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Friday, 19 October 2012

Thank goodness for Strasbourg: Kędzior v Poland

In England and Wales, the government took the questionable decision to hang safeguards against arbitrary detention on a definition of deprivation of liberty to be supplied by the courts.  Care providers, health authorities and local authorities were supposed to keep themselves appraised of the court's jurisprudence on this point, and recognise when they were depriving somebody of their liberty and engage the safeguards.  In doing so, they were opening up the care they delivered or commissioned to scrutiny, and handing the detainee and their family the tools they needed to litigate them both in court.  Brilliant.  What could possibly go wrong?

So, to recap, the courts started out reasonably well and gave analyses of deprivation of liberty which accorded with common sense (e.g. JE v DE, 2006G v E, 2010).  Things started to go weird in MIG & MEG, where apparently not being free to leave a place no longer had any bearing on whether or not you were deprived of your liberty.  In P & Q the Court of Appeal confirmed that you probably weren't deprived of your liberty unless you were objecting to your confinement or the place you were in did not satisfy a judge's idea of 'normal'.  Being drugged with powerful sedating anti-psychotics might be a factor, but having noted that the Court of Appeal didn't deign to explain why it wasn't in that particular case.  In Cheshire we learned that the 'normality' against which deprivation of liberty should be assessed wasn't the normality of the man on the Clapham Omnibous, it was - to paraphrase - the normality of "people like that".  By this point it became clear that a care provider would have to recognise they were subjecting a person to a degree of coercion which was an excessive  response to a person's impairment in order to give them any safeguards against excessive and unlawful coercion.  I'm sure care providers are falling over themselves to acknowledge that their care is more restrictive than it needs to be.  But Cheshire did at least give you a get out if you had another place to go to (paragraph 58).  Except that only a month later in Re RK a girl who was miserable in her care home, whose family would have offered her a place to live if the local authority would stump up a decent care plan to support them, was found not to be deprived of her liberty.  And then the foreseeable but indefensible descent to C v Blackburn with Darwen - where a man who hammered down the door of his care home trying to escape was found not to be deprived of his liberty because he had nowhere else to go, and CC v KK where a woman who was both objecting and had somewhere else to go was found not to be deprived of her liberty because her objections did not give rise to a 'significant degree of conflict'.

So where are we now?  In order to be deprived of your liberty in a care home of England or Wales you must a) have another place where you could go to, and b) must be objecting sufficiently to give rise to a significant degree of conflict.  If you're reliant on the state to provide you with accommodation, if your family don't want you back, if your home was sold to pay for your confinement in a place where you don't want to live, if you're unable to communicate, if you're too scared to voice your objections, or if you do so but only politely, you are - apparently - at liberty.  If you are subject to round the clock supervision and control, if you are not free to leave the place where you are confined to - temporarily or permanently, if you are drugged so that you cannot express objections, if you are subject to frequent physical restraint, if you are so institutionalised you've given up trying to get away, it is quite possible that you are actually enjoying what passes for a state of liberty in England and Wales.

Well, thank goodness for Strasbourg.

The meaning of deprivation of liberty adopted by the ECtHR

This time last year we had only one ruling from the European Court of Human Rights on deprivation of liberty in social care, HM v Switzerland (2002), and that had found that placement in a care home did not amount to deprivation of liberty because HM had consented to it.  Judge Loucaides issued a powerful dissenting judgment, with which I strongly agree:
The applicant's placement in the nursing home was against her will. It was implemented by the police under an order explicitly defined by the national law itself and referred to by the national authorities as a measure of deprivation of liberty (see paragraph 28 of the judgment), and she was not permitted to leave the nursing home. In these circumstances, I cannot see how her situation could be regarded as anything else than a deprivation of liberty... [T]he fact referred to by the majority that “the applicant was not placed in the secure ward of the nursing home ... Rather, she had freedom of movement and was able to maintain social contact with the outside world” does not in any way change the reality and severity of the restrictive regime in which the applicant was placed, as described above (see paragraph 45 of the judgment).
Detainees in prisons and other places of detention, which amount to typical cases of deprivation of liberty for the purposes of Article 5 of the Convention, may be allowed to move freely within defined areas and have social contact with the outside world through telephone calls, correspondence and visits, for example; some may also be allowed day release. Yet, so long as they (like the applicant) are not permitted to leave the place where they are detained and go anywhere they like and at any time they want they are certainly “deprived of their liberty”.
Before and after HM v Switzerland, cases about detention in psychiatric facilities continued apace, but nothing more from social care - until this year.  Since January we have seen Stanev v Bulgaria, DD v Lithuania and now - this week - the ECtHR issued a judgment for Kędzior v Poland.  All three cases found placement in social care homes by guardians had amounted to a deprivation of liberty.  In all three cases the adults in question had been formally deprived of their legal capacity - partially or in full - and had, as a consequence, been unable to apply directly the courts either to seek to restore their legal capacity or to challenge their placement in the care home.  All three cases had interventions from human rights NGOs Interights or the Mental Disability Advocacy Centre (MDAC) or both.  All three cases are likely to have repercussions for domestic case law on deprivation of liberty and legal capacity.  Let's have a look at the reasoning Strasbourg employed to find that Mr Stanev, Ms DD and Mr Kędzior were deprived of their liberty in care homes (or skip below to the summary):
Stanev v Bulgaria 
124. With regard to the objective aspect, the Court observes that the applicant was housed in a block which he was able to leave, but emphasises that the question whether the building was locked is not decisive (see Ashingdane, cited above, § 42). While it is true that the applicant was able to go to the nearest village, he needed express permission to do so (see paragraph 25 above). Moreover, the time he spent away from the home and the places where he could go were always subject to controls and restrictions.

125. The Court further notes that between 2002 and 2009 the applicant was granted leave of absence for three short visits (of about ten days) to Ruse (see paragraphs 26-28 above). It cannot speculate as to whether he could have made more frequent visits had he asked to do so. Nevertheless, it observes that such leave of absence was entirely at the discretion of the home’s management, who kept the applicant’s identity papers and administered his finances, including transport costs (see paragraphs 25-26 above). Furthermore, it would appear to the Court that the home’s location in a mountain region far away from Ruse (some 400 km) made any journey difficult and expensive for the applicant in view of his income and his ability to make his own travel arrangements.

126. The Court considers that this system of leave of absence and the fact that the management kept the applicant’s identity papers placed significant restrictions on his personal liberty.

127. Moreover, it is not disputed that when the applicant did not return from leave of absence in 2006, the home’s management asked the Ruse police to search for and return him (see paragraph 28 above). The Court can accept that such steps form part of the responsibilities assumed by the management of a home for people with mental disorders towards its residents. It further notes that the police did not escort the applicant back and that he has not proved that he was arrested pending the arrival of staff from the home. Nevertheless, since his authorised period of leave had expired, the staff returned him to the home without regard for his wishes.

128. Accordingly, although the applicant was able to undertake certain journeys, the factors outlined above lead the Court to consider that, contrary to what the Government maintained, he was under constant supervision and was not free to leave the home without permission whenever he wished. With reference to the Dodov case (cited above), the Government maintained that the restrictions in issue had been necessary in view of the authorities’ positive obligations to protect the applicant’s life and health. The Court notes that in the above-mentioned case, the applicant’s mother suffered from Alzheimer’s disease and that, as a result, her memory and other mental capacities had progressively deteriorated, to the extent that the nursing home staff had been instructed not to leave her unattended. In the present case, however, the Government have not shown that the applicant’s state of health was such as to put him at immediate risk, or to require the imposition of any special restrictions to protect his life and limb.

129. As regards the duration of the measure, the Court observes that it was not specified and was thus indefinite since the applicant was listed in the municipal registers as having his permanent address at the home, where he still remains (having lived there for more than eight years). This period is sufficiently lengthy for him to have felt the full adverse effects of the restrictions imposed on him.
DD v Lithuania: 
143.  The Government argued that the conditions in which the applicant is institutionalised in the Kėdainiai Home are not so restrictive as to fall within the meaning of “deprivation of liberty” as established by Article 5 of the Convention. However, the Court cannot subscribe to this thesis.
146.  In the instant case the Court observes that the applicant’s factual situation in the Kėdainiai Home is disputed. Be that as it may, the fact whether she is physically locked in the Kėdainiai facility is not determinative of the issue. In this regard, the Court notes its case-law to the effect that a person could be considered to have been “detained” for the purposes of Article 5 § 1 even during a period when he or she was in an open ward with regular unescorted access to unsecured hospital grounds and the possibility of unescorted leave outside the hospital (see H.L. v. the United Kingdom, no. 45508/99, § 92, ECHR 2004-IX). As concerns the circumstances of the present case, the Court considers that the key factor in determining whether Article 5 § 1 applies to the applicant’s situation is that the Kėdainiai Home’s management has exercised complete and effective control by medication and supervision over her assessment, treatment, care, residence and movement from 2 August 2004, when she was admitted to that institution, to this day (ibid., § 91). As transpires from the rules of the Kėdainiai Home, a patient therein is not free to leave the institution without the management’s permission. In particular, and as the Government have themselves admitted in their observations on the admissibility and merits, on at least one occasion the applicant left the institution without informing its management, only to be brought back by the police (see paragraph 29 above). Moreover, the director of the Kėdainiai Home has full control over whom the applicant may see and from whom she may receive telephone calls (see paragraph 81 above). Accordingly, the specific situation in the present case is that the applicant is under continuous supervision and control and is not free to leave (see Storck v. Germany, no. 61603/00, § 73, ECHR 2005-V). Any suggestion to the contrary would be stretching credulity to breaking point."
 Kędzior v Poland
57. As concerns the circumstances of the present case, the Court considers that the key factor in determining whether Article 5 § 1 applies to the applicant’s situation is whether the care home’s management has exercised complete and effective control over his treatment, care, residence and movement from February 2002, when he was admitted to that institution, to the present day (see paragraph 44 above and D.D. v. Lithuania, cited above, § 149). The applicant was not free to leave the institution without the management’s permission. Nor could the applicant himself request leave of absence from the home, as such requests had to be made by the applicant’s official guardian. Accordingly, and as in the Stanev case, although the applicant was able to undertake certain journeys and to spend time with his family the factors mentioned above lead the Court to consider that the applicant was under constant supervision and was not free to leave the home without permission whenever he wished (see Stanev, cited above, § 128). Moreover the Court notes that it would appear that the applicant’s extended visits to his family were only authorised during the last few years of his stay in the Ruda Różaniecka Home. Finally, the management of the care home controlled the remaining 30% of the applicant’s disability pension. The Court observes in this respect that the facts of the applicant’s situation at the home were largely undisputed.
Themes in these recent ECtHR cases:

  • Whether or not the doors to an institution are locked is not determinative.
  • Whether or not a person can leave is not determinative; the ECtHR is more concerned with whether a person needs permission to leave.
  • A related factor is whether or not a person's freedom to leave is restricted by those caring for them having possession of the necessary financial and material resources.
  • Both a person's freedom to leave temporarily, and permanently, is relevant.
  • The court has reiterated the importance of a person being subject to 'continuous supervision and control' or control over their 'assessment, treatment, care, residence and movement'..
  • However...  in Stanev the court appeared to leave open a possible back door, through a rather oblique reference to Dodov v Bulgaria , where a person's Alzheimer's necessitated restrictions to protect her life.
Implications for Cheshire and P&Q in the Supreme Court

All three of these important ECtHR cases cropped up since Cheshire and C v Blackburn.  Baker J never mentions Stanev or DD in CC v KK.  This may be because he considered he had to follow the domestic authorities' where they conflicted with ECtHR authorities (see Kay v LB Lambeth, 2006 and RJM v SSWP, 2008), although Alex Ruck-Keene has argued that - in the unique situation of the Mental Capacity Act - the courts are obliged to interpret directly the meaning of deprivation of liberty directly from Strasbourg because s64(5) MCA links the meaning 'to the Article as interpreted by Strasbourg, rather than our courts' (see the 39 Essex St COP newsletter, October 2012).  In any event, the Supreme Court will certainly have to take into account these recent Strasbourg cases when it hears the conjoined appeals of Cheshire and P & Q.  If any other cases go to the Court of Appeal in the meantime, the court may choose to do so as well (although they are not obliged to).  So what might Stanev, DD and Kędzior mean for the current state of domestic case law on Article 5?

First up, it is clear as day that C v Blackburn and CC v KK must be wrongly decided.  I fear they were wrongly decided even by reference to Cheshire and P& Q.  Unfortunately, neither of those cases are rumoured to be subject to appeal.  Yet the facts in Stanev, DD and Kędzior are in some respects an imperfect match for both Cheshire and P& Q as in neither of the domestic cases are the appellants said to be objecting against their detention.  They are, however, not 'free to leave' and are subject to high levels of control - both of which have been key factors in  Stanev, DD and Kędzior (not to mention HL v UK).  I suspect that if P from Cheshire and P or Q somehow escaped from their services without the permission of those caring for them, the police would swiftly be called to bring them back.  I suspect the police would do it, as well.  It's odd how much store we set by the powers of recall under the Mental Health Act when realistically the police have happily complied with returning 'wandering' care home residents with dementia plenty of times in the past.  Do they ask for the care home to show their lawful authority to return them there?  I doubt it somehow.  So, the overlap between the ECtHR case and the cases before the Supreme Court are that the residents are not free to leave and are subject to high levels of control.  The point of departure is that nobody in the domestic cases is said to be objecting.

Would the absence of objections have made the ECtHR decide differently?  I honestly don't know.  The Supreme Court will have to strike out on its own here.  Given that many people will not be capable of formulating a recognisable objection, may be too scared to, may be highly institutionalised so that they have given up doing so, or may be medicated so they cease to do so, I hope the Supreme Court does not place too much store by objections.  HL, let us remember, was not objecting.

The question of purpose deserves a mention too.  Purpose was first invoked by Parker J in MIG & MEG, dismissed by the Court of Appeal in P & Q, and then some close relatives of purpose (some might find them hard to distinguish) - motive and reason - cropped up again in Cheshire.  As Munby LJ himself noted in Brunswicks Healthcare Review, the recent ECtHR ruling in Austin v  UK probably conflicted with the use of purpose in Cheshire.  Purpose did appear to sneak back in with Munjaz v UK.  However, nowhere in these cases about social care has the ECtHR found that the purpose of a person's placement mitigates what is otherwise a detention.  Arguably these cases are far more relevant to Cheshire and P & Q than Munjaz

Having said that, Stanev does seem to leave the door ajar when the court says:
With reference to the Dodov case (cited above), the Government maintained that the restrictions in issue had been necessary in view of the authorities’ positive obligations to protect the applicant’s life and health. The Court notes that in the above-mentioned case, the applicant’s mother suffered from Alzheimer’s disease and that, as a result, her memory and other mental capacities had progressively deteriorated, to the extent that the nursing home staff had been instructed not to leave her unattended. In the present case, however, the Government have not shown that the applicant’s state of health was such as to put him at immediate risk, or to require the imposition of any special restrictions to protect his life and limb.
It is not very clear why the ECtHR says this.  There is no discussion, in Dodov of whether Mrs Dodov was deprived of her liberty - if anything the case is about a woman who should have been under continuous supervision and control.  This paragraph sits uncomfortably with those who (like me) believe that purpose has not place in the analysis of deprivation of liberty, as it seems to suggest that the ECtHR might have been less inclined to find that Mr Stanev was deprived of his liberty if special restrictions had been necessary to protect life and limb.  And yet, it does not quite go so far as to explicitly say that.  Given the emphasis the court has repeatedly explicitly laid on the degree of control a person has been subject to, and their freedom to leave, it would be disappointing if the Supreme Court sought to use this rather weak paragraph as an exit strategy to affirm the rulings in Cheshire and P & Q.  And yet, the cynic in me believes that they might.

The practical consequences of backtracking...

The rulings in P & Q and Cheshire are undoubtedly the criteria adopted by most managing authorities and supervisory bodies at present.  Some may employ more generous criteria, some might take Cheshire even further by relying upon C v Blackburn and CC v KK.  If the Supreme Court were to take the brave (and in my view correct) step of affirming that deprivation of liberty consisted of being subject to complete and effective control by those caring for them, and a lack of freedom to leave, what would be the practical consequences?

Certainly, the number of authorisations under the DOLS would have to rise, tremendously.  Quite possibly far beyond the impact assessment's projections.  Would the number of court cases rise?  For care homes and hospitals, I'm not sure that they would.  The types of cases that reach court concern disputes, and those are the types of cases that would probably need litigating presently anyway.  If the number of appeals under s21A MCA rose, that would - I suggest - simply be because those who should have been able to voice their objections against confinement in court were given the tools to do so.  But Cheshire and P & Q weren't really appeals against detention, they were about people in services beyond the scope of the DOLS.  Around 27,000 people with learning disabilities are said to live in supported living services in England.  The DoLS don't apply in any of these services, but I would suggest that a large proportion of them might be subject to complete and effective control and not be free to leave - temporarily or permanently - without the permission of those caring for them.  If that population required deprivation of liberty safeguards, then the number of court authorisations (as opposed to appeals) would probably rise astronomically.  In such circumstances, I suggest, the Department of Health would have to revisit their ill-considered decision not to apply deprivation of liberty safeguards to supported living.  I hope the Supreme Court does not let this influence their analysis.  

One further consideration may come into play.  If the Supreme Court does define deprivation of liberty in such a way that it becomes apparent that many thousands, perhaps many tens of thousands, of people are deprived of their liberty in care services without any lawful authority... are those people entitled to compensation under Article 5(5) ECHR?  Given that it has been plain that domestic jurisprudence on Article 5 has been out of step with the ECtHR since at least Stanev it would seem rather unfair if they weren't.  Yet on the other hand, what court would want to find care providers and public authorities liable for trying to follow domestic case law?  Even if the courts have continued to ignore Stanev and DD, would care providers and public authorities be wise to heed those ECtHR judgments nevertheless?  I honestly don't know.  I only know that if I were a care provider or a public authority right now I would make like Mr Justice Charles in A Local Authority v PB and authorise any 'borderline' cases anyway, on the basis that if a person isn't deprived of their liberty - no harm is done and they would simply have been given a high quality of review and safeguards for a decision which engages Article 8 anyway - and if they do turn out to be detained, both they, the provider and the public authority are all better protected.

Further Reading
Other important rulings out recently include RP v UK, which found that the decision of the Official Solicitor not to run an 'unarguable' case on behalf of RP to contest care proceedings concerning her child was compatible with her Article 6 and 8 rights, and Bureš v The Czech Republic, which found that the restraint of man who was 'restless' having accidentally overdosed on prescribed medication was a violation of his Article 3 rights, as was the public prosecutor's decision to discontinue a criminal investigation.

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