CASE OF WINTERWERP v. THE NETHERLANDS
Violation of Art. 5-4;Violation of Art. 6-1;No violation of Art. 5-1;Just satisfaction reserved
10. Mr. Frits Winterwerp resides in the Netherlands. He married in 1956 and several children were born of the marriage. In 1968, he was committed to a psychiatric hospital by direction of the local burgomaster in accordance with an emergency procedure. Six weeks later, on his wife’s application, he was confined to the same hospital under an order made by the District Court (kantongerecht) of his place of residence. On his wife’s further application and subsequently at the request of the public prosecutor (officier van justitie), the order was renewed from year to year by the Regional Court (arrondissements- rechtbank) on the basis of medical reports from the doctor treating the applicant. Mr. Winterwerp complains of the procedure followed in his case. In particular, he objects that he was never heard by the various courts or notified of the orders, that he did not receive any legal assistance and that he had no opportunity of challenging the medical reports. His complaints are also directed against the decisions on his requests for discharge and against his loss of civil capacity. 11. The detention of persons of unsound mind is governed by an Act of 27 April 1884 on State supervision of mentally ill persons (wet van 27 April 1884, Stb 96, tot regeling van het Staatstoezicht op krankzinnigen). Usually referred to as the Mentally Ill Persons Act (krankzinnigenwet), the Act has been amended several times, in the last instance by an Act of 28 August 1970 which came into force on 15 May 1972, that is some time after the applicant had first been detained. A Bill providing for a complete reform of the system is at present pending before the Netherlands Parliament. The Mentally Ill Persons Act is divided into five main chapters. Principally relevant for the present proceedings are the three chapters dealing firstly with the admission of persons to psychiatric hospitals and their stay therein, secondly with leave of absence and discharge therefrom, and thirdly with the administration of the property of persons admitted to psychiatric hospitals. The Act does not define who are "mentally ill persons" but lays down the grounds for committing such persons to hospital (see the following paragraphs). It would appear from the evidence submitted that, according to the general practice currently followed, the Netherlands courts will authorise the confinement of a "mentally ill person" only if his mental disorder is of such a kind or of such gravity as to make him an actual danger to himself or to others. 12. In urgent cases, the burgomaster has the power to direct the compulsory admission of a "mentally ill person" to a psychiatric hospital. Until 1972, the burgomaster had to obtain prior medical advice only if circumstances permitted; his decision was valid for three weeks but the public prosecutor could shorten or extend the term (section 14 of the Act). This procedure was considerably changed by the 1970 Act, section 14 being repealed and replaced by sections 35b to 35j. The burgomaster is now obliged to seek the prior opinion of a psychiatrist or, should that not be possible, another medical practitioner. Once he has issued a direction to detain, he must immediately inform the public prosecutor and send him the medical declarations on which the direction was based. The public prosecutor is in his turn required to transmit these declarations not later than the following day to the President of the Regional Court with, where appropriate, an application for a continuation of the detention. Such continuation, if made, is valid for three weeks but may be renewed by the President for a second period of similar duration. Thereafter the procedure concerning applications for a provisional detention order is to be followed (see paragraphs 13 and 15 below). 13. Apart from the above-mentioned emergency cases, no one may be deprived of his liberty on grounds of mental illness or insanity except under a provisional detention order made by a court. The District Court judge (kantonrechter) may issue a provisional detention order on written application (verzoek) made by a close relative by blood or marriage of full age, the spouse or the legal representative of the individual concerned and seeking his confinement either in the interests of public order or in his own interests (section 12 of the Act). The judge may also issue such an order on application by a person of full age who considers that his own condition is such as to require suitable treatment (section 15). In addition, a provisional detention order may be made by the President of the Regional Court following a request (requisitoir) by the public prosecutor (section 13). The application or request must, according to section 16 of the Act, be accompanied by a declaration drawn up not more than seven days earlier by a doctor licensed to practise in the Netherlands but not attached to the institution to which it is proposed admitting the patient. The declaration must be to the effect that the person concerned "is in a state of mental illness (toestand van krankzinnigheid) and that it is necessary or desirable to treat him in a psychiatric hospital". An application may also mention facts and documents giving a clearer indication of the state of mental illness, but this is purely optional. Since the entry into force of the 1970 Act, the medical declaration must be made by a psychiatrist who is not himself treating the patient; as far as possible, it must state, with reasons, whether the patient’s condition is such that it would be pointless or medically inadvisable for him to be heard by the court. The psychiatrist must, if he can, first consult the family doctor. 14. The judge makes a provisional detention order if the medical declaration, either on its own or in conjunction with the facts related or the documents supplied, adequately establishes that treatment in a psychiatric hospital is necessary or desirable (section 17 para. 1 of the Act). Until 1972, the examination of the application or request was not subject to any limitative formalities. Section 17, in the version in force when the facts of the present case occurred, provided that the judge had competence to hear beforehand the person whose detention was being sought. As a result of the above-mentioned amending Act, the judge is now obliged to hear the person in question unless he concludes from the medical declaration that this would be pointless or medically inadvisable; he may, either of his own motion or at the request of that person, provide the latter with legal assistance (section 17 para. 3). The judge must seek all possible information both from the individual who made the application or the request mentioned in sections 12 and 13 and from certain other individuals (section 17 para. 4). He retains the power to call witnesses and experts (section 17 para. 5) and may, if he thinks fit, summon anyone who made an application for a detention order pursuant to section 12 to appear before him (section 17 para. 6). 15. A provisional detention order is not subject to appeal and is, moreover, not notified to the person concerned (section 17); it is valid for six months (section 22). The order, like detention orders (see paragraphs 16 and 17 below), authorises rather than enjoins compulsory confinement and it may happen that it is not put into effect. In the case of a person who is not yet hospitalised, the admission to a psychiatric hospital or other specialised institution must take place within fourteen days, on production of the court order (sections 17 and 18). The closest relatives by blood or marriage, the spouse or the legal representative must be informed of the patient’s admission by the burgomaster, who is notified thereof by the court or the public prosecutor (section 19). The medical declaration on which the judge based his decision must be transmitted to the institution’s doctor treating the patient. This doctor has to enter his findings on a register every day for the first fortnight, then on a weekly basis for the ensuing six months and thereafter on a monthly basis (section 20). Within a fortnight of the admission, the doctor responsible for the patient’s treatment is required to send to the public prosecutor of the district in which the psychiatric hospital is situated a reasoned declaration on the patient’s mental condition and on the necessity or desirability of prolonging his stay in a psychiatric hospital (section 21). 16. Within six months following the issue of the provisional detention order, a further application or request, seeking the continuation of the patient’s confinement in a psychiatric hospital for up to one year, may be submitted to the Regional Court. Any such application or request must be accompanied by the medical records of the doctor responsible, together with a reasoned declaration by him as to whether it is necessary or desirable for the patient to undergo further treatment in a psychiatric hospital (section 22). The patient need not be notified of the application or request or of the proceedings relating thereto. 17. A decision on the application or request is taken by the Regional Court (section 23). Apart from being obliged to hear the public prosecutor, the Court does not have to follow any set procedure. It may call for evidence from witnesses or other sources, hear the patient, grant him legal assistance and consult experts, but it is not bound to do so. During the examination of the case, the patient must remain in the institution, if necessary for longer than six months after the making of the provisional order. The Regional Court’s decision, which is not subject to appeal, is not delivered at a public hearing, nor is it notified to the person concerned. In practice, it is left to the hospital authorities to determine if and when such notification is warranted from the medical point of view. The general rule is that, when hearing civil cases, the Regional Court sits as a chamber composed of at least three judges (section 49 para. 1 of the Judicial Organisation Act). However, this chamber may refer to a single-judge chamber (enkelvoudige kamer) such cases as it deems suitable (Article 288 (b) of the Code of Civil Procedure). Each Regional Court has its own Rules of Order (reglement van orde) which are approved by Royal Decree on the advice of the Supreme Court (Hoge Raad). Under the Rules of Order of the Utrecht Regional Court, as in force at the relevant time (see paragraphs 25 and 26 below), jurisdiction in all cases regarding the detention and stay of persons in psychiatric hospitals was allotted to a single-judge chamber. 18. Not more than fourteen and not less than eight days before the expiry of the period covered by the Court’s detention order, an application or request for the prolongation of the patient’s detention for up to one year may be made to the Regional Court (section 24 of the Mentally Ill Persons Act). Subsequent procedure is the same as for the making of the detention order provided for in section 23 of the Act. The Act does not specify when the Court has to give its ruling. 19. Leave of absence (verlof) for a specified period may be granted to a patient by the doctor in charge of the institution (section 27). 20. The authorities of a psychiatric hospital may at any time grant the discharge (ontslag) of a patient on the basis of a written declaration from the aforesaid doctor to the effect that the patient shows no signs of mental illness or that his treatment in a psychiatric hospital is no longer necessary or desirable (section 28). A written request for the patient’s discharge may be made to the hospital authorities by the patient himself, the person who applied for his detention or, in the latter’s absence, another of the relatives by blood or marriage mentioned in section 12 (section 29 para. 1, in the version in force prior to the 1970 Act). The authorities must at once consult the doctor in charge of the institution and, if his opinion is favourable, must discharge the patient. If the doctor’s opinion is unfavourable, the authorities must transmit the request, together with the opinion, to the public prosecutor who will, in principle, refer it to the Regional Court for decision. The Court’s procedure for this purpose is the same as that applicable to the making of detention orders (see paragraph 17 above); its decision is not subject to appeal (section 29 paras. 2 and 4). However, the public prosecutor is not obliged to forward the request to the Court if it appears manifestly impossible to grant the request (indien het verzoek klaarblijkelijk niet voor inwilliging vatbaar is), if a previous request is still pending, or if the Court has already dismissed a similar request during the period covered by the detention order and the circumstances have not changed (section 29 para. 3). The public prosecutor, being responsible for the supervision of psychiatric hospitals, has a duty to see that no one is unlawfully detained in such an institution. If the doctor in charge of the institution agrees, the public prosecutor may order the discharge of a patient whose continued confinement he considers unnecessary. If the doctor in charge does not agree, the public prosecutor may refer the matter to the Regional Court. Should the public prosecutor have doubts about the need for the patient’s continued confinement, he may refer the matter to the Court; he is obliged to do so if a public health inspector so requests (section 30). When the period covered by a detention order expires, the hospital authorities must inform the public prosecutor of the fact within eight days and, if no application has been made to the Court to prolong the detention, he must thereupon order the patient’s discharge unless he concludes from a reasoned declaration in writing by the doctor in charge that such a step would present a danger to public order; in the latter event, he must himself request the Court to prolong the detention (section 31). 21. Any person of full age who is actually confined in a psychiatric hospital automatically loses the capacity to administer his property (section 32). As a consequence, all contracts entered into by the person concerned after his confinement are void and he cannot legally transfer property or operate his bank account. The patient regains the capacity to manage his property only when he is formally discharged but not, for instance, when he is granted leave of absence. On application by any of the persons entitled to seek an individual’s detention, or at the request of the public prosecutor, the Regional Court may appoint a provisional administrator (provisioneel bewinsdvoerder) for anyone confined in a psychiatric hospital, should this be deemed necessary or desirable (section 33). In addition, the general rule laid down in Article 378 of the Civil Code enables the Regional Court to nominate a guardian (curator) on behalf of a person, whether in custody or not, who, by reason of mental illness or dipsomania, is no longer capable of managing his own affairs. 22. The overall aim of the Bill is to improve the position of the psychiatric patient: it seeks to strengthen the procedural guarantees accompanying his detention and to allow him more freedom within the hospital. The criterion justifying confinement in a psychiatric hospital would henceforth be that the individual, on account of his mental state, constitutes "a danger for himself, for others or for the general safety of persons and goods". Further modifications of relevance would include the following: the competent court at all stages would be the single-judge chamber of the Regional Court; the provisional detention order would be valid for three weeks only; before making an order or determining a request for discharge, the court would as a general rule have to hear the person concerned; the only occasion when the court might decide not to hear the patient would be when examining the application or request for the first detention order, that is three weeks after the making of the provisional detention order; the court would be obliged to grant legal assistance to the person concerned at his request; there would be a right of appeal against orders authorising detention; admission to a psychiatric hospital would not automatically bring about loss of civil capacity. 23. Mr. Winterwerp received voluntary treatment in a psychiatric hospital from 28 March to 12 September 1967. At some time prior to this, he had apparently suffered severe brain damage in an accident. On 17 May 1968, he was committed to the "Zon en Schild" ("Sun and Shield") psychiatric hospital at Amersfoort on the direction of the Amersfoort burgomaster in accordance with the emergency procedure then in force under section 14 of the Mentally Ill Persons Act (see paragraph 12 above). The events prompting this decision were that the applicant had stolen documents from the local registry office, been detained by the police and then been found lying naked on a bed in a police cell. The term of the detention was extended by the public prosecutor, as was possible under paragraph 3 of section 14. 24. On 24 June 1968, during the currency of the "emergency" confinement, Mr. Winterwerp’s wife applied to the Amersfoort District Court on a standard form for his provisional detention in the "Zon an Schild" hospital in the interests of public order as well as those of her husband. The application was accompanied by a medical declaration, dated 20 June, made out by a general medical practitioner who had examined the patient for the first time that day. The declaration stated that the patient had been detained in 1966 for "attempted murder" and had been under psychiatric treatment in 1967. It also stated that the patient was "a schizophrene, suffering from imaginary and Utopian ideas, who has for a fairly long time been destroying himself as well as his family" and that he "is unaware of his morbid condition". The doctor concluded that "for the time being" the patient certainly could not "be left at large in society". On 24 June, on the basis of this declaration, the District Court granted the application and authorised the applicant’s provisional detention, without first exercising its power to hear him or to seek expert advice. 25. On 1 November 1968, the applicant’s wife applied to the Utrecht Regional Court for a one-year detention order in respect of her husband. Her application was accompanied by the daily and weekly records of the doctor in attendance as well as the declaration as to the necessity or desirability of further treatment in a psychiatric hospital. On the basis of these documents, the single-judge chamber responsible for hearing such cases made the order on 23 December 1968. 26. On 16 December 1969, following an application by Mrs. Winterwerp and on the basis of the monthly records of the doctor in attendance and his declaration, identical to that of the previous year, the single-judge chamber made an order authorising the prolongation of the detention "by one year if necessary" as from 23 December 1969. On 6 August 1970, the applicant was moved to the "Rijks Psychiatrisch Inrichting" ("State Psychiatric Establishment") at Eindhoven. This hospital was further away from the home of his wife, whom he had previously been able to visit on several occasions. 27. On 14 December 1970, the public prosecutor at ‘s-Hertogenbosch requested the renewal of the detention order for a further year, on the basis of the monthly records of the doctors who had successively treated Mr. Winterwerp and a declaration by the doctor in attendance at Eindhoven, which read as follows: "The patient is suffering from a mental illness with the following symptoms: psychopathic personality, quarrelsome and scheming nature, paranoiac tendency, untrustworthiness; shows signs of dementia in the shape of ... emotional withdrawal; egocentric tendency; in need of strict supervision and special care. Continued treatment in a psychiatric hospital must be considered necessary." On 7 January 1971, that is to say, two weeks after the previous order had lapsed, the first ordinary chamber of the Regional Court at ‘s-Hertogenbosch authorised detention for a further year. 28. On 21 December 1971, 15 December 1972 and 14 December 1973, the same court made further one-year renewals of the detention order following requests by the public prosecutor and on the basis of the monthly medical records and identical declarations by the doctor in attendance, who had however changed in the course of 1972. On 19 December 1974 and 15 December 1975, the Regional Court again granted similar requests by the public prosecutor. The most recent renewal order referred to in the evidence dates from December 1977. 29. The medical records forwarded each year to the courts, although fairly brief, indicated that the applicant showed schizophrenic and paranoiac reactions, that he was unaware of his pathological condition and that, on several occasions, he had committed quite serious acts without appreciating their consequences. For example, the records relate how, in pursuance of some fanciful schemes, Mr. Winterwerp went abroad with family savings and soon became penniless, without realising either the state of neglect in which he had left his family or his own dependence on the consular authorities who had to assist and repatriate him. 30. In February 1969, the applicant had made a first request to the hospital authorities for his discharge in accordance with section 29 of the Act (see paragraph 20 above). The hospital authorities forwarded the request to the public prosecutor who in turn referred it to the Regional Court. The latter Court, after hearing the patient at the hospital, dismissed the request. In April 1971, the hospital authorities forwarded a second request to the public prosecutor with a negative recommendation. After hearing Mr. Winterwerp, the public prosecutor, pursuant to paragraph 3 of section 29, rejected the request without referring it to the Regional Court for decision. The same applied to a third request, made in July 1972. On 20 February 1973, the patient made a further request for his discharge to the authorities of the "Rijks Psychiatrisch Inrichting". On 26 April 1973, the medical director of the institution forwarded the request to the public prosecutor with his comments, which may be summarised as follows: the patient was suffering from a paranoiac psychosis which could be successfully treated by psychopharmacological methods, but during previous leaves of absence he had failed to take the drugs prescribed, with the result that he had had to be readmitted after a relapse; steps were being taken to reintegrate the patient gradually into society and he was spending his nights outside the hospital; in the light of the past setbacks, there would have been little point in discharging him. On the strength of this opinion and after hearing Mr. Winterwerp, the public prosecutor again refused the request and refrained from referring it to the Regional Court. He notified the applicant of his decision on 17 May 1973. The applicant’s four requests for discharge took the form of simple statements that he was not mentally deranged, that he had been falsely accused of misdemeanours and that he did not constitute a danger for himself or to others. The public prosecutor did not refer the three later requests to the Regional Court because it appeared manifestly impossible to grant them. 31. Mr. Winterwerp has from time to time been given leave of absence for various periods. On at least four occasions - nine months in 1974, four months in 1976-1977, one month and two and a half months in 1978 - he has been allowed to lodge outside the hospital on an experimental basis. Each time, he has had to be readmitted to hospital. Several reasons are adverted to in the evidence: he failed to follow the treatment prescribed; his lodging was found to be in a filthy state; and, most recently, he smashed a window in Germany where he was wandering. 32. Mr. Winterwerp automatically lost the capacity to administer his property on being detained in a psychiatric hospital (section 32 of the Act; see paragraph 21 above). No provisional administrator was appointed (section 33) and his affairs were at first managed, so it seems, by his wife. Then, on 11 August 1971, a guardian was nominated by the Regional Court (Article 378 of the Civil Code). The guardian has made no request for Mr. Winterwerp’s release.