Published on 12 June 2023

FIRST SECTION

Application no. 30814/22 Benitóné MARTINEZ FERNANDEZ against Hungary lodged on 13 June 2022 communicated on 22 May 2023

SUBJECT MATTER OF THE CASE

The application concerns the involuntary hospitalisation and treatment of a 83-year-old woman with dementia. On 1 September 2020 the applicant was taken to a toxicology unit on the suspicion of accidental medical overdose. Even though such overdose was eventually not confirmed, as she seemed to be restless and disoriented, she was transferred and involuntary admitted to a psychiatric hospital. Two days later a domestic court approved her involuntary hospitalisation and ordered her treatment on the grounds of a perceived imminently dangerous behaviour, as suggested by a forensic expert. The psychiatrist based her opinion on the applicant’s apparent restlessness, disorientation and anger management problems. At the hearing, the applicant was represented by his son, Mr Martinez, and – as Mr Martinez did not have legal qualifications – a guardian ad litem . Mr Martinez was not summoned to the hearing and was informed of it by the hospital only an hour beforehand. At the hearing the guardian ad litem agreed with the applicant’s involuntary treatment.

On 7 September 2020 the applicant was released as the doctor in charge found that her mental health had stabilised and she could no longer benefit from treatment in the hospital. Her ensuing judicial challenges to the decision on her involuntary placement and treatment were to no avail.

Complaining under Article 5 § 1 of the Convention, the applicant submits that her alleged illness was not of a kind or degree warranting compulsory confinement and that the domestic courts failed to assess and show how she met the criteria of imminent danger or to consider alternatives as opposed to hospitalisation. Under Article 5 § 4 she further complains (i) about her alleged sedation before the court hearing which rendered her effective participation impossible, (ii) that she did not have effective representation during the proceedings and (iii) that despite being aware of all these shortcomings, the domestic court did not protect her procedural rights.

QUESTIONS TO THE PARTIES

1. Was the applicant’s placement in the psychiatric hospital for involuntary treatment “lawful” and “in accordance with a procedure prescribed by law” within the meaning of Article 5 § 1 (e) of the Convention? In particular, was the applicant’s mental health condition of a kind or degree warranting compulsory confinement (see Winterwerp v. the Netherlands , no. 6301/73, 24 October 1979, § 39, Series A no. 33)? Did the national courts authorising the applicant’s involuntary hospitalisation demonstrate that the applicant’s behaviour entailed ‘imminently dangerous behaviour’ as defined by Article 188 of the Health Act (see Gajcsi v. Hungary , no. 34503/03, § 21, 3 October 2006)? Furthermore, did they consider the availability of less restrictive alternatives to the applicant’s involuntary treatment (see Plesó v. Hungary , no. 41242/08, §§ 66-68, 2 October 2012)?

2. Did the domestic courts comply with their obligation to ensure that the judicial review of the application for the applicant’s involuntary treatment is adversarial and the applicant’s legitimate interests are protected as required by Article 5 § 4 of the Convention? In particular, was the applicant given an opportunity to meaningfully participate in the court hearing and was she effectively represented during the proceedings (see M.S. v. Croatia (no. 2) , no. 75450/12, §§ 151-56, 19 February 2015 and V.K. v. Russia , no. 9139/08, §§ 37-40, 4 April 2017)?