Table 1: Patient Care and the Right to Liberty and Security of the Person
Examples of Human Rights Violations
- A hospital employs excessive restraints on patients, such as tying them to a bed or wheelchair for hours each day.
- Mentally ill patients are confined without a set procedure or standard.
- There are unjustified delays in reviewing whether mentally ill patients must continue to be institutionalized.
- Patients are detained in hospitals for their inability to pay bills.
- Patients are quarantined unnecessarily.
|Human Rights Standards||Treaty Body Interpretation|
|ICCPR 9(1) Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.||HRC: Considering a period of 14 days of detention for mental health reasons without review by a court in Estonia incompatible with ICCPR 9. CCPR/CO/77/EST (HRC, 2003)|
|ECHR 5(1) Everyone has the right to liberty and security of person. No one shall be deprived of their liberty except in accordance with a procedure prescribed by law [due process] and except in those instances specifically enumerated by this Convention (paraphrase).||ECtHR: Establishing that civil commitment must follow a procedure prescribed by law and cannot be arbitrary; the person must have a recognized mental illness and require confinement for the purposes of treatment. Winterwerp v. The Netherlands, 6301/73 (November 27, 1979).
ECtHR: Mandating speedy periodic legal review of civil commitment with the essential elements of due process. X v. United Kingdom, 7215/75 (November 5, 1981).
ECtHR: Awarding damages for violation of liberty interests to a patient detained in a Hungarian psychiatric hospital for 3 years where the judicial decision of the national court was superficial and insufficient to show dangerous conduct. Gajcsi v. Hungary, 34503/03 (October 3, 2003).
ECtHR: The applicant, who had been diagnosed with autism, was admitted to the hospital as an “informal patient” between 22 July and 29 October 1997, which he maintained amounted to a deprivation of liberty under Art. 5(1). The Court noted that there were no formalised admission procedures, and that because of the lack of procedural safeguards the hospital staff “assumed full control of the liberty and treatment of a vulnerable incapacitated individual solely on the basis of their own clinical assessments completed as and when they considered fit.” The Court held that “this absence of procedural safeguards fails to protect against arbitrary deprivations of liberty on grounds of necessity and, consequently, to comply with the essential purpose of Article 5 § 1” and therefore found a violation of Art. 5(1). H.L. v. United Kingdom, 45508/99 (October 5, 2004).
ECtHR: The applicant was admitted to a clinic for an extended stay where she attempted to escape several times. The Court stated that in order to determine whether there was a deprivation of her liberty, the starting-point had to be the specific situation of the individual concerned with account taken of a wide range of factors, such as the type, duration, effects and manner of implementation of the measure in question. Because the applicant never consented and attempted to escape several times, the Court found that there was a violation of Art. 5(1). Storck v. Germany, no. 61603/00 (June 16, 2005).
ECtHR: The applicant, a mental health patient subject to internment, was detained in a prison where he subsequently committed suicide. The Court held there was a violation of Art. 5(1) because the detention was contrary to national law, which required the internment take place in a specialised institution, or at worst the psychiatric wing of a prison. The Court also recalled its finding in Aerts v. Belgium, 25357/94 (July 30, 1998) in which it held that the detention of a mentally ill person under Art. 5(1)(e) is only lawful if it is carried out in a hospital, clinic or other appropriate institution. DeDonder and De Clippel v. Belgium, 8595/06 (December 6, 2011).
UN Working Group on Arbitrary Detention: “The Working Group has also been informed by several sources that, in some countries, the disabled, drug addicts and people suffering from AIDS are detained in places that are incompatible with their state of health, sometimes without treatment and without it having been established that their detention is justified on medical or public health grounds. The Group is concerned because it is vulnerable persons that are involved, people who are often stigmatized by social stereotypes; but it is concerned above all because often such administrative detention is not subject to judicial supervision.” E/CN.4/2004/3 (December 15, 2003), ¶ 74. (See also, E/CN.4/2005/6 (December 1, 2004), ¶¶ 47-58 on psychiatric detention).