In the UK our NPM is made up of a number of bodies which visit places of detention, including Her Majesty's Inspectorate of Prisons (who co-ordinate the UK's OPCAT bodies), and - of particular relevance to readers of this blog - the Care Quality Commission. Historically the role of OPCAT when it came to health and social care was conceived of in terms of inspecting places where people were detained under the Mental Health Act. This is something we had been doing in England for a couple of centuries (except for a hiatus between the Mental Health Act 1959 and the 1983 Act). More recently, with the advent of the DOLS, social care institutions have fallen within CQC's OPCAT responsibilities. Interestingly, in this year's NPM report by the UK concerns are expressed twice about de facto detention in hospitals and care homes:
'Our NPM business meetings provide members with the opportunity to discuss key findings or best practice, apply learning from monitoring one type of detention to another and learn from work in other jurisdictions. At meetings in 2011–12, the members explored the definition of detention. They discussed the difference between a restriction and a deprivation of liberty, the extent to which some people who reside in, for example, hospitals and care homes, may be considered detained if they are prevented from leaving should they choose to do so, and whether there are sufficient safeguards to protect people in these situations. Given the complexity of these issues, the NPM members decided to explore these in more detail in 2012–13 and share information across jurisdictions within the UK about de facto detention.' p 11
'In some health and social care settings where residents are not legally detained, the restrictions of liberty applied to residents are such that they may constitute de facto detention. This is an issue the NPM members will explore further in 2012–13. The findings from work in 2011–12 described below include instances of force and restraint in places of detention, as well as restrictions of liberty in non-secure residential settings which, when taken together, may constitute a deprivation of liberty.' p22So it looks like de facto detention will be a key area of interest for 2012-13 for the OPCAT bodies, I look forward to seeing what they make of this.
I think it is really important to remember that the OPCAT definition of detention (see Article 4) is simply a lack of freedom to leave, which really makes perfect sense when you think about the heightened risk of abuse of a captive population, especially one with very limited communication with the outside world. As we all know, of course, the domestic courts have not interpreted 'deprivation of liberty' under Article 5 of the European Convention on Human Rights (which is, it hardly needs saying, a different treaty) in this way. So the OPCAT bodies will need to be aware that their duty to monitor places of detention is going to be much, much broader than those who are DOLS detainees. In fact, I think you could make an argument that if a person is in a placement as a result of a decision by a third party (be they acting under formal authority or ss5-6 MCA), and they would not be regarded as having capacity to choose to live elsewhere if they wanted to, they are not free to leave - as the choice to leave will be left up to 'best interests' decision makers. That's a massive population.
And we're not even getting into services like supported living, a flagrant breach of OPCAT which the Department of Health and Ministry of Justice were being warned about as long ago as 2008 by the Mental Health Act Commission (Mental Health Act Commission 2008. Risk, Rights, Recovery. Twelfth Biennial Report 2005-2007. London: Mental Health Act Commission., p 122). Have any of the governments since that time acted to resolve this? Erm, no. I think that if another abuse scandal in such services were to come to light, there would be a reasonable case to list the Department of Health as a defendant in failing to ensure their Article 3 rights were adequately protected, when they knew there was problem with the lack of preventive monitoring of such services.
Anyway, in passing those who are following the international debates about the meaning of deprivation of liberty might be interested to know that the French OPCAT monitoring body has asked whether 'retirement homes are prisons'. My French is diabolical, but it looks to me as if Chapter 6 of the report - to be published online in April - will discuss this further.
All across Europe, it seems, similar questions about being posed about whether those institutions which are located in the community and which we typically take a rather cosy view of, might be places of detention.