Article 8 and the (not so?) Great Confinement - PowerPoint Presentation

Slide1

Article 8 and the (not so?) Great Confinement

Neil AllenLecturer and BarristerUniversity of Manchester and Thirty Nine Essex Street ChambersNeil.allen@manchester.ac.ukSlide2

The 200-year ParallelMadhouses Act 1774 – drop in inspections

1814: York Asylum and Bethlem HospitalParliamentary Select Committee 1815 – scathingResponse = asylums Health and Social Care Act 2008 – drop in inspections2006: Cornwall. 2012: Winterbourne viewParliamentary Select Committee 2014: scathingResponse = “deprived”Slide3

Article 5 ECHR

1. 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

: …

(e)

the lawful detention

… of

persons of unsound

mind…

2. Everyone who is arrested shall be informed promptly, in a language which he or she understands, of the reasons for his arrest and of any charge against

him…

4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.5. Everyone who has been the victim of arrest or detention in contravention of the provisions of this article shall have an enforceable right to compensation.Prescribed procedures are MHA (hospitals), DOLS (hospitals and care homes) and COP order (anywhere if eligible). NB inherent jurisdiction (gap-filler).Slide4

A Matter for Parliament?

JUSTICE, Mental Health Bill Briefing for House of Lords Second Reading (November 2006):“89. … if it is known that a person will be taken from their home to a place where they will be prevented from leaving, and complete and effective control will be exercised over their movements, that person is deprived of liberty from the point of removal from their home

.” Government’s response

, Appendix 3

:

“52

. The Department considered defining deprivation of liberty in the statute but felt that this was not possible. There is

no definitive legal test

for what will amount to a deprivation of liberty

within

the meaning of Article 5 of the Convention.”Hence, MCA 2005 s.64(5):“In this Act, references to deprivation of a person’s liberty have the same meaning as in Article 5(1) of the Human Rights Convention.” Slide5

“Deprived of Liberty”

Cheshire West and Surrey CasesObjective elementSubjective elementState responsibleSlide6

Deprivation of “Liberty”?

“Liberty means the state or condition of being free from external constraint. It is predominantly an objective state. It does not depend on one’s disposition to exploit one’s freedom. Nor is it diminished by one’s lack of capacity” (paragraph 76).Liberty is objectively intrinsic to the person. Is this different to “physical liberty”?

Has the Supreme Court conflated

loss of

liberty with loss of autonomy?Slide7

DEGREE OR INTENSITY

ALL THE CIRCUMSTANCES

Such as the type, duration, effect, and manner of implementation of measures

Restricting Movement

Deprivation of liberty

Article 5

(3) State responsible

(2) Subjective Element

Not validly consented to confinement

(

ie

with capacity)

(1) Objective Element

Confined to certain limited place for

more than a negligible period of timeSlide8

“Liberty”: An Objective Notion

“If it would be a deprivation of my liberty to be obliged to live in a particular place, subject to constant monitoring and control, only allowed out with close supervision, and unable to move away without permission even if such an opportunity became available, then it must also be a deprivation of the liberty of a disabled person. The fact that my living arrangements are comfortable, and indeed make my life as enjoyable as it could possibly be, should make no difference. A gilded cage is still a cage.”Slide9

(1) The Objective Element:The Acid Test

Confined to a particular restricted space for a not negligible length of time? Consider type, duration, effect, manner of implementation of measures. Essential ingredients:Under continuous/complete supervision and control, AND

Not free to leave (to live wherever and with whomever they want)

The following are

not

relevant to the acid test:

Whether they comply or object

Relative normality of the placement

Reason or purpose behind a placementSlide10

Cheshire West P:Deprived of Liberty

Adult with Down’s syndrome, cerebral palsy, and learning disability lived in a spacious bungalow with two other residents, with two members of staff on duty during the day and one ‘waking’ member of staff overnight. Required prompting and help with all the activities of daily living, getting about, eating, personal hygiene and continence

.On occasion required further intervention including restraint to stop him harming himself, but

was

not prescribed any

tranquilising

medication.

Unable

to go anywhere or do anything without one to one support; he

got

98 extra hours a week of personal support to enable him to leave the home frequently for activities and socialising. Slide11

Surrey MEG:Deprived of Liberty

A 17 year old with mild learning disabilities living with three others in an NHS residential home for learning disabled adolescents with complex needs. She had occasional outbursts of challenging behaviour towards the other three residents and sometimes required physical restraint.

Prescribed (and administered) tranquilising medication. She had

one to one and sometimes two to one support. Continuous supervision and control

was

exercised so as to meet her care needs.

She was

accompanied by staff whenever she

went out.

She

attended a further education unit daily during term time, and had a full social life. She showed no wish to go out on her own, and so there was no need to prevent her from doing so. Slide12

Surrey MIG:Deprived of Liberty

18 year old with a moderate to severe learning disability and problems with her sight and hearing, who required assistance crossing the road because she was unaware of danger, living with a foster mother whom she regarded

as ‘mummy.’ Her foster mother

provided

her with intensive support in most aspects of daily living. She

was

not on any medication. She

had

never attempted to leave the home by herself and showed no wish to do so, but if she did, her foster mother would restrain her.

She attended the same

further education unit daily during term time and was taken on trips and holidays by her foster mother. Slide13

(2) Subjective Element

Not validly consented to the confinement in question.Cannot validly consent if lacking capacity:Do they have a temporary or permanent impairment or disturbance affecting the functioning of mind or brain?Are they unable to make a decision for themselves in relation to

the matter? Unable to make a decision if unable to:  

U

nderstand the information relevant to the decision (includes information about the reasonably foreseeable consequences of deciding one way or another, or failing to make the decision), OR 

R

etain that information (retention for short period does not prevent him from being regarded as able to decide), OR 

U

se or weigh that information as part of the process of making the decision, OR 

C

ommunicate the decision (whether by talking, using sign language or any other means).Is this because of the impairment/disturbance?Slide14

(2) Subjective Element

M v Ukraine (Application no. 2452/04) 19 July 2012“77. [T]he Court takes the view that a person’s consent to admission to a mental health facility for in-patient treatment can be regarded as valid for the purpose of the Convention only where there is sufficient and reliable evidence suggesting that the person’s mental ability to consent and

comprehend the consequences thereof

has been objectively established in the course of a fair and proper procedure and that all the necessary information concerning placement and intended treatment has been adequately provided to

him.

78 … There

is no evidence suggesting that her mental ability to consent was established, that the

consequences of the consent

were explained to her or that the relevant information on placement and treatment was provided to her

.

79. In these circumstances the Court considers that the applicant’s consent to the fourth hospitalisation cannot be viewed as valid and lawful for the purpose of the Convention.”Slide15

(3) State is Responsible

Directly responsible:Hospitals and care homes (whether they are public or private is irrelevant for these purposes).Person is placed by a public authority.Providing more than negligible care?Indirectly responsible (eg failing to investigate, support or refer):

Failing to take steps to investigate whether this is a DOL If there is a DOL, failing to take measures to bring it to an end, eg

by providing support services for

carers

to

minimise

inappropriate restrictions

If there is a DOL that cannot be avoided, failing to refer to court to have the DOL

authorised

. Slide16

Implications of the

Great ConfinementSlide17

Administrative Detention:DoLS (hospitals and care homes)Slide18

Judicial Detention:Court of Protection AuthorisationsSlide19

ImplicationsCare homes

Hospitals – general and psychiatric wards Mental Health Act 1983 Supported living arrangementsOwn homesFoster placements and shared lives schemesResidential schools and further education collegesChildren’s homesSlide20

A Matter of Policy

Cheshire West and Surrey: “57. Because of the extreme vulnerability of people like P, MIG and MEG, I believe that we should err on the side of caution in deciding what constitutes a deprivation of liberty in their case. They need a periodic independent check on whether the arrangements made for them are in their best interests. Such checks … are

a recognition of their equal dignity and status as human beings like the rest of us.”

Long term: need to de-link safeguards from the prison paradigm of Article 5.

Meanwhile, lessons from history =

Be alive to the risk of social stigma

Ensure Article 5 does not delay or inhibit the provision of care

Do not rubber stamp!!

“

10 … Legal formalities may be seen as the antithesis of the normalisation which it is the object of both the Mental Health and the Mental Capacity Acts to achieve.” Slide21

The Nub of the Matter:Article 8 ECHRSlide22

London Borough of Hillingdon v Neary

[2011] EWHC 1377“… the issue that arises under Article 8 represents the nub of the matter. The principles surrounding the right to respect for family life are well understood. They do not owe their origins to the Mental Capacity Act 2005 or even, I would suggest, to the Human Rights Act 1998, and they apply directly to cases where the legitimacy of removal of a person from a family is in question

…

There

will of course be cases where a grave breach of Article 5 overshadows consequences in terms of Article 8, but this will not always be so. In the present case, it seems to me that

the real issue relates to Steven’s absence from his family home

, rather than the deprivation of liberty to which he is to some degree or another necessarily subject wherever he

lives.

In saying this,

I

do not imply that deprivation of liberty issues are unimportant in Steven’s case. But by viewing the case primarily through the prism of art 5 one risks repeating a central fallacy and conflating the secondary question of whether a person is lawfully deprived of his liberty with the primary question of where he should be living.”Slide23

Article 8

1. Everyone has the right to respect for his private and family life, his home and his correspondence.2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.Slide24

DoLS is not the Answer to Article 8

DOLS is an article 5 procedure and cannot resolve article 8 disputes (eg as to residence or contact):DOH Briefing, ‘DOLS - the early picture’ (April 2010): other than as a very short-term measure, DOLS should not be relied on to manage no contact cases. Go to Court of Protection.London Borough of Hillingdon v Neary and others

[2011] EWHC 1377: “Significant welfare issues that cannot be resolved by discussion should be placed before the Court of

Protection…”

C v Blackburn with

Darwen

BC

[2011] EWHC

3321

: “…it

is not in my view appropriate for genuinely contested issues about the place of residence of a resisting incapacitated person to be determined either under the guardianship regime or by means of a standard authorisation under the DOLS regime.” Go to Court of Protection. Slide25

Substantive Protection

Lester et al, Human Rights Law and Practice (2009) para 3.10:The objective must be sufficiently important to justify limiting a fundamental right;The measures designed to meet the objective must be rationally connected to that objective - they must not be arbitrary, unfair or based on irrational considerations;

The means used to impair the right or freedom must be no more than is necessary to accomplish the legitimate objective - the more severe the detrimental effects of a measure, the more important the objective must be if the measure is to be justified in a democratic society.Slide26

Interface: Article 8 and Best Interests?

Re Connor [2004] NICA 45, [29]: Whether the interference can be justified involves an approach which is quite different from a best interests assessment.K v LBX [2012] EWCA Civ 79: The

right approach under the MCA 2005 is to “ascertain the best interests of the incapacitated adult on the application of the section 4 checklist. The judge should

then

ask whether the resulting conclusion amounts to a violation of Article 8 rights and whether that violation is nonetheless necessary and proportionate.”

Westminster City Council v Manuela Sykes

[2014] EWHC B9:

“Once

this court has completed its analysis of Ms S’s best interests under the MCA, it must satisfy itself that any infringement of her Article 5

and /

or Article 8 rights which arises from its (provisional) conclusion is necessary and proportionate”.Slide27

Substantive Protection

Adds an emotional dimension to MCA s.4 best interests checklist: FP v GM and a Local Health Board [2011] EWHC 2778. Requires public care to be of better quality then private care, welfare being the paramount consideration? Re S (adult patient) (inherent jurisdiction: family life) [2002] EWHC 2278 (Fam). But note K v LBX [2012] EWCA Civ

79. Guards against undue delay, eg in assessing capacity: City

of Sunderland v MM

[2009] COPLR Con

Vol

881.

Reinforces right of access to the court.

Promotes personal contact between person and

court: X and Y v Croatia (app no. 5193/09, 2011).Slide28

Procedural ProtectionConsider the views of those interested in P’s welfare so far as this is practicable and appropriate: MCA s.4(7).

G v E, Manchester City Council and F [2010] EWHC 621:“88… Article 8 gives the families of such adults (and by “families” I include relationships between such adults and long-term foster carers) not only substantive protection against any inappropriate interference with their family life but also procedural safeguards including the involvement of the carers in the decision-making process, seen as a whole, to a degree sufficient to provide them with the requisite protection of the families' interests. If they have not, there will have been a failure to respect the family life of the incapacitated adult (and of course the

carer.)”This reinforces

the procedural dignity afforded to P’s family members

whose

Article 8 rights are

also being

interfered with. Slide29

“In accordance with the law”

J Council v GU and others [2012] EWHC 3531“George” had paedophilia which manifested itself through compulsive letter writing about child sex fantasies. In private care home where he was strip-searched, and had his correspondence and telephone conversations monitored.

Were these Article 8 interferences “in accordance with the law”?

“

... not every case where there is some interference with Art 8 rights in the context of a deprivation of liberty

authorised

under the 2005 Act needs to have in place

detailed policies with oversight by a public

authority… But where there is going to be a long-term restrictive regime accompanied by invasive monitoring of the kind with which I am concerned, it seems to me that policies overseen by the applicable NHS Trust and the CQC akin to those which have been agreed here are likely to be necessary if serious doubts as to Article 8 compliance are to be avoided.52-page policy document written to address the issues.Slide30

In SummarySupreme Court: policy decision to use the right to liberty (article 5) to protect vulnerability to abuse (article 3).

Eye-watering implications and challenges.Need to learn the lessons of history.Nub of the matter is article 8: where should they be living?Article 8 provides substantial substantive and procedural safeguards.Thank you.neil.allen@manchester.ac.uk