ECHR judgment of 28 March 2017 in the case of Fernandes de Oliveira v. Portugal (application No. 78103/14).
In 2015, the applicant was assisted in preparing the application. Subsequently, the application was communicated to Portugal.
The applicant successfully complained of the suicide of a mentally ill person voluntarily hospitalized in a state mental hospital after an attempted suicide. The case involved a violation of the requirements of Article 2 of the Convention for the Protection of Human Rights and Fundamental Freedoms.
CIRCUMSTANCES OF THE CASE
The applicant's son was voluntarily hospitalized in a state psychiatric hospital for treatment after an attempted suicide in early April 2000. On April 27, 2000, he fled the hospital and jumped under the train. The applicant's son had already been hospitalized several times in the same hospital in connection with his mental illness, which was aggravated by alcohol and drug addiction. According to his medical records, the hospital was informed of his previous attempts at suicide.
ISSUES OF LAW
Concerning compliance with Article 2 of the Convention (substantive law). Given the medical history of the applicant's son and, in particular, the fact that he tried to commit suicide three weeks before, the hospital staff had reason to believe that he might try to commit suicide again. In addition, since he had previously fled the hospital, another attempt at flight with the possibility in the light of his diagnosis of a fatal outcome was to be foreseen.
The Court took note of the evolving trend of providing people with mental disorders with open-door treatment. However, this type of treatment could not free the state from its obligations to protect the mentally ill patients from the threats that they can create for themselves. Thus, it was necessary to establish an equitable balance between the obligations of the state in accordance with Article 2 of the Convention and the need to provide open door care, taking into account individual needs for special monitoring of suicidal patients. In establishing equilibrium, the distinction between voluntary and involuntary hospitalization should not be taken into account: since the hospitalized person was voluntarily under the care and supervision of the hospital, the state's obligations were to be the same as otherwise voluntarily hospitalized persons would be deprived of the protection of Article 2 of the Convention.
The hospital staff checked whether the patients were present when taking food and medicine. In addition, there was an order according to which, when a patient was found to be absent, a search was organized for him in the hospital and the police and the family were informed. In the present case, the applicant's son was last seen shortly after 4 pm, but his absence was not noticed until 7 pm, as he did not appear for dinner. By this time he was already dead. Thus, the emergency procedure proved ineffective to prevent his escape and, therefore, suicide. The threat was exacerbated by open and unrestricted access from the hospital to the railway platform. In view of the positive obligation to take preventive measures to protect a person whose life was at risk and to a mentally ill patient who recently attempted suicide and was prone to escape, more effective measures could be expected from the hospital staff to ensure that he will not leave the room.
The violation of the requirements of Article 2 of the Convention (unanimously) was committed in the case.
The Court also found unanimously that there had been a violation of the procedural aspect of Article 2 of the Convention, since the proceedings had continued for more than 11 years at two levels of jurisdiction. The domestic legal mechanisms as a whole did not provide in practice an effective and prompt reaction on the part of the authorities, consistent with the procedural obligations of the state.
In the application of Article 41 of the Convention. The Court awarded the applicant EUR 703 80 cents in respect of pecuniary damage and EUR 25,000 in respect of non-pecuniary damage.