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18 July 2019 / Laura Davidson
Issue: 7849 / Categories: Features , Mental health , Human rights
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Duty of care: inadequate safety nets?

How far does the state’s duty of care extend in protecting detained patients—both voluntary & involuntary—from self-harm? Laura Davidson investigates

  • Examines existing case law in light of the European Court of Human Rights’ decision in Fernandes de Oliveira v Portugal.
  • A state should take certain basic precautions to protect a psychiatric patient from self-harm and suicide, whether they are voluntarily detained or not.

It was recently confirmed in Fernandes de Oliveira v Portugal [2019] ECHR 106 (application no 78103/14, 31 January 2019) that a state’s positive obligation under Art 2 of the European Convention on Human Rights (ECHR) applies not only to compulsorily detained patients, but also to those being treated voluntarily in hospital. However, there was a disappointing caveat. The European Court of Human Rights (ECtHR) concluded that ‘a stricter standard of scrutiny’ might be applied to patients detained ‘involuntarily’ following judicial order (para [124]). Indeed, no Art 2 violation was found. In a partly dissenting minority opinion (MO), Portugal’s Judge Pinto de Albuquerque and Judge Harutyunyan describe the decision scathingly as ‘the result of a creative exercise

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NEWS
Talk of a reserved ‘Welsh seat’ on the Supreme Court is misplaced. In NLJ this week, Professor Graham Zellick KC explains that the Constitutional Reform Act treats ‘England and Wales’ as one jurisdiction, with no statutory Welsh slot
The government’s plan to curb jury trials has sparked ‘jury furore’. Writing in NLJ this week, David Locke, partner at Hill Dickinson, says the rationale is ‘grossly inadequate’
A year after the $1.5bn Bybit heist, crypto fraud is booming—but so is recovery. Writing in NLJ this week, Neil Holloway, founder and CEO of M2 Recovery, warns that scams hit at least $14bn in 2025, fuelled by ‘pig butchering’ cons and AI deepfakes
After Woodcock confirmed no general duty to warn, debate turns to the criminal law. Writing in NLJ this week, Charles Davey of The Barrister Group urges revival of misprision or a modern equivalent
Family courts are tightening control of expert evidence. Writing in NLJ this week, Dr Chris Pamplin says there is ‘no automatic right’ to call experts; attendance must be ‘necessary in the interests of justice’ under FPR Pt 25
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