Inadequate Access to Health Care for Prisoner with Mental Illness a Violation of the Prohibition against Torture and Ill-Treatment

Dybeku v Albania [2007] ECHR 41153/06 (18 December 2007)

Summary

The European Court has held that public authorities have a particular duty and responsibility for the health and well-being of those in its custody or detention.  The Court further held that a failure to provide adequate mental health care to detainees in circumstances which do not adequately accommodate, or which result in the deterioration of, a person’s mental health, may amount to a violation of the prohibition on torture and ill-treatment.

Facts

The applicant, Ilir Dybeku, was diagnosed with paranoid schizophrenia in 1996 and received in-patient treatment at a number of psychiatric hospitals.

The applicant was sentenced to life imprisonment for murder in 2003.  The applicant appealed his conviction on the basis that his psychiatric condition rendered him unfit to stand trial, but the appeals were dismissed and his requests for new medical examinations rejected as unnecessary.

Since December 2003 the applicant has been detained in three different prisons, where he has been treated as an ordinary prisoner, despite his state of health.  He received treatment in a prison hospital for two periods in 2004 and 2005 when his condition deteriorated.

On a number of occasions, the applicant’s father and lawyer lodged complaints with the competent authorities against the prison hospital administration and the medical unit, alleging that they had been negligent in failing to prescribe adequate medical treatment and that the applicant’s health had deteriorated because of the lack of medical treatment.  Their complaints were dismissed.

Given the applicant’s increasingly disturbed state of mind, on 7 January 2005 his lawyer brought proceedings asking for him to be released or transferred to a medical facility on the ground that his detention conditions were inappropriate, given his state of health, and put his life at risk.  The applicant’s counsel also asked for psychiatric examinations to be undertaken.  Those requests were rejected.

The applicant complained to the European Court of Human Rights, alleging that his conditions of detention and the medical treatment available in prison were inadequate in view of his state of health and contrary to art 3 of the European Convention on Human Rights, which prohibits torture and other cruel, inhuman or degrading treatment or punishment.

Decision

The Court first considered the nature and scope of the prohibition against torture and ill-treatment, stating that art 3 of the Convention ‘enshrines one of the most fundamental values of democratic society’ and ‘prohibits in absolute terms torture or inhuman or degrading treatment or punishment, irrespective of the circumstances and the victim’s behaviour’.  In order for treatment or punishment to fall within the scope of art 3, it must attain a ‘minimum level of severity’ which is to be assessed having regard to ‘all the circumstances of the case, such as the duration of the treatment, its physical and mental effects and, in some cases, the sex, age and state of health of the victim’.  Treatment held by the Court to be ‘inhuman’ includes treatment causing ‘either actual bodily injury or intense physical and mental suffering’, while treatment may be ‘degrading’ if it is such as to arouse ‘feelings of fear, anguish and inferiority capable of humiliating and debasing’ the victim.  Although the purpose of the treatment is relevant, the absence of any purposive element does not ‘conclusively rule out a violation of art 3’.

For persons in custody or detention, the suffering involved with the treatment ‘must go beyond that inevitable element of suffering or humiliation’ connected with the fact of deprivation of liberty itself in order to amount to a violation of art 3.  However, the Court’s jurisprudence makes clear that it is incumbent on the state to ensure that persons in detention are subject to conditions which are compatible with human dignity and not subject to any hardships or deprivations beyond those that are an unavoidable consequence of, and inherent to, detention itself.  This particularly requires that the state ‘adequately secure’ the health and well-being of detainees, including by ‘providing them with the requisite medical assistance’, the lack of which ‘may amount to treatment contrary to art 3’

In the case of persons with a mental illness, the state must particularly ‘take into consideration their vulnerability and their inability, in some cases, to complain coherently or at all about how they are being affected by any particular treatment’. In determining the compatibility of the detention of a person with a mental illness with art 3, the state must also have regard to factors including ‘the adequacy of the medical assistance and care provided in detention’ and ‘the advisability of maintaining the detention measure in view of the state of health of an applicant’.  The Court further observed that, given the ‘feeling of inferiority and powerlessness which is typical of persons who suffer from a mental disorder’, the relevant authorities must display ‘increased vigilance in reviewing whether the Convention has been complied with’.

In the present case, it was clear that the applicant suffered from ‘a chronic mental disorder’.  While he was treated with drugs similar to those prescribed by his doctor, the lack of ‘appropriate facilities and medicines’ meant that, at least at various times, his condition deteriorated significantly and prison ‘clearly had a detrimental effect on his health and well-being’.  The Court observed that the fact that the applicant was ‘treated like the other inmates, notwithstanding his particular state of health’ demonstrated that the prison authorities had failed in their duty to provide for, and pay special attention to the needs of, prisoners with mental disorders and had failed to demonstrate that the applicant’s detention was appropriate for a person with his history of mental disorder.

While the Court acknowledged the financial and resource implications of ensuring adequate mental health care, it reiterated that the prohibition against torture and ill-treatment is absolute and non-derogable and that, therefore, ‘a lack of resources cannot in principle justify detention conditions which are so poor as to reach the threshold of severity for art 3 to apply’.

Having regard to the factors above, the Court concluded that ‘the nature, duration and severity of the ill-treatment to which the applicant was subjected and the cumulative negative effects on his health were sufficient to be qualified as inhuman and degrading’ and that there had therefore been a violation of art 3 of the Convention.  The applicant was awarded €5000 for non-pecuniary damage.

Implications for the Victorian Charter

A number of influential courts and bodies – including the European Court of Human Rights, the UK Court of Appeal and the UN Human Rights Committee – have consistently held that public authorities have a particular duty and responsibility for the health and well-being of those in its custody.

In recent cases, the European Courthas stated that the quality of healthcare to those imprisoned by the state is not to be relative.  While an individual in society may have no right to healthcare as such, where they are in the state's custody the state must ensure that they receive the medical care required (see, eg, Holomiov v Moldova ([2007] ECHR 30649/05); Istratii and others v Moldova ([2007] ECHR 8721/05)).  Both the European Court and UK courts have stated that scarce resources or logistical difficulty will not be legitimate excuses for inadequate medical treatment to prisoners (see, eg, Mamedova v Russia [2007] ECHR 7064/05; Frolov v Russia [2007] ECHR 205/02; R (Noorkoiv) v Secretary of State for the Home Department [2002] EWCA Civ 770).  Where authorities decide to place and maintain a seriously ill person in detention, they must demonstrate special care to provide conditions of detention to accommodate the disability (see, eg, Testa v Croatia [2007] ECHR 20877/04).

Given recent observations by the Victorian Ombudsman that ‘there are significant deficiencies in the health care provided to prisoners’ it is imperative that the relevant public authorities review and improve Victorian prison conditions and prisoner health care services if they are to meet the threshold required by s 10 (protection from torture and cruel, inhuman or degrading treatment), s 21 (right to liberty and security of person) and s 22 (humane treatment when deprived of liberty) of the Victorian Charter.

Philip Lynch is Director of the Human Rights Law Resource Centre