The European Court of Human Rights’ (“ECHR”) recent judgment in the case of Cervenka v The Czech Republic (App No 62507/12) once again considers the position of those who are detained against their wishes as a result of mental illness. In this case, C had been found to lack the capacity to perform any legal acts on his own and a guardian had been appointed by the court to act on his behalf. The guardian entered into a contract with a social care home for C to be accommodated there. It was a locked unit housing mainly elderly people with Alzheimer’s disease. C was in his early fifties and had been a long-term alcoholic. He was described as suffering from alcoholic dementia. He objected strenuously to being detained in the care home and (amongst other steps) instructed a lawyer to make applications to the appropriate court.
Various applications made by C’s lawyer were dismissed on the grounds that C did not have the capacity to instruct the lawyer. They could not proceed without the guardian’s support, which was not forthcoming. Further, because the guardian had consented to C’s admission to the social care home, he was considered in law to be there voluntarily and was not able to apply to the court for a review of his detention as that was available only to those admitted involuntarily. As the court had retrospectively approved the guardian’s actions in admitting C to the social care home (albeit without hearing from C) those actions were lawful and he was not entitled to compensation.
The ECHR held that, for the purposes of article 5, it was not sufficient for the deprivation of liberty to be in accordance with the national law; it must also be necessary in the circumstances [para 105]. Moreover, it found that detention cannot be lawful if the domestic procedure does not provide sufficient guarantees against arbitrariness. The court held that a procedure which merely required the guardian’s consent to the admission to such an institution did not provide sufficient safeguards against arbitrariness [para 110]. Further, to comply with the right enshrined in article 5(4) to a review of the lawfulness of the detention, the remedy must be accessible to the detained person and must afford the possibility of reviewing compliance with the conditions to be satisfied if the detention of the person is to be regarded as ‘lawful’ for the purposes of article 5(1)(e) [para 132]. The domestic law did not provide such a remedy. C had been detained in the social care home for six months before he was discharged and an award of €15,000 was necessary to afford just satisfaction.