In the Autumn of our lives
New Law Journal, Vol 152, No 474, January 2002
It is a truth universally acknowledged that dotty elderly persons at large in the community should be locked up for their own good and the good of the general public. Unless, of course, those persons happen to be occupying the Bench at the Court of Human Rights in Strasbourg. At the end of last month the Court handed down judgment in H.M. v Switzerland (Application No 39187/98). It concerned a pensioner in her eighties who was somewhat infirm and nearly blind but otherwise capable of making decisions for herself. She had been receiving assistance from a home help service but the visits stopped after a while because certain conditions had not been respected, concerning access to the house, heating, washing and meals. In due course, the local Government Office ordered, against the applicant's will, that she be placed for an unlimited time in a nursing home, on the ground of serious neglect. Both she and her son appealed, unsuccessfully. The Appeal Commission found that the placement was justified on the grounds both of neglect and the applicant's mental state. The Commission arrived at their finding of senile dementia without the assistance of a doctor's report on the applicant.
The applicant complained about being placed in a home against her will, claiming that she could wash and dress herself, that her son (though himself an invalid) could cook for her and that she did not want him to be left alone. In the nursing home she was no longer free to decide where she lived, to take decisions concerning her everyday life, or to go home.
What the Court had to consider was whether she had been unlawfully deprived of her liberty, contrary to Article 5 of the Convention on Human Rights. Astonishingly, the majority concluded that Art 5 had not been engaged at all.
They took the view that the applicant's placement in the nursing home was a responsible measure taken by the competent authorities in the applicant's own interests, in order to provide her with the necessary medical care and adequate living conditions. It did not, therefore, amount to a deprivation of liberty within the meaning of Art 5(1).
The author has noted before in this journal the double standards applied by the Court of Human Rights in cases involving elderly applicants (see the comment on the case of Sowaniuk v UK, "War Crimes in the Dock" (2001) 151 NLJ 6994 p 1118). This judgment demonstrates a prejudice that would be unpardonable if it were based on race, sex or religion. But ageism does not seem to embarrass the court, however conspicuous.
Let us look briefly at the legal position. Under the Swiss Civil Code a person can be deprived of their liberty on grounds of neglect or mental weakness, not necessarily both; these grounds are disjunctive. The Convention on the other hand provides that an individual may only be deprived of his or her liberty if they have been found to be of "unsound mind" or are "vagrants". The term "unsound mind" is unspecific and unscientific and is giving way in modern parlance to more precise definitions of mental deterioration, such as "Alzheimer's". Quite what constitutes "unsound mind", for the purposes of Art 5, is therefore crying out for re-examination. As for "vagrancy", the leading authority is still De Wilde, Ooms and Versyp v Belgium (Series A no 12, p 37) a case decided in 1971, and certainly showing its age. That case defines the conditions for "vagrancy" with one eye on the protection of the public, rather than the interests of those individuals defined as "vagrant", a focus which perhaps needs readjusting in modern times.
So this case represented an invaluable opportunity for the Court to remodel this component of Art 5 into a shape more appropriate for the 21st Century. By concluding that the Convention was not engaged at all the Court passed up this opportunity.
But this judgment is also unfortunate for other reasons. As Judge Loucaides points out in his dissenting opinion, if the detention is seen to be a "responsible measure for [the individual's] own good", it could "open the door to uncontrolled arbitrariness and real and unwarranted dangers to the freedom of the individual which the Convention aims to avert". The safeguards of Art 5(1)(b) should prevent the danger of a deprivation of liberty of, for example, elderly people at the instance of persons (like relatives) who seek to make a personal profit from the compulsory removal of such people to institutions on the general, feeble grounds of "mental weakness" or "senile dementia".
As another of the dissenting judges (Jûrundsson) observed, there were conspicuous factors pointing to such a conclusion—the police were employed to implement the measure, which was of unlimited duration and served the purpose of ensuring that the applicant did not leave the foster home. The applicant was not permitted to leave the institution and go home; and if she did, she would have been brought back to the foster home. Finally, power to take this action was referred to by the national authorities themselves as a measure of deprivation of liberty. Only in the strange looking glass world of Strasbourg jurisprudence could the applicant's situation be conceived of as anything other than a deprivation of liberty.
The line taken by the majority in this case is not only unattractive but somewhat irresponsible in contemporary society, when an increasingly large proportion of the population is surviving to an age when care and support is required in a manner that is compatible with Convention rights to autonomy and liberty.