LM v Latvia  ECHR (Application No 26000/02, 19 July 2011)
In LM v Latvia, the European Court of Human Rights affirmed the importance of ensuring that domestic law provides adequate legal protections to persons with mental illness who are involuntarily detained and treated.
The decision is an important guide as to what may constitute “fair and proper procedures” which ultimately safeguard individuals against the arbitrary deprivation of their liberty in psychiatric institutions.
Ms LM is a non-citizen, permanent resident of Latvia.
On 7 March 1999, a neighbour of LM called an ambulance and the police, expressing concern that LM was going to jump out of the window of her fifth floor apartment.
Having observed the applicant, the attending paramedic determined it was appropriate to take LM, accompanied by her mother and a police officer, to a psychiatric hospital. On the same day, LM was involuntarily admitted for inpatient medical treatment.
On 9 March 1999, a panel of three psychiatrists concluded that LM suffered from paranoid schizophrenia and deemed it necessary for her to continue inpatient medical treatment. From 11 to 30 March 1999, LM underwent inpatient medical treatment in a psychiatric hospital. From 1 to 13 April, LM was given hospital leave, after which time she was discharged.
Following her discharge, between early 1999 and January 2002, LM made several attempts to institute various administrative, civil and criminal proceedings against her neighbours, the police, medical staff and the hospital. Each proceeding was dismissed, with the exception of a defamation claim against LM's neighbour.
On 1 July 2002, LM instituted proceedings against Latvia in the European Court of Human Rights.
LM alleged violations under various articles of the European Convention of Human Rights. Relevantly, LM argued that her involuntary hospitalisation breached article 5 of the Convention, which provides:
Everyone has the right to liberty and security of the person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: ... the lawful detention... of persons of unsound mind...
LM asserted that the law on compulsory medical confinement in force at the relevant time did not provide appropriate safeguards against arbitrary decisions and that section 68 of the Latvian Law on Medical Treatment was so broad as to allow purely subjective and arbitrary hospitalisation.
In response, the Latvian Government asserted that the applicant's detention was "lawful" in that section 68 of the Law on Medical Treatment clearly defined the conditions for deprivation of liberty of persons of unsound mind. It further contended that national authorities had guaranteed to adhere to appropriate standards of detention, as set out in Winterwerp v the Netherlands. In particular, a medical doctor had established that the applicant's health condition on 7 March 1999 was of a degree warranting compulsory confinement and her behaviour at the time indicated she may be a danger to herself and to others.
The Court held that there had been a violation of Article 5(1)(e) of the Convention and ordered the State to pay LM €9000 in respect of non-pecuniary damage and €200 for costs and expenses. It concluded that at the relevant time, the process of involuntary hospitalisation, in law and in practice, failed to provide appropriate safeguards against arbitrary confinement in a psychiatric hospital. As such, LM's involuntary hospitalisation was not lawful.
The Court observed that in order to fulfil the purpose of article 5(1), namely, to prevent the arbitrary deprivation of liberty, the domestic law must provide adequate legal protection and “fair and proper procedures”.
It was not disputed that LM's involuntary hospitalisation constituted a deprivation of liberty within the meaning of Article 5(1)(e) of the Convention. However, the Court found that section 68 of the Law on Medical Treatment was vague and allowed for a broad interpretation of the circumstances leading to involuntary hospitalisation. Further, medical professionals were not bound to provide information to the patient about the purpose of involuntary treatment, fix a time-limit, or consider the opinion of the patient. Similarly, neither medical professionals nor any other authority was empowered to periodically verify the necessity of continued hospitalisation or assess any alternative and less restrictive means of providing appropriate treatment.
Finally, at all material times, the domestic law did not provide for any appeal procedure against the decision of involuntary hospitalisation.
None of LM's other claims under the Convention were successful.
Relevance to the Victorian Charter
The decision in LM v Latvia may provide useful guidance for the interpretation of section 21 of the Victorian Charter, which provides that “a person must not be deprived of his or her liberty except on grounds, and in accordance with procedures, established by law”. The decision stands for the proposition that adequate legal protection and “fair and proper procedures” must be provided to ensure that no psychiatric inpatient is deprived of his or her liberty arbitrarily. In particular, the Court reiterated the necessity of procedures aimed at preventing indiscriminate involuntary hospitalisation.
While this standard (and associated procedures) already exists in Victoria under various laws and regulations, the present legislation arguably affords inadequate protections to persons with mental illness who are involuntarily detained and treated. Relevantly, under the Exposure Draft Mental Health Bill 2010 released as part of the Victorian Government's review of the Mental Health Act 1986, compulsory ‘Inpatient Treatment Orders’ (28 days) and ‘Community Treatment Orders’ (three months) can be issued without a second psychiatric opinion and without review by an independent body. In the event that legislation to this effect is enacted, or the existing standards and laws are not adhered to, section 21 of the Victorian Charter may be invoked and LM v Latvia may serve to inform any action commenced.
The decision can be found online at: http://cmiskp.echr.coe.int/tkp197/view.asp?item=33&portal=hbkm&action=html&highlight=&sessionid=76768188&skin=hudoc-en
Sarah Horan is a Graduate and Daniel Creasey is a Senior Associate at DLA Piper.