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
