CASE OF L.M. v. SLOVENIA
Violation of Article 5 - Right to liberty and security (Article 5-1 - Deprivation of liberty);No violation of Article 5 - Right to liberty and security (Article 5-1 - Deprivation of liberty);Violation of Article 5 - Right to liberty and security (Article 5-2 - Information on reasons for arrest);Violation of Article 5 - Right to liberty and security (Article 5-4 - Review by a court);Violation of Article 5 - Right to liberty and security (Article 5-5 - Compensation);Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for private life)
Aleš Pejchal;André Potocki;Angelika Nußberger;Ganna Yudkivska;Mark Villiger;Vincent A. De Gaetano
5. The applicant was born in 1971 and lives in Ljubljana. She has suffered from a psychotic disorder for a number of years and has been admitted to psychiatric hospitals for treatment several times since 2000. The present case concerns two consecutive periods of confinement in such hospitals between July 2005 and January 2006. 6. On 10 July 2005 the applicant’s family physician received a telephone call from the local police informing him that the applicant had broken into an unoccupied house, apparently with the intention of sleeping there, and that they were having trouble communicating with her. He referred her to the Idrija Psychiatric Hospital, a public healthcare institution, indicating that she was disturbing the environment and behaving psychotically. 7. On the same day the applicant was admitted to the closed ward of the Idrija Psychiatric Hospital. On admission, she signed a consent form for confinement and psychiatric treatment. In her exchange with the hospital staff, the applicant said that she was “possessed by energetic and physical people sent to her through the lens of cameras operated by President Bush”. The psychiatrists treating her diagnosed her with schizophrenia and noted that she exhibited “delusional interpretations and perceptual anomalies as well as features of depersonalisation and derealisation”. The applicant was started on medication consisting of 10 mg of Moditen three times a day, three Akineton tablets a day, 5 mg of Apaurin three times a day, and an ampoule each of Haldol and Akineton a day. No mention was made in her medical records of her having refused to take any medication. 8. On 11 July 2005 the applicant started to ask how long she would have to stay in the hospital and told the psychiatrists that she would resist. The hospital notified the Idrija Local Court of her confinement, indicating the reasons given by the family physician for referring her to the hospital. 9. On 13 July 2005 the Idrija Local Court appointed a lawyer, I.R.P., to represent the applicant in proceedings it had commenced in her respect. It also scheduled a confinement hearing for 15 July. A notification of the hearing, addressed to the applicant, was sent to the hospital; however, it is not clear when or whether it was received by the applicant. 10. On 15 July 2005 a hearing was held regarding the applicant’s confinement. The applicant and one of the psychiatrists treating her were heard. The psychiatrist stated that the applicant had apparently been living in a garage and had broken into a house, and that she had been found wandering around and had been psychotic and uncontrollable. The applicant stated that she would rather be at home, that she did not understand why she had been taken to the hospital, but that other people she named, including a former politician, might have more of an idea. She provided an account of the events which had taken place prior to her confinement, in which she made no mention of having broken into a house. She also stated that she missed her father, and that she had been taking medication while at home. 11. In the weeks that followed, the applicant continued her treatment and, according to the medical records, also continued to agree to therapy. On 4 August 2005 the Haldol was replaced with Leponex and the dosage of Apaurin was reduced to 5 mg a day. Eventually, the applicant was taken off the Apaurin altogether. 12. Meanwhile, on 30 July 2005 the applicant gave D.P., a lawyer from Ljubljana, power of attorney. She told the representative that she was receiving treatment against her will, but was afraid to refuse it for fear that medication would be administered to her by force. 13. On 2 August 2005 the applicant’s representative D.P. notified the hospital that the applicant did not consent to her medical treatment and requested the Idrija Psychiatric Hospital to inform the applicant of her treatment and its side effects. She also pointed out that the applicant had the right to express her own free will and to refuse the treatment if she so wished. 14. On 5 August 2005 the applicant, through her representative D.P., lodged a constitutional complaint against the “material act” of her involuntary confinement and an application for a review of the constitutionality of section 49 of the Health Services Act, and of sections 70 to 81 of the Non-Contentious Civil Procedure Act. She alleged, inter alia, that she was unable to effectively enforce her right to judicial review in the involuntary confinement proceedings, as no formal decision had been rendered until that time. She therefore argued that the Constitutional Court should examine the alleged violations of her human rights committed through the “material act” of her confinement, as any other interpretation would constitute a breach of her right to judicial review within the meaning of Article 5 § 4 of the Convention. In addition, she requested that the disputed legislation be repealed with immediate effect, and that she be released from the hospital pending a decision on her confinement. 15. On 6 August 2005 D.P. wrote to the hospital again, asking it to stop forcibly administering medication to the applicant. 16. On 8 August 2005 the applicant was transferred from the closed to the open ward of the Idrija Psychiatric Hospital. On the same date the Idrija Local Court was informed of the applicant’s transfer and terminated the proceedings regarding her confinement. 17. On 12 August 2005 the applicant was discharged from the Idrija Psychiatric Hospital at her own request. In this regard, it was noted by her psychiatrists that she no longer exhibited any manifestly psychotic symptoms, but that she should continue medical treatment to prevent herself from having a psychotic relapse with violent outbursts. The final diagnosis listed in the applicant’s medical records was disorganised (hebephrenic) schizophrenia. 18. On 15 September 2005 the Constitutional Court rejected the applicant’s constitutional complaint of 5 August 2005 against her involuntary confinement in the Idrija Psychiatric Hospital for failure to exhaust the available remedies. It also rejected a further constitutional complaint she had lodged on 21 August 2005 relating to her confinement in the Ljubljana Psychiatric Hospital on the same grounds (see paragraph 19 below). It found that these complaints had been lodged even before the first-instance decisions on the involuntary confinement were rendered. As regards the applicant’s application for a review of the provisions of the Non-Contentious Civil Procedure Act, the Constitutional Court reiterated its findings in an earlier decision (no. U-I-60/03) that the thirty-day time-limit for issuing a court order for confinement could be too long (see paragraph 64 below). However, it was not possible to repeal the disputed legislation with immediate effect, as that would leave a sizeable gap in the legal system, so the application was dismissed. 19. On 15 August 2005 the applicant was taken to the emergency medical services by the police. On arrival, she stated that she was being “raped by the police, the emergency medical technicians, everybody”. The emergency physician referred her to the Ljubljana Psychiatric Hospital, a public healthcare institution, where she was taken by ambulance. It was noted in her admission record that her speech was dissociated and that she exhibited signs of paranoia and megalomaniac delusions. Under the heading “the degree of the patient’s rejection of hospitalisation” the emergency psychiatrist circled the statement that the applicant “accepted hospitalisation owing to the situation (the staff being present)”. Under the heading “the need to use compulsory measures on patients rejecting hospitalisation” the psychiatrist circled the statement “negative attitude, no compulsory measures necessary”. It is evident from the applicant’s medical records that during the first days of her admission, she was restless, talkative and unable to follow the activity programme. She spent the first two days of her treatment in the admission ward. 20. As of 17 August 2005 the applicant was placed in the closed ward. Based on her medical records, it appears that she remained talkative but found it somewhat difficult to engage in meaningful discussion. She still exhibited delusions of persecution and was convinced that her father had bribed the doctors and the police to keep her in the hospital. She was also convinced that the garage where she had been living was bugged by the CIA. On 19 August 2005 the applicant was visited by her representative D.P. 21. The applicant was given thirty drops of Haldol three times daily, three Akineton tablets a day and 2 mg of Lorsilan three times a day. The Haldol was subsequently replaced with 10 mg of Moditen three times a day. In the latter stages of her treatment, the applicant received Lorsilan and 100 mg of Leponex three times a day. Eventually, the applicant was only treated with Leponex. During the treatment she often complained of various physical pains and discomfort, in particular painful muscle spasms and toothache. 22. On 21 August 2005 the applicant informed the Ljubljana Local Court of her confinement and lodged an application for an interlocutory order that her medical treatment be discontinued and that she be released from the hospital pending a final decision on the matter. On the same day the applicant also lodged a constitutional complaint against the “material act” of her confinement and an application for a review of the constitutionality of section 49 of the Health Services Act and of sections 70 to 81 of the Non-Contentious Civil Procedure Act. The applicant’s notification of involuntary confinement was received by the local court on 22 August 2005. 23. On 23 August 2005 the Ljubljana Local Court appointed a lawyer, P.C., to represent the applicant in the involuntary confinement proceedings. On the same day a hearing was held which took twenty-five minutes. The applicant’s court-appointed representative was present, but, according to the applicant, did not participate actively. At the hearing, the applicant was examined by an expert from another healthcare institution, who immediately upon examination submitted an opinion stating that the applicant’s narrative showed signs of a paranoid delusional system which had probably lasted for a long time and to which she was uncritical. She considered that the applicant needed treatment in a closed ward for up to one month. 24. Based on this expert opinion, the Ljubljana Local Court ordered that the applicant be confined in the closed ward of the Ljubljana Psychiatric Hospital until 23 September 2005. 25. On 24 August 2005 the applicant’s application for an interlocutory order was dismissed by the Local Court on the grounds that personality rights could not be protected by injunctive relief. 26. On 27 August 2005 the applicant was visited by her court-appointed lawyer P.C., who wanted her to give him the power of attorney. According to the applicant’s medical records, the psychiatrist on duty was informed of the visit and gave his consent for the applicant to sign the document. 27. On 2 September 2005 the applicant appealed against the Ljubljana Local Court’s order regarding her continued confinement and the dismissal of her application for an interlocutory order. 28. On 3 September 2005 the applicant spoke to the then head of the hospital, complaining that there was no reason for her to remain there. She also stated that she did not understand why she was on medication, although she did confirm that she was taking Akineton as part of her outpatient treatment. 29. According to the Government, which relied on her medical records, later that day the applicant was transferred to the open ward of the Ljubljana Psychiatric Hospital. The applicant, however, maintained that the transfer took place on 4 September 2005. On 6 September 2005 the applicant’s representative D.P. notified the Ljubljana Local Court of the applicant’s transfer. 30. During the course of her stay in the open ward of the hospital, on 7 September 2005 the applicant was allowed by her psychiatrist to withdraw some of the money she had received as social assistance. In addition, on 13 September she was permitted to recover her clothes. She was allowed to leave the hospital premises for a few hours several times during her stay, on 20, 23 24, 27 and 28 October, and 9, 11, 13 and 30 November 2005. Her psychiatrists noted that she was disciplined in her outings and always returned to the hospital at the designated time. 31. On 9 September 2005 the Ljubljana Higher Court allowed the applicant’s appeal against the Ljubljana Local Court’s decisions of 23 and 24 August 2005 and remitted the case to the first-instance court. The higher court pointed out that the court’s reasoning lacked reference to the decisive factors which would indicate that it was necessary to deprive the applicant of her liberty. As regards the dismissal of the applicant’s application for an interlocutory order, the higher court rejected the lower court’s interpretation that no legal basis existed for an interlocutory order for the protection of the applicant’s personality rights. The court also pointed out that the applicant’s request for her medical treatment to be stopped warranted separate consideration. 32. On the same day the applicant lodged a constitutional complaint against the Ljubljana Higher Court’s decision and a request for a procedure to be initiated for the review of the constitutionality of section 49 of the Health Services Act and of sections 70 to 81 of the Non-Contentious Civil Procedure Act. She insisted that remitting her case to the first-instance court without ordering her release from the hospital had violated her right to personal freedom. 33. As already stated (see paragraph 18 above), on 15 September 2005 the Constitutional Court rejected the applicant’s constitutional complaints of 5 and 21 August 2005 against both periods of her confinement. 34. On 22 September 2005 the applicant lodged a supervisory appeal with the Ministry of Justice regarding the proceedings before the Ljubljana Local Court. On 5 October the Ministry informed the applicant that the local court had set the date of the hearing for 11 October 2005. The summons to the hearing was sent to the applicant’s home address. 35. On 7 October 2005 the father of the applicant, I. M., informed the local court that he had been served a summons addressed to the applicant for a hearing scheduled for 11 October 2005. The judge agreed to allow the applicant’s father to attend the scheduled hearing. 36. On 10 October 2005 the applicant’s representative D.P. informed the local court that the summons to the hearing of 11 October was unclear as to whether the representative herself had been summoned, or whether the applicant had been summoned by way of her representative. In addition, she proposed that a new summons be served in which the reasons for the hearing be set out. 37. The next day the applicant’s court-appointed representative P.C., the applicant’s father I.M. and her chosen representative D.P. were present at the hearing. D.P. proposed that the hearing be rescheduled since the applicant had not been properly summoned. She also informed the local court that the applicant was being held in the open ward of the Ljubljana Psychiatric Hospital but that the hospital was refusing to release her, or to discontinue her medical treatment. On the same date the local court appointed another expert to give an opinion on the applicant’s condition. 38. On 12 October 2005 the Ljubljana Local Court again ruled on the applicant’s application for an interlocutory order concerning the termination of her medical treatment and her immediate release from the psychiatric hospital. Contrary to the reasoning of the Ljubljana Higher Court’s decision of 9 September 2005, the application was again dismissed on the grounds that no legal basis existed for an interlocutory order for the protection of a person’s personality rights. The applicant appealed against this decision. 39. On 14 October 2005 the applicant requested that the judge sitting on the case be removed on the grounds, inter alia, that he had refused to adjourn and reschedule the hearing of 11 October despite the fact that she had not been properly summoned. Furthermore, she alleged that the judge had violated her right to privacy by allowing her father to attend the hearing. She also requested that the appointed expert be withdrawn. She further requested the court to decide on her immediate release and to exclude her father from the proceedings. On 26 October 2005 the applicant’s request for the withdrawal of the judge was dismissed. 40. On 2 November 2005 the Ljubljana Local Court amended its decision of 12 October 2005 by also including in its operative part the dismissal of the applicant’s application that her father be prevented from participating in the hearing. 41. On 10 November 2005 the Ljubljana Higher Court again allowed the applicant’s appeal against the decision of 12 October 2005 and remitted the case to the first-instance court. It reiterated that a valid legal basis did exist for an interlocutory order for the applicant’s release from the psychiatric hospital and that her request for her medication to be stopped deserved separate consideration. Moreover, the court took note of information in the case file that the applicant had meanwhile been transferred to the open ward. Accordingly, it pointed out that the rules of non-contentious procedure regarding involuntary confinement only applied to closed wards of psychiatric hospitals. It ordered the lower court to examine the question of whether the conditions for continuing the non-contentious proceedings still applied. Otherwise, the applicant was supposed to apply for injunctive relief against infringement of her personality rights. 42. On 14 November 2005 the applicant, through her representative D.P., lodged an appeal against the decision of 2 November 2005 on the dismissal of the application concerning her father’s participation in the hearing. The court-appointed representative P.C. responded to the appeal lodged by D.P., arguing that it should be dismissed. On 21 November 2005 the Ljubljana Higher Court upheld the decision of 2 November 2005. 43. On 30 November 2005 the Ljubljana Local Court sent a letter to the Ljubljana Psychiatric Hospital, requesting information about when the applicant had been transferred to the open ward. 44. On 8 December 2005 the local court received a reply from the hospital stating that the applicant had been transferred to the open ward on 3 September 2005. 45. On 12 December 2005 the Ljubljana Local Court terminated the proceedings regarding the applicant’s involuntary confinement in the psychiatric hospital because of her transfer to the open ward. 46. Meanwhile the applicant renewed contact with her father, who arranged for her to spend some weekends at his home. Arrangements were subsequently made for the applicant to move in with him after her release from the hospital. 47. On 12 December 2005 the applicant and her father visited the Sežana Social Work Centre, where the applicant declared that she wished her father to act as her guardian in financial and health matters, and her father declared himself willing to provide her with a home and to assume responsibility for her medical treatment and finances. A record was made of the applicant and her father’s declarations and they were informed that they could address any possible disagreements regarding the arrangement to the centre. 48. On 15 December 2005 the Constitutional Court rejected the applicant’s constitutional complaint against the decision of 9 September 2005 and her application for constitutional review (see paragraph 32 above) for lack of legal interest. It observed that the applicant was no longer confined in the closed ward of the psychiatric hospital. 49. On 22 December 2005 the applicant lodged an appeal against the decision of 12 December, stressing, inter alia, that her transfer to the open ward of the hospital did not change the fact that she was confined there against her will. She also complained about the lack of an effective remedy. Moreover, she pointed out that no decision had been made regarding the necessity of her confinement and that she had not been informed of the grounds on which her continuing confinement was based. She further lodged an application for her court-appointed representative P.C. to be taken off the case for failure to act in her interests. 50. On 5 January 2006 the Ljubljana Higher Court dismissed the applicant’s appeal. It held that, since the applicant had been placed in an open ward, the rules of non-contentious procedure were no longer applicable. The court referred the applicant to the rules of contentious procedure, under which it was possible to apply for injunctive relief against infringement of personality rights. 51. On 19 January 2006 the applicant was released from the Ljubljana Psychiatric Hospital. The diagnosis listed on her release form was paranoid schizophrenia. 52. On 23 January 2006 the Ljubljana Local Court rejected the applicant’s application for an interlocutory order owing to the fact that the proceedings on the merits had been terminated. 53. On 14 February 2006 the applicant lodged an appeal on points of law against the decision of 5 January 2006. She invoked, inter alia, Article 5 of the Convention, and maintained that the fact that she had been placed in the open ward did not imply that she was held there voluntarily. She alleged that any attempt on her part to leave the hospital, while in the open ward, could result in her being brought back to the hospital by force and placed back in the closed ward, as in practice the transfer to the open ward constituted a privilege enjoyed by compliant patients. In this regard the applicant pointed out, relying on section 49 of the Health Services Act (see paragraph 58 below), that the legal basis for involuntary admission and treatment in a psychiatric hospital did not specify in which ward patients are to be placed. She also pointed out that psychiatric hospitals were not required to notify the competent courts of patients’ possible readmission to the closed ward in cases such as her own, where they had already been transferred to the open ward while the order of confinement was still in effect. In her opinion the provisions on involuntary confinement in a psychiatric hospital and the related procedure were still applicable and she was entitled to obtain a decision on the lawfulness of her earlier confinement. 54. On 13 April 2006 the Supreme Court rejected the applicant’s appeal on points of law on the grounds that the applicant lacked legal interest, since the confinement proceedings had been terminated and she had been released from the hospital. 55. On 6 July 2006 the applicant lodged a constitutional complaint against the Supreme Court’s decision to reject her appeal on points of law in connection with the Higher Court’s decision of 5 January 2006 and the Ljubljana Local Court’s decision of 12 December 2005 to terminate the proceedings regarding her involuntary confinement in the Ljubljana Psychiatric Hospital. She reiterated the complaints made regarding her stay in the open ward of the Ljubljana Psychiatric Hospital and those relating to the alleged breaches of procedural rules in the confinement proceedings. Further, she pointed out that she was entitled to obtain a decision on the merits with regard to her complaints, having regard to the importance of her constitutionally guaranteed right to personal liberty. 56. On 27 February 2008 the Constitutional Court dismissed the applicant’s constitutional complaint against the Supreme Court’s decision as unfounded, and rejected her complaint against the Higher Court’s decision on the grounds that it had been lodged out of time. The court pointed out that the lodging of an inadmissible appeal on points of law had not suspended the time-limit for lodging the constitutional complaint.