Communicated on 12 May 2015

FIRST SECTION

Application no. 1967/14 Rozalia HILLER against Austria lodged on 3 January 2014

STATEMENT OF FACTS

The applicant, Ms Rozalia Hiller , is an Austrian national, who was born in 1953 and lives in Vienna .

A. The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

Mr M.K., the applicant ’ s son, was taken to the Otto Wagner Hospital on 19 March 2010 because he suffered from an acute episode of paranoid schizophrenia. Subsequently, he was involuntarily placed in the psychiatric centre of that hospital pursuant to section 8 of the Hospitalisation Act ( Unterbringungsgesetz ). On 12 May 2010 he did not return from a walk on the hospital premises. He had escaped and committed suicide by jumping in front of a metro train.

The applicant subsequently brought a civil action with the Vienna Regional Civil Court ( Landesgericht für Zivilrechtssachen ) against the City of Vienna (as the responsible authority for the hospital) under the Official Liability Act for payment of immaterial damage of 20,000 euros (EUR).

She claimed that in the years 2006 and 2007, her son had already been treated as an in-patient at the Otto Wagner Hospital and the Vienna General Hospital ( Allgemeines Krankenhaus Wien ) for paranoid schizophrenia. The placement on 19 March 2010 was effected because he posed a threat to himself and others. He had attacked a chewing gum machine with a sledgehammer and seemed completely confused when the police entered the scene. The expert Dr. P. who was called to assess his mental state diagnosed him with paranoid schizophrenia. The applicant ’ s son gave a disturbed impression, displayed fallacious perceptions and had lost touch with reality. Because of his delusional behaviour, there was a threat that he would harm himself or others, which is why the expert came to the conclusion that his mental state required him to be placed in a closed psychiatric institution.

However, on 25 March and on 29 March 2010 M.K. managed to escape from the closed ward of the Otto Wagner Hospital and could only be apprehended and brought back after a search operation by the police and the hospital staff. On 12 May 2010 he escaped again and committed suicide.

The applicant claimed that she had suffered a massive shock as a result of her son ’ s death, which transcended a normal grief reaction. Before his involuntary placement in hospital, M.K. had lived with her in the same household. They had a very close relationship. The applicant claimed that as a result of his death she suffered from depression and insomnia, which had to be treated medically. Also, since June 2010, she frequented a psychotherapist. Nonetheless, her mental state had not improved since.

The fact that her son was able to escape from the hospital premises led the applicant to conclude that the hospital staff had acted negligently in the performance of their duties. Because M.K. ’ s behaviour was unpredictable, he should have been under strict supervision. Under the circumstances, and especially because of the fact that he had managed to escape twice already, the restriction of his movement within the closed ward would have been proportionate, indispensable and adequate. Such a restriction included control measures by the hospital staff. The contract concerning his treatment included also duties of protection and care. There had been enough signs of suicidal thoughts, which is why the hospital staff should have stopped him from leaving the ward. Nonetheless, the necessary diligence had not been observed. For these reasons, the applicant claimed that the City of Vienna was at fault and therefore responsible for the immaterial damages she had suffered.

The City of Vienna ( Stadt Wien ) as the defendant in the civil action requested the Vienna Regional Civil Court to dismiss the applicant ’ s claim. It argued that the involuntary placement of M.K. in the psychiatric institution on 19 March 2010 had been necessary, as he lacked awareness of his mental illness and refused to be treated. At the time of apprehension, he had been utterly confused and it was not possible to reason with him. Because of the threat he posed to himself and others, at the hospital he repeatedly had to be restricted in his body movement and parenterally medicated. On 25 March 2010 he left the station without permission. When the police and the ambulance brought him back to the hospital, he had to be sedated intravenously because of the highly p sychotic state he was in. On 29 March 2010 he escaped again, but was apprehended by the security and the staff of the hospital. From 2 April 2010, the applicant ’ s son started to be willing to take oral medication. His mental state gradually improved, so on 20 April 2010 he could be transferred from the acute station to the subacute ward. From that moment on, no more restrictions of his body movement were effected. He seemed adjusted and friendly. A so-called “dynamic exhaustion” ( dynamische Entleerung ) occurred, which manifested itself in a noticeable loss of drive and urge for a quiet environment. Consequently, the hospital staff tried to animate the applicant ’ s son through occupational therapy and walks on the hospital premises, which he sometimes was allowed to take on his own. However, he knew that he was not allowed to leave these premises. From 20 April 2010, M.K. appeared to be more reasonable and was able to keep agreements. There was no indication of suicidal thoughts. On 12 May 2010 at 5 . 15 pm the doctor on duty was informed by the hospital staff that the applicant ’ s son had not returned from an authorized walk on the hospital premises. A search operation was immediately initiated and the police was requested to bring him back. Around 9 pm the hospital was informed that M.K. had been killed in an accident at around 4pm.

The City of Vienna submitted that under to the Hospitalisation Act as well as the currently prevalent paradigm in the treatment of mentally ill patients, an “open” psychiatry was the norm and restrictions of movement were only permissible in cases of absolute necessity and proportionality. In the present case, by 12 May 2010 a restriction of the body movements of the applicant ’ s son (“fixation”) and/or a spatial restriction of his movement to a psychiatric bed, or his permanent supervision were not medically indicated anymore, nor would such measures have been reasonable or adequate. On the contrary – due to the lack of indications of suicidal thoughts, any restriction of his movement would have been unlawful under the Hospitalisation Act.

The City of Vienna contended that the applicant ’ s son ’ s death was a suicide caused by a mental illness, as there had been no indications whatsoever to that end. It further denied the adequate causality ( adequate Kausalität ) of the alleged neglect and culpability of the hospital staff for the damages suffered by the applicant, which it considered to be unusual and atypical. In their view, there was no sufficient causal connection ( Rechtswidrigkeitszusammenhang ) between the aim of the Hospitalisation Act and the alleged damages suffered was lacking. The relevant legal provisions did not aim at preventing all damages possibly resulting from a patient leaving a hospital unauthorized. A causal connection could only exist with those damages which were caused by the mental illness which made the hospitalisation necessary. Because there had been no indication of suicidal thoughts in the applicant ’ s son, this had however not been the case.

During the oral hearing of 3 September 2012 the applicant limited her claims to 15,000 euros (EUR) plus 4 % interest.

On 30 November 2012 the Vienna Regional Civil Court granted the claim. It found that even shortly before his death on 12 May 2010, it could be assumed that M.K. still posed a threat to himself and others, in particular because he still had the delusional idea that he was a different person and did not recognize his parents as his own. Even in persons who had shown progress after a psychosis, self-harming behaviour could occur outside a hospital setting because of overstimulation. It could not be determined anymore whether the applicant ’ s son had jumped in front of the metro train in order to deliberately commit suicide, or whether he followed a spontaneous impulse or a delusional thought to that end. In any event, should the hospital staff have made sure that he was not able to leave the hospital premises, even if therapeutic walks were indicated and permissible under the circumstances.

From a legal perspective, the Regional Civil Court affirmed the City of Vienna ’ s responsibility pursuant to section 1 of the Official Liability Act ( Amtshaftungsgesetz ). It held that not only patients themselves had a claim under the Public Liability Act caused by unlawful treatment while involuntarily hospitalized, but also other persons, who had suffered damages caused by hospitalization. The City of Vienna as the responsible body for the Otto Wagner Hospital therefore could be held accountable for any culpable act or omission by its organs. The Regional Civil Court stated further that at the material time on 12 May 2010, the applicant ’ s son was lawfully hospitalised by decision of the Fünfhaus District Court ( Bezirksgericht ) of 7 April 2010, valid until 12 May 2010. It stated that sections 3 and 33 of the Hospitalisation Act stipulated that if a hospitalisation was allowed, it was also necessary to prevent a threat emanating from the patient. Accordingly, the responsible persons at the hospital were under the obligation to supervise the restrictions of movement in order to ensure the protection from possible damages. In the instant case, M.K. had been allowed to take walks on the hospital premises, which were medically indicated and therefore allowed. However, no measures had been taken in order to ensure that he respected the restrictions of his movement. There was no effective control of his walks or of their duration. Because of this disregard by the hospital of its duty of supervision, it had implemented the Hospitalisation Act incorrectly. It did not matter that the applicant ’ s son did not show any signs of suicidal behaviour, because the hospitalisation originally was effected precisely because of the threat he posed to himself and to others. Therefore, even if he did not pose a threat to himself anymore, the hospitalisation was upheld because of the threat he posed to others. The hospital staff was acting culpably and unlawfully, which caused the damage the applicant suffered (namely the grief reaction amounting to an illness). The jurisprudence accepted claims for immaterial damages of close relatives based on unlawful actions against a person, which involved a high risk of causing a shock response. In the instant case, these conditions were fulfilled, as the lack of supervision of M.K. led to the applicant having to suffer from the death of her son. The court concluded that the civil claim was justified and granted the applicant EUR 15,000 in immaterial damages.

The City of Vienna appealed, claiming that the court wrongly assessed the evidence, that its finding of facts was incorrect, and that it wrongly interpreted the law.

On 26 March 2013 the Vienna Court of Appeal ( Oberlandesgericht ) granted the defendant ’ s appeal and dismissed the applicant ’ s claim. It found that the lower court ’ s interpretation of the law was wrong. In the Court of Appeal ’ s view, there was no causal relation between the wholly unexpected suicide of the applicant ’ s son, and an alleged violation of the hospital staff ’ s duty of supervision under the Hospitalisation Act. Pursuant to Austrian law, a person who causes damage can be held responsible only for those consequences they could have anticipated, including unexpected ones, but not atypical consequences. The adequate causality relation is lacking, if according to ordinary life experience ( allgemeine Lebenserfahrung ) the harmful act is neutral to the damage caused and only an unusual chain of events linked it to that damage. Concerning the question of unlawfulness, the Court of Appeal referred to a judgment of the Supreme Court, which set out the so-called doctrine of the protective purpose of a norm ( Schutzzweck der Norm ), according to which only a person who had suffered immediate damage had a right to compensation, unless the law provides otherwise. Should an unlawful act trigger a claim for compensation, it must have concerned those interests which are protected by the norm. The term “threat” in section 33 of the Hospitalisation Act implies a judgment on the probability of the occurrence of future events, thus a prognosis. The occurrence of damage must be probable pursuant to objective and concrete indications. The legislator assumed that in the framework of the treatment and care of hospitalised persons, mechanical means of restraint are not to be used and the aims pursued are to be reached by other means, such as personal surveillance and attention. In the instant case, the court found that the hospitalisation of M.K. had been lawful. According to the expert opinion, a hospitalisation on 12 May 2010 was indicated only because of a threat the applicant ’ s son posed to others, in particular to his mother. This was also the reason for limiting his movement to the hospital premises. in the light of the improvement of his symptomatic, it was not unusual that he was allowed to take walks in order to reach a therapeutic goal, even if it would have been advisable to only allow these walks in the company of hospital staff.

The Court of Appeal further affirmed that there had not been any indication of self-harm during M.K. ’ s entire stay at the hospital. He had not voiced suicidal thoughts or taken any actions to that effect. It could not be established whether his jumping in front of the metro train was a suicide which he had planned already before he left the hospital premises, or whether it was an act of self-harm resulting from his psychosis. Naturally, M.K. would not have been able to commit suicide if he had been prevented from leaving the hospital area. Even with psychotic patients whose symptoms had improved, it can occur that they experience a situation of overstimulation if they leave the therapeutic setting, whereas such a situation is much less likely to occur within the hospital premises. As a matter of fact, section 3 § 1 of the Hospitalisation Act only mentions as purpose of the norm the protection of the life and health of the mental patient, as well as the life and health of third persons, thus aiming at preventing harm to oneself and others. Because at the material time there was no longer an indication of self-harm, the behaviour of M.K. was not foreseeable and therefore not attributable to the hospital staff. The fact that with psychotic patients a danger of self-harm could never be entirely excluded did not change this assessment.

The applicant appealed, arguing that at the time when M.K. had committed suicide, the initial decision by the Fünfhaus District Court on his hospitalisation was still valid and was based on the assessment that he had been a threat to himself and others because of his schizophrenia. No new expert opinion had been obtained, and the hospital had never informed the guardianship court ( Pflegschaftsgericht ) that there was no longer a threat of self-harm. Consequently, it would still have been indicated to restrict M.K. ’ s movement. By failing to do so, the hospital had acted contrary to the court decision ordering his hospitalisation.

On 18 July 2013 the Supreme Court dismissed the applicant ’ s appeal, affirming the legal and factual findings of the Court of Appeal. It added that a lawful implementation of the Hospitalisation Act is possible both with and without closed wards. M.K. ’ s hospitalisation was therefore not unlawful even though he was placed in the open ward from 20 April 2010. Contrary to the argumentation of the applicant, the Otto Wagner Hospital staff was not under the duty to implement the Fünfhaus District Court ’ s decision on M.K. ’ s hospitalisation in a manner which compelled them to restrict his movement. This was evident from section 32 of the Hospitalisation Act, according to which a hospitalisation order could be lifted at any time by the head of the institution, and section 33, which stated that a restriction of movement was permissible only in limited cases. The District Court ’ s decision did not define the extent and duration of any concrete restriction of movement. The purpose of section 33 of the Hospitalisation Act was, however, that a restriction of movement may only be used as an exceptional measure and “last resort”. Also, Articles 3 and 5 of the Convention restricted the permissibility of isolation of mentally ill patients. Even within a closed ward, mentally ill patients must have the widest possible amount of freedom of movement. Only the more restrictive measures under section 33 of the Hospitalisation Act were subject to judicial review.

The Supreme Court stated further that from a therapeutic point of view, the unaccompanied walks of M.K. were allowed because of the improvements he had made. Also, from the time he was authorized to take these walks, he had always returned without problems. This measure, which was ordered by the treating psychiatrist, was therefore proportionate and necessary pursuant to section 33 of the Hospitalisation Act. In conclusion, the hospital staff had not acted culpably, which is why the applicant ’ s claim under the Official Liability Act was not justified.

B. Relevant law

1. Relevant domestic law

( a ) The Hospitalisation Act

Pursuant to section 2 of the Hospitalisation Act, “hospitalisation” is defined as the placement of a person in a hospital or a psychiatric institution, either in a closed ward, or under other restrictions of their freedom of movement. A person is already restricted in their movement if they cannot freely decide on changing their whereabouts. The restriction of movement to the premises of a hospital, even when the person is free to move around within those premises, amounts to a “hospitalisation” within the meaning of the Act; the same applies to a person who is obliged to return to the hospital or institution after a permitted excursion, if they are not free to decide whether they want to return and have to expect a forceful re-hospitalisation in case they refused to accept the conditions of the permission.

According to section 3 of the Hospitalisation Act, a person may only be hospitalised if they suffer from a mental illness and insofar as they pose a serious and significant threat to themselves and others and cannot be sufficiently treated otherwise.

Section 8 of the Hospitalisation Act stipulates that a person may only be hospitalised against their will or without their consent after examination of a doctor in public service ( Amtsarzt ), who confirms that the requirements for a hospitalisation are fulfilled.

The conditions for a hospitalisation are set out in section 33 of the Hospitalisation Act, according to which the restriction of movement of the patient is only permitted if the nature, extent and duration of the restriction strictly necessary for the purposes of section 3 of the Hospitalisation Act, and is proportionate to the aims pursued. In general, the restriction may only extend to several rooms or specific areas. A further restriction, e.g. to a single room, is only permissible if ordered individually by a doctor and must be documented.

( b ) T he Official Liability Act

According to section 1 of the Official Liability Act, the Federation ( Bund ), the Regions ( Länder ), the Districts ( Bezirke ), the Municipalities ( Gemeinden ) and other legal entities under public law ( Körperschaften öffentlichen Rechts ) are liable pursuant to civil law for pecuniary damages or damages to a person, which were culpably and unlawfully caused by one of their organs in the fulfilment of their duties under the law. Involuntary placements under the Hospitalisation Act are acts under public administration ( Hoheitsverwaltung ).

2. Relevant international law – the United Nations Convention on the Rights of Persons with Disabilities (“the CRPD”), adopted by the United Nations General Assembly on 13 December 2006 (Resolution A/RES/61/106)

The United Nations Convention on the Rights of Persons with Disabilities is designed to promote, protect and ensure the full and equal enjoyment of all human rights and fundamental freedoms by persons with disabilities and to promote respect for their inherent dignity. It was ratified by Austria on 26 September 2008. In its relevant parts, it reads as follows:

Article 10 - Right to life

“ States Parties reaffirm that every human being has the inherent right to life and shall take all necessary measures to ensure its effective enjoyment by persons with disabilities on an equal basis with others. ”

Article 14 - Liberty and security of the person

“ 1. States Parties shall ensure that persons with disabilities, on an equal basis with others:

a. Enjoy the right to liberty and security of person;

b. Are not deprived of their liberty unlawfully or arbitrarily, and that any deprivation of liberty is in conformity with the law, and that the existence of a disability shall in no case justify a deprivation of liberty.

2. States Parties shall ensure that if persons with disabilities are deprived of their liberty through any process, they are, on an equal basis with others, entitled to guarantees in accordance with international human rights law and shall be treated in compliance with the objectives and principles of this Convention, including by provision of reasonable accommodation. ”

In a statement on Article 14 of the CRPD of September 2014, the United Nations Office of the High Commissioner for Human Rights noted the following:

“ Liberty and security of the person is one of the most precious rights to which everyone is entitled. In particular, all persons with disabilities, and especially persons with mental disabilities or psychosocial disabilities are entitled to liberty pursuant to article 14 of the Convention.

Ever since the CRPD committee began reviewing state party reports at its fifth session in April 2011, the Committee has systematically called to the attention of states party the need to correctly enforce this Convention right. The jurisprudence of the committee on article 14 can be more easily comprehended by unpacking its various elements as follows:

1. The absolute prohibition of detention on the basis of disability . There are still practices in which state parties allow for the deprivation of liberty on the grounds of actual or perceived disability. In this regard the Committee has established that article 14 does not permit any exceptions whereby persons may be detained on the grounds of their actual or perceived disability. However, legislation of several states party, including mental health laws, still provide instances in which persons may be detained on the grounds of their actual or perceived disability, provided there are other reasons for their detention, including that they are dangerous to themselves or to others. This practice is incompatible with article 14 as interpreted by the jurisprudence of the CRPD committee.

2. Mental health laws that authorize detention of persons with disabilities based on the alleged danger of persons for themselves or for others . Through all the reviews of state party reports the Committee has established that it is contrary to article 14 to allow for the detention of persons with disabilities based on the perceived danger of persons to themselves or to others. The involuntary detention of persons with disabilities based on presumptions of risk or dangerousness tied to disability labels is contrary to the right to liberty. For example, it is wrong to detain someone just because they are diagnosed with paranoid schizophrenia.

3. ...”

COMPLAINTS

The applicant complains in substance under Article 2 of the Convention that the Supreme Court judgment, which denied any responsibility of the hospital staff for her son ’ s death, was incorrect.

QUESTION TO THE PARTIES

Have the authorities taken all necessary precautions to prevent the escape and suicide of the applicant ’ s son, in line with the requirements of Article 2 of the Convention? In particular, was it foreseeable that M.K. was at risk of committing suicide, and have the domestic authorities done everything possible in order to prevent this risk from materializing?