X was taken into custody by the police and later transferred by ambulance to a psychiatric hospital. The police report stated that he had been 'harassing an underage teenager' and a report by the ambulance service stated that X 'acknowledges the existence of the teenager and the repeated instances of sexual harassment.'
On admission X was recorded as requesting 'some time to spend with boys'. The following day he was examined by a psychiatrist who recorded: He became acquainted with a boy, a ninth grade student, during one of his walks in the city. He started meeting him, talking to him, tried to 'have physical contact', touched his hand, fondled it. Had a desire to be 'caressed'. X was diagnosed with Schizotypal disorder. This conclusion was upheld by a medical counselling panel.
The hospital applied for a judicial authorisation of the involuntary admission on the grounds that X was a danger to himself and others, and that without medical treatment his mental health would deteriorate.
X, while initially agreeing to the admission, appealed this order to a higher court, supported by his father. He maintained that he had been trying to make friends with the boy and denied any sexual harassment. Moscow City Court upheld the authorisation.
In short order the ECHR declared that X's involuntary admission had been unlawful in breach of Article 5 (the right to liberty) and awarded 7,500E in damages.
The court concluded that the Russian government had failed to substantiate the danger that X posed to himself or others. While sexual harassment 'constitutes behaviour warranting the utmost concern' the authorities had failed to sufficiently evidence this concern. None of the reports 'provided a detailed account of any relevant events, specific behaviour or utterances' and rather than simply repeat the allegations the domestic courts 'should have engaged in independent scrutiny of whether the applicant indeed posed any real danger to anyone.'
As to the second ground for admission – that X's mental health would deteriorate significantly without involuntary treatment – the court concluded that there was 'no evidence whatsoever' to back up this claim.
The court therefore ruled that the second of the Winterwerp criteria had not been met:
'In the Court's opinion neither the unspecified risks to the applicant's mental health, nor the long journeys across the city, nor the repeated attempts to establish either friendly or romantic relationships were capable of proving that the applicant's condition was of "a kind or degree" warranting compulsory confinement. The medical professionals and the domestic courts adduced no sufficient and reliable evidence for their decision to hospitalise the applicant against his will.'
Mental health legislation permits the incarceration of those with mental health conditions who may go on to commit crimes. There are very few pieces of legislation that allow this kind of pre-emptive detention and certainly none on the scale of the Mental Health Act. Why those with mental health conditions are singled out in this way and whether this can be justified is for a much longer article, but it is hopefully uncontroversial to say that if it is then the evidential burden on the detaining authorities should be a high one.
What surprised us about this case is that we are sure we have done a number of tribunals where the evidence for the alleged risk of harm, either to the patient or to others, has been even more general. And in some of those the admission has been upheld.
While some tribunal panels may be reluctant to hear arguments on the basis of Article 5 and Winterwerp rather than on the Mental Health Act's own discharge criteria, this may prove to be a useful case for those advocates who find themselves faced with similarly 'unspecified acts'. For detaining authorities it is a reminder of the need to make, keep and share detailed records.
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