What the duty to protect the right to life involves and how to evaluate whether there has been a violation?
Everyone has the right to life. This means that agents of the State must not only avoid the unnecessary taking of life, but must also actively protect it and investigate any cases of unnatural death.
This means that:
- Agents of the State may use lethal force only in extreme situations and only where it is absolutely necessary
- In cases when agents of the State are aware that someone’s life is, or may be, at risk, they have a duty to do everything reasonably possible to protect it
- If someone’s life has been taken, the State has a duty to investigate it
Learn more about:
General principles
Although restrictive measures must not generally be used against patients or potential patients of mental health care institutions, there are exceptional situations when this is necessary and allowed. Read more about these exceptional situations.
The use of restrictive measures by the police whilst escorting a patient or against a patient by medical personnel at an institution must not result in the patient’s death. This means that even in exceptional situations when coercive means need to be applied, this must be done in proportion to the risk posed by the patient and must avoid a lethal outcome.
However, when restrictive measures are applied and a certain degree of physical force is used, there is a risk to the health and life of a patient. For example, when a potential patient is acting very aggressively during an escort and may hurt himself/herself or the police officers, the police may have to use more serious measures in order to prevent any imminent danger and there may, therefore, be more risk to the patient’s life.
The police or medical personnel involved should, therefore, be very well prepared for handling such a situation in order to:
- Correctly estimate the required and proportional restrictive measures
- And to accurately execute the physical aspect of the operation to avoid a lethal outcome
Criteria of evaluation
If the application of restrictive measures has, however, resulted in the death of a patient, there may have been a violation of the right to life. The following aspects will be assessed in order to evaluate whether there has been a violation of the right to life:
- Was there a legitimate aim in the use of the restrictive measures? Read more about the application of restrictive measures
- Were there any other effective means to solve the situation?
- Was the use of the restrictive measures in proportion to the danger posed by the patient?
- Were the police officers or the medical personnel appropriately prepared to evaluate the need for such restrictive measures and their execution?
- Did the police officers or the medical personnel properly plan the application of the restrictive measures given the time restraint and the circumstances on the ground and taking into account all the possible risks to life?
- Did the police officers or the medical personnel execute the operation to the best of their ability and to the level expected in such situations, given the time restraint and the circumstances on the ground?
In cases where police officers did not observe these rules while applying restrictive measures, resulting in a patient’s death, the State may be held responsible for a violation of the right to life.
However, in cases where medical personnel did not observe these rules while applying restrictive measures, resulting in a patient’s death, the State may be held responsible for a violation of the right to life, if it failed to provide protection when it should have, or to eventually investigate the incident. Read below about the duty to protect and the duty to investigate.
Where state authorities know or ought to know that someone’s life is at real and immediate risk, they have to take all necessary and reasonable actions to avoid that risk. Particular attention should be paid to persons placed involuntarily in mental health care institutions as they are in state custody and often cannot take care of themselves. The State will have to provide an explanation in the case of their death.
example The relevant state authority must take measures when it knows or should have known that patients are being starved at the mental health care institution due to the fact that the facility is understaffed and cannot ensure that every patient manages to eat their food.
However, the duty to protect life does not mean that the authorities must take actions that cannot be reasonably expected of them or that they have to do the impossible to prevent the loss of life.
The Bulgarian Prosecutor’s Office has an obligation to properly investigate any situations where your family member or close relative has died at a mental health care institution and prevent situations where they could possibly die. Although the State may not even be directly responsible for the death in these situations, it must investigate what has happened properly and establish whether someone could be responsible for the death of your family member or relative.
The investigation has to be commenced promptly and must be thorough and effective.
If the State fails to investigate the death of your family member or relative, irrespective of whether its agents were involved in causing the death or not, this will be considered a violation of the right to life.