CASE OF M.S. v. CROATIA (No. 2)
Preliminary objection joined to merits and dismissed (Article 35-1 - Exhaustion of domestic remedies);Remainder inadmissible;Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Article 5-1-e - Persons of unsound mind)
Erik Møse;Julia Laffranque;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Paulo Pinto De Albuquerque;Ksenija Turković
5. The applicant was born in 1962 and lives in L. 6. For several years the applicant had been under the supervision of, and had been receiving various types of financial assistance amounting to some 600 Croatian kunas (HRK) per month from, a local social care centre. 7. In June 2008, the applicant’s family doctor submitted to the social care centre a report on her medical treatment, stating as follows: “With regard to your question concerning Ms M.S.’s state of health and treatment and my observations on her health problems ... I confirm that she has been my patient since March 2008. She is a person with polymorphic health issues, and, in terms of the somatic aspect of her state of health, abdominal sensations related to the gynaecological area (a gynaecologist has prescribed surgery, which the patient constantly refuses) and thereby related anaemia – of course, treated by an alternative therapy. Because of a number of other health issues (frequent headaches, lumbar pain) she has been sent for specialist examinations, which attested to a sufficiency of outpatient treatment, in the form of both medication and physiotherapy. Unfortunately, the patient has her own peculiar interpretation of her health issues, on which she insists, and therefore I consider that the best help for her would be psychological/psychiatric treatment. Of course, this requires her consent, which so far could not be obtained. The continuity of the treatment is additionally hampered by the patient’s change of her place of residence. Her visits to the doctor are random, and so are her wishes as to the scope and area of treatment. The particular difficulty in the medical treatment of Ms [M.]S. is related to her mental [state].” 8. On 26 June 2008 the social care centre instituted proceedings in the competent court for divesting the applicant of legal capacity, which was one of the issues giving rise to a case before the Court in M.S. v. Croatia (no. 36337/10, §§ 40-46, 25 April 2013). 9. Following an expert report of 19 August 2013 indicating that the applicant had been effectively engaged in psychiatric treatment, which had been progressing well, on 9 September 2013 the social care centre withdrew the request to divest her of legal capacity. 10. On 29 October 2012 the applicant went to see her family doctor complaining of severe lower-back pain. Her doctor, after having examined her, called the emergency health service and sent the applicant for some further medical checks. 11. The doctor who received the applicant in the emergency service found that her general condition was good, that she was conscious and well oriented, but that she had difficulty moving. The doctor made a working diagnosis of lumbago and sent the applicant for further medical checks by a neurologist. 12. The neurologist in the emergency service examined the applicant on the same day and found that the information she was giving was incoherent and disproportionate to her pain, and that she had not been taking her medication. He made a diagnosis of back pain and anxiety disorder, and sent the applicant for a further examination by a psychiatrist. 13. The applicant was then examined by a psychiatrist in the emergency service who after interviewing her found that she was making fanciful and confusing allegations of persecution by various doctors. The psychiatrist made a diagnosis of acute psychotic disorder, systemic delusional disorder and delusional dysmorphic disorder, and prescribed hospitalisation. 14. The applicant was immediately admitted to the psychiatric clinic of the R. Clinical Hospital Centre (Klinički bolnički centar R., Klinika za psihijatriju; hereinafter: “the hospital”), a public health-care institution. The relevant parts of the admission record, in so far as legible, indicate as follows: “Date of admission: 29.10.2012 Date and time of hospitalisation: 29.10.2012 ... Admission diagnosis: ... anxiety disorder ... Patient’s attitude towards the examination: refused examination by a psychiatrist; requested a somatic examination ... Psychological condition: conscious and well oriented, suspicious ... tense in the psychomotor sense ... distanced, cold, with ideas of ... persecution, control ... Neurological condition: syndrome of back pain ... Patient’s attitude towards the hospitalisation: refuses Consent: NO ... Physical intervention: physical restraint, tying to a bed ...” 15. In the evening of the same day, another doctor examined the applicant. The relevant part of the examination record reads: “The patient was hospitalised after an examination by Dr [T.]L., and after having been treated in the [emergency ward] for persistant severe back pain (documentation in attachment). She was brought on a stretcher, tied down, maintaining conscience and orientation, negative, arguing, yelling, agitated, affectively dissolute, with a mind-flow disorder, substantively paranoid ideas. ... Diagnosis: Acute psychotic disorder F 23.2 Delusional disorder ... Fixation. Th. according to the list.” 16. According to the applicant, following her admission to hospital she was tied to a bed with four belts tightened around her ankles and wrists, and forcefully injected with a strong drug. She was kept in that position throughout the night and felt severe pain in her back. Her left leg was restrained in such a position that the belts caused her additional pain. The room was small and had no windows. The following morning the belts were removed and she was taken to another room in the psychiatric hospital. 17. According to the Government, following the applicant’s admission to hospital she was given the usual treatment for patients in a state of psychotic agitation and was then placed in an isolation room. The room had a direct connection with the adjacent staff room and was under constant video surveillance. The room measured 2.50 by 2.12 metres and the height of the ceiling was 3.15 metres. It was equipped only with one bed. It had a heating and air-conditioning system, as well as access to sanitary facilities. The belts used to restrain the applicant to the bed were specially adapted so as to avoid any injuries. 18. The Government further explained that the applicant had been tied to the bed in the isolation room from the time of her admission to hospital at 8.50 p.m. on 29 October 2012 until the next morning. She was then taken to a regular hospital room where she was again restrained until 12 noon. During that time her condition and all her needs were regularly monitored. After the initial period following the applicant’s admission to hospital until her release, she was not restrained again. 19. The available medical records concerning the physical restraint used on the applicant in the hospital show that this method was used in the period between 8.50 p.m. on 29 October 2012 until around 12 noon on 30 October 2012. The relevant medical record monitoring the applicant’s physical restraining, in so far as legible, reads as follows: “29/30.10 brought by [the emergency service] on a stretcher ... upon admission screaming, restive, kicking came [to the emergency service] because of back pain taken to the isolation box (hands and legs fixed), screaming, threatening, restive ... psychotic, paranoid [ideas] drunk water complains of lower back pain did not sleep well during the night, called [for assistance], drunk water (approximately one litre) ... manipulative did not sign the consent to hospitalisation, ... 30.10.2012 morning hygiene performed in the box ... around 12 p.m. taken to the intensive care ward ... complains of back pain, unaware of her condition, paranoid ...” 20. On 30 October 2012 the hospital informed the R. County Court (Županijski sud u R.) that the applicant had been involuntarily admitted for treatment on 29 October 2012, that she had refused further hospitalisation and that her mental condition prevented her from making a sound decision in that respect. 21. On the same day the R. County Court instituted proceedings for the applicant’s involuntary retention and appointed a legal-aid lawyer, P.R., to represent her. 22. On 31 October 2012 the judge conducting the proceedings visited the applicant in the hospital. The record of the visit in its entirety reads: “[Number of the case file]