If a person cannot give informed written consent to be placed in a psychiatric institution due to his/her mental illness, the decision to do so must be made solely by the court - CivCC of the SC

If an incapacitated person is unable to provide informed written consent to be placed in a psychiatric institution due to his or her mental health condition, such placement is involuntary and, accordingly, requires a court decision.

Otherwise, his or her involuntary hospitalisation in a psychiatric institution, which is not consensual, is a restriction of the right to liberty and security of person enshrined in Article 29 of the Constitution of Ukraine.

This conclusion was made by the Supreme Court composed of the panel of judges of the First Judicial Chamber of the Civil Cassation Court in the case on recognition of compulsory hospitalisation as illegal.

According to the circumstances of the case, the plaintiff's son is incapacitated and is in a boarding school, and the court appointed guardians for him: the plaintiff as his father and his mother. The father requested that the court recognise that his son's hospitalisation at the Municipal Non-Profit Enterprise ‘’Psychiatry Clinical Hospital‘’, where he had been staying for five days, was unlawful on the basis of a referral issued with gross violations of the law. 

The court of first instance, whose conclusions were upheld by the court of appeal, dismissed the claim, in particular, stating that the involuntary hospitalisation had taken place with the patient's informed written consent.

The CivCC of the Supreme Court overturned the court decisions and upheld the claim, making the following legal conclusions.

Article 3 of the Convention for the Protection of Human Rights and Fundamental Freedoms provides that no one shall be subjected to torture or to inhuman or degrading treatment or punishment.

A person declared legally incapacitated in accordance with the procedure established by law is admitted to a mental health care facility voluntarily - at his/her request or with his/her informed written consent (part 1 of Article 13 of the Law of Ukraine ‘On Mental Health Care’).

The court decision declaring the plaintiff's son incapacitated established that he simultaneously met two criteria for being declared incapacitated: he did not realise the meaning of his actions and did not control his actions.

The case file does not contain any medical evidence that on the day of admission to a psychiatric institution the patient's mental health had improved to the extent that he could give informed consent to voluntary admission to a psychiatric institution. This excludes the voluntariness of the procedure for placing the plaintiff's son in a psychiatric institution.

A systematic analysis of the relevant legislation, the decisions of the Constitutional Court of Ukraine of 2 June 2016 in case No. 1-1/2016, of 20 December 2018 in case No. 1-170/2018, as well as the relevant case law of the European Court of Human Rights, gives grounds to believe that if an incapacitated person is unable to give informed written consent to placement in a psychiatric institution due to mental health, such placement is involuntary and requires a court decision. 

Otherwise, his or her involuntary hospitalisation in a psychiatric institution, which is not consensual, is a restriction of the right to liberty and security of person enshrined in Article 29 of the Constitution of Ukraine. Such hospitalisation by its nature and consequences is a disproportionate restriction of the constitutional right of an incapacitated person to liberty and security of person. Therefore, hospitalisation must be carried out in compliance with constitutional guarantees of protection of human and civil rights and freedoms, taking into account the above international legal standards, legal positions of the Constitutional Court of Ukraine and exclusively by court decision in accordance with the requirements of Article 55 of the Basic Law of Ukraine.

Following the consideration of the case, the panel of judges of the CivCC of the Supreme Court concluded that in this case there was a violation of Article 5 of the Convention for the Protection of Human Rights and Fundamental Freedoms (deprivation of liberty) in relation to the plaintiff's son, since although the case file contains a document signed by him ‘Informed consent of a person to hospitalisation in a psychiatric institution’, however, in the circumstances established by the court regarding the lack of medical evidence of the latter's ability to understand the meaning of their actions and control them during hospitalisation in a mental health facility, such hospitalisation should have been subject to judicial control.

Resolution of the Supreme Court of 23 July 2024 in case No. 758/4817/23 (proceedings No. 61-4195св24) - https://reyestr.court.gov.ua/Review/120719844.

This and other legal opinions of the Supreme Court are available in the Database of Legal Positions of the Supreme Court - https://lpd.court.gov.ua.