Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 35698/97

by Lionel Henry PHILLIPS

against the United Kingdom

The European Commission of Human Rights (First Chamber) sitting

in private on 3 December 1997, the following members being present:

Mrs J. LIDDY, President

MM M.P. PELLONPÄÄ

E. BUSUTTIL

A. WEITZEL

C.L. ROZAKIS

L. LOUCAIDES

B. MARXER

B. CONFORTI

N. BRATZA

I. BÉKÉS

G. RESS

A. PERENIC

C. BÎRSAN

K. HERNDL

M. VILA AMIGÓ

Mrs M. HION

Mr R. NICOLINI

Mrs M.F. BUQUICCHIO, Secretary to the Chamber

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 7 August 1996 by

Lionel Henry PHILLIPS against the United Kingdom and registered on

22 April 1997 under file No. 35698/97;

Having regard to the report provided for in Rule 47 of the Rules

of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a British citizen, born in 1954 and currently

resident in Bangor, Northern Ireland. The facts of the application,

as submitted by the applicant, may be summarised as follows.

A. The particular circumstances of the case

The applicant has a history of mental health problems and was

diagnosed in 1989 as suffering from ideas of persecution with a bizarre

delusional intensity. In 1990 the applicant was charged with

inflicting grievous bodily harm on a neighbour whom he had struck on

the head with a hammer, causing a depressed fracture of the skull. The

applicant believed this neighbour was persecuting him. The applicant,

who was diagnosed as suffering from paranoid psychosis, pleaded guilty,

and on 4 April 1990 he was sentenced to a hospital order under

Section 37 of the Mental Health Act 1983. The applicant was

subsequently released into the community on the condition that

accommodation and backup in the community be provided. The applicant

continued to be monitored by social services and doctors. In March

1991 it was considered the applicant was in the early stages of a

relapse into paranoid schizophrenia, but it was considered that the

applicant was not a danger to himself or others and as such compulsory

admission to hospital was not necessary.

On 30 April 1991 the applicant moved to Northern Ireland and

found accommodation in Bangor. Following co-operation between both the

medical and social services of England and Northern Ireland, a social

worker visited the applicant at his new address and reported to his

former doctor in England that "there appears to be no problem".

Some time after his arrival in Northern Ireland the applicant

wrote a letter to the Brookwood Hospital in England, where he had

formerly been treated. In that letter he stated that he had, whilst

in Brookwood Hospital, been forcibly injected with poisonous substances

ordered by a doctor to whom he referred as "the demented Dr. Mengele."

This letter raised the concerns of the doctors who had been involved

in the applicant's treatment in England. There is a conflict of

evidence as to when this letter was sent. The applicant claims it was

sent in late May or early June 1991, whereas the hospital state the

letter was sent on 1 August 1991. In response to this letter a doctor

who had treated the applicant in England, Dr. Robinson, contacted a

medical colleague in Northern Ireland, Dr. Thompson, stating that he

was concerned by the applicant's letter and considered the applicant's

mental state was deteriorating and that an assessment was necessary.

Dr. Thompson contacted a consultant who advised that the applicant

should be visited in his own home by a doctor accompanied by a social

worker.

On 10 September 1991 at approximately 11.15 a.m. the applicant

was visited at his home in Bangor by Dr. Thompson and a social worker.

These professionals were accompanied by at least two uniformed police

officers and members of the ambulance service. It appears that the

applicant allowed Dr. Thompson and the social worker to enter his home,

but refused admittance to the uniformed individuals. The applicant

states that he was then assaulted, taken against his will, and without

any explanation, for an assessment at a hospital. In the ambulance the

applicant was given a sedative injection. The applicant states that

this injection was forced upon him against his will. Following the

applicant's admission to Downshire Hospital, the applicant was examined

by Dr. McDermott. She concluded of the applicant:

"I feel he needs a period of assessment and he is unwilling to

come in as a voluntary patient."

The applicant states that he awoke at 8 p.m on the day of his

admission and then fell unconscious again until the following morning,

when he demanded and was permitted to see a solicitor. On 12 September

1991, the applicant was transferred from Downshire hospital to Ards

Hospital and the following day he left the latter hospital without

permission. On being subsequently contacted, he agreed to return to

hospital to receive treatment. The applicant states on his return to

hospital he was coerced into agreeing to being injected in order that

he be allowed home. The applicant returned to the hospital on a

monthly basis until December 1991 to receive injections, after which

date he left the country for a period and received no further

injections.

The applicant brought proceedings in the High Court of Justice

in Northern Ireland for trespass to the person, unlawful arrest, libel

and unlawful imprisonment. The proceedings were directed against the

Chief Constable, Dr. Thompson, the social worker (Mr. McIntosh) and the

Eastern Health and Social Services Board. The action was tried before

Mr. Justice McCollum on 12 and 13 June 1995. The applicant appeared

in person. The judge held that on 10 September 1991 the applicant had

been subject to a consultation of about half an hour by Dr. Thompson

and the social worker, during which time an assessment of the applicant

was made and a decision taken to admit the applicant for assessment and

that this procedure was in accordance with the Mental Health (Northern

Ireland) Order 1986 ("the 1986 Order"). The judge considered that the

assessment of the applicant was provoked by the letter to Brookwood

Hospital sent on or about 1 August 1991, he also took into account the

past history of the applicant's mental health problems and resultant

violence. The judge held that the applicant had consented to a

sedative injection in the ambulance on the way to the hospital and that

after his initial self-discharge from hospital on 13 September 1991,

his further visits to the hospital for treatment were voluntary. The

applicant's case failed on all counts and on 26 July 1995 judgment was

given in respect of each defendant against the applicant. The

applicant appealed to the Court of Appeal in Northern Ireland. On

2 May 1996 after an oral hearing where the applicant appeared in person

and the defendants were represented by counsel, it was ordered that the

applicant give security for the costs of his appeal in the sum of

£7,000 and that in default the appeal stand dismissed. The applicant

did not subsequently pursue the appeal.

B. Relevant domestic law

Article 4 (2) of the Mental Health (Northern Ireland) Order 1986

provides, so far as relevant:

"An application for assessment may be made in respect of a

patient on the grounds that-

(a) he is suffering from mental disorder of a nature or degree

which warrants his detention in a hospital for

assessment...

(b) failure to so detain him would create a substantial

likelihood of serious physical harm to himself or to other

persons.

The 1986 Order further states that prior to making an application

for assessment the patient must be interviewed by a social worker who

must be satisfied that detention is the most appropriate way of

providing the medical care required by the patient (Article 40). It

is a further condition that an application for assessment of a patient

must be founded upon a medical recommendation by a medical practitioner

(Article 4(3)).

COMPLAINTS

The applicant complains that he was unlawfully arrested and

detained in violation of Article 5 para. 1 and Article 5 para. 5 of the

Convention. He also complains that his attempts to seek compensation

were frustrated and that the requirement that he provide security for

costs made him unable to pursue an appeal to the Court of Appeal

against the judgment of Mr. Justice McCollum.

THE LAW

1. The applicant complains that he was unlawfully arrested and

detained in violation of Article 5 para. 1 (Art. 5-1) of the Convention

and that he was frustrated in his attempts to seek compensation.

Article 5 para. 1 (Art. 5-1) of the Convention provides, so far

as relevant, as follows:

"1. Everyone has the right to liberty and security of person.

No one shall be deprived of his liberty save in the following

cases and in accordance with a procedure prescribed by law:

...

e. the lawful detention ... of persons of unsound

mind ...;"

The Commission recalls that in accordance with the case-law of

the European Commission and Court of Human Rights, an individual with

mental health problems should not be deprived of his liberty unless he

has reliably shown to be of "unsound mind" and that there must be

objective medical opinion to support such a finding. Further, the

mental disorder must be of a kind or degree warranting compulsory

confinement (see Eur. Court HR, Winterwerp v. the Netherlands judgment

of 24 October 1979, Series A no. 33, p. 18, para. 39).

The Commission further recalls that in deciding whether an

individual should be detained as a "person of unsound mind", the

national authorities are to be recognised as having a certain

discretion since it is in the first place for the national authorities

to evaluate the evidence adduced before them in a particular case. The

role of the Convention organs is to review under the Convention the

decisions of those authorities (see the above-mentioned Winterwerp

judgment at p. 18, para. 40).

The Commission notes that in the present case the applicant was

visited on the advice of a doctor who had been involved in treating the

applicant. A further doctor examined the applicant in his own home and

considered that the applicant should be admitted to hospital for an

assessment. On arrival at the hospital the applicant was seen by a

different doctor, who stated that in her view the applicant needed a

period of assessment but was unwilling to come in as a voluntary

patient. Further the applicant had a history of mental health problems

and of associated violence. In these circumstances, the Commission

considers there to have been sufficient objective medical opinion to

support the decision to admit the applicant to hospital for an

assessment of his mental health, and that the applicant's mental

disorder was such as to warrant a temporary compulsory confinement.

The Commission also notes that the circumstances surrounding the

admission of the applicant to hospital were considered by Mr. Justice

McCollum. The judge, after a two day hearing, held that the detention

of the applicant was justified and was in accordance with the 1986

Order. There is no appearance that the procedure stipulated in that

Order is not in conformity with the Convention's principles (see above-

mentioned Winterwerp judgment at pp. 19-20, para. 45). The judge

further held that the applicant was not injected against his will and

that after his initial self-discharge the applicant's return visits to

the hospital for treatment were voluntary. The Commission does not

consider that the facts of the case reveal any arbitrariness or

unfairness in the judge's conclusions as to the circumstances of the

applicant's treatment or his finding that the doctors were justified

in their admission of the applicant to hospital for assessment.

The Commission accordingly concludes that the detention of the

applicant constituted a "lawful detention of [a person] of unsound

mind" and "in accordance with a procedure prescribed by law".

It follows that this part of the application is manifestly ill-

founded within he meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

2. The applicant also complains that he had no enforceable right to

compensation and invokes Article 5 para. 5 (Art. 5-5) of the

Convention.

Article 5 para. 5 (Art. 5-5) of the Convention provides as

follows:

"Everyone who has been the victim of arrest or detention in

contravention of the provisions of this Article shall have an

enforceable right to compensation."

The Commission recalls that the application of Article 5 para. 5

(Art. 5-5) pre-supposes the establishment of a breach of one of the

preceding paragraphs of Article 5 (Art. 5) (see e.g. No. 10371/83, Dec.

6.3.85, D.R. 42, p. 128). In the present case no such breach has been

established.

It follows that this part of the application is also manifestly

ill-founded within he meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

3. The applicant finally complains that he was unable to pursue an

appeal against the judgment Mr. Justice McCollum as he was unable to

raise the requisite security for costs of the appeal.

Article 6 para. 1 (Art. 6-1) of the Convention provides, so far

as relevant, as follows:

"1. In the determination of his civil rights and obligations

... everyone is entitled to a fair and public hearing ... by an

independent and impartial tribunal established by law...".

The Commission recalls that an order to provide security for

costs in order to pursue an appeal does not impair the very essence of

the right of access to Court (Eur. Court HR, Tolstoy v. United Kingdom

judgment of 13 July 1995, Series A no. 316-B, pp. 78-81, paras. 59-67).

There is no indication in the present case that the requirement for

security of costs was anything other that a reasonable limitation on

access to an appeal given the applicant's means and the appeal's

prospects of success.

It follows that this part of the application is manifestly ill-

founded with in the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION INADMISSIBLE.

M.F. BUQUICCHIO J. LIDDY

Secretary President

to the First Chamber of the First Chamber

Menu

PHILLIPS v. THE UNITED KINGDOM

PHILLIPS v. THE UNITED KINGDOM

LEXI