Sometimes a coincidence is just too good to ignore. When I started this series I had no idea that on the day that I came to write about article 5, the right to liberty, the High Court would rule in just such a case here in UK. And it’s not some obscure little dispute that has been at issue – it involves a large Local Authority, in a case that goes to the heart of one of UK’s most important protections, the Deprivation of Liberty Safeguards.
But before we get to that particular case let’s get some background.

Throughout Europe people have the right to liberty – a convention right that is enshrined in law. But it’s not an absolute right – it’s a limited right. That means that there are limits to our liberty and that in certain circumstances we can be deprived of it. Those circumstances are also enshrined in law. When delivering training to care workers I often put it another way…

The law giveth – the law taketh away

No detention without chargeArticle 5 limitations allow the state (in this case the UK) to deprive convicted criminals of their liberty by imprisoning them. It also allows for states to arrest people and detain them either during investigation, for police interview or in certain circumstances whilst ‘on remand’. However it does not allow for indefinite detention without charge and there are some very important safeguards around how long an individual can be held before formal charges are brought and indeed under what circumstances they can be held at all. Not every offence is ‘arrestable’ in the first place. This is why the UK government had so many problems with the extended detention aspect of recent anti-terrorism laws. It’s just not acceptable to detain people indefinitely because of something they might do.

Then there are people who are detained because of what is known in European law as an impairment of mind. In these cases people who, because of mental disorder or impairment, present a risk to themselves, a risk to others or are at risk because of self neglect. These people can be detained under the Mental Health Act 1983/2007. However their detention must also comply with certain conditions known as the Winterwerp criteria. They come from a case in the European Court of Human Rights (ECtHR) known as ‘Winterwerp vs The Netherlands’. The Winterwerp criteria are:

• Mental impairment must be assessed by a competent professional;
• There must be an impairment of mind;
• The impairment must be severe enough to warrant detention;
• The impairment must be causing problems at the time.

Mental Health Act (MHA) detentions can be as much about protecting the public as about protecting the individual themselves. There are other conditions to long term detention under the Mental Health Act including availability of effective treatment and access to an effective appeals process. This means that not everyone who needs to be detained in their own best interests can be detained under the MHA.

A very famous UK case (HL vs UK) dealt with the problems of detaining people who are not necessarily eligible for MHA detention but who may (or may not) need to be detained in their own best interests. This is known as the Bournewood case and involved the ‘unofficial’ or ‘De facto’ detention of an autistic man in a hospital in Surrey in 1997. HL had no access to an appeals process because he was not formally detained and in fact his only recourse was through the court system. The case eventually went to the ECtHR in Strasbourg in 2004. HL’s detention was unlawful because it was not covered by any legal safeguards. Essentially it was ‘false imprisonment’ which breaches article 5 of the ECHR.

MCA Code of Practice
MCA Cde of Practice
As a result the UK passed a new law, The Mental Capacity Act 2005 (MCA) and then amended it with the Deprivation of Liberty Safeguards 2007 (DoLS). Together these two legal frameworks spell out the conditions in which a person may have their liberty restricted (MCA) or more seriously be deprived of it in their own best interests (DoLS).

So now we come to today’s ruling in the High Court:

It’s ironic that the Neary case so closely mirrors that of HL vs UK which brought about the DoLS processes in the first place. Hillingdon council have apologised but there’s a very significant flaw in their statement:

“Cases such as Steven’s are hugely complex and we always have to carefully balance what we think is right for an individual with the wider issues such as the safety of the public.”

You can read the full statement from Hillingdon Council here:

Under UK and European law the Deprivation of Liberty Safeguards cannot be used to detain a person in the best interests of other people – only in that person’s best interests. If Steven Neary was truly a danger to society then there is other legislation to cover that. If he is not a danger to the public then he should retain his liberty. This is, in effect, a major misuse of a legal framework designed to protect people from inappropriate detention – not to be used as an excuse to deprive them of their liberty when they don’t warrant it.

About ‘The Convention’

This series of posts first appeared on Stuart’s blog in June 2011. It is not intended to be a comprehensive or even particularly authoritative reference guide to the ECHR. Rather it is a brief introduction to a much larger and infinitely more fascinating subject. You can download the entire series in PDF format here: https://stuartsorensen.wordpress.com/amj-freebies-downloads-and-services/

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