LOVEIKA v. LITHUANIA
Inadmissible
András Sajó;David Thór Björgvinsson;Françoise Tulkens;Helen Keller;Paulo Pinto De Albuquerque
The applicant, Mr Žilvinas Loveika, is a Lithuanian national who was born in 1972 and is currently being held at Rokiškis Psychiatric Hospital. The Lithuanian Government (“the Government”) were represented by their Agent, Ms E. Baltutytė. The facts of the case, as submitted by the parties, may be summarised as follows. According to the applicant, on 25 January 1997 he was arrested by police officers in connection with crimes he had committed in 1993-94. Before that date, the applicant had been hiding from investigators. On 23 April 1998 the Vilnius Regional Court established that the applicant had committed murder, theft and two serious assaults. The applicant had committed some of those crimes as part of an organised group. On the basis of a forensic expert examination of 20 January 1998 the court found, however, that when breaching the law the applicant had been suffering from a chronic mental illness (paranoid schizophrenia) and could not understand his actions. Instead of a prison sentence, the court ordered the applicant’s confinement in a psychiatric institution under strict observation (griežto stebėjimo sąlygomis). On 13 May 1998 the applicant was admitted to Rokiškis Psychiatric Hospital. The doctors prescribed him compulsory medical treatment and administered various neuroleptics used for treating schizophrenia (Haloperidol, Cisordinol, Fenactil). To counteract the undesirable side effects of those drugs, the doctors also prescribed the applicant Cyclodol. In August 2002 the commission of psychiatrists concluded that the applicant’s mental state had improved in the course of the treatment and that he showed no aggressiveness towards others. On that ground, in September 2002 the Panevėžys Regional Court ordered the implementation of the recommendation by a doctor at Rokiškis Psychiatric Hospital that the applicant’s compulsory treatment under strict observation be replaced by a milder regime – he was placed under “intensive observation” in the psychiatric hospital (sustiprinto stebėjimo sąlygomis). On 19 September 2005 the applicant attacked the head of the hospital unit with a knife. He also threatened other hospital personnel. As a result, by a decision of the Rokiškis District Court on 24 October 2005, the regime of strict observation was re-imposed. The treatment regimes applied to the applicant during the period relevant to the case were reviewed by the Rokiškis District Court on 8 March, 9 September and 24 October 2005; 12 April and 6 October 2006; and 18 April and 18 October 2007. On 30 March 2006 a panel of doctors again diagnosed the applicant with paranoid schizophrenia. The applicant was characterised as aggressive, and uncritical of his crimes or the attack on the doctor. On 12 April 2006 the Rokiškis District Court extended the applicant’s confinement in the psychiatric hospital under strict observation. The court observed that, according to the conclusions of the panel of doctors, the applicant’s mental condition was unstable, he was aggressive towards the medical staff and was uncritical of his behaviour. The court concluded that the applicant was still a danger to society. On 4 May 2006 the Panevėžys Regional Court upheld the decision of the Rokiškis District Court. The court stated that the applicant was still dangerous and that the doctors had concluded that his mental condition was still unstable. It appears from this decision that both courts based their decisions on the psychiatric expert report of 29 December 2005. On 6 October 2006 the Rokiškis District Court extended the applicant’s confinement in the psychiatric hospital under strict observation, based on the conclusions by the panel of doctors of 14 September 2006 that the applicant was still a danger to society and that his mental state was still unstable. In November 2007 the treating doctor noted in the applicant’s medical file that she was continuing to treat the applicant with Cisordinol injections once every two weeks. At the same time she was reducing the dosage of Cyclodol, because of an absence of any clear side effects. In reply to the Court’s request to provide an independent expert report as to the appropriateness of the treatment the applicant received in January and February 2007, the Government submitted a report by the State Medical Audit Inspectorate, dated 19 August 2010. The report reads that from 1 January 2007 the applicant was treated with the long-acting neuroleptic Cisordinol, administered once every two weeks. Given that the applicant showed no contraindications and had no complaints about the treatment, on 16 January 2007 the doctor decided to stop administering Cyclodol. After being injected with Cisordinol on 26 January, the applicant expressed a concern that he felt stiffness (pacientas išreiskė nuogąstavimą, kad jį gali “sukaustyti”). The doctor then prescribed him 2 mg of Cyclodol, to be administered once a day. Afterwards the applicant felt well again and the doctor noticed no side effects of the neuroleptics. On 2 February the doctor stopped administering Cyclodol, on the ground that patients could get used to it and abuse it. The applicant did not receive Cyclodol until 9 February 2007, when he complained of having felt a slight tremor in his fingers as a side effect of Cisordinol. Since that date the applicant has been receiving Cyclodol. On 18 April 2007 the Rokiškis District Court approved the applicant’s continued confinement in the psychiatric hospital under strict observation. The court stated that the decision was based on the conclusions of the panel of doctors. On 18 October 2007 the Rokiškis District Court once again approved the applicant’s continued confinement in the psychiatric hospital under strict observation. Based on an examination by doctors on 27 September 2007, the court concluded that the applicant was still a danger to society. The court also noted that on 15 September 2007, after a visit from relatives, the applicant had tried to bring his own psychotropic medication into the hospital ward. By a ruling of 9 October 2008 the Rokiškis District Court maintained its decision that the applicant should be kept in the psychiatric hospital under strict observation. The court based its decision on the doctors’ conclusion that the applicant was still a danger to society, his mental state was not stable and he was not critical of the crimes he had committed. According to the aforementioned report by the State Medical Audit Inspectorate, A.D., a professor and the director of the psychiatric clinic of Vilnius University Faculty of Medicine, had evaluated the applicant’s treatment as an expert and concluded that from 13 May 1998 to 16 June 2010 the applicant had been properly diagnosed and appropriate psychotropic medication had been prescribed to him. Moreover, on 16 January 2007 the doctor had correctly decided to stop administering Cyclodol to the applicant. The treatment with Cyclodol had been temporarily resumed, after the applicant had informed the doctors of side effects. However, as the side effects did not materialise, eight days later the doctor again decided to stop administering Cyclodol. The psychiatrist also pointed out that Cyclodol, besides being able to correct the side effects of neuroleptics, was a drug capable of causing psychological and physical dependency in patients. Therefore Cyclodol was to be prescribed only if clear side effects were visible. The State Medical Audit Inspectorate concluded that the treatment the applicant had received in Rokiškis Psychiatric Hospital in 1998-2010 had been appropriate and not in breach of the applicable legislation. The inspectorate also noted that there had been no other health-care related violations at the institution, unrelated to the services provided to the applicant. At the time relevant to this case, Article 12 of the Penal Code provided that a person who, owing to chronic mental illness or temporary mental incapacity, could not understand or control his or her actions when committing a crime could not be held criminally liable. Pursuant to Article 59 of the Code, the court would take a decision to place a person in a psychiatric institution under general, intensive or strict observation, depending on the danger posed by the person to society and the likelihood that he or she might commit a fresh crime. The person would stay in a psychiatric institution until he or she regained a normal mental state or until he or she ceased to be a danger to society. The court was to review the imposed measure every six months. A patient’s right to appropriate treatment is provided for in Article 3 of the Law on the Rights of Patients and Compensation for Damage to Their Health. The same provision is envisaged in Article 10 of the Law on Mental Health Care. Both of these legal acts provide that where a person considers that his or her rights as a patient have been violated, he or she may complain in writing to the treating medical institution, and, if not satisfied with the answer received, to a court (Articles 11 and 20 respectively). The Civil Code provides that civil liability may arise from non-performance of a duty established by law or a contract or from violation of the general duty to behave with care (Article 6.246 § 1). When a person’s health is impaired, the person liable for the damage shall be bound to compensate the aggrieved person for all his suffering, including non-pecuniary damage (Article 6.283 § 1). According to the Regulations of the State Medical Audit Inspectorate at the Ministry of Health, the Audit Inspectorate’s task is to carry out State control and expertise of the accessibility and quality (adequacy) of personal health-care services provided by health-care institutions. It may review patients’ requests, applications and complaints. The Government submitted details of domestic case-law as regards domestic remedies in cases of medical malpractice. They referred, first, to the ruling of 14 November 2001 in case no. 3K-3-1140, where the Supreme Court pronounced on certain aspects of the legal classification of actions by doctors. With regard to the admissibility of the appeal on points of law, the Supreme Court noted that establishment of circumstances proving guilt of a person was a question of fact. However, the legal classification and assessment of such facts constituted a question of law, examining whether or not certain actions of doctors should be found at fault. The court noted that a doctor could not normally guarantee to achieve particular results, that is, that a patient would be cured. Consequently, a patient and a doctor (or the health-care institution) were bound by an obligation which encompassed the doctor’s obligations to do his utmost, namely, to ensure the maximum degree of diligence, care, caution and competence. Moreover, the health-care institutions were liable under the rules of delictual liability if damage was caused by the actions of the institution staff. In that particular case the Supreme Court found that a doctor had not been sufficiently diligent, given that he had failed to provide the patient with extensive information about additional risks of complications. In reaching that conclusion the court relied, among other evidence, on a report by the State Medical Audit Inspectorate. In the decision of 12 March 2008 in case no. 2A-11/2008 the Court of Appeal has examined the legal acts regulating health care and diagnostics for haemothorax. In this case the court also relied on a report by the State Medical Audit Inspectorate as evidence. In the decision of 15 April 2008 in case no. 2A-137/2008 the Court of Appeal examined whether a proper care regime had been assigned to a patient hospitalised owing to a poorly plastered broken hand. The court emphasised that patients should be accorded high quality health care, treated in such manner that assured a respectful attitude towards their diagnosis, and that the selected treatment should be justified from a medical point of view. To substantiate its conclusions, the appellate court relied upon expert findings and, among other pieces of evidence, on a report by the State Medical Audit Inspectorate.