Inadequate Treatment and Restraint of Person with Schizophrenia a Violation of Prohibition on Torture

Kucheruk v Ukraine [2007] ECHR Application No 2570/04 (6 September 2007)

The applicant, a man with chronic schizophrenia, was convicted of theft and hooliganism.  The Ukraine Court suspended the criminal proceedings against him committing him first for psychiatric treatment.  He was subsequently detained in the medical wing of a pre-trial detention centre for a month before being transferred to a specialised facility.  While detained, he was subjected to the practices of restraint and seclusion.

The applicant successfully complained to the European Court of Human Rights of violations of art 3 (prohibition on cruel, inhuman or degrading treatment or punishment) and art 5 (right to liberty and security of person and freedom from arbitrary detention) of the European Convention on Human Rights in relation to his detention, seclusion, restraint, and the investigation by the authorities of his subsequent complaints.  The European Court’s findings may be of particular interest in Victoria if the Supreme Court is asked to consider which limitations on the rights contained in the Charter are reasonable for the purposes of s 7 when authorities are exercising their powers under the Mental Health Act 1986 (Vic).

Article 3: Prohibition on Cruel, Inhuman or Degrading Treatment

The Court found four violations of art 3.

Use of truncheons to restrain applicant

Three prison guards used truncheons to restrain the applicant.  The recourse to physical force on a person deprived of liberty must be strictly necessary.  TheUkrainestated that the applicant's own conduct made the force necessary, but theEuropean Courtdisagreed, finding that:

  • the applicant’s behaviour was not an unexpected development, and so the authorities had time to prepare for its management in a different way;
  • there were three guards available to restrain the applicant; and
  • the applicant had not attempted to attack the officers or fellow inmates, and his behaviour did not constitute any danger to his own health or that of others.

Handcuffing and solitary confinement

The applicant was placed in solitary confinement for nine days, and was handcuffed for seven of the nine days.  Such measures are regarded as inhuman and degrading if they cannot be shown to be of therapeutic necessity (from the point of view of established principles of medicine).  Further, the medical necessity must be convincingly shown to exist, in that procedural guarantees for the decision to restrain must be complied with.

TheUkrainestated that the applicant was handcuffed to prevent him from injuring himself.  However, theEuropean Courtfound:

  • there was no advice sought from a psychiatrist regarding the applicant’s fitness for these measures, nor as to what treatment should be undertaken in the future;
  • handcuffing was not the normal protocol for restraining mentally-ill patients in theUkraine;
  • there was no evidence that the applicant attempted to assault any person; and
  • the handcuffs were not effective in keeping the applicant from hurting himself through banging his head against the wall.  Therefore, they did not serve the purpose submitted by theUkraine.  Furthermore, they caused deep abrasions to his wrists, for which he was not given any medical attention.

Lack of medical assistance and treatment

Lack of medical care given to mentally-ill patients deprived of liberty can amount to violation of art 3.  The vulnerability and inability of these persons to complain coherently with respect to medical treatment is a relevant consideration.  TheEuropean Courtfound that the following actions were neither adequate nor reasonable:

  • solitary confinement;
  • handcuffing, the resultant injuries and the lack of treatment for the injuries;
  • inadequate examination by a psychiatrist; and
  • delay in following the recommendation to place the applicant in a specialised facility.

Effectiveness of the investigation into applicant’s complaints

The minimum standard of an investigation is that it must be ‘independent, impartial and subject to public scrutiny, and the competent authorities must act with exemplary diligence and promptness’.  TheEuropean Courtfound that the investigation into the applicant’s complaints of excessive use of force by the prison guards was in violation of art 3 as:

  • the investigation lacked independence (as the governor of the detention centre at which the incident occurred represented the investigating authority);
  • there was little public scrutiny;
  • there was lack of promptness (the applicant’s complaints had lasted five years at the time of hearing); and
  • the investigation lacked effectiveness (as was supported by the findings of theUkrainecourts).

Article 5: Right to Liberty and Security of Person and Freedom from Arbitrary Detention

Article 5(1)

The order enabling the applicant’s detention was revoked, but the applicant was not released.  Therefore, the applicant complained that he was detained unlawfully in violation of art 5(1).  TheUkrainesubmitted that the delay was caused through administrative issues.  However, the Court rejected this submission stating that ‘administrative formalities connected with release cannot justify a delay of more than several hours’.

Article 5(4)

At least two important procedural safeguards should be made available to a detained mentally-ill patient: firstly, periodic review of the lawfulness of the person’s detention; and secondly, the ability for the person to seek judicial review on his or her own motion.  TheEuropean Courtfound that the applicant was not afforded the latter safeguard, and therefore found a violation of art 5(4).

Daveena Sidhu is a member of the Allens Arthur Robinson Corporate Responsibility Group