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1. I fully support and welcome the findings of the Court in this important judgment, which deals with the death of the applicant’s brother, Mr P.Z., at a psychiatric hospital, to which he had been admitted the previous night on account of a deterioration in his mental health. Mr P.Z. died amidst the attempts of two police officers, who had been called by the medical staff, to restrain him in the prone position (that is, lying face down on the floor) using an electrical discharge weapon, commonly referred to as a “taser”. The Chamber found that Article 2 of the Convention had been violated, both in its substantive and procedural aspects.
2. In reaching these correct conclusions, the Court has chosen a careful, if not somewhat conservative, line of argumentation. The purpose of this concurring opinion is to set out additional elements on several key aspects of the case. This concerns such issues as (A) the Court’s general approach to the protection of human rights in closed psychiatric institutions, including the standard of scrutiny in cases involving death or alleged ill-treatment; (B) the question of an alleged violation of negative obligations under Article 2 of the Convention; and (C) issues related to the intervention of police forces to assist medical staff in a therapeutic environment, including the use of electrical discharge weapons (“tasers”).
PROTECTION OF HUMAN RIGHTS IN A PSYCHIATRIC SETTING
3. Psychiatric establishments present considerable and multiple challenges in terms of protection of the human rights of the persons placed in them. These challenges are exacerbated by a lack of attention from society to these establishments, the paucity of their resources, often-inadequate levels of remuneration and the poor working conditions offered to staff in such hospitals, despite their inherently difficult but crucially important function. As evidenced by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (“the CPT”), which regularly visits psychiatric hospitals in all States Parties to the Convention, there remains a substantial risk of ill-treatment of patients in psychiatric hospitals.
4. One of the factors that the Court must always take into consideration when assessing allegations related to the infliction of death or ill-treatment on patients in psychiatric hospitals is the closed nature of such institutions. In my view, the appropriate standard of scrutiny should, as a rule, be the same as that developed by the Court for similar allegations with regard to places of deprivation of liberty, such as prisons or police detention facilities, taking into additional account the patients’ vulnerability.
5. Individuals placed in a psychiatric hospital without a practical (as opposed to a theoretical) possibility to leave it of their own volition find themselves, in reality, under the complete control of the personnel. Although the degree of such control will vary depending on the legal status of the patient concerned, it remains a weighty factor. This is all the more so given that that in many European countries, including the Czech Republic, a significant number of persons in psychiatric hospitals belong to the category of so-called “de facto involuntary patients”, to use the CPT’s terminology. Therefore, the decisive criterion in the Court’s choice of its standard of scrutiny when examining alleged violations of Articles 2 and 3 of the Convention should be the factual situation of the patients, even if they were formally deemed to have consented to their admission to hospital.
6. In certain respects, the degree of control that may be exercised over their patients by staff in psychiatric hospitals may even exceed that existing in prisons and other places of deprivation of liberty. This control is even more substantial with regard to interference in patients’ personal autonomy in the form of restraint, be it manual, mechanical or, even more so, chemical (see the description of various means of restraint in paragraph 47 of the judgment). When the application of a means of restraint, such as, typically, placement in seclusion rooms or tying down on beds (“mechanical restraint”), is deemed necessary in respect of a voluntary patient and he or she disagrees, such a patient can no longer be considered to be voluntary and, according to the CPT’s standards on the means of restraint, his or her legal status should be reviewed. This is yet another argument for the Court to apply stricter scrutiny to the treatment of patients in closed psychiatric hospitals.
7. It is also not accidental that psychiatric hospitals are part of the mandate of the international and domestic monitoring bodies created to prevent ill-treatment of persons deprived of their liberty, namely: the CPT, created by the 1987 European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment as a non-judicial preventive body subsidiary to the machinery created by the European Convention on Human Rights; and the organs established by virtue of the 2002 Optional Protocol to the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, specifically the United Nations Subcommittee on Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment of the Committee against Torture and the national preventive mechanisms (NPMs). In the Czech Republic, the tasks of the National Preventive Mechanism are exercised by the Public Defender of Rights (see paragraph 77 of the judgment).
8. These monitoring bodies are entitled to carry out monitoring visits to psychiatric hospitals, and their factual findings and any recommendations based on such findings carry particular weight in the Court’s assessment of allegations of ill-treatment of patients. The reliance of the present judgment on such findings and recommendations is therefore very welcome. In my view, its use is twofold. On the one hand, reports by monitoring bodies help the Court to define the scope of the State’s obligations vis-à-vis psychiatric patients in closed institutions. Such reports, in so far as they address general deficiencies and potential risks of ill-treatment of patients, taken together with the responses provided by the authorities to the relevant findings and recommendations, allow the Court to be better informed in its examination of specific allegations of violations of the rights guaranteed by the Convention, against the background of these general issues as identified by the monitoring bodies. On the other hand, concrete assessment of important individual cases such as the present one, by national human-rights institutions (such as the Czech Public Defender of Rights), should also be taken into account by the Court, especially in a situation where, as in the present case, the authorities have failed to discharge their obligations under the procedural limb of Article 2. This approach is also applicable, mutatis mutandis, to alleged violations of Article 3.
9. As regards the link between Articles 2 and 3 of the Convention, in the present case the Court concluded that it was not necessary to examine complaints under the latter provision, given that it had examined and found violations in both the substantive and procedural aspects of the right to life. In my view, the Court’s analysis of the violations under Article 2 of the Convention in the present case would, in principle, allow it to conclude that there has also been a breach of the prohibition on ill-treatment. While it was not necessary to state this explicitly in the judgment, this consideration should be kept in mind when applying the Court’s conclusions in the present case to future situations where Article 3 is primarily at stake.
ALLEGED FAILURE TO COMPLY WITH NEGATIVE OBLIGATIONS UNDER ARTICLE 2 OF THE CONVENTION
10. In the present case, the medical experts were unable to establish with certainty the exact cause of P.Z.’s death. Among the potential causes of the fatal outcome, some pertain to direct actions by the police and hospital staff, whereas others are linked to the patient’s underlying medical conditions. The actions by the hospital staff and police include repeated electric shocks with a “taser”, an attempt to restraint the patient in a potentially life-threatening prone position (see paragraphs 44–46 of the judgment), and injecting him with tranquilising and antipsychotic medication, all within a very short lapse of time. These actions were undertaken against the background of the patient’s hypertension (with which he had been diagnosed prior to the tragic events in question, and of which the medical staff ought to have been aware), an anomaly of his blood vessels (established only post-mortem) and the effects of stress and strain caused by the psychotic episode (see paragraph 18 of the judgment).
11. In my view, the circumstances of the case made it perfectly possible for the Court not only to find a violation of Article 2 in its substantive aspect due to the authorities’ failure to comply with their positive obligations, but also a violation on account of the direct failure to comply with their negative obligations, as a result of the disproportionate degree of force used against P.Z. by the police officers and hospital staff. Although the Court was one step away from reaching this conclusion in paragraph 99 of the judgment, it preferred not to express itself at all on the issue of negative obligations within the substantive aspect of Article 2.
POLICE INTERVENTION AND THE USE OF ELECTRICAL DISCHARGE WEAPONS IN PSYCHIATRY
12. In the present case the medical staff of the Psychiatric Clinic of Olomouc University Hospital resorted to seeking police assistance in order to subdue P.Z., following their failure to place him under observation in a secure (seclusion) room the previous night, purportedly due to the unavailability of such vacant rooms within the hospital, the inability to move him safely into such a room once it became available in the very early morning of 6 November 2015, and the failure on the part of the hospital’s medical and auxiliary staff, including its own security guards, to restrain this patient.
13. In this respect, the key comment is made by the Court in paragraph 100 of the present judgment, which states that “there is nothing unusual about persons hospitalised in the acute care unit of a psychiatric clinic being agitated or violent” and that “psychiatric institutions must, in principle, be appropriately staffed and equipped to handle such patients by their own means…, so as to have recourse to the assistance of the police only as a means of last resort and in due coordination with them…”. While this approach is correct, the main difficulty would lie in the demand of “due coordination” of medical staff and the police, as well as in the almost inevitable lack of training of police officers in managing such situations. Therefore, in line with the approach to this matter consistently taken by the CPT (see paragraph 48 of the judgment), an end should be put to the practice of involving police officers in the restraint of agitated patients in psychiatric hospitals. That said, the inclusion of the words “in principle” in the above quotation is justified, as there would still be situations where hospitals could simply not avoid calling police for help. What is important is that such situations do not develop into a frequent pattern, and that they are surrounded by all sorts of safeguards.
14. This logic is also important for the assessment of the question of whether electrical discharge weapons (“tasers”) may in principle be used in psychiatric hospitals. While duly quoting the views of the CPT, the UN High Commissioner for Human Rights, and the Czech Constitutional Court (see paragraphs 98 and 105 of the judgment), the Court avoids a clear general statement to the effect that electrical discharge weapons should not be used against patients in psychiatric clinics. Instead, the Court concentrates on the lack of the relevant legal and administrative framework regulating such use. While this is an entirely legitimate approach, I believe that the crux of the matter lies precisely in the fact that “tasers” should never be used against vulnerable persons, such as psychiatric patients, save for situations where there are no other means to save life or limb, either of that patient or of other persons. In other words, the threshold for their application should be the same as for more lethal weapons, such as firearms.
15. Be that as it may, electroshock devices must never be perceived as yet another admissible form of means of restraint in a psychiatric hospital. Nor should manual restraint in the prone position, potentially causing asphyxia, be allowed. As illustrated by the present case, such measures may easily result in a violation of the most fundamental human rights.
CONCLUSION
This case provides rich material and addresses key shortcomings in the treatment of psychiatric patients, already identified by the CPT and other bodies active in the field of human rights in such establishments. I would like to hope that the conclusions of this judgment, as well as certain parts of the Court’s reasoning, will be taken up by the domestic authorities, not only in the respondent State but also elsewhere in Europe, in order to support the work of staff in psychiatric hospitals and to strengthen the protection of their patients’ human rights.
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