Eleanor Roosevelt, 1958

'Where, after all, do universal human rights begin? In small places, close to home -- so close and so small that they cannot be seen on any map of the world. Yet they are the world of the individual person... Unless these rights have meaning there, they have little meaning anywhere. Without concerted citizen action to uphold them close to home, we shall look in vain for progress in the larger world.' Eleanor Roosevelt, 1958

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Friday 20 January 2012

Mr Stanev's fine achievement

The European Court of Human Rights has delivered a landmark ruling for issues around mental capacity and detention in social care.

Ever since I watched the Webcast of the Grand Chamber hearing of Stanev v Bulgaria in February last year, I've checked the ECtHR webpages on a weekly basis for the judgment in case I missed it.  The European Court of Human Rights  issued its judgment on Monday of this week.  The case goes to the very heart of many central themes in human rights in social care: poverty, isolation, instutionalisation, incapacity and access to justice.  The story of the claimant, Rusi Stanev, could hardly fail to move.  He was placed by his guardian in a social care institution with no explanation, having never met them and them never having sought his views.  He has family, but there is little sense that they were interested in his plight in this ruling. The institution was pronounced by the Council of Europe Committee for the Prevention of Torture as creating 'a situation which could be said to amount to inhuman and degrading treatment', you can see photos of similar institutions in Eastern Europe here.  Despite the institution's isolation in the Rila mountains, Rusi Stanev made repeated attempts to find work in a village several miles away, to escape, to create a life beyond the oppressive and stultifying world offered within the institution's walls.  The care home's director kept hold of his identity papers, required for travel, and so the police would apprehend him, call the care home, and they would bring him back.

Mr Stanev tried repeatedly to appeal against the decision of his guardian to place him there, but being declared 'incapacitated' he could not make a direct appeal to the courts.  Instead he appealed to his guardian, to the Mayor, to the Public Prosecutor, to make an application to court on his behalf for the restoration of his legal capacity, and consequently his right to choose where he lived.  They declined to do so.  Mr Stanev's situation is reminiscent in certain respects of that of HL in the Bournewood case, where there was no obvious mechanism to bring his situation to the attention of the courts; except for one crucial difference.  HL had active and concerned carers who persisted in seeking justice for him; Mr Stanev had nobody.  And as a man denied access to the courts because of his status as incapacitated, in the eyes of the law he was nobody.

Even though it touches upon some of the most fundamental human rights issues, for some of the most vulnerable and marginalised groups, very few cases about incapacity ever get to the ECtHR, especially from social care.  This cannot be because human rights violations in social care are unusual or dealt with brilliantly by domestic laws; as Bartlett, Lewis  and Therold write ‘The lack of cases may have more to do with access to justice... than providing us with an identification of numbers of people affected’. In Sir Nicholas Bratza’s foreword to their book he wrote that in the wake of Winterwerp v the Netherlands one might have expected the judgment ‘would lead to a flowering of the Court’s case-law on the Convention rights of persons with mental disabilities, the contrary proved to be the case: the jurisprudence of the Court in the succeeding twenty years is notable for the almost complete dearth of judicial decisions in this vitally important area.’  Sir Nicholas Bratza, a UK lawyer and the current president of the ECtHR, in fact sat in the Grand Chamber in this present case. 

That Mr Stanev was able to surmount the obstacles to justice posed by poverty, isolation, institutionalisation and being a legal nobody, surely speaks volumes about a system that failed to recognise his remarkable capacity and potential as a human being.  He was assisted in his case by his lawyer, Aneta Genova, and Lycette Nelson and Victoria Lee from the Mental Disability Advocacy Centre also helped to present his case before the Grand Chamber. The ECtHR also heard an intervention from Interights, a London based NGO whose work focuses on strategic litigation and dissemination of legal information on human rights. And the Bulgarian Helsinki Committee were also involved in helping Rusi bring his case to court.

The court found that:
  • Mr Stanev had been deprived of his liberty within the meaning of Article 5 because he had been subject to supervision and control, had not been free to leave and he objected to his confinement;
  • His detention was incompatible with Article 5(1) because it was grounded not in his alleged mental disorder (which there had been no real attempt to assess or treat) but in a lack of available alternatives;
  • His detention had been incompatible with Article 5(4) because there was no way for Mr Stanev to bring his case before a judge because it had relied upon the exercise of discretion of others.  This was because he had no standing before the court, due to his status as incapacitated;
  • There was a violation of Article 5(5) as he had no means to seek compensation for his unlawful detention (he was awarded 15,000 Euros by the ECtHR in compensation);
  • There was a violation of Article 3 as a result of the conditions in the care home;
  • There was a violation of Article 6, because - due to his status as incapacitated - he had no means to access justice for arguable and fundamental human rights issues to be considered.  The restrictions on his legal capacity were disproportionate and lacked safeguards;
  • By thirteen votes to four, the court decided there were no further issues to be decided under Article 8, although the dissenting judgments suggest the court would be willing to entertain Article 8 arguments in the context of oppressive and invasive institutional regimes.

There is so much meat on this judgment, that I have been wondering what to say about it all week.  In fact, I've decided to just bask in Mr Stanev's achievement in directing much needed legal attention towards human rights issues that will potentially have very wide reaching effects throughout the Council of Europe.  Already there have been a few commentaries, including this one by MDAC and this one by Nell Munro at Nottingham University (on their new and exciting mental health and mental capacity law blog).  There is much more to be said for what the judgment will mean domestically.  It has a bearing on several issues around the MCA, the DoLS, the interpretation of Article 5 and I think also on how we manage litigation capacity.  In its focus on Mr Stanev's objections to his placement, and the lack of review mechanisms for decisions taken by guardians, it is a gift to lawyers seeking to appeal the ruling in C v Blackburn with Darwen.  It strikes me that it may also have a bearing on the appeals of P & Q, and has a lot of resonance with the situation of RK in Re RK.  It's relationship to Cheshire  is more complex, but I'll think about that another time.  But for now, it's probably worth just acquainting yourself with this judgment if you work in the field of mental capacity; you'll be hearing a lot more about it in the years to come.

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