EHRM, 31-01-2019, nr. 78103/14

The applicant's son, A.J., was born on 29 May 1964.

A.J. suffered from several mental illnesses, with a number of possible diagnoses being considered over the years such as schizophrenia and major depression. He also had a pathological addiction to alcohol and prescription drugs (medicamentos) and was sometimes violent towards his mother and sister. According to the expert medical opinion obtained after his death and during the domestic proceedings (see paragraph 33 below), A.J. may also have suffered from borderline personality disorder.

A.J. was hospitalised in the Sobral Cid Psychiatric Hospital (Hospital Psiquiátrico Sobral Cid, hereinafter ‘the HSC’) in Coimbra on eight occasions on a voluntary basis from:

The medical files show that his degree of dependence on medical assistance (grau de dependência) varied during these stays between being a patient in need of partial assistance and a patient requiring intensive or full assistance. At other times the degree of dependence was not noted, as was the case for his last stay in 2000. Between some of these stays he saw a doctor at the HSC as an outpatient but on an infrequent basis.

According to the Government, these stays followed emergencies or bouts of alcoholic intoxication, and only the last stay followed a suicide attempt.

During some of the periods he spent in hospital, A.J. was authorised to spend weekends at home with his family — three weekends during the period from 12 December 1999 to 14 January 2000, and two weekends during the period from 2 to 27 April 2000.

In March 2000 A.J. went to Lisbon to try to renew his driving licence for heavy vehicles. However, he was unsuccessful. On 1 April 2000 he attempted to commit suicide by taking an overdose of prescription drugs. He was taken to the emergency department of Coimbra University Hospital.

On 2 April 2000 A.J. was voluntarily admitted to the HSC from the emergency department (this was the last of his stays at the HSC (see paragraph 12 above). He was treated by Dr A.A., who had been his psychiatric doctor since December 1999. According to the clinical records dated 2 April 2000 and the witness statement of Dr A.A., the suicide attempt may have been the result of his failure to renew his driving licence. According to her, he had become depressed and thought his life no longer had any value, he felt marginalised and also powerless to achieve any aim in life.

For the first week of his stay at the HSC, he was placed under a restrictive regime, even though he was a voluntary inpatient (see paragraph 54 below). He was confined — in his pyjamas — to pavilion 8, where the Male General Psychiatric Clinic (Hospitalisation of Acute Cases) was located, and was not allowed to leave the pavilion. However, the clinical records show that on 3 April 2000 he left the pavilion after lunch and went home. He was brought back to the HSC by his brother-in-law at around 1.30 p.m. In the second and third week of that stay at the HSC, given an improvement in A.J.'s condition, the restrictive regime was lifted and he was allowed to circulate outside the pavilion and within the HSC grounds. This regime remained unchanged up until his death on 27 April 2000 (see paragraph 28 below). During that period he was allowed to spend two weekends at home.

During the second weekend A.J. was allowed to go home to spend Easter with the applicant and other members of his family. He left the HSC at 10 a.m. on Friday 21 April 2000 after his breakfast, and was due to return on Wednesday 26 April 2000 after breakfast. Dr A.A. was on holiday over that period (she had left on 19 April 2000) and was replaced by Dr E.R. Dr E.R. saw A.J. twice before the latter spent the Easter weekend at home.

At around 10.30 p.m. on Tuesday 25 April 2000, the applicant took A.J. to the emergency department of the Coimbra University Hospital because he had drunk a large amount of alcohol. The observation record completed by the emergency department at around midnight on 25 April 2000 read as follows:

He was prescribed medication in case of emergency, and it appears from his clinical records that he was given emergency medication at around 2 a.m. on 26 April 2000 at the HSC.

The clinical record from 8 a.m. to 4 p.m. on 26 April 2000 shows that A.J. stayed in bed and only got up to eat. He received phone calls and a visit from his sister. There is no clinical record for the shift from 4 p.m. to midnight and for the shift from midnight to 8 a.m. the next day. The domestic courts accepted that the applicant's son had been medicated for the whole day, whereas the applicant contested that fact on the basis of the lack of any clinical record.

The clinical record resumes at 8 a.m. on 27 April 2000. The nurse noted that between 8 a.m. and 4 p.m. A.J.'s behaviour had been calm and he had been walking around outside pavilion 8. According to the oral statement of one nurse and the clinical record, he had eaten well, including his afternoon snack at around 4.45 p.m.

The clinical records do not mention that A.J. was seen by the doctor on call on returning to the HSC. Dr E.R. stated in his oral evidence that he had assumed that A.J. was fine since the nurses had not requested any assessment (see paragraph 35 below).

At around 4 p.m. the applicant called the hospital. She was told to call back later, during the afternoon snack, as her son was not inside the building at that time. She was assured that some minutes earlier he had been standing at the door and he looked fine.

At around 7 p.m. it was noticed that A.J. had not appeared for dinner. The coordinating nurse was informed of his absence. The hospital staff then started searching the areas where patients were allowed to walk about freely, such as the cafeteria and the park.

At some time between 7 p.m. and 8 p.m. the coordinating nurse reported the disappearance to Dr M.J.P., who was on call that day (but not at the HSC at that time), and contacted the National Republican Guard.

At around 8 p.m. the coordinating nurse spoke on the telephone to the applicant and told her that A.J. had not appeared for dinner.

It is not known at what precise time A.J. left the pavilion and the hospital grounds after he had taken his afternoon snack and thereafter followed a footpath towards the applicant's house. At 5.37 p.m., dressed in his pyjamas, A.J. jumped in front of a train running between Lousã and Coimbra.

On 17 March 2003 the applicant lodged a civil action with the Coimbra Administrative Court (Tribunal Administrativo do Círculo de Coimbra) against the HSC under the State Liability Act (Legislative Decree no. 48051 of 21 November 1967) seeking pecuniary and non-pecuniary damages of 100,403 euros (EUR).

The applicant claimed that her son had been treated at the HSC for mental disorders on several occasions. He had been admitted to the hospital as a voluntary inpatient on 2 April 2000 because he had attempted to commit suicide. She alleged that he had made another attempt over the Easter weekend when he was at home with her. The fact that her son had been able to leave the hospital grounds on 27 April 2000 had led the applicant to conclude that the hospital staff had acted negligently in the performance of their duties. Because of his suicide attempts and mental condition, her son should have been under medical supervision and the hospital staff should have prevented him from leaving the hospital grounds. She maintained that her son's suicide had been caused by the poor organisation of the hospital services. The poor organisation was reflected in three aspects: a) the lack of fencing around the boundaries of the hospital, which allowed inpatients to leave the hospital easily without any supervision, b) the lack of a mechanism for checking the presence of inpatients which would allow the hospital staff to notice an absence immediately, and c) the lack of an emergency procedure capable of detecting an inpatient's absence, which would allow the hospital staff to adopt the effective measures required to ensure that the inpatient was returned safely without endangering the lives of others or his own life. The applicant relied on the specific background leading to A.J.'s hospitalisation since the beginning of April as well as details from his clinical record, notably his repeated excessive consumption of alcohol, his mental illness, and his earlier suicide attempt. She maintained that on account of all those circumstances, the monitoring measures should have been enhanced in order to prevent him from leaving.

On 29 October 2003 the court gave a preliminary decision (despacho saneador) specifying the facts considered to be established and those which remained to be established.

On 5 July 2005 the court ordered that an expert report be drawn up on A.J.'s clinical condition and the supervision measures required as a result of that condition.

On 27 September 2006 a psychiatrist appointed by the Medical Association (Ordem dos Médicos) submitted his report, which was based on an analysis of photocopies from the clinical files of the HSC. The relevant parts of the report read as follows:

The first hearing took place on 8 October 2008. The applicant and the psychiatrist who had issued the above medical opinion gave evidence at the hearing.

At five hearings (namely on 8 and 9 October 2008, on 14 January 2009, and on 9 and 13 February 2009) the court heard evidence from different witnesses, including: the applicant's daughter (A.J.'s sister); nurses, doctors and medical auxiliaries who had worked for or were still working for the HSC, some of whom had started their shift at 4 p.m. on 27 April 2000; a social worker employed by the HSC since 1995, who had had contact with A.J.; and the train driver. Dr A.A., who had been A.J's psychiatric doctor at the HSC, gave evidence that his treatment consisted of taking the prescribed medication, ensuring that he received the treatment voluntarily, and establishing a relationship of trust with him in order for him to receive therapy. She confirmed that voluntary inpatients could have their freedom of movement restricted if it was thought necessary. In these circumstances inpatients would be forbidden from leaving the pavilion and would remain in their pyjamas. Dr E.R. (who had been replacing Dr A.A. at the relevant time) confirmed that on 27 April 2000 there had been no mention on the information board in pavilion 8 of any restrictive measures in respect of A.J. In other words, he had been free to leave the pavilion, although to leave the grounds of the HSC he would have needed medical permission. Dr M.J.P., who had been the emergency doctor on call on 27 April 2000, explained that had the nurses in the pavilion seen a problem with A.J.'s behaviour on that day they would have called her, which they had not done. The court also analysed several documents attached to A.J.'s clinical file from the HSC.

On 9 March 2009 the court conducted an on-site inspection (see paragraph 48 below).

On 7 January 2010 the court held a hearing at which it adopted a decision concerning the facts. The court considered, inter alia, that it should not explicitly define A.J.'s pathology. Regarding the episode on 25 April 2000, the court decided to view it simply as an abuse of alcohol, taking into account his underlying chronic alcoholism and the fact that the drinking had taken place in the afternoon and mainly at a café.

On 25 April 2011 the Coimbra Administrative Court delivered a judgment in which it ruled against the applicant. With regard to the applicant's argument that the hospital should have erected fences or other barriers around the hospital grounds, the court pointed out that the current approach in the treatment of mentally ill patients was to encourage social interaction. The existence of fencing would lead to the stigmatisation and isolation of mentally disabled inpatients. In this regard it held that the lack of security fences or walls was:

As to the applicant's complaint regarding the lack of a mechanism capable of checking the presence of inpatients, the court found that the HSC had a surveillance procedure in place which consisted of verifying the inpatients' presence at meal and medication times; this was in compliance with recent psychiatric science and respected the inpatients' right to privacy and dignity. Additionally, the court found that the inpatients in respect of whom a specific restrictive regime of hospitalisation was adopted were given more attention by the nursing team and the medical assistants, who verified their presence inside the building where they were hospitalised or in the areas surrounding the building's entrance, as the case may be. With regard to the applicant's argument that no emergency procedure existed, the Coimbra Administrative Court noted that it consisted of alerting the police and the inpatient's family in the event of absence. It found this procedure to be appropriate.

As regards the applicant's complaint that her son had committed suicide as a result of the absence of permanent monitoring, the court held that his suicide had not been foreseeable. It was true that her son had been suffering from a mental illness which had never been properly diagnosed, either because the symptoms were complex or because he had been addicted to alcohol and prescription drugs. In this regard, the court pointed out that over the years the applicant's son had been diagnosed with schizophrenia and major depression. However, it was only after his death and as a consequence of an expert opinion requested from the Medical Association during the proceedings (see paragraph 33 above) that a probable diagnosis of borderline personality disorder had been made. The court established that A.J. had last been admitted as an inpatient after a suicide attempt. However, it considered that despite the possibility that inpatients diagnosed with mental diseases such as those of the applicant's son might commit suicide, during the last days before his death he had not shown any behaviour or mood which could have led the hospital staff to suspect that 27 April 2000 would be different to the preceding days.

According to the Coimbra Administrative Court, the fact that he had been admitted to the emergency department of the Coimbra University Hospital because he had consumed a large amount of alcohol had not been the result of a suicide attempt but of reckless behaviour. The Coimbra Administrative Court found that, having returned to the HSC, he had been kept under medical supervision the whole day, was medicated and accompanied by the medical staff, and that his health had improved. The court thus concluded that there were no circumstances that would have made it possible to predict the tragic outcome that had occurred. It was not possible to affirm that his suicide had been predictable, nor was there anything in the case file that could have justified the adoption of the involuntary treatment procedure in the days preceding the tragedy, since it was not foreseeable that he would commit suicide. According to the court, A.J.'s behaviour had been ‘absolutely unexpected and unforeseeable’, given the concrete circumstances of the case.

On 12 May 2011 the applicant appealed to the Administrative Supreme Court, claiming that the first-instance court had wrongly assessed the evidence, that its findings of fact had been incorrect, and that it had wrongly interpreted the law.

On 26 September 2012 the Deputy Attorney-General attached to the Administrative Supreme Court was asked to provide an opinion on the appeal. He recommended that the first-instance judgment should be reversed. The opinion focused on the failure to put in place a surveillance framework specifically adapted to A.J.'s mental health problems and risk of suicide, as well as the alleged failure of the HSC to comply with its obligation to prevent suicide. It stated that:

Regarding the facts which the applicant had relied on concerning several HSC inpatients who had left without permission and the resulting tragic consequences, the opinion noted that those elements should not be taken into consideration.

According to the opinion:

On 29 May 2014 the Administrative Supreme Court dismissed the applicant's appeal by two votes to one, upholding the legal and factual findings of the Coimbra Administrative Court. The Administrative Supreme Court found that the facts relied on by the applicant before the lower court concerning similar cases of inpatients who had left the HSC without permission were irrelevant to the decision in the instant case. The court rejected the applicant's argument that A.J. had exhibited depressive behaviour with a ‘strong’ tendency towards suicide, which he had attempted on different occasions. It upheld the finding of the lower court which had established only one suicide attempt on 1 April 2000.

The Administrative Supreme Court considered that the practice of counting of inpatients at meal and medication times was sufficient and had allowed the hospital staff to verify A.J.'s attendance during lunch and the afternoon snack on 27 April 2000. It rejected the applicant's argument that counting the inpatients when they were given their meal trays with their meals was ‘deeply amateurish’. As to the foreseeability of the suicide, the Administrative Supreme Court held that the HSC had not breached any duty of care, as there had been no indication which could have led the hospital staff to suspect that the applicant's son would try to commit suicide that day, namely by leaving the hospital grounds. The Administrative Supreme Court took into account that during previous periods of hospitalisation the applicant's son had also left the hospital grounds, and that no link had been established between that behaviour and a particular risk of suicide in so far as they had only been able to establish the existence of a single suicide attempt, namely on 1 April 2000.

In a dissenting opinion, one of the judges stated that the hospital should have secured the grounds in some way in order to fulfil its duties of care and supervision. By not doing so, it had allowed inpatients to leave easily without being discharged, thus breaching those duties. That omission had been the cause of the ‘escape’ and suicide of the applicant's son.

The HSC is a psychiatric hospital located outside Coimbra on seventeen hectares of land. It is part of the Coimbra University Hospital and is State-run.

According to an on-site inspection made by the Coimbra Administrative Court on 9 March 2009 in the course of the proceedings against the hospital, the HSC had eighteen buildings (one for each hospital department). On the basis of information before the Court it appears that different types of patients were hospitalised in these different buildings depending on their gender and the type and extent of their illness. The grounds of the HSC were not bordered by security fences or walls of any other kind. The buildings were surrounded by green areas with trees and other vegetation, and the different buildings were accessed by means of roadways and paths, which were also surrounded by trees and other vegetation. The main entrance to the HSC had a barrier and a security guard. One of the possible exits from the hospital grounds led to a shortcut towards a railway station platform. This shortcut was accessed by taking the road behind building no. 9. The station platform was around a fifteen to twenty-minute walk from that part of the HSC's grounds.

In accordance with the guidelines prepared by the HSC, meals were taken in the hospital cafeteria and inpatients had to remain there until the end of the meal. There was a User's Guide intended for inpatients which set out the rules governing their hospitalisation. Inpatients were not allowed to leave the pavilion without informing the relevant nurse in advance. Inpatients were also forbidden to leave the hospital grounds without the authorisation of a specialist. If an inpatient wished to leave the hospital before authorisation had been given, a discharge form had to be signed.

The following schedule was in place during A.J.'s stay in April 2000:

A mechanism was in place, as recognised by the domestic courts, for checking an inpatient's presence, by counting the inpatients at each meal time (five times a day) and at medication time. In addition to this, an inpatient's presence was checked at bedtime. Inpatients under a restrictive hospitalisation regime were monitored more closely by the nursing team.

An emergency procedure was triggered when the absence of a patient was noticed. This procedure consisted of alerting the police, the doctor on call and the inpatient's closest relatives.

During hospitalisation an inpatient was accompanied by a therapeutic team made up of a doctor, a nurse, a social worker, and a medical auxiliary.

A distinction was made between voluntary and involuntary hospitalisation (see paragraph 58 below). Under voluntary hospitalisation, an inpatient could abandon treatment at any moment. However, according to the doctors who testified in the domestic proceedings and the Government's observations, there were two types of regime for voluntary inpatients: a restrictive regime, according to which inpatients were not allowed to leave the pavilion, and a general regime, allowing inpatients to leave the building after informing the duty nurse, although they were still not allowed to leave the grounds of the HSC without permission. Inpatients under the restrictive regime were generally dressed in pyjamas and a dressing gown, while inpatients under the general regime seem to have had a free choice as to what they wore. It appeared that inpatients were often kept on the restrictive regime at the beginning of a hospital stay, even if they were admitted on a voluntary basis. There was an isolation room for inpatients who were very agitated and aggressive and this room could also be used for voluntary inpatients.

The applicant submitted news articles to the Court referring to inpatients who had apparently managed to leave the HSC's grounds. The first five articles below had already been submitted to the domestic authorities (see paragraph 44 above where the Administrative Supreme Court found the information contained therein to be irrelevant to the decision in the instant case):

The Health Act (Law no. 48/90 of 24 August 1990) provides that health care is dispensed by State services and establishments and by other public or private, profit-making or non-profit entities under State supervision. Under Basic Principle XIV of the Act, users of the health-care system have, among other rights, the right to freely choose their doctor and health-care establishment, the right to receive or refuse the treatment offered, the right to be treated in an appropriate and humane manner, promptly and with respect, the right to be informed about their condition, of possible alternative treatments and of the likely development of their condition, and the right to complain of the manner in which they have been treated and to receive compensation for any damage suffered.

The Health Act is regulated by Legislative Decree no. 11/93 of 15 January 1993, which approved the National Health-Care System Regulations. Under Article 38, the State has the task of supervising health-care establishments; the Ministry of Health is responsible for setting health-care standards, without prejudice to the functions assigned to the Medical Association and the Pharmacists' Association.

The Mental Health Act (Law no. 36/98 of 24 July 1998) sets out the general principles of mental-health policy and regulates the voluntary and involuntary hospitalisation of inpatients with psychiatric disorders. The relevant provisions read as follows:

Section 3 — General principles of mental health

Section 7 — Definitions

Section 12 — Requirements

Section 13 — Locus standi

Legislative Decree no. 48051, in force at the time the proceedings were instituted by the applicant, governed the State's non-contractual civil liability. It contained the following provisions of relevance to the instant case:

Article 2 § 1

Article 4

Article 6

According to domestic case-law concerning the State's non-contractual liability, the State is required to pay compensation only if an unlawful act has been committed with negligence and there is a causal link between the act and the alleged damage.

Legislative decree no. 35/99 of 5 February 1999, in force at the time of A.J.'s last stay in hospital, contains provisions on the organisation of psychiatric and mental health care. The preamble reads as follows:

The relevant provisions provide as follows:

Article 1 — Object

Article 2 — General principles

Article 16 — Tasks of psychiatric hospitals

In 2007 the Ministry of Health introduced a protocol on the use of means of mechanical restraint in all Portuguese hospitals, including psychiatric hospitals. This was repealed and replaced by broader Guidelines in 2011 (see below).

Pursuant to Article 2 § 2, c) of Regulatory Decree No. 66/2007, of 29 May 2007, as amended by Regulatory Decree No. 21/2008, of 2 December 2008, the following guidelines were issued:

The relevant provisions of the Code read as follows:

Article 487

In a judgment of 25 July 1985, the Supreme Court of Justice analysed the duty to supervise mentally ill patients who were hospitalised. It held that whenever a mentally ill inpatient was hospitalised and receiving treatment, the hospital had an obligation to comply with its medical and supervision duties. In the case at hand, the Supreme Court considered that the hospital had failed to fulfil that obligation by allowing a mentally disabled inpatient hospitalised under an open regime to leave the premises without a hospital discharge and by not making all due efforts to secure his immediate return.

In a judgment of 25 November 1998, the Supreme Court of Justice examined whether by failing to object to an inpatient leaving its psychiatric department, a hospital was in breach of its duty of supervision. It considered that a breach had not occurred because it had been established, inter alia, that (i) the psychiatry department of the hospital functioned on the basis of an ‘open-door’ regime; (ii) there had been no express order of the health service preventing the inpatient from leaving the department; (iii) the doctors had considered it inadvisable to restrict the inpatient's freedom of movement; (iv) on the day of her suicide attempt, the inpatient had appeared to be acting normally; and (v) the inpatient's suicide attempt could not have been predicted from her behaviour.

In a judgment of 29 January 2009 the Administrative Supreme Court considered that the duty to supervise a mentally ill inpatient who had jumped from a window in his room had not been breached. The Administrative Supreme Court noted, inter alia, that the duty of supervision existed only in relation to risks which could be ascertained by a prudent assessor. In the case at issue, there had been no evidence that the inpatient might attempt to commit suicide. Thus, the level of supervision adopted had been in accordance with his condition and the foreseeable risks. The hospital had therefore not been responsible for the fact that the inpatient had jumped from the window.

In the proceedings before the Chamber, the applicant claimed 703.80 euros (EUR) in respect of pecuniary damage, representing the expenses incurred for the funeral service. She also claimed EUR 40,000 corresponding to the loss of income sustained in respect of a monthly payment of EUR 200 that her son used to pay her. She further claimed EUR 40,000 in respect of non-pecuniary damage (EUR 30,000 in respect of the substantive violation of Article 2 and EUR 10,000 in respect of the procedural violation of Article 2).

The Chamber awarded the applicant in full the amount claimed in respect of the funeral service. However, as to the alleged loss of financial support, the Chamber did not discern any causal link between the violation found and the pecuniary damage alleged. As to the claim for non-pecuniary damage, the Chamber found it reasonable to award the applicant EUR 25,000 in respect of the anguish and distress suffered as a result of the circumstances of her son's death and her inability to obtain a domestic decision in a reasonable time.

Before the Grand Chamber, the applicant repeated the requests made before the Chamber in respect of pecuniary and non-pecuniary damage.

As regards pecuniary damage, the Court observes that the State was not found liable for the death of her son. Accordingly, as no causal link has been found between the actions of the HSC and A.J's death, no award is made in for her claim in respect of pecuniary damage.

Concerning non-pecuniary damage, it considers that the applicant must have experienced distress and frustration on account of the protracted nature of the domestic proceedings which she had brought to establish the cause of her son's death. The Court awards her EUR 10,000 under this head.

Before the Chamber, as before the Grand Chamber, the applicant claimed EUR 409 for the costs and expenses incurred before the domestic courts, representing the legal fees she had paid. She submitted the relevant invoice in support of her claim. The Chamber awarded in full the sum claimed under this head, plus any tax that may be chargeable to the applicant.

According to the Court's case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum (see Sargsyan v. Azerbaijan (just satisfaction) [GC], no. 40167/06, § 61, 12 December 2017). In the present case, regard being had to the documents in its possession and the above criteria, the Court awards in full the sum claimed under this head, plus any tax that may be chargeable to the applicant. The applicant, who was granted legal aid for the proceedings before the Grand Chamber, submitted no claim for costs and expenses in relation to the proceedings before this Court.

The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

The State's positive obligation in the sphere of health care requires it to make regulations compelling hospitals, whether public or private, to adopt appropriate measures for the protection of their patients' lives.3.According to Lopes de Sousa Fernandes v. Portugal,4.the State's obligation under Article 2 of the Convention in the context of health care includes a duty to create a regulatory framework to protect the patient. The majority follow this line of case-law.5.Even assuming the existence of such a Convention obligation in the narrow terms that it was formulated in the judgment,6.I find that the respondent State did not comply with it, for the following reasons.

Article XVII of Law no. 2006 of 11 April 1945 regulated the State obligation to protect the life of mentally ill patients in voluntary internment in public hospitals, providing for an open and a closed regime. This regulation was maintained by Article XXII of Law no. 2118 of 3 April 1963 and, after the revolution of 1974, Decree no. 127/92 of 3 July 1992 still referred to those regimes. The current Law — no. 36/98 of 24 July 1998 — repealed them, but they have remained in practice, without any legal basis.

With regard to the regulatory framework in Portugal and in particular the Hospital Sobral Cid (‘the HSC’) at the time of the facts, it is useful to cite the following passages from the report of the Committee for the Prevention of Torture (‘the CPT’):

In 2003 and 2008 the CPT insisted, in general terms, on the need for a ‘detailed’ and ‘written’ policy on the isolation of psychiatric patients, for ‘all psychiatric hospitals’, including ‘private psychiatric hospitals’:

Only in 2007 did the Ministry of Health introduce a protocol on the use of means of ‘mechanical restraint’ in all Portuguese hospitals, including psychiatric hospitals (Circular No. 08/DSPSM/DSPCS), which was repealed and replaced in 2011 by new, broader guidelines of the Directorate General of Health no. 21/2011, of 6 June 2011, on the use of means of restraint of patients, which cover ‘seclusion and mechanical and chemical restraint’ (Orientação da Direção-Geral da Saúde no. 21/2011, de 6/06/2011 Prevenção de comportamentos dos doentes que põem causa a sua segurança ou da sua envolvente — Contenção de Doentes).

The guidelines refer to five types of restraint: therapeutic (control of the patient's physical activity or behaviour or of part of his or her body), environmental (control of the patient's freedom of movement, for instance in a restricted space, like an isolation room (sala de confinamento) where the patient can move around safely under clinical supervision), physical (seizing, removing or blocking a patient in order to avoid a situation of risk), mechanical (use of instruments that restrict movement) and chemical (medication that inhibits the patient's movements). According to point 9 of the guidelines, each hospital should prepare internal guidelines implementing the national guidelines in accordance with the specific health care provided by each hospital. The reasons for the guidelines were expressed as follows:

In a 2012 visit to Portugal, the CPT reacted to the new framework as follows:

As a matter of fact, the guidelines adopted in June 2011 by the Ministry of Health on the use of means of restraint were not applied systematically in the country13.. Worse still, even in the case of persons in voluntary internment, inpatients were not heard about the application of such regimes14.. Medical staff did as they pleased when they pleased.

On the use of means of restraint and the use of pyjamas, the CPT could not be clearer, insisting notably on the need for a centralised register for ‘all forms’ of use of restraint ‘in every psychiatric establishment’:

It is highly significant that the CPT set standards that should be used in ‘every’ psychiatric establishment with ‘every competent patient, whether voluntary or involuntary’, such as ‘Every competent patient, whether voluntary or involuntary, should be fully informed about the treatment which it is intended to prescribe and be given the opportunity to refuse treatment or any other medical intervention’ or calling upon the Portuguese authorities to ensure that ‘every instance of restraint of a patient is recorded in a specific register in every psychiatric establishment’ or stating that ‘every resort to restraint, including chemical restraint, must always be expressly ordered by a doctor or immediately brought to the attention of a doctor’. Likewise, it reproaches shortcomings in the psychiatric internment of both voluntary and involuntary patients, such as the decision to apply a special surveillance regime ‘on an ad hoc basis by the staff on duty’ and ‘not surrounded by clear procedures and safeguards’, the systematic use of pyjamas as a means of surveillance of newly arrived patients and the lack of a centralised register for all forms of use of restraint — including seclusion, mechanical and chemical restraint — in every psychiatric establishment.

Hence, it is certainly not correct to limit the scope of the CPT's standards to patients in compulsory treatment ordered by a criminal court18.. All of the above-mentioned information was ignored by the majority in their assessment of the substantive aspect of the present case, as was the fact that the first national mental health programme (2007-2016) was approved by the Council of Ministers resolution 48/2008 of 24 January 2008. In a 55-page document, there are nine references to suicide and a very vague provision for the future creation of suicide prevention programmes. It provides for three psychiatric hospitals for the entire country: Magalhães de Lemos (Porto), Sobral Cid (Coimbra) and Júlio de Matos (Lisbon) and 39 psychiatric departments in general hospitals. Decree no. 1490/2017 provided for an evaluation of the implementation of the plan with a view to establishing its follow-up until 2020. That evaluation assessed the situation as follows:

The first national programme for the prevention of suicide (2013-2017) follows the WHO Public Health Action for the Prevention of Suicide (2012)20.. For the first time, a national strategy to counter suicide was designed with specific recommendations for groups and individuals at risk, including people with mental disabilities, monitoring instructions and implementation evaluation directives.

In other words, in 2000 Portugal was in the pre-historic stages of suicide prevention of psychiatric inpatients. There was no legislation or regulation on what types of regimes could be applied, under what circumstances, by whom and until when. The regulatory protocol on measures to protect patients applicable in all psychiatric facilities dates from 2011 and has not been regulated at the level of each hospital, as was supposed to happen. That protocol is manifestly insufficient with regard to the international standards set by the CPT. Thus, there was and still is no clear legal framework regarding the State obligation to protect the life of mentally ill patients in voluntary internment in public hospitals like the HSC. To put it simply, in 2000 the HSC was in a legal black hole.

Having ignored the facts on the ground, the majority excuse the respondent State with two arguments: they claim that the approach adopted by the HSC regarding the lack of fences and walls was in line with the Mental Health Act in place at the time, which allegedly mirrored international standards. This is simply not correct. As demonstrated above, the international standards set by the competent body, the CPT, were not duly complied with until 2011, and even then only partly. Thus, it is only possible to affirm that ‘the regulatory framework clearly provided the HSC with the necessary means of treatment to address A.J.'s possible medical and psychiatric needs’21.if one seriously misreads the CPT's reiterated message to Portugal. Furthermore, the argument that the Mental Health Act provided for the possibility of involuntary hospitalisation and therefore for A.J.'s possible medical and psychiatric needs misses the point made by the applicant. The applicant never argued that her son should have been locked up. Rather, she claimed that her son did not need a form of strict surveillance, but a specific personal care regime accompanied by measures of restraint that would provide a sufficient guarantee of his medical as well as his safety needs.22.

On the crucial issue of the inexistent guidelines on the use of restraint measures applicable to voluntary psychiatric patients in 2000, which was discreetly downplayed by the Government until the specific question came to the fore at the Grand Chamber hearing, the response of the majority is astonishing: they do not see it as a ‘deficiency’ that would lead to a violation of Article 2, because this shortcoming is, in their view, only relevant for the purposes of the assessment of the quality of the law under Article 5 of the Convention. According to this view, the lack of a written policy on the use of restraint measures could lead to a violation of Article 5, but did not warrant a conclusion of a violation of Article 2, even when the lack of precise and foreseeable regulation of the use of restraint measures puts at risk the life of psychiatric inpatients under State supervision. This argument leads to the illogical conclusion that the more important (Article 2) right merits less protection than the less important (Article 5) one.

But the most amazing part of the judgment is yet to come. In paragraph 120 the so-called ‘existing surveillance procedure’ is in fact a creation ab ovo of the majority. There were no rules regulating such a ‘surveillance procedure’; indeed no such ‘surveillance procedure’ existed, let alone a ‘more restrictive procedure’ or a procedure for ‘emergency situations’, simply because every decision taken by the medical and nurse staff was on an ad hoc basis, as the CPT confirmed on the ground as recently as 2012.23. Paragraph 120 of the judgment is, as much as its source in the facts part (paragraph 54), an inventive description of a virtual reality. Similarly, it is overstretched to claim, as the majority do in paragraph 49 of the judgment, that the user's guide ‘set out the rules governing their hospitalisation’. In reality, the document only contains ‘useful information for you to feel good in this Hospital’ (informações úteis para que se sinta bem neste Hospital), namely a collection of practical information for users, with no normative character.24.The majority are of course entitled to their own opinion on the facts, but they are not entitled to their ‘own facts’.

It is true that, in the file, the medical staff and the Government referred to an ‘open regime’ and a ‘closed regime’, but nowhere in the law or administrative regulations was the State obligation to apply one of these regimes set out. The best evidence of this chaotic state of affairs is the contradictory way the Government themselves refer to the ‘closed regime’ (regime fechado). Initially, they argued that the closed regime could have been applied to A.J., but had not been applied because it was not ‘adequate’25.. Later on, the Government argued that the closed regime could only be applied to patients in involuntary internment26., but they also admitted that A.J., who was a voluntary inpatient, had been ‘confined to the respective pavilion, dressed with pyjamas and robe’ (confinado ao respetivo pavilhao, permanecendo vestido com pajama e roupao) in April 2000 and that only in the second and third weeks of April had he been allowed to leave the pavilion27..

The a priori intention of the majority is clear, and was set in stone in paragraph 122 of the judgment: acting as a first-instance court, the majority find that there is no causal link between ‘any alleged deficiencies in the emergency procedures and A.J.'s death’, even before approaching the question of the in concreto assessment of the existence of a ‘real and immediate’28.risk to the life of the applicant's son and the need for adequate preventive operational measures to be taken. The judgment could have ended there. But the majority imposed on the applicant the pain of having to go through the second part of the substantive aspect of ‘The Law’ part of the judgment (paragraphs 124-32) where she has to read that her son's first frustrated suicide attempt and his severe alcoholic intoxication crisis on the eve of the second — and successful — suicide attempt were not serious enough to deserve the full attention of the Portuguese State and therefore the majority could wash their hands of this case.

The majority propose to follow the Osman test29.for the assessment of the positive obligation to take preventive operational measures. According to the Osman criteria, the extreme vulnerability of the victim must be taken into consideration.30.The test was first applied in a suicide case in Keenan v. the United Kingdom.31.In a later case the Court found a violation of Article 13 in conjunction with Article 2 in a case of lack of civil proceedings to establish liability and compensation when there was an arguable claim of a breach of that Article owing to the suicide of a voluntary inpatient in a psychiatric institution.32.The present case is the first one where the Court has established the State's positive obligation under Article 2 to take operational measures in respect of voluntary psychiatric inpatients at risk of committing suicide.

The majority not only affirm that positive obligation, but qualify it in the case of involuntary hospitalisation, in the sense that the Court ‘may apply a stricter standard of scrutiny’ of the duty to take reasonable measures to prevent a person from committing suicide.33.Conversely, this of course means that the Court will take a hands-off approach regarding the scrutiny of voluntary psychiatric inpatients at risk. I fail to see the reason for this differentiation of treatment and the majority do not even make the effort to provide one. This justification should have been provided by the Grand Chamber, if only because it contradicts the unanimous Chamber decision. The Chamber had proffered the opposite view, namely that voluntary and non-voluntary inpatients should be treated equally, because:

The argument that there is an emerging trend to treat persons with mental disorders under an ‘open door’ regime is not decisive35.. First, it only shows one side of the coin, because there is also a counter-trend to increase State obligations with regard to suicide prevention, which is totally neglected by the majority, as I will demonstrate below36.. The core of the problem today lies precisely in the inter-relationship between these two different trends of international health law and practice, which the majority do not even seek to consider.

Moreover, as put by Judge Iulia Antoanella Motoc, dissenting in Hiller, ‘the duty to protect the right to life should not be sacrificed in an attempt to comply with the above-mentioned recent trend in healthcare’37.. The right to life prevails over the right to liberty, especially when the psychopathological condition of the individual limits his or her capacity for self-determination. It is nothing but pure hypocrisy to argue that the State should leave vulnerable suicidal inpatients in State-run psychiatric hospitals free to put an end to their lives merely in order to respect their right to freedom. At the end of the day, what really drives the majority is not the concern for more or less freedom of psychiatric inpatients interned in public hospitals, but the strict financial interest in safeguarding the hospital authorities from legal challenges to ‘excessively restrictive measures’38., while ‘bearing in mind the operational choices which must be made in terms of priorities and resources in providing public healthcare and certain other public services’.39.Ultimately, this reflects a hidden social-welfare disengagement policy, which aims at the maximum commodification of health-care services and above all at the protection of health professionals in an untouchable legal bubble, shirking State responsibility for health-system and hospital-related death or serious injury under the Convention and consequently limiting the Court's jurisdiction in this area. In other words, the present judgment signs up to the exact same ideological agenda as Lopes de Sousa Fernandes.40.

As acknowledged by the majority themselves, A.J. was an especially vulnerable person.41.Several factors indicating his extreme vulnerability evidently aggravated the imminence and foreseeability of the suicide, such as, first and foremost, the fact that A.J. had attempted suicide recently. On 1 September 1999 there was already a note in his ‘medical file’42.indicating ‘probability of attempt to his physical and psychological integrity due to deprivation of alcohol’. As the Deputy Attorney-General before the Supreme Court wrote in his opinion, ‘A.J.'s medical report, alone, already had references to suicide attempts, one of which had occurred twenty-five days earlier. Thus it was possible to predict a repetition of those.’43.

On 1 April 2000 he attempted to commit suicide.44.This is the note recorded in his medical file on that day after the attempted suicide: he ‘feels that life has no value, feels marginalized and powerless to realise a life project, hence prefers to die, which he attempted to concretise’.45. He clearly ‘preferred to die’, because he felt ‘marginalized and powerless’ (marginalisado e sem poder). As a matter of fact, A.J. had expressed several times a sense of profound hopelessness, especially after losing the possibility of getting a job as a heavy vehicle driver, which led to the attempted suicide.46.

In Renolde v. France the gap between the two suicide attempts — the failed and the successful one — was of eighteen days47.. In the case of A.J. that gap was of twenty-six days, with an episode of serious self-harm in between, two days before the suicide. In view of the rationale in Renolde that the risk was real and that a positive obligation to take preventive operational measures should be imposed regardless of the fact that his ‘condition and the immediacy of the risk of a fresh suicide attempt varied’48., I ask myself why this was not the case for A.J.'s risk.

Secondly, A.J. was a schizophrenic and suffered from ‘major depression’.49. This was established by the domestic courts. The first time that such a diagnosis of schizophrenia was formulated was as early as 6 September 1999, well before the first suicide attempt.50.

In De Donder and De Clippel v. Belgium, 51. the Court considered paranoid schizophrenia as involving a high and foreseeable risk of suicide. In that case, the Court found a violation of Article 2 even without a previous attempt to commit suicide, because it considered that ‘Certes l’immediateté d’un tel risque était difficile à percevoir, mais ce critére … ne saurait entrer peremptoirement en jeu en matiere de suicide’.52.Again, I fail to understand the reason why immediacy of the risk was not the decisive criterion in the Belgian case, but was strictly observed in the present Portuguese case53., in which the patient accumulated both high-risk factors of the Renolde and De Donder cases.

The above would suffice to raise the legitimate question whether the Court discriminates between first and second-class patients, since there is no justification for this difference of treatment between A.J. and the Belgian and French patients. The question is evidently not rhetorical, and is even more pressing in view of the following arguments that show that a wrong was done to A.J. that was never righted.

Thirdly, the domestic courts concluded that the suicide was not foreseeable because A.J. had never been properly diagnosed. In other words, the lack of timely and adequate diagnosis by the State serves as an excuse for the State not to foresee the risk of suicide. This is a typical Catch-22 situation, where the State uses its own faulty omission to excuse itself for the resulting harm. The startling justification given by his psychiatrist (Dr A.A.) was that he was not A.J.'s doctor long enough to make a more precise diagnosis of A.J.'s mental condition54., in spite of the fact that he became his psychiatrist in December 1999, four months before the suicide.

The most disheartening thing is that the State did perform such a diagnosis, but only after A.J. was dead.55.A.J. was diagnosed with a borderline personality disorder only after he committed suicide!56.This was, in the words of the court-appointed medical expert, ‘an individual prone to conflict and easily irritable … aggressive towards his family (mother and sister), losing his temper for no reason and without being under the influence of alcohol … This aggressiveness is sometimes turned against himself — his clinical file refers to recurring suicide attempts …’.57.

Fourthly, A.J. had a long history of drug and alcohol abuse. He committed suicide on 27 April 2000. On 25 April 2000, two days before his suicide, he had a typical ‘deliberate self-harm episode’ of alcohol abuse.58.Subsequently, no medical doctor assessed the consequences of that incident in terms of the need for increased monitoring of A.J. He was left to linger in his despair, abandoned to his ‘aggressiveness’, which was ‘sometimes turned against himself’ to use the words of the court-appointed expert.

Fifthly, A.J. was a young man and, according to the WHO, ‘Suicide is the second most common cause of death among young people worldwide. … Moreover, young people and the elderly are among the most susceptible age groups to suicidal ideation and self-harm.’59.

Last, but certainly not least, A.J. was a patient already classified with a risk assessment of ‘GD 3’ (Grau de Dependência 3), meaning ‘dependency degree three’, by the HSC itself60.. Dependency degree three ‘corresponds to the patient who needs intensive or total assistance in acute phase and/or in situation of urgency’.61.Dependency degree 1 ‘corresponds to the self-sufficient patient’. Dependency degree 2 ‘corresponds to the patient who needs partial assistance’. The medical file from 25 April 2000 to the time of the suicide does not mention the dependency degree of the patient. This means that no risk assessment was made by the HSC for at least two days before his suicide62..

In view of the above, A.J. was at a foreseeable and imminent risk of suicide and the HSC and the other hospital authorities knew about that risk. But even if that were not the case, there are nevertheless certain basic precautions which it is expected will be taken. The majority do not go into this question, but the case-law does impose such a burden on the State in order to minimise any potential risk of self-harm and suicide attempts, even when it is not established that they knew or ought to have known about any such risk.63.

Although the majority do not find it necessary to pursue this line of reasoning,64. I feel that I have the ethical obligation to do so, for the sake of both the consistency of the case-law and the exhaustiveness of the legal analysis of the case. The question to be answered now is whether the operational measures put in place were sufficient, and the response is unhesitatingly no, absolutely not, for the following seven reasons.

First, there was, and still is, no adequate regulatory framework regarding the State obligation of protecting the life of mentally ill patients in voluntary treatment in public hospitals in Portugal. There are no legal limits imposed on doctors regarding whether or not a psychiatric patient should be placed in an open or closed regime or in an isolation room. The added value of this case should have been precisely to induce the Government to close this gap and provide doctors with a lawful basis for their activity.

Second, there were, and still are, no adequate administrative means of enhanced surveillance of inpatients with a suicide risk. The modalities of this surveillance are to be decided according to the margin of appreciation of the State, but in doing so the State should take into consideration, among other matters, the international standards of the World Health Organization (WHO). According to WHO standards, enhanced vigilance is required for patients with a suicide risk, which can be performed for example by means of video surveillance or voluntary tagging of the person or any other IT means.65.IT surveillance helps to detect and deter poor care and monitor care standards. It creates a welcoming environment where people can be confident they will receive decent care. IT surveillance can be applied only to the common parts of the facilities and, if necessary, to bedrooms and service users’ private premises. The latter approach requires consent from the service user. Hospitals use visible as well as covert surveillance equipment. Proper health patient monitoring allows for a snappy reaction to a crisis which will decide a patient's odds of survival.66.Hence, WHO standards do not require the building of walls and certainly not a prison-like regime for people in A.J.'s circumstances.67.

In the particular case of Hospital Sobral Cid, internees enter and leave without any control. The same happens with outsiders, who can cross the perimeter of the hospital and even enter the pavilions whenever they please. In 2000 there was one guard alone for the entire building, posted at the entrance for cars. There was no permanent psychologist and no permanent emergency service in place. When an emergency situation occurred, the medical doctor on call was contacted and would decide on the telephone whether the patient should be transported to the central hospital of Coimbra. Over the years several serious, and even fatal, incidents have been caused by inpatients who managed to leave the HSC premises.68.

A.J. was placed in pavilion 8, which had an isolation room. Pavilion 8 accommodated people in both voluntary and involuntary internment.69.A.J. was placed in an open regime on 25 April 2000 after the incident of drinking abuse, as evidenced by the note that he ‘walked around the pavilion’.70.

Third, no doctor assessed the seriousness of the incident of alcohol abuse on 25 April, in spite of the fact that A.J. was in a state of ‘unbalance, some reactivity to the internment, lack of functional coordination and restlessness’.71.The justification given for this omission by Doctor E.R. was that he ‘assumed that A.J. was fine since the nurses did not request an assessment of the patient after the incident of 25/26 April’.72.Amazingly, the doctor on call did not care to see a suicidal patient who had just had a serious drinking episode because he was not requested to do so by the nurses, as if the nurses were supposed to assume the responsibility that belonged to him.

No doctor assessed the need for a restrictive regime from 25 April to the time of the suicide, although A.J. had already been placed in the ‘closed regime’ several times and even in the isolation room (for example, on 12 December 1999 he was ‘placed in the isolation room’, because he was ‘restless, with difficulty to calm down’; on 15 December 1999 he was ordered ‘not to the leave the pavilion’; on 16 December 1999 he was ordered ‘not to leave the service’; on 22 December 1999 he was still complaining that he wanted to leave the pavilion).73.Only on 13 April was he seen by his doctor and ‘had a change of the therapy’, but there is no mention of what the new therapy was.74.

Fourth, on the date of his suicide and the day before, there was a gap of sixteen hours without any supervision, since the medical file contains no notes from 4 p.m. on 26 April to 8 a.m. on 27 April. Moreover, the final notes in A.J.'s medical file, referring to him as being ‘calm and cooperative in the beginning of the shift’ (27 April, 2–7 p.m. shift) were added by the same person at 8 p.m. when it was already known that he had committed suicide!75.

Worse still, there was a gap of more than twenty-four hours in any medication before A.J.'s suicide, since the last medication taken by him was during the shift of 12-8 a.m. on 26 April (more precisely at 12.39 a.m., when he was seen at the General Hospital of Coimbra and at 2 a.m., when he was admitted to the HSC). This means that no medication was administered between 2 a.m. on 26 April and the time of his suicide on 27 April at 5.37 p.m. The post-mortem toxicological exams carried out on A.J.'s body showed that he had not been under medication at that time. The expert report itself noted the following: ‘there is no detailed reference, in the medical file, to the psychopathological state that the patient presented on 26 April 2000’ and ‘we cannot answer in a more detailed way as we were not given access to documentation describing the circumstances of the suicide’.76.It is also important to note that the attempted suicide on 1 April 2000 was committed with excessive consumption of pills and alcohol. The drinking abuse incident on 25 April followed the same pattern of alcohol abuse, but this time without pills. In spite of all this, A.J. was left alone and abandoned to his own serious mental illness. In this context, it is relevant to point out that, in Renolde v. France, the failure to ensure that Mr Renolde was taking his daily medication was one of the factors supporting a finding of a violation of Article 2. Why was the same criterion not applied to the Portuguese patient?

Fifth, the Government referred to a ‘medical plan established for each patient’.77.There is no evidence whatsoever in the Court's file of such a ‘medical plan’. The majority do not go so far as to side with the Government on this point too. Nor do they share the respondent Government's view that the applicant should have asked for the involuntary internment of her son if she were so convinced that he was in danger. To put the blame on the applicant is an inadmissible argument that adds infamy to injury.

Sixth, comparing this situation at the HSC with other psychiatric facilities, it is important to note that other similar facilities in Portugal have installed either fencing or IT surveillance systems.78.It is also possible to find psychiatric facilities with proper individual medical plans.79.

Seventh, and finally, the Government's argument that the Chamber judgment has presented them with the legal dilemma of having contradictory international obligations deriving from Article 2 of the ECHR (to put fences around hospitals or restrict the freedom of the patients) and Article 14 of the UN Convention on the Rights of People with Disabilities (‘the CRPD’) (neither to put up fences nor restrict the freedom of movement of patients), and especially its interpretation by the Committee on the Rights of Persons with Disabilities (‘the CRPD Committee’), is thus wrong.

The legal international scenario is confusing, to say the least, signaling tough ongoing discussions on the matter.80. The Human Rights Committee does not share the views of the CRPD Committee, since it acknowledges that involuntary hospitalisation may be justified81.. Similarly, the Subcommittee on the Prevention of Torture82.expressed the opinion that deprivation of liberty can be justified on grounds of risk of self-harm or harm to others. Despite being urged by the Centre for Human Rights of Users and Survivors of Psychiatry,83.the CEDAW did not address the issue of forced psychiatric interventions and involuntary hospitalisation.84.

The United Nations Principles for the Protection of Persons with Mental Illness and the Improvement of Mental Health Care, 1991, provide for the circumstances in which persons can be admitted involuntarily to a mental health facility. Yet the High Commissioner for Human Rights considered that these Principles were in direct conflict with article 14 (1) (b) of the CRPD and supported an absolute ban on deprivation of liberty on grounds of disability.85.He affirmed that:

The UN Special Rapporteur on the right of everyone to enjoy the highest standard of physical and mental health criticised the 2005 WHO Resource Book on Mental Health, Human Rights and Legislation, because it allowed for certain exceptions of ‘normalized coercion’, but expressed his opinion with caution on an absolute ban on all forms of non-consensual measures in his reports to the UN Human Rights Council, acknowledging that ‘their radical reduction and eventual elimination is a challenging process that will take time’.87.

Within the Council of Europe, the Committee of Ministers Recommendation Rec (2004)10 concerning the protection of human rights and the dignity of persons with mental disorders permits their involuntary placement based on the Court's case-law on Article 5(1)(e) of the Convention.88.Yet the PACE Recommendation: The case against a Council of Europe legal instrument on involuntary measures in psychiatry89.aligned itself with the CRPD. The Reply of the Committee of Ministers90., instead, chose to maintain its position of 2004.

One thing is certain: the practice of Portuguese psychiatric hospitals of placing voluntary psychiatric inpatients in a ‘restrictive regime’ in a confined pavilion or even in an isolation room did not in 2000, and still does not today, have a specific lawful basis setting out which types of regimes could be applied, under what circumstances, by whom and until when and subjecting them to a proportionality and necessity test. Furthermore, according to the CRPD Committee, the current Law no. 36/98, of 24 July 1998 is incompatible with the CRPD, since it permits the involuntary placement of people with mental problems who have committed no crime and does so outside any criminal procedure.91.

The problem of the compatibility, or lack thereof, between national law and the above-mentioned UN Convention as interpreted by the CRPD, namely the absolute prohibition on involuntary detention based on impairment92., goes well beyond the limits of this case. The majority do not discuss this legal question, having assumed purely and simply that the approach of national law ‘is in line with the international standards …’.93.

To conclude on this point, the dilemma referred to by the Government is also a false argument because there were, and still are, means of monitoring psychiatric inpatients at risk other than putting fencing round the HSC. The Government assess the measures that could be used in an either/or, binary fashion: either total absence of monitoring or fencing round the HSC. In addition to disregarding the existence of less intrusive alternatives, this approach fails to strike a proper balance between the competing interests: respect for the freedom of the psychiatric inpatient with a suicide risk and the State obligation to protect his or her life.

The quality of the domestic proceedings was not up to the standards of this Court, for various reasons. First, none of the domestic courts referred to the Convention, which was totally ignored. Neither the first-instance court nor the Supreme Administrative Court ever considered the Convention or the Court's case-law. None of the domestic courts undertook a proportionality or necessity test regarding the scope of the State obligation to protect psychiatric patients.

In her appeal before the Supreme Administrative Court, the applicant did refer to the use of IT surveillance techniques.94.There was no reply to the appellant's argument regarding the possible use of IT surveillance techniques. Yet both the dissenting judge of the Supreme Administrative Court and the Deputy Attorney-General argued that the HSC had not put in place a regime to reinforce A.J.'s monitoring95.or any other sufficient measures to prevent or diminish the risk of suicide.96.

Second, the domestic court considered it established that A.J. had left the building at 5 p.m. in spite of the fact that there were contradictory testimonies as to whether A.J. had already been absent at lunch time on 27 April. Witness S.P. said that he had not been present at lunch time while Witness A.D. said that he had been present. Finally, the first witness changed her testimony in a very reluctant way (‘although I am convinced that A.J. was not present, I am not sure of that’).97.The first-instance court accepted that change in testimony without further checking its credibility.

Third, the domestic court did not accept in its preliminary decision on the facts that there had been other suicide attempts, in spite of the fact that there were two witnesses (the mother and sister of the deceased) who referred to other suicide attempts.98. The domestic court gave no explanation for the fact that there was a written note in the medical file referring to ‘multiple’ suicide attempts; it did not question the person who wrote that note in the medical file in order to find out why and on what basis she had done so.

Fourth, the applicant raised the issue of the completeness of the medical file before the domestic court, but the latter did not consider this question relevant because it had not been raised as a formal complaint of forgery of the file.99.The domestic court had the power to check the completeness of the medical file and did not use that power, for a formalistic reason. In fact, the domestic court did not even analyse the medical file, since it entirely ignored the risk assessment notes in it.

Fifth, the first-instance court invoked modern psychiatric standards. But it did so only for the benefit of the State, and to the detriment of the applicant. This was a very uneven and unbalanced description of the state of the art in terms of modern psychiatric standards. The domestic court simply ignored the standards set by the World Health Organization for governments and practitioners in terms of suicide prevention especially in hospitals and medical facilities. This Court should not have made the same mistake, but it did. The Court cannot on the one hand take into consideration the WHO standards with regard to the deinstitutionalisation of people with mental disabilities and on the other hand ignore the same WHO standards on State responsibility for prevention of suicide especially in psychiatric facilities.

The first-instance court chose a radical, minimalist, hands-off approach to the State obligation to protect the life of patients in public psychiatric facilities and did not follow the balanced approach of the World Health Organization. As a matter of fact, the first-instance court followed the radical opinion expressed in the expert report of 27 September 2006 and presented before the first-instance court.100.This expert report even praised the possibility of suicide! It closed with a eulogy of suicide, portraying it as an act of ‘freedom and liberation’. After stating that ‘prevention of suicide in these patients is an impossible task’, the expert added the following words:

While also concluding that prevention of suicide in patients such as A.J. was an ‘impossible task’102., the Grand Chamber copy-pasted the same expert report that made a eulogy of suicide. The same report that had noted that ‘we cannot answer in a more detailed way as we were not given access to documentation describing the circumstances of the suicide’. I regret that once again the conscience of Europe has sided with this culture of death, even suggesting that the right ‘to take a rational decision to end his or her life’ comes within the scope of Article 2.103.

The Supreme Administrative Court did not remedy the shortcomings of the first-instance court. In fact, it did not even discuss modern psychiatric standards. The part of the judgment that deals with the ‘analysis of the grounds of appeal’ is rather brief — only three pages — and just rubberstamped the first-instance judgment, with long citations from that judgment without any added value.104.There is not a single word on the proportionality or the necessity test in it, as required by domestic constitutional law, in the light of Articles 18 and 24 of the Constitution, and by Convention law, in the light of Article 2, paragraph 2, of the Convention.

To put it differently, the quality of the domestic procedure leaves much to be desired. The procedural violation of Article 2 goes well beyond the majority's very limited criticism.105.

The applicant's son, A.J., was born in 1964. He had a history of mental disorders and of alcohol and drug addiction, and since 1984 had spent several periods in the Sobral Cid Psychiatric Hospital (‘the HSC’) in Coimbra: from 5 to 8 August 1984; from 15 March to 3 April 1985; from 15 to 28 November 1985; from 10 to 18 January 1993; from 1 to 3 September 1999; from 12 December 1999 to 14 January 2000; and from 2 to 27 April 2000.

According to A.J.'s clinical records, in September 1999 doctors told the applicant that she should seek an order for her son's compulsory confinement. During his hospitalisation in December 1999 the doctor treating A.J. instructed that he must not be permitted to leave the unit in which he was hospitalised.

During at least two of the periods he spent in hospital, A.J. was authorised to spend weekends at home with his family — three weekends during the period from 12 December 1999 to 14 January 2000, and two weekends during the period from 2 to 27 April 2000. During those two periods, A.J. also escaped from the HSC premises several times and sometimes went to the applicant's house.

On 1 April 2000 A.J. was voluntarily admitted to the HSC, upon medical advice, because he had attempted to commit suicide.

On 25 April 2000 A.J. went home for the weekend to spend Easter with the applicant and other members of his family, despite the reluctance of the doctor.

At around 10.30 p.m. the applicant took A.J. to the emergency ward of the Coimbra University Hospital because he had drunk a large amount of alcohol. According to the observation record completed by the emergency services, A.J. had behaved recklessly during the weekend because he had got drunk. They added that although A.J. had a history of mental weakness, depressive episodes and recurrent suicide attempts, those characteristics had not been observed that weekend. A.J. was subsequently sent back to the same HSC ward in which he was hospitalised.

On 26 April 2000 A.J. was kept under medical observation for the whole day. He was given medication and his state of health improved. He got up to dine and to welcome visiting family members.

On 27 April 2000 the hospital staff noted that between 8 a.m. and 4 p.m. A.J.'s behaviour had been calm and he had been walking around the unit in which he had been hospitalised. He had had lunch and an afternoon snack.

At around 4 p.m. the applicant called the hospital. She was told to call back later, during the afternoon snack, as her son was not inside the building at that time. She was assured that some minutes earlier he had been standing at the door and he looked fine.

At around 7 p.m. it was noticed that A.J. had not appeared for dinner, and a nurse informed the head nurse of his absence. The hospital staff then initiated searches in the areas of the HSC premises where patients were allowed to walk around freely, such as the cafeteria and the park.

At around 8 p.m. the coordinating nurse (enfermeiro coordenador) telephoned the applicant and told her that A.J. had not shown up for dinner.

At some time between 7 p.m. and 8 p.m. the hospital reported A.J.'s disappearance to the National Republican Guard (Guarda Nacional Republicana) and the applicant.

It is not known at what time A.J. left the hospital premises and followed a footpath towards the applicant's house. At around 5.37 p.m. he committed suicide by jumping in front of a train near the HSC premises.

On 17 March 2003 the applicant lodged a civil action with the Coimbra Administrative Court (Tribunal Administrativo do Círculo de Coimbra) against the HSC under the State Liability Act (ação de responsabilidade civil extracontratual por ato de gestão pública), seeking pecuniary and non-pecuniary damages of 100,403 euros (EUR).

The applicant claimed that her son had been treated at the HSC for mental disorders on several occasions; the first actual hospitalisation had been in 1993. He had been admitted to the hospital on 1 April 2000 because he had attempted to commit suicide. The fact that her son had been able to leave the hospital premises on 27 April 2000 during his hospitalisation had led the applicant to conclude that the hospital staff had acted negligently in the performance of their duties. Because of his suicide attempts and mental condition, her son should have been under medical supervision and the hospital staff should have prevented him from leaving the hospital premises. She further claimed that the HSC should have erected fencing around the boundaries of its premises in order to prevent patients from leaving. The fact that those duties had not been complied with reflected the poor organisation of the HSC services. Lastly, she argued that the HSC lacked a mechanism for checking the presence of patients and an emergency procedure capable of detecting a patient's absence, which would allow the hospital to take the measures required to ensure that patients returned safely.

On 29 October 2003 the court gave a preliminary decision (despacho saneador), specifying which facts were considered to be established and which remained to be established.

On 5 July 2005 the court ordered that an expert report be drawn up on A.J.'s clinical condition and the supervision measures required by that condition.

On 27 September 2006 a psychiatrist appointed by the Medical Association (Ordem dos Médicos) submitted his report, the relevant parts of which read:

The first hearing took place on 8 October 2008. The applicant and the psychiatrist who had issued the medical opinion gave evidence at the hearing.

At five hearings the court heard evidence from different witnesses, inter alia, the applicant's daughter — A.J.'s sister; nurses, doctors and medical auxiliaries who had worked for or were still working for the HSC, some of whom had started their shift at 4 p.m. on 27 April 2000; a social worker employed by the HSC since 1995, who had had contact with A.J.; and the train driver. The court also analysed several documents attached to A.J.'s clinical file from the HSC.

On 9 March 2009 the court conducted an on-site inspection.

On 7 January 2010 the court held a hearing at which it adopted a decision concerning the facts.

On 25 April 2011 the Coimbra Administrative Court delivered a judgment in which it ruled against the applicant. If found that although her son had been suffering from a mental disorder, there was no causal link between his wholly unexpected suicide and an alleged violation of the hospital staff's duty of care. It noted, in particular, that the applicant's son had been suffering from a psychiatric disorder which had never been properly diagnosed, either because the symptoms were complex or because he had been addicted to alcohol and drugs. In this regard, it pointed out that over the years the applicant's son had been diagnosed with schizophrenia and depression. However, only after his death and as a consequence of an expert opinion requested from the Medical Association during the proceedings (see paragraph 23 above) was there an agreement that he had been suffering from a severe personality disorder. The court established that he had last been admitted to hospital after a suicide attempt. However, it considered that despite the possibility that people diagnosed with mental diseases such as that of the applicant's son might commit suicide, during the last days before his death he had not shown any behaviour or mood which could have led the hospital staff to suspect that 27 April 2000 would be different from the preceding days. The court thus concluded that the hospital staff could not have foreseen the suicide of the applicant's son and that his behaviour had been absolutely unexpected and unpredictable. With regard to the applicant's argument that the hospital should have supervised her son more effectively and erected fences or other barriers around the hospital premises, the court pointed out that the current paradigm in the treatment of mentally ill patients was to encourage social interaction. The existence of fencing would lead to the stigmatisation and isolation of mentally disabled patients. In the same way, any supervision of patients had to be carried out discreetly. The HSC had a surveillance procedure in place which consisted of verifying the patients' presence at meal and medication times; this was in compliance with the most recent psychiatric science and respected the patients' right to privacy. With regard to the applicant's argument that the emergency procedure was non-existent, the court noted that it consisted in alerting the police and the patient's family. Therefore, the court found that there had been no omission in the duty of care on the part of the hospital.

On 12 May 2011 the applicant appealed to the Administrative Supreme Court, claiming that the first-instance court had wrongly assessed the evidence, that its findings of fact had been incorrect, and that it had wrongly interpreted the law.

On 26 September 2012 the Attorney General's Office attached to the Administrative Supreme Court, called upon to issue an opinion on the appeal, held that the first-instance judgment should be reversed. In their opinion, given that A.J.'s medical record stated that he had attempted to commit suicide on different occasions and considering that he had last been admitted to hospital because of a suicide attempt, a new attempt to commit suicide was likely and should have been foreseen. They noted that the hospital had failed to implement a supervision regime capable of preventing the applicant's son from leaving the hospital premises. They also argued that the increased monitoring of the patient was part of the hospital's duty of care and did not detract from the ‘open door’ regime. They concluded that the monitoring measures put in place by the HSC were not adequate for an establishment categorised as a psychiatric hospital or for a patient with A.J.'s characteristics.

On 29 May 2014 the Administrative Supreme Court dismissed the applicant's appeal by two votes to one, upholding the legal and factual findings of the Coimbra Administrative Court. The Administrative Supreme Court held that the HSC had not breached any duty of care, as there had been no indication which could have led the hospital staff to suspect that the applicant's son would try to commit suicide, namely by leaving the hospital premises. The Supreme Court took into account that during previous periods of hospitalisation the applicant's son had also left the hospital premises, and that no link had been established between those ‘escapes’ and a particular risk of suicide in so far as they had only been able to establish the existence of a single suicide attempt, on 1 April 2000. The Supreme Court considered that the counting of patients at meal and medication times was sufficient and had allowed the hospital staff to verify A.J.'s attendance during lunch and the afternoon snack on 27 April 2000. It concluded that there had been no anomaly in the functioning of the HSC, nor could any anomaly be attributed to either the lack of security fences or walls, or the method of counting patients.

In a dissenting opinion, one of the judges argued that the hospital should have secured the premises in some way in order to fulfil its duties of care and supervision. By not doing so, it had allowed patients to leave easily without being discharged, thus breaching those duties. As such, that omission had been the cause of the ‘escape’ and suicide of the applicant's son.

The HSC is located outside Coimbra on seventeen hectares of land, distant from any urban or industrial areas. It is part of the Coimbra Hospital and University Centre.

According to an on-site inspection made by the Coimbra Administrative Court on 9 March 2009 in the course of the proceedings against the hospital, the HSC has eighteen buildings dedicated to each hospital department. The grounds of the HSC do not have security fences or walls of any other kind. The buildings are surrounded by green areas with trees and other vegetation, and the different buildings are accessed by means of roadways (arruamentos) and paths (passeios), which are also surrounded by trees and other vegetation. The main entrance to the HSC has a barrier (cancela) and a security guard. One of the possible exits from the hospital premises leads to a shortcut towards a railway station platform (apeadeiro ferroviário). This shortcut is accessed by taking the road behind building no. 9. The station platform is around a fifteen to twenty minutes' walk from that part of the HSC's premises.

Pursuant to the guidelines prepared by the HSC, meals are taken in the hospital cafeteria and patients must remain there until the end of the meal. Patients are not allowed to leave the department without informing the relevant nurse in advance. An afternoon snack is usually provided at around 4.45 p.m.

According to articles which have been published in the media in recent years, several patients have managed to escape from the HSC's premises since at least 2007. Some of them were found and taken back to the hospital and others were found dead. For example, different local and national media have reported as follows:

The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

The applicant claimed 703.80 euros (EUR) in respect of pecuniary damage, representing the expenses incurred for A.J.'s funeral. She supported her claim with an invoice for the funeral service. She further claimed EUR 40,000, corresponding to the loss of income sustained in respect of the EUR 200 monthly maintenance that her son used to pay her, calculated on the basis of her life expectancy.

The Government considered that there was no causal link between the alleged violation of the Convention and the pecuniary damages claimed. They also argued that the applicant's claim was speculative and lacked any supporting data.

With regard, firstly, to the reimbursement of funeral expenses, the Court considers that this claim is not unreasonable, since the applicant had to bury her son as a result of his suicide. It also notes that the applicant properly submitted a document in support of her claim. It therefore awards in full the amount claimed under this head.

As to the alleged loss of financial support, the Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim.

The applicant claimed EUR 40,000 in respect of non-pecuniary damage caused by the death of her son and the length of the proceedings against the hospital.

The Government contested this claim, which they considered excessive.

The Court considers that the applicant must have suffered anguish and distress as a result of the circumstances of her son's death and her inability to obtain a domestic decision in a reasonable time. In those circumstances, it finds it reasonable to award the applicant EUR 25,000 in respect of non-pecuniary damage.

The applicant also claimed EUR 409 for the costs and expenses incurred before domestic courts, representing the legal fee she had paid. She submitted the relevant invoice in support of her claim.

The Government pointed out that the document submitted by the applicant did not show that the expenses had been actually incurred.

According to the Court's case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum (see Editions Plon v. France, no. 58148/00, § 64, ECHR 2004-IV). In the present case, regard being had to the documents in its possession and the above criteria, the Court awards in full the sum claimed under this head, plus any tax that may be chargeable to the applicant.

The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.