Information Note on the Court’s case-law 205

March 2017

Fernandes de Oliveira v. Portugal - 78103/14

Judgment 28.3.2017 [Section IV]

Article 2

Positive obligations

Article 2-1

Life

Suicide of a mentally ill man voluntarily admitted to State psychiatric hospital for treatment after suicide attempt: violation

[This case was referred to the Grand Chamber on 18 September 2017]

Facts – The applicant’s son had been voluntarily placed in a State psychiatric hospital for treatment following a suicide attempt in early April 2000. On 27 April 2000 he escaped from the hospital premises and jumped in front of a train. He had already been admitted on several occasions to the same hospital due to his mental disability which was aggravated by an addiction to alcohol and drugs. According to his medical records, the hospital was aware of his previous suicide attempts.

Law – Article 2 ( substantive aspect ): Having regard to t he applicant’s son’s clinical history and in particular the fact that he had attempted to commit suicide three weeks earlier, the hospital staff had had reason to expect that he might try to commit suicide again. Moreover, as he had escaped from the hospit al premises on previous occasions, another escape attempt with, in the light of his diagnosis, the possibility of a fatal outcome, should have been foreseen.

The Court was aware of the emerging trend to provide treatment under an “open-door” regime to pers ons with mental disorders. However this kind of treatment could not exempt the State from its obligations to protect mentally ill patients from the risks they pose to themselves. Accordingly, a fair balance had to be struck between the State’s obligations under Article 2 of the Convention and the need to provide medical care in an “open door” regime, taking into account the individual needs regarding the special monitoring of suicidal patients. In this balancing exercise, no difference should be made betwee n voluntary and involuntary admissions: in so far as a voluntary in-patient was under the care and supervision of the hospital, the State’s obligations should have been the same, as otherwise voluntary in-patients would be deprived of the protection of Art icle 2.

The hospital checked whether patients were present during meal and medication times. In addition, there was a mechanism in place for when a patient’s absence was noted, which consisted in searching for the missing patient on the hospital premises and infor ming the police and the family. In the present case, the applicant’s son had last been seen some time after 4 p.m. but his absence was not observed until around 7 p.m. when he did not show up for dinner. By then he was already dead. The emergency procedure had thus been ineffective in preventing his escape and, ultimately, his suicide. The risk had been exacerbated by the open and unrestricted access from the hospital grounds to the railway platform.

In the light of the positive obligation to take preventiv e measures to protect an individual whose life is at risk and faced with a mentally ill-patient who had recently attempted to commit suicide and was prone to escaping, the hospital staff should have been expected to adopt safeguards to ensure that he would not leave the premises and to monitor him on a more regular basis.

Conclusion : violation (unanimously).

The Court also held, unanimously, that there had been a breach of the procedural aspect of Article 2 because the proceedings had lasted in excess of e leven years for two levels of jurisdiction. The domestic legal mechanisms, seen as a whole, had not secured in practice an effective and prompt response on the part of the authorities’ consonant with the State’s procedural obligations.

Article 41: EUR 703 .80 in respect of pecuniary damage; EUR 25,000 in respect of non-pecuniary damage.

(See Keenan v. the United Kingdom , 27229/95, 3 April 2001, Information Note 29 ; and contrast Hiller v. Austria , 1967/14 , 22 November 2016)

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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