not been possible to foresee A.J.’s suicide.
THE DECISION OF THE COURT
The Court dealt with the case under the substantive and procedural aspects of Article 2.
It noted that under its case-law States had a duty (“positive obligation”) to provide a regulatory
framework to protect patients’ lives, including an independent judicial system to determine the
cause of someone’s death while in medical care. The Court’s assessment of the regulatory
framework was not abstract but looked at how the system affected a particular applicant.
In certain well-defined circumstances authorities also had a duty to take preventive operational
measures to protect individuals from others and themselves. In earlier cases the Court had not
explicitly stated that this duty extended to voluntary psychiatric inpatients, as well as those who had
been admitted involuntarily, but it now stated that it applied to both categories of patient. However,
in the case of patients who are hospitalised involuntarily, the Court, in its own assessment, may
apply a stricter standard of scrutiny.
An obligation for preventive measures arose when the authorities knew or ought to have known of
a real, immediate risk of suicide In the case of the applicant’s son, a voluntary inpatient, the Court concluded that Portugal had the necessary regulatory framework, including access to a judicial system to examine A.J.’s death.
As the domestic courts had done, it rejected the applicant’s complaint that the hospital should have
been equipped with security arrangements such as walls and gates to prevent patients leaving. Less
restrictive environments for psychiatric hospitals were in line both with the domestic law, the
Mental Health Act, and international standards. The hospital had also had the power to order
involuntarily hospitalisation if it had found that necessary in the applicant’s son’s case.
The hospital’s system for the surveillance of voluntary inpatients, involving a regular daytime
schedule and checks on their presence at meal and medication times, had been sufficient. The
domestic courts had found that A.J.’s routine was aimed at respecting his right to privacy. Indeed,
the Court itself had found in previous cases that excessively restrictive measures on psychiatric
patients could give rise to issues under Articles 3, 5 and 8 of the Convention. Furthermore, a more
restrictive procedure had been available if considered necessary by A.J.’s doctor.
The Court also agreed with the domestic courts’ endorsement of the hospital’s emergency
procedure, involving alerting the doctor on call, the police and the patient’s family. The applicant
had also had access to a judicial process, via both the Administrative Court and the Supreme
Administrative Court. Apart from issues related to the length of the proceedings, there was nothing
to show a systemic deficiency which had denied her an effective review.
The Portuguese authorities had also taken the necessary preventive operational measures in relation
to A.J., who had not presented a real and immediate risk of suicide.
The hospital had been aware of his long history of mental health issues and that at times he had
posed a risk to his own health. However, he had been in a familiar environment at the hospital, had
been given the freedom to move around the grounds, had spent weekends at home, and, when
necessary, the surveillance regime had been tightened. The Court concluded that it had not been
established that the authorities knew or ought to have known that there was a real and immediate
risk to A.J.’s life in the days preceding his suicide.
For those reasons the Court found no violation of Article 2 under its substantive limb.
The Court then turned to the question of the procedural aspect of Article 2, which concerns the
effective investigation of possible errors during medical care and the question of compensation.
The Court noted that the compensation proceedings had lasted more than 11 years, which the
Government had admitted was excessively long, without giving any convincing and plausible
reasons. The Court observed that witnesses had only been questioned eight or nine years after the
applicant had begun the proceedings.
It was owing to such delays that the Court found a violation of the procedural aspect of Article 2.
Just satisfaction (Article 41)
The Court held that Portugal was to pay the applicant 10,000 euros (EUR) in respect of
non-pecuniary damage and EUR 409 in respect of costs and expenses.
Judges Pinto de Albuquerque expressed a partly concurring, partly dissenting opinion which was
joined by Judge Harutyunyan. The opinion is annexed to the judgment(echrcaselaw.com editing).