CASE OF FERNANDES DE OLIVEIRA v. PORTUGAL
Violation of Article 2 - Right to life (Article 2 - Positive obligations;Article 2-1 - Life) (Substantive aspect);Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction);Pecuniary damage - award (Article 41 - Pecuniary damage;Just satisfaction)
Egidijus Kūris;Ganna Yudkivska;Iulia Motoc;Krzysztof Wojtyczek;Marko Bošnjak;Nona Tsotsoria;Paulo Pinto De Albuquerque
5. The applicant was born in 1937 and lives in Ceira. 6. The applicant’s son, A.J., was born in 1964. He had a history of mental disorders and of alcohol and drug addiction, and since 1984 had spent several periods in the Sobral Cid Psychiatric Hospital (“the HSC”) in Coimbra: from 5 to 8 August 1984; from 15 March to 3 April 1985; from 15 to 28 November 1985; from 10 to 18 January 1993; from 1 to 3 September 1999; from 12 December 1999 to 14 January 2000; and from 2 to 27 April 2000. 7. According to A.J.’s clinical records, in September 1999 doctors told the applicant that she should seek an order for her son’s compulsory confinement. During his hospitalisation in December 1999 the doctor treating A.J. instructed that he must not be permitted to leave the unit in which he was hospitalised. 8. During at least two of the periods he spent in hospital, A.J. was authorised to spend weekends at home with his family – three weekends during the period from 12 December 1999 to 14 January 2000, and two weekends during the period from 2 to 27 April 2000. During those two periods, A.J. also escaped from the HSC premises several times and sometimes went to the applicant’s house. 9. On 1 April 2000 A.J. was voluntarily admitted to the HSC, upon medical advice, because he had attempted to commit suicide. 10. On 25 April 2000 A.J. went home for the weekend to spend Easter with the applicant and other members of his family, despite the reluctance of the doctor. 11. At around 10.30 p.m. the applicant took A.J. to the emergency ward of the Coimbra University Hospital because he had drunk a large amount of alcohol. According to the observation record completed by the emergency services, A.J. had behaved recklessly during the weekend because he had got drunk. They added that although A.J. had a history of mental weakness, depressive episodes and recurrent suicide attempts, those characteristics had not been observed that weekend. A.J. was subsequently sent back to the same HSC ward in which he was hospitalised. 12. On 26 April 2000 A.J. was kept under medical observation for the whole day. He was given medication and his state of health improved. He got up to dine and to welcome visiting family members. 13. On 27 April 2000 the hospital staff noted that between 8 a.m. and 4 p.m. A.J.’s behaviour had been calm and he had been walking around the unit in which he had been hospitalised. He had had lunch and an afternoon snack. 14. At around 4 p.m. the applicant called the hospital. She was told to call back later, during the afternoon snack, as her son was not inside the building at that time. She was assured that some minutes earlier he had been standing at the door and he looked fine. 15. At around 7 p.m. it was noticed that A.J. had not appeared for dinner, and a nurse informed the head nurse of his absence. The hospital staff then initiated searches in the areas of the HSC premises where patients were allowed to walk around freely, such as the cafeteria and the park. 16. At around 8 p.m. the coordinating nurse (enfermeiro coordenador) telephoned the applicant and told her that A.J. had not shown up for dinner. 17. At some time between 7 p.m. and 8 p.m. the hospital reported A.J.’s disappearance to the National Republican Guard (Guarda Nacional Republicana) and the applicant. 18. It is not known at what time A.J. left the hospital premises and followed a footpath towards the applicant’s house. At around 5.37 p.m. he committed suicide by jumping in front of a train near the HSC premises. 19. On 17 March 2003 the applicant lodged a civil action with the Coimbra Administrative Court (Tribunal Administrativo do Círculo de Coimbra) against the HSC under the State Liability Act (ação de responsabilidade civil extracontratual por ato de gestão pública), seeking pecuniary and non-pecuniary damages of 100,403 euros (EUR). 20. The applicant claimed that her son had been treated at the HSC for mental disorders on several occasions; the first actual hospitalisation had been in 1993. He had been admitted to the hospital on 1 April 2000 because he had attempted to commit suicide. The fact that her son had been able to leave the hospital premises on 27 April 2000 during his hospitalisation had led the applicant to conclude that the hospital staff had acted negligently in the performance of their duties. Because of his suicide attempts and mental condition, her son should have been under medical supervision and the hospital staff should have prevented him from leaving the hospital premises. She further claimed that the HSC should have erected fencing around the boundaries of its premises in order to prevent patients from leaving. The fact that those duties had not been complied with reflected the poor organisation of the HSC services. Lastly, she argued that the HSC lacked a mechanism for checking the presence of patients and an emergency procedure capable of detecting a patient’s absence, which would allow the hospital to take the measures required to ensure that patients returned safely. 21. On 29 October 2003 the court gave a preliminary decision (despacho saneador), specifying which facts were considered to be established and which remained to be established. 22. On 5 July 2005 the court ordered that an expert report be drawn up on A.J.’s clinical condition and the supervision measures required by that condition. 23. On 27 September 2006 a psychiatrist appointed by the Medical Association (Ordem dos Médicos) submitted his report, the relevant parts of which read: “... Although alcohol dependence was the predominant diagnosis, several other diagnoses were considered. In particular, dependent personality (personalidade dependente); delirious outbreaks (surto delirante); schizophrenia; manic-depressive psychosis (psicose maníaco-depressiva)... A.J.’s clinical history enables us to consider him an ill person with recurring relapses in excessive alcohol consumption ... but also another kind of symptomatology... ... There is no detailed reference in his clinical records to his psychopathological condition on 26 April 2000... ... The [plaintiff’s] son suffered from disorders which caused depressive behaviour with a significant inclination to suicide. Taking into account the clinical documents, his clinical condition may have led to another attempt to commit suicide, which turned out to be fatal. In addition, the polymorphism of the patient’s psychiatric condition should be emphasised. A psychopathological condition such as the patient’s has a bad prognosis and suicide is frequently preceded by an attempt (or attempts) to commit suicide. ... Indeed, it must be clarified that ... it should also be considered that the hypothesis of [his] diagnosis could be of a borderline personality disorder [perturbação de personalidade borderline]... ... There is reference to a multiplicity of diagnoses, all of them capable of enhancing the risk of the patient’s suicide (and also of suicidal behaviour). ... The clinical history and psychopathological framework [quadro psicopatológico], for the reasons already mentioned, would predict future suicidal behaviour; thus the occurrence of suicide is not surprising. With regard to prevention, containment and surveillance measures must without a doubt be adopted. But with a patient like this one, these measures are difficult to adopt (see for example his requests to be discharged despite the doctor’s opinion, which is substantiated) and never enough because of the high potential for suicide. ... The fact that the patient had been on antidepressant treatment for more than two weeks, had wandered around the hospital without ever endangering his life ... does not mean that the probability of that event (suicide) was negligible. However, it was hardly avoidable.” 24. The first hearing took place on 8 October 2008. The applicant and the psychiatrist who had issued the medical opinion gave evidence at the hearing. 25. At five hearings the court heard evidence from different witnesses, inter alia, the applicant’s daughter – A.J.’s sister; nurses, doctors and medical auxiliaries who had worked for or were still working for the HSC, some of whom had started their shift at 4 p.m. on 27 April 2000; a social worker employed by the HSC since 1995, who had had contact with A.J.; and the train driver. The court also analysed several documents attached to A.J.’s clinical file from the HSC. 26. On 9 March 2009 the court conducted an on-site inspection. 27. On 7 January 2010 the court held a hearing at which it adopted a decision concerning the facts. 28. On 25 April 2011 the Coimbra Administrative Court delivered a judgment in which it ruled against the applicant. If found that although her son had been suffering from a mental disorder, there was no causal link between his wholly unexpected suicide and an alleged violation of the hospital staff’s duty of care. It noted, in particular, that the applicant’s son had been suffering from a psychiatric disorder which had never been properly diagnosed, either because the symptoms were complex or because he had been addicted to alcohol and drugs. In this regard, it pointed out that over the years the applicant’s son had been diagnosed with schizophrenia and depression. However, only after his death and as a consequence of an expert opinion requested from the Medical Association during the proceedings (see paragraph 23 above) was there an agreement that he had been suffering from a severe personality disorder. The court established that he had last been admitted to hospital after a suicide attempt. However, it considered that despite the possibility that people diagnosed with mental diseases such as that of the applicant’s son might commit suicide, during the last days before his death he had not shown any behaviour or mood which could have led the hospital staff to suspect that 27 April 2000 would be different from the preceding days. The court thus concluded that the hospital staff could not have foreseen the suicide of the applicant’s son and that his behaviour had been absolutely unexpected and unpredictable. With regard to the applicant’s argument that the hospital should have supervised her son more effectively and erected fences or other barriers around the hospital premises, the court pointed out that the current paradigm in the treatment of mentally ill patients was to encourage social interaction. The existence of fencing would lead to the stigmatisation and isolation of mentally disabled patients. In the same way, any supervision of patients had to be carried out discreetly. The HSC had a surveillance procedure in place which consisted of verifying the patients’ presence at meal and medication times; this was in compliance with the most recent psychiatric science and respected the patients’ right to privacy. With regard to the applicant’s argument that the emergency procedure was non-existent, the court noted that it consisted in alerting the police and the patient’s family. Therefore, the court found that there had been no omission in the duty of care on the part of the hospital. 29. On 12 May 2011 the applicant appealed to the Administrative Supreme Court, claiming that the first-instance court had wrongly assessed the evidence, that its findings of fact had been incorrect, and that it had wrongly interpreted the law. 30. On 26 September 2012 the Attorney General’s Office attached to the Administrative Supreme Court, called upon to issue an opinion on the appeal, held that the first-instance judgment should be reversed. In their opinion, given that A.J.’s medical record stated that he had attempted to commit suicide on different occasions and considering that he had last been admitted to hospital because of a suicide attempt, a new attempt to commit suicide was likely and should have been foreseen. They noted that the hospital had failed to implement a supervision regime capable of preventing the applicant’s son from leaving the hospital premises. They also argued that the increased monitoring of the patient was part of the hospital’s duty of care and did not detract from the “open door” regime. They concluded that the monitoring measures put in place by the HSC were not adequate for an establishment categorised as a psychiatric hospital or for a patient with A.J.’s characteristics. 31. On 29 May 2014 the Administrative Supreme Court dismissed the applicant’s appeal by two votes to one, upholding the legal and factual findings of the Coimbra Administrative Court. The Administrative Supreme Court held that the HSC had not breached any duty of care, as there had been no indication which could have led the hospital staff to suspect that the applicant’s son would try to commit suicide, namely by leaving the hospital premises. The Supreme Court took into account that during previous periods of hospitalisation the applicant’s son had also left the hospital premises, and that no link had been established between those “escapes” and a particular risk of suicide in so far as they had only been able to establish the existence of a single suicide attempt, on 1 April 2000. The Supreme Court considered that the counting of patients at meal and medication times was sufficient and had allowed the hospital staff to verify A.J.’s attendance during lunch and the afternoon snack on 27 April 2000. It concluded that there had been no anomaly in the functioning of the HSC, nor could any anomaly be attributed to either the lack of security fences or walls, or the method of counting patients. 32. In a dissenting opinion, one of the judges argued that the hospital should have secured the premises in some way in order to fulfil its duties of care and supervision. By not doing so, it had allowed patients to leave easily without being discharged, thus breaching those duties. As such, that omission had been the cause of the “escape” and suicide of the applicant’s son. 33. The HSC is located outside Coimbra on seventeen hectares of land, distant from any urban or industrial areas. It is part of the Coimbra Hospital and University Centre. 34. According to an on-site inspection made by the Coimbra Administrative Court on 9 March 2009 in the course of the proceedings against the hospital, the HSC has eighteen buildings dedicated to each hospital department. The grounds of the HSC do not have security fences or walls of any other kind. The buildings are surrounded by green areas with trees and other vegetation, and the different buildings are accessed by means of roadways (arruamentos) and paths (passeios), which are also surrounded by trees and other vegetation. The main entrance to the HSC has a barrier (cancela) and a security guard. One of the possible exits from the hospital premises leads to a shortcut towards a railway station platform (apeadeiro ferroviário). This shortcut is accessed by taking the road behind building no. 9. The station platform is around a fifteen to twenty minutes’ walk from that part of the HSC’s premises. 35. Pursuant to the guidelines prepared by the HSC, meals are taken in the hospital cafeteria and patients must remain there until the end of the meal. Patients are not allowed to leave the department without informing the relevant nurse in advance. An afternoon snack is usually provided at around 4.45 p.m. 36. According to articles which have been published in the media in recent years, several patients have managed to escape from the HSC’s premises since at least 2007. Some of them were found and taken back to the hospital and others were found dead. For example, different local and national media have reported as follows: (i) on 9 March 2008 the body of a patient who had escaped two weeks earlier was found close to the hospital premises (in Diário de Coimbra); (ii) on 29 October 2008 a man escaped from the HSC and was hit by a car after jumping in front of it (in Diário das Beiras); (iii) on 31 July 2008 the body of a patient who had escaped from the hospital the previous month was found in a river (in Diário de Coimbra); (iv) on 14 August 2008 a patient who had been involuntarily hospitalised in the HSC escaped (in Diário de Coimbra); (v) in early March 2010 three different patients escaped from the hospital; one of them was located by the police after stealing a car and another was found dead in a nearby river (in bombeirospontopt); (vi) on 16 October 2011 a patient escaped from the HSC’s premises and attacked two police officers with a hoe (in Correio da Manhã); (vii) on 1 March 2015 two patients escaped from the HSC and stole a car by ousting the driver (in Tvi24).