HM v Switzerland (European Court of Human Rights) Judgment 26 February 2002

HM, an elderly woman was placed by the Swiss authorities in an adults’ care home against her will, on account of neglect and the impossibility of meeting her needs at home, because of lack of co-operation on the part of her and her carer, who was also an invalid. The woman complained of unlawful deprivation of liberty, since ‘vagrancy’, and not neglect, is a permitted exception to the right to liberty in article 5.

The woman had been living in a house belonging to her son, together with her husband, the wife receiving healthcare at home. Later the father went into residential care and died, leaving the woman in the sole care of her invalid son. The visiting health care providers complained to the guardianship office that it was proving impossible to care for the bedridden woman, because the son obstructed their entry, dressed inappropriately, and allowed newspapers, cardboard boxes and full plastic bags to pile up in unheated rooms. Proposed conditions imposed by them for continued care were ignored, and they stopped going in.

The Guardianship Commission eventually requested the District Government Office to place the applicant in a care home. When visited, (by the equivalent of the Community Physician) the woman said that her son cooked and she had enough to eat; that she could go to the toilet unaided, and that she washed in the kitchen, that her leg sores were being seen to by a friend, and that she did not want to go to the care home.

The Office ordered the placement for an unlimited period in the care home on account of serious neglect, relying on a provision of the Swiss Civil Code and a provision of an Act entitled Deprivation of Liberty on Grounds of Welfare Asssistance. The police were instructed to effect the placement and did so.

The woman and her son appealed and the woman gave evidence that she was not unhappy in the home but that she did not want to stay. The Appeal Commission rejected her appeal and found grounds in the Code justifying withdrawal of liberty – neglect and the impossible situation for the visiting healthcare services. Additionally the Commission’s medical member expressed the opinion that the woman was suffering from mild dementia. It found that the woman hardly felt the deprivation of liberty which was minimal, and that it mostly affected her son, who did not want to lose his mother.

The government contended that the home was not a place where the woman had actually been ‘detained’, since she had never been locked in, and was free to have personal contacts, make calls etc. It referred to the Guzzardi case (1980) in which it had been held that a person’s own interests might warrant deprivation of liberty, and to the Nielsen v Denmark case (1988) in which it was regarded as not even a deprivation of liberty for a parent to place a 12 year old son in a closed psychiatric ward for 5.5 months of therapy.

The Court held that in the circumstances, (ie the placing of the woman in the home in her own interests, in order to provide her with the necessary medical care, as well as satisfactory living conditions and hygiene), the placement did not amount to a deprivation of liberty at all, thus making it unnecessary to decide whether neglect, on its own, could count as ‘vagrancy’ in article 5(1)(e).


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