CASE OF H.M. v. SWITZERLAND
No violation of Art. 5-1
Gaukur Jörundsson
9. The applicant, a Swiss citizen born in 1912, is a pensioner living in Worben (Switzerland). 10. Until 1994 the applicant, who draws an old-age pension, lived with her husband in a house belonging to He.M., one of her two sons, in Lyss in the Canton of Berne. As she was suffering from leg sores, she received help from the Lyss Association for Home Visits to the Sick and Housebound from 1987. In 1989 He.M. moved in. 11. In 1994, at their request, the applicant and her husband were placed under the guardianship (Beistandschaft) of their other son, A.M. However, He.M. objected to this. At the end of 1994 the applicant's husband moved into the S. Nursing Home at Worben in the Canton of Berne. It was agreed that the applicant would also move in within a week, but she did not do so. 12. On 29 March 1995 a new guardian, Mrs B.F., was appointed. At the applicant's request and in view of He.M.'s resistance to the new guardian, the guardianship order was discontinued in respect of the applicant on 28 June 1995, but the order in respect of her husband remained effective. 13. Early in 1996 the applicant's husband died. 14. On 9 February 1996 the Association for Home Visits to the Sick and Housebound wrote to the Lyss Guardianship Office (Vormundschafts-behörde), stating, inter alia: “For the following reasons [the applicant's] treatment and care is causing increasing difficulty; for days now it has become impossible. Our programme is being disrupted: virtually every day we must stand outside a closed door and wait until He.M, her son, perhaps deigns to open it, scantily dressed. Frequently, we must try again at another time ... A collection of newspapers, cardboard boxes and full plastic bags makes it difficult for us to gain access to the equipment we need for our work ... If [the applicant] is bedridden, which she was from 28 January to 5 February 1996 because of the lack of heating in the rooms, we are unable to undertake even the minimum care of [her] on account of the chaos in the room [im räumlichen Debakel] ... We will be able to continue to provide care for [the applicant] until 29 February 1996. If [she] or her family wishes us to continue our services, this will be possible after 1 March 1996, but only on the following conditions: 1. We expect He.M. to open the door to us at the latest by 10 a.m., and to be properly dressed; 2. We expect heated rooms in winter in order to provide the necessary care; 3. We require space to be made available in [the applicant's] bedroom, and the spare bed, as well as the boxes and bags that are lying around, to be taken out, as they hinder our work; access to [the applicant's] bed must be free; 4. Once a month we wish to put fresh linen on [the applicant's] bed; He.M. shall wash the linen, or have it washed elsewhere; 5. If [the applicant] is bedridden, she should have a warm midday meal (to be provided by the home services of the old people's home).” 15. It appears that the applicant and He.M. did not respond to that proposal. On 29 February 1996 the Association for Home Visits to the Sick and Housebound stopped visiting them. Subsequently, following an eye operation, the applicant's eyesight deteriorated. From March 1996 the association's doctor ceased to visit the applicant, who continued to live with He.M. 16. On 13 December 1996 the Lyss Guardianship Commission (Vormundschaftskommission) requested the Aarberg District Government Office (Regierungsstatthalteramt) to place the applicant in an old people's nursing home. 17. On 16 December 1996 the Aarberg District Governor visited the applicant. The applicant explained that, as a rule, her son did the cooking and that she was given enough to eat. She could go to the toilet unassisted, and washed herself in the kitchen. Her leg sores were washed and treated by a woman who helped her. The applicant also stated that she did not wish to go to the S. Nursing Home. 18. On 17 December 1996 the Aarberg District Government Office ordered the applicant's placement for an unlimited period in the S. Nursing Home on account of serious neglect (schwere Verwahrlosung). The Office relied on Articles 397a et seq. of the Swiss Civil Code (Zivilgesetzbuch) and section 9 of the Deprivation of Liberty on Grounds of Welfare Assistance Act (Gesetz über die fürsorgerische Freiheitsentziehung) of the Canton of Berne. The order requested the municipal police, together with the health inspectors, to implement the order on 20 December. The order noted that the applicant required permanent treatment in view of her leg sores and cataract, that she no longer received care from a doctor or an association, and that it was not certain that she had enough to eat. The order, referring to intolerable conditions of hygiene in the unheated flat, stated that this situation, which had already lasted for many years, would not change in the foreseeable future. 19. On 20 December 1996 the applicant was placed in the S. Nursing Home in Worben. 20. The applicant and He.M., her son, each filed an appeal (Rekurs) with the Deprivation of Liberty on Grounds of Welfare Assistance Cantonal Appeals Commission (Rekurskommission) of the Canton of Berne. The Appeals Commission consisted of three judges, its president being a lawyer. The other two persons were specialised judges, one of whom, the rapporteur, was a doctor. 21. On 16 January 1997 the Appeals Commission conducted a hearing at which the applicant, He.M., their lawyer, a member of the Guardianship Commission and a representative of the S. Nursing Home were present. According to the record of the hearing, the applicant explained that she had no reason to be unhappy with the nursing home, that, as she could no longer walk, it would be better for her to stay there, and that she did not see how matters could get better for her. However, she also said that she “wanted to get out of S.”. 22. The Appeals Commission dismissed the appeals the same day. As to the facts it found: “The situation at [the applicant's home] was apparently catastrophic, as even third parties found it necessary to file reports or make statements. It is noted in the file that lately [the applicant] had taken to staying in bed, her eyesight was very poor, and she could not walk or stand properly. According to her own submissions, she has to hold on to support wherever she goes. She needs a wheelchair, but does not have one at home. The flat was not heated, there was refuse everywhere, and no one was catering for meals. The nurse responsible for [the applicant's] care had already stated on a previous occasion that her leg sores had not healed because of her living conditions. The nurse now states that in the last weeks of care she had noticed a serious loss of body weight, which she attributed to the fact that [the applicant's son] was not taking sufficient care to ensure that his mother was eating properly. A certain Mr Hi., who had brought [the applicant] home after her stay in hospital, had been horrified by the state of the flat and said that it was not heated. The fruit vendor also reported that the situation was horrific. When Mrs B.F., the head of the social services, had been asked how [the applicant] responded to the nursing home, she had answered that she had been present when [the applicant] had arrived. At that time [the applicant] had not been able to walk, she was not properly dressed (she was wearing nylon tights and a torn woollen jacket) and smelled badly. Mrs B.F. was shocked and declared that she had never seen a person in such a state, although she had a long experience in guardianship matters.” 23. In its decision the Appeals Commission considered that two grounds had been made out under Article 397a of the Swiss Civil Code that justified withdrawing the applicant's liberty on grounds of welfare assistance. Firstly, the applicant had been neglected, as she was no longer able to tend to her most basic dietary and hygiene needs. She could not even dress herself. Without outside help she was confined to bed. Since the Association for Home Visits to the Sick and Housebound had stopped visiting, the problem was unresolved, particularly as the applicant refused to go into the S. Nursing Home voluntarily. In respect of the second ground, the Appeals Commission considered that “during the hearing it had come to the conclusion that the applicant had a mental disability (senile dementia)” (Geistesschwäche (altersbedingte Demenz)). In view of that disability, the Appeals Commission considered that the applicant's placement in a nursing home “would be justified even if it was considered that the degree of neglect was not sufficiently serious”. The decision continued: “In this context, the appellants' argument is not helped by the fact that [the applicant] has accepted that she needs to go into a nursing home, as she explained during the appeal hearing. It is true that there would be no need for deprivation of liberty on grounds of welfare assistance if [the applicant] went to reside at the S. Nursing Home of her own free will. However, it transpires from the case file that although she has already frequently stated that she was now willing to enter S. voluntarily, finally this has not happened.” 24. In the Appeals Commission's view, if the applicant were released, she would return to her son, who was unable to provide sufficient care for her, as he was himself an invalid with poor eyesight. Yet, the S. Nursing Home, which could provide the necessary care, was ideal for the applicant as it was in an area she knew. Indeed, the applicant was hardly aware of the deprivation of liberty, which was minimal, and in fact it mainly affected her son, who did not want to leave his mother. The Appeals Commission further found that the deprivation of liberty on grounds of welfare assistance complied with Article 5 § 1 (e) of the Convention, since that provision also permitted a deprivation of liberty in cases of vagrancy, a term that was to be understood in a wide sense. 25. The applicant and her son He.M. lodged a public-law appeal (staatsrechtliche Beschwerde) which the Federal Court (Bundesgericht) dismissed on 15 May 1997. The decision was served on 17 June 1997. 26. In so far as the applicant and her son complained that the Appeals Commission had not examined whether less stringent measures were possible, the court found: “The Commission concludes on the facts that the first appellant [the applicant] is no longer capable of looking after and caring for herself, feeding herself or even dressing herself; without outside help she would be confined to bed; the second appellant [the applicant's son] who is an invalid, and is in fact no longer able to see, is unable to look after her, and there is nobody else who is in a position to care for her; other attempts which have been made to resolve this problem have failed; in the end, placement in the S. Nursing Home at Worben has been considered to be the only means of preventing neglect. The Appeals Commission has therefore duly considered the proportionality of the deprivation of liberty ... Whether in the case of the first appellant there exists, apart from serious neglect, some mental disability which would also justify a deprivation of liberty in itself – a point which is challenged by the appellants – and whether procedural rules have allegedly been breached in connection with this ground of detention, are matters which do not need to be examined, particularly as the appellants have been unsuccessful in their appeal against the [applicant's] detention for serious neglect.” 27. On 14 January 1998 the Aarberg District Government Office lifted the applicant's placement order as she had agreed to reside in the nursing home of her own free will. 28. Articles 397a et seq. of the Swiss Civil Code concern the withdrawal of liberty on grounds of welfare assistance (fürsorgerische Freiheitsentziehung). Article 397a provides: “An elderly or incapacitated person may be placed or retained in a suitable institution on account of mental illness, mental disability, alcoholism, other addictions or serious neglect, if the person cannot otherwise be afforded the necessary personal care. In this context, account must be taken of the burden which the person places on his or her environment. The person concerned must be released as soon as the situation permits.” 29. Article 397e, which lays down the procedure in such cases, provides that “in the case of mentally ill persons a decision can only be taken on the basis of an expert opinion”. 30. The Deprivation of Liberty on Grounds of Welfare Assistance Act of the Canton of Berne implements Articles 397a et seq. of the Civil Code. Sections 3 et seq. of the Act concern “measures without deprivation of liberty”. Section 3 provides that the Guardianship Office (Vormundschafts-behörde) shall secure the necessary personal assistance for persons who put themselves or others in danger on account of mental illness, mental disability, alcoholism, other addictions or serious neglect. Under section 4, the Guardianship Office may order care measures if guardianship measures do not suffice; such measures may be renewed after two years and standard social-work procedures are to be followed. Sections 8 et seq. concern the “deprivation of liberty on grounds of welfare assistance”. Section 8 mentions, inter alia, the institutions in which such persons may be placed, namely a psychiatric clinic, a therapeutic home or a nursing home. Section 9 mentions the competent decision-making bodies, in particular the District Government Office.