The abuse of mechanical restraint practices in psychiatric establishments: waiting for Strasbourg
Abstract. On the 17th of November 2021, the European Court on Human Rights has communicated to the Italian government the application proposed by a young patient with mental health issues (19 years old at the time of the facts), subjected to mechanical restraints in an Italian psychiatric ward for nine consecutive days, in relation to art. 3 ECHR. Art. 3 ECHR provides the right not to be tortured or treated in an inhuman or degrading way. For the first time Italy is under the monitor of Strasbourg with regard to the abuse of mechanical restraints in psychiatric establishments, coercive practices that undermine fundamental rights protected at the highest level: personal freedom and the dignity of the individual. The most recently consolidated domestic case law specifies mechanical restraints can be justified only if applied as last resort, when strictly necessary to prevent an actual and severe damage to the patient her-self or to third parties. However, such practices have continued to be frequently applied in mental health services. Sometimes, even for consecutive days, as in the case of the applicant. Waiting for Strasbourg, the aim of this article is highlighting the tendency to justify and minimise the abuse of in judicial practice. With this regard, the case pending before the ECtHR is emblematic of this attitude in courtrooms.
SUMMARY: 1. Preliminary considerations. – 2. Mechanical restraint in psychiatry. – 3. The regulatory gap in domestic law and supranational principles. – 3. 1. Unlawful mechanical restraints and criminal liability. – 3. 2. The theory of mechanical restraint as ancillary to the psychiatrist’s legal duty to care and its criticism. – 3.3. The Supreme Court’s case law: extrema ratio and legal defence of necessity. – 4. The case pending before the ECtHR. – 5. Final considerations.
To read the Reflection, click on “open file”.
To read Dr. Riccardo Targetti, Procuratore della Repubblica f.f. at the Court of Milan, regarding the contribution, click here.
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