Self-Directed Support and Human Rights

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The Categories of Rights

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:

  1. The 'acid test' for deprivation of liberty is whether the person is under continuous supervision and control and is not free to leave. 
  2. 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.
  3. 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 10 - The right to freedom of expression
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

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