Delay in providing psychiatric care amounts to “inhuman treatment”

M.S. v United Kingdom [2012] ECHR 804 (3 May 2012)

Summary

The European Court of Human Rights has found that a delay in securing appropriate psychiatric treatment for a man who was detained by police constituted “degrading treatment” in breach of article 3 of the European Convention, notwithstanding that the police officers and medical staff involved did not intend to debase or humiliate the man.

Facts

The applicant was detained by police in the early hours of 6 December 2004, after he was found sitting in a car repeatedly sounding the horn. It was immediately apparent that the applicant, who was behaving in an agitated manner, was mentally unwell. Soon afterwards, it was also discovered that the applicant had seriously injured his aunt.

The applicant's detention was initially authorised under section 136 of the Mental Health Act 1983 (UK), which permits police to detain, for up to 72 hours, any person who appears to be suffering from a mental disorder. Such detention is authorised for the purposes of enabling medical examinations and making arrangements for appropriate treatment and care.

During the first 24 hours, the applicant was assessed by a number of professionals. A psychiatrist from the local intensive care unit advised police that the local hospital would not be able to admit him. The police then contacted another psychiatric facility, Reaside Clinic, and began making arrangements for the applicant's admission to that hospital.

For a number of reasons, that admission process was delayed and the applicant's condition deteriorated. While in detention, the applicant began to exhibit behaviours such as taking his clothes off, waving his testicles about, banging himself against the walls and ranting incoherently. As the expiry of the 72-hour time limit approached, the police continued to push for the applicant's admission to Reaside. However, the doctor at Reaside told police that, due to staffing concerns, the applicant could not be admitted in the middle of the night – when the permitted period of detention was due to expire – and that he would need to be admitted the following morning.

On the fourth day, the applicant was released from police custody and escorted to Reaside. By this stage, it required eight members of the nursing staff to restrain the applicant. After admission, the applicant was put into seclusion and provided with medication and he showed sustained improvement over the following days.

Issues

The applicant claimed that he had been subjected to inhuman and degrading treatment while in police custody. The applicant said it should have been obvious to police that he required medical treatment and hospitalisation as a matter of urgency. For this reason, he submitted that his human rights were breached during the entire period of the detention and not just the last 12–24 hours. The applicant also described the hospital staff's attitude as "cavalier". He also said that a shortfall of nursing beds or nursing staff did not justify his ill-treatment.

The government said that it regretted the applicant’s situation, but submitted that the treatment did not meet the threshold for “torture, inhuman or degrading treatment” under article 3. The government also stressed that the police officers had done their best in difficult circumstances and certainly had not intended to humiliate or debase the applicant.

Therefore, the central questions for the Court to decide were:

• To what extent is intention relevant to an alleged breach of article 3?
• Did the treatment meet the threshold for “torture, cruel or inhuman treatment or punishment”?

Decision

Relevance of intent

The Court said there was "no real inadequacy, let alone neglect, on the part of the police". The Court also rejected the suggestion that hospital staff had been "cavalier". Ultimately, there was found to be no intention by police or hospital staff to humiliate or debase the applicant.

However, the Court also said the absence of intent does not rule out a violation of article 3. In other words, it is possible to subject a person to cruel, inhuman or degrading treatment without intending to do so.

Threshold for breach of article 3

Turning to the threshold question, the Court said:

The assessment of this minimum level of severity is a relative one, depending on all the circumstances of the case, such as the duration of its treatment, its physical and mental effects and, in some cases, the sex, age and state of health of the victim.

In this case, the applicant's mental illness was especially relevant, as it put him in a position of particular vulnerability.

In the circumstances, the Court found that the applicant's detention, when he was in dire need of medical care, "diminished excessively his fundamental human dignity" notwithstanding the fact that this was not the intention of the police or hospital staff.

Therefore, the Court concluded that the treatment met the threshold for a breach of article 3.

Relevance to the Victorian Charter

The Victorian Charter of Human Rights contains similar protections against torture and cruel, inhuman or degrading treatment (section 10) and specifically protects the right to humane and dignified treatment of persons who are deprived of their liberty (section 22).

This case contains a useful discussion about the threshold for cruel, inhuman or degrading treatment. It also confirms that a public authority may breach these obligations under the Charter, even where there is no intention to treat a person in a humiliating, debasing or undignified way.

The decision is available online at: http://www.bailii.org/eu/cases/ECHR/2012/804.html

Emma Purdue is a lawyer at Lander & Rogers.