B. v. Romania (no. 2)

Application No. 1285/03
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The applicant, M.B., filed a complaint with the European Court of Human Rights for a violation of (1) laws concerning compulsory admission to psychiatric hospitals and (2) laws concerning decisions in child-rearing where the parent or guardian’s mental capacity is in question.

M.B. was diagnosed in 2000 with paranoid schizophrenia. As a result of her disorder, her ability to care for herself and her minor children seemed to deteriorate, and her living conditions were deemed unsuitable by the police. She was admitted into psychiatric clinics numerous times between 2000 and 2007. The applicant alleged that her admissions into the facilities were compulsory, contrary to the laws of the state, and that she was “permanently detained” by the state.

Furthermore, the applicant’s children were removed from her custody in 2000. The children’s maternal grandmother requested assistance from the Social Welfare and Child Protection Department due to their mother’s mental illness and violent behavior. As a result, the children were placed in a home for abandoned children. The applicant was not consulted about these decisions because state authorities deemed her incompetent to make that decision. A county court ultimately delegated the children’s parental rights to the director of the care home.

M.B. alleged that her rights under the European Convention for the Protection of Human Rights and Fundamental Freedoms (“Convention”) had been violated, specifically, Article 8, which protects the right to respect for private and family life. The Convention states that the public authorities may not interfere with Article 8 rights unless necessary for public safety or national security.

M.B. further alleged violations of Romanian domestic law, including the Mental Health Act, the Protection of People with Disabilities Act, and the Family Code of 2011.

The Court held that there had been a violation of Article 8 of the Convention because M.B.’s confinement to mental institutions had been involuntary, and there was no evidence to show that the proper procedure for committing a person to a mental institution against her will had been observed. Neither M.B. nor anyone close to her had been notified of the decisions against her, and no medical panel had issued a decision on her compulsory admission. Accordingly, the Court deemed the lack of procedure unfair and a violation of M.B.’s Article 8 rights.

Next, the Court held that the state erred in prohibiting the applicant from participating in the decision of her children’s childcare. Although public authorities were not required to follow a strict set of procedures, their actions were still reviewable. The Court noted that, although parents did not need to be consulted in all cases due to mental incapacities, in this case the applicant had not even been contacted by social workers, which made it impossible for her to be involved in the decision-making process.

“The Court observes in this connection that despite the fact that the Protection of People with Disabilities Act laid down the obligation to afford legal protection to such people in the form of full or partial guardianship (see paragraphs 57 and 65 above), no such protective measure was taken in the applicant’s case, even though the authorities had been aware of her state of health long before she had first been admitted to a psychiatric institution; she had been eligible for welfare benefits since 1996 as a disabled person who was unfit for work. The applicant’s vulnerability had also been noted and brought to the attention of the domestic courts in numerous reports by the social services that had taken care of her minor children (see, for example, paragraph 25 above). However, neither the social services nor the courts took any action on these findings in terms of affording legal protection to the applicant herself. It was precisely this inaction by the authorities which contributed in the present case to rendering illusory the safeguards introduced by the Mental Health Act, in particular the patient’s right to be assisted when giving consent (see paragraph 45 above). The same applies to the obligation to notify the patient’s legal representative of the decision to admit the patient for treatment (see paragraph 48 above) and of the circumstances justifying such a measure (see paragraph 46 above).” Paras. 96-97.

“Despite the good will shown by the authorities, as highlighted by the Government, the Court considers that the provisions of domestic law governing psychiatric detention and the protection of people who are unable to look after their own interests were not applied to the applicant in the spirit of her right to respect for her private life under Article 8. As a result, the authorities failed to comply with their obligation to take appropriate measures to protect the applicant’s interests.” Para. 100.

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