It is important
to understand that there are different categories of rights and this is fundamental to how the ECHR works in practice.
Absolute rights
You should be aware that some rights are 'Absolute' which means there cannot be
a justification for interfering with them or ignoring them in any circumstances
Article 3 of the ECHR stipulates:
"No one shall be subjected to torture or to inhuman or degrading treatment or punishment."
In
the context of SDS this could include such things as abuse or neglect; the disproportionate use of force or restraint or grossly inadequate medical
or personal care or treatment.
The important element to recognise about Article 3, is that although it is absolute, for treatment to engage the Convention right it requires a 'minimum level of severity',
taking into account such factors as the duration; the physical and
mental effects of treatment; the sex, age and health of victim.
This is a HIGH BAR.
The minimum level of severity takes into account prevailing standards, including medical standards so
treatment which is a therapeutic necessity within established medical
standards does not meet the minimum level of severity. By way of example,
involuntary treatment for mental disorder, is unlikely to reach a minimum level of severity so as to engage Article 3, (although there is ongoing
debate about this at UN level).
Examples of treatment which breaches Article 3 include the following;
Failure to treat someone with care.
UK case (McGlinchey and Others v the United Kingdom [2003])
This concerned a wife and mother Ms McGlinchey, who had a heroin addiction and who died a week
after being imprisoned. The applicants, her husband and children alleged that there had been a failure to provide the requisite level of medical
care. They alleged, among other things, that the prison authorities had
deliberately withheld her medication and locked her in her cell as a
punishment for her difficult behaviour; that they had administered her
medication irregularly; and that she had been left lying in her own
vomit. The Court found this to be a breach of Article 3.
Disproportionate use of force or
restraint
French case (Mouisel v France [2002])
The Court found a violation of Article 3 where the elderly
prisoner was kept handcuffed to the bed during a hospital visit. The Court found this to be a
disproportionate action in comparison to the risk he presented.
Some
rights are Limited
rights which means they can be restricted in certain specific
circumstances.
Article 5 - Right to liberty and
security of person
It is fairly easy to imagine circumstances where it would be contrary to someone's human rights to deprive them of liberty or security. Equally it is easy to imagine circumstances where this might be entirely necessary. This is an example of how the context of an action changes the nature of that action.
Article 5 starts by saying this:
"Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:"
It then goes on to detail the permitted
exceptions: i.e. lawful detention after conviction, lawful arrest or detention
for non compliance with order of court or to fulfil an obligation prescribed by
law, arrest or detention for purposes of bringing before court where reasonable
suspicion of having committed a crime, educational supervision, mental illness,
subject to deportation or extradition.
The remaining parts of Article 5 require that the detained individual is provided with:
- Information about the reason for detention
- Trial within a reasonable time or release pending trial
- The opportunity for the Judicial determination of the lawfulness of
detention
- Compensation, which is particularly relevant
to immigration detention, sectioning and informal detention in relation
to mental health as well as imprisonment.
The Bournewood Case
This concerned a Mr L who was an adult who was autistic and had profound learning disabilities. He had lived in the Bournewood Hospital for over thirty years until he was discharged
into the community to live in an adult foster placement with carers Mr
and Mrs 'E'. Some time later became agitated at a day centre he
attended and was admitted to the Accident and Emergency Department at
Bournewood Hospital under sedation. Due to the sedative, he was
compliant and did not resist admission, so doctors chose not to admit
him formally under the Mental Health Act.
He never attempted to leave the hospital, but his carers were
prevented from visiting him in order to prevent him leaving with them. A
report by the Ombudsman
heard evidence from a range of professionals that the standard of his
care had been poor in the hospital, and he had become distressed and
agitated. Mr and Mrs 'E' sought from the court a judicial review
of the decision of the Bournewood Community and Mental Health NHS Trust to detain the appellant and to continue his detention. The application was dismissed by the High Court but an appeal to the Court of Appeal was allowed.
In the case of
R v Bournewood Community and Mental Health NHS Trust Ex p. L [1997] EWCA Civ 2879, the House of Lords (now the Supreme Court) concluded by a majority verdict that Mr L had not been detained within
the meaning of the common law because there
must be
actual and not just
potential restraint.
For the Lords, the key
determining factor was whether the person is subject to continuous supervision
and control and is not free to leave. With regard to the issue of consent
the majority decision was that you cannot assume a person lacking capacity has consented to a deprivation of liberty (even if they appear to be compliant!).
There was a dissenting judgement from Lord Steyn in which he stated that the Trust's argument that Mr L, not being formally detained,
was always free to go 'stretched credulity to breaking point' and was 'a
fairytale'.
European Court of Human Rights
Since the decison pre-dates the incorporation of the ECHR into domestic law, the case was pursued at the European Court of Human Rights(in a case known as
HL v United Kingdom [45508/99]) for a declaration that Mr L had been deprived of his liberty unlawfully in the meaning of Article 5 of the European Convention on Human Rights.
The Court held that he had and that there had been a breach of his Article 5 rights. They agreed with Lord Steyn that he had in fact been detained,
and considered that the distinction relied upon by the House of Lords between
actual and potential restraint was not 'of central importance under the
Convention'. They further found that the common law did not provide the requisite safeguards for informal
detention of compliant but incapacitated patients such that it could not be described as 'in
accordance with a procedure described by law' as required under Article
5(1)(e).
Cheshire
West Case
The case of
P v Cheshire West and Chester Council [2014] UKSC 19 (The Cheshire West Case) the Court clarified the test and definition for Deprivation of Liberty for adults
who lack capacity to make decisions about whether to be accommodated in
care. It made
clear that this extended beyond traditional detention to a range of health and
social care settings, including in domestic style settings.
The Court made three main points:
- The 'acid test' for deprivation of liberty is whether the person
is under continuous supervision and control and is not free to leave.
- Because of the extreme vulnerability of people like P, decision-makers should err on the side of caution in
deciding what constitutes a deprivation of liberty.
- The following are not relevant:
(a) the person's compliance or lack
of objection;
(b) the relative normality of the placement (whatever the
comparison made); and
(c) the reason or purpose behind a particular
placement.
Examples
of deprivation of liberty
Deprivation of liberty can be a real issue in health and social care settings, where there can be a range of elements of care
which amount to deprivation of liberty. For
instance, they may occur in the course of placing the person in hospital for
physical health or psychiatric care and treatment or in a care home and their
continued stay there. Deprivations of liberty can also occur whilst the person
is living in conditions that are very similar to a domestic home
environment. Potentially, measures such
as the use of force, restraint (physical or through medication), seclusion,
‘time out’, overly intrusive observation, using electronic devices, locked
doors/wards and freedom to interact with others outside the institution may, in
certain circumstances, amount to a deprivation of liberty.
Whether or not they do will
depend on the particular circumstances of the case but it is important to note
that the idea that restrictions are in place for the individual’s benefit does
not mean that they are not restrictions. As Lady Hale put it,
“a gilded cage is still a cage”. This does not mean that restrictions cannot be put in place
but does mean they would need to be justified and accompanied by the procedural
guarantees of Article 5.
So in these circumstances, authorities will need to seek legal authority for the deprivation of
liberty.
Qualified
rights
Also have what we call "Qualified
rights" which are rights which require a balancing act to
be carried out i.e. they can be restricted if the restriction is justified.
They include the following:
Article 8 - The right to respect for private and
family life, home and correspondence
Article 9 - The right to freedom of thought,
conscience and religion
Article 11 - The right to freedom of assembly and
association
There is
considerable scope for the application of Article 8 in SDS decisions as
it encompasses a range of elements, including;
- Autonomy and self-determination: the right to conduct your own
life as you choose, including in
ways seen to be harmful – this chimes with the law around Adults With
Incapacity, in which the definition encompasses the concept of the right
to make daft/illogical
decisions
- Participation in decision-making: (e.g. informed decisions
about treatment or care). This requires access to information enabling
individuals to assess the health risks to which they are exposed. If
subsequently a foreseeable
health risk then arises which the public authority failed to advise of
this could constitute a breach. It also means being provided with
support for
decision making. In this context, the provision of Advocacy support can
be seen as a realisation of this right.
- Privacy: e.g. lack of privacy on wards, privacy of medical
records, but could mean a failure to respect an individuals right to
keep other parts of their personal life private, eg sexuality
- Family life: this could encompass inadequate arrangements to allow patients to remain in touch with
family members, for example a very short and restrictive visiting policy
- Physical and psychological integrity: this could cover issues such as intrusive bodily
searches or restrictions on liberty falling short of the deprivation required to engage Article.5.
It could also cover treatment not reaching the minimum level of severity required to engage Article 3, e.g. some
situations of seclusion, inadequate service provision