by Eilionoir Flynn
In light of the Oireachtas Justice Committee’s report on the Mental Capacity Bill which will be launched later today, I wanted to reflect on two recent ECHR cases which have demonstrated how a denial of legal capacity to disabled people, through the imposition of an adult guardian, leads to the violation of other fundamental rights – such as the right to a fair trial, the right to be informed of decisions made about the person, the right to liberty and freedom of movement, and the right to freedom from inhuman and degrading treatment or punishment. These cases – Stanev v Bulgaria and DD v Lithuania have already generated significant commentary in the disability rights movement (see here and here) – as these cases represent the first time in which the European Court has acknowledged that detention of a person in a social care home, rather than a psychiatric hospital or institution can constitute a breach of Article 5. As Ireland moves towards reforming its law on capacity, it is worth bearing in mind the comments which have been made by the European Court, especially with regard to the ways in which adult guardianship can violate the rights of disabled people.
In Stanev v Bulagaria the applicant’s family members had applied to the regional court for a declaration of total incapacity and the appointment of an adult guardian. The court carried out what is known as a functional assessment of capacity – in other words, a test of Stanev’s ability to understand information, use and weigh information to reach a decision, retain information long enough to make a decision, communicate the decision to others, and understand the consequences of the decision to be made. As part of this functional assessment of his capacity, the regional court considered evidence that Stanev had been diagnosed with schizophrenia, had been admitted to psychiatric hospitals on several occasions, sold all his possessions, begged for a living, spent all his money on alcohol and became aggressive whenever he drank. Based on this evidence, the court found that Stanev was not totally legally incapable, but made a finding of partial incapacity, which was upheld on appeal. The relevant authority subsequently authorised the appointment of a temporary public guardian to Stanev, as his family members were unwilling to act as his guardian.
At the time of this appointment, Stanev was living in a small annex to his half-sister’s house. Since he had been found not to have the capacity to decide where to live, his guardian made an application for Stanev to be moved to a social care home. An agreement with the care home was subsequently drawn up and signed by the guardian, and Stanev was not consulted or informed of the reasons for this decision, or how long he would have to stay in the care home. Stanev was transferred to the care home by ambulance. The conditions in the care home were appalling, and led to a finding by the European Court that these conditions amounted to inhuman and degrading treatment, in violation of Article 3 of the European Convention on Human Rights. In addition, the care home kept Stanev’s identity papers, meaning that Stanev could not travel without the explicit permission of the Director of the care home, even to go to the local village. Once the period of appointment for the temporary public guardian had elapsed, the Director of the care home was then appointed as Stanev’s guardian. Stanev was not free to leave the care home where he had been placed, leading the European Court of Human Rights to find that he had been unlawfully deprived of his liberty, in violation of Article 5 of the European Convention on Human Rights.
The circumstances which Stanev faced are extreme examples of the damage that can result to an individual who is placed under adult guardianship. Some might argue that this damage could have been prevented if the guardian had been better monitored, if conflicts of interests had been avoided (e.g. in the appointment of the director of the care home as his guardian), if Stanev had been consulted about the decisions to be made and his wishes taken into account. However, even if all of these safeguards were in place, the transfer of legal capacity in relation to the decision about where to live from Stanev to his guardian means that it would still be possible for a guardian to have placed Stanev in a care home which he was not free to leave. Even if the physical conditions and facilities in the care home had been better, Stanev would still have experienced significant restrictions in his daily routine and would not necessarily have had access to opportunities to participate in the community – e.g. employment in the open labour market, mainstream education, making friends and forming relationships with individuals other than paid staff. These are all basic opportunities which the public at large may take for granted, but are often denied to people with disabilities, especially those who live in institutional care, and whose legal capacity is restricted or removed entirely.
In DD v Lithuania, the applicant had developed schizophrenia, apparently as a result of shock at discovering that she was an adopted child. Her adoptive father applied to the district court to have her declared legally incapable and this finding was made. He subsequently applied to have her placed in care home for people with intellectual disabilities. DD’s psychiatrist was appointed initially as her guardian, but subsequently asked to be removed, claiming she had only consented to the initial appointment due to the strained relationship between DD and her father, including suspected financial abuse. The psychiatrist was then removed and her father was appointed as her legal guardian. Her father asked the care home to restrict visits to DD, and not to allow her former psychiatrist to visit her, which the care home agreed to do. He eventually removed her to his own flat. She escaped and was returned to the care home by police on two separate occasions.
DD attempted to have her guardianship tranferred back from her father to her former psychiatrist and asked the care home to ininitiate proceedings, but this request was refused. She then applied to the court for a review of the decision to appoint her father as guardian, arguing that she had never been consulted or involved in determining who her guardian would be, and had not been present at hearings. At the new preliminary hearing held on whether to reopen the guardianship case, DD was not allowed separate legal representation on the basis that her father, her legal guardian, had legal representation and that this was sufficient. DD alleged that she was threatened by the judge in his office during these proceedings that if she did not agree to the appointment of her father as guardian, an application would be made to place her former psychiatrist under guardianship. She subsequently agreed to the appointment of her father as her guardian and the court therefore did not reopen guardianship proceedings. Ultimately, her father asked to be relieved of responsibility as DD’s guardian and the care home in which she lived was then appointed as her guardian.
The European Court of Human Rights found that DD’s placement in the care home constituted detention as she was not free to leave; however, it found that such detention was lawful as it had been consented to by her guardian. However, the court did find a breach of Article 5.4 since there was no process for DD to have her detention reviewed. Unlike in Stanev, the Court found that the conditions in the care home did not amount to inhuman or degrading treatment. DD had argued that the use of restraint and seclusion constituted a breach of Article 3 but the Court found that these interventions were medically necessary and thus did not constitute a violation of rights. In addition, the Court found that the proceedings in the domestic court resulting in the decision not to reopen DD’s guardianship case were not carried out in a fair manner and constituted a violation of Article 6.1.
In short, these decisions contribute to an emerging body of case law from the European Court of Human Rights where the placement of people with disabilities (generally those with intellectual disabilities or mental health conditions) in adult guardianship has resulted in a violation of their fundamental rights. Article 12 of the UN Convention on the Rights of Persons with Disabilities which recognises that “persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life” e has been cited approvingly by the European Court and the notion of legal capacity – the right to make one’s own decisions and have these decisions respected in law – as a universal attribute inherent in all persons, regardless of the individual’s level of decision-making ability, is gaining traction in international commentary (see here and here). Therefore, the approach of the UN Committee on the Rights of Persons with Disabilities, which has strongly urged Spain and Tunisia to replace systems of substituted decision-making, such as adult guardianship, with systems of supported decision-making which respect the will and preference of the individual, should be borne in mind by Ireland as we move towards the publication of our capacity legislation.