The Right to Life and the Scope of Control: Fernandes de Oliveira v Portugal

By Peter Bartlett (Nottinghamshire Healthcare NHS Trust Professor of Mental Health Law, Institute of Mental Health and School of Law, University of Nottingham)

On its face, this case considers the duty of the State to protect the lives of voluntary (or informal) psychiatric patients under Article 2 of the ECHR (right to life).  Below the surface, the case raises a number of broader questions about the scope of the positive obligations under Article 2; how they relate to the autonomy-related rights in Articles 3 (prohibition of torture, inhuman or degrading treatment), 5 (right to liberty) and 8 (right to privacy and family life); the fact-finding exercises and evidential approach of the ECtHR; and the relationship between the ECHR jurisprudence and other international law, most notably the United Nations Convention on the Rights of Persons with Disabilities (CRPD). Continue reading