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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The Small Places has moved to a new home here, including all the old posts. Any posts after 6th March 2014 will appear on the new website, but old posts are preserved here so that URLs linking here continue to work. Please check out the new site.

Friday, 17 January 2014

Whose right is it anyway?

This lovely postcard is from George Julian’s website, which she set up to help LB’s family raise funds for legal representation at LB’s inquest. The website is fantastic – with a world map of destinations for postcards of LB’s buses and other pictures, sold as part of the fundraising effort. So many people, all over the world, moved by LB’s death. I hope our buses postcards keep us thinking and reflecting on how deaths like LB’s can be averted, and what a waste of a beautiful and talented person’s life it is for them to die whilst incarcerated.

Photograph of a postcard reading 'Everyone has the right to life, liberty and security of the person'. The image is of a person reaching towards the sun. The postcard appears to be based on a collage, made by cutting out pieces of paper in simple shapes.

George bought the postcard at the United Nations, and the text is from Article 3 of the Universal Declaration of Human Rights (UDHR). The picture is especially apt for something I’ve been wanting to blog (rant) about for some time now: the universality of the right to liberty.

The right to liberty is contained in many human rights instruments, and most include a right for detainees to take proceedings before a court to determine the lawfulness of their detention. These rights of ‘appeal’ are framed in universal language as well.  Article 5(4) of the European Convention on Human Rights (ECHR), sets it out like this:
‘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.’
The Mental Capacity Act 2005 deprivation of liberty safeguards (MCA DoLS) were in part created because there was no obvious, accessible or appropriate means to bring proceedings to determine the lawfulness of the detention of ‘incapacitated’ people, detained under the ‘common law’. The mechanism for challenging detention under the DoLS is s21A MCA – which allows an applicant to ask the Court of Protection to determine the lawfulness of various aspects of a standard authorization for detention issued by a supervisory body (a local authority exercising its DoLS functions). The Court of Protection may vary or terminate standard authorizations as it sees fit. The trouble is, this ‘appeal’ mechanism is pretty obscure and is poorly understood.

In the case I want to discus in this blog post – Re UF (2013) – Mr Justice Charles said that the case law on s21A was ‘scant’ (§ 10). Disappointingly the Court of Appeal recently refused to consider precisely what Article 5(4) entitles DoLS detainees to by way of a hearing or judicial determination once the application has been made to the Court (TAQ v AA). But setting aside the question of what happens once a case is in court to discuss another day, I think there are fundamental questions about how and when these cases go to court at all which are not well understood.

I’m go to lay it on the line here and say what I think Article 5(4) entitles a DoLS detainee to. I should say that this is my interpretation of the ECHR case law, and no domestic court has yet said as much. I should also say that I recognize that the financial repercussions of what I think Article 5(4) entitles a DoLS detainee to are deeply uncomfortable because of the (sometimes) very high cost of DoLS proceedings. But I’m not aware of any qualifications on Article 5(4) rights for financial reasons except those relating to the frequency of applications (although please feel free to enlighten me in the comments!).  If there's a problem with the costs of Article 5(4) appeals let's address that, before rewriting the universality of human rights instruments.
  • People who are deprived of their liberty have an absolute right to bring proceedings under Article 5(4) even if they ‘lack capacity’ (Shtukaturov v Russia, Stanev v Bulgaria, DD v Lithuania, Kędzior v Poland, Sýkora v Czech Republic etc etc). My interpretation of these recent 'capacity and detention' cases is that ‘incapacity’ can impose no limitations on the right of detainees to initiate Article 5(4) proceedings, such as restrictions on standing to bring a case, or requirements for the permission of third parties.
  • There is a right to bring proceedings under Article 5(4) at ‘reasonable intervals’ (DD v Lithuania). 
  • The right to bring proceedings under Article 5(4) is especially important where the initial decision to detain is made without the involvement of the courts (DD v Lithuania, Kędzior v Poland, Mihailovs v Latvia). This will usually be the case under the DoLS, and so detaining authorities and other professionals should be especially alert to when detainees may want to exercise their Article 5(4) rights.
  • People with disabilities may require ‘special procedural safeguards’ in order to help them exercise their Article 5(4) rights (see almost any case on mental health detention you care to look at going back to Winterwerp v the Netherlands). Where a person is ‘incapable’ (in a practical sense, or in a legal sense) of bringing an appeal under Article 5(4), these safeguards ‘may well include empowering or even requiring some other person or authority to act on the patient’s behalf in that regard’ (MH v UK; see also the final paragraph of LB Hillingdon v Neary). I interpret this to mean that an array of actors – including the supervisory body, Independent Mental Capacity Advocates (IMCAs), and any paid representatives – are likely to have positive obligations under the Human Rights Act 1998 (HRA) to help empower P to ‘appeal’ using s21A MCA. I’ll expand upon what I think these duties probably are below.
  • If a person is reliant on third parties to help them exercise their Article 5(4) rights, those persons must be under a clear duty to help, which is not dependent upon their discretion or goodwill (Stanev v Bulgaria, DD v Lithuania, Lashin v Russia, Shtukaturov v Russia, MH v UK, Sýkora v Czech Republic, Winterwerp v the Netherlands). I think that this means that regardless of what they themselves think about the detention - and even if all other professionals and family believe that detention is in P’s best interests - if P wants to challenge his detention, the public authorities have a duty to ensure the requisite assistance is provided.
  • The right to bring proceedings under Article 5(4) is not dependent upon a person demonstrating ‘prospects of success’ (Waite v UK; and see also the case A Local Authority v A, 2011 on the importance of hearing even cases where the arrangements seem beneficial). Again, this reiterates the point that just because everybody is in agreement that the deprivation of liberty is in P’s ‘best interests’, P still has a right to bring Article 5(4) proceedings (and to any assistance he needs to do so).
In the ruling in Neary, Mr Justice Peter Jackson said that ‘The nature of the obligation [to enable P to bring proceedings to determine the lawfulness of his detention] will depend upon the circumstances’ (§202). The take home message from Neary seemed to be that where there is disagreement between public authorities and family members about P’s care and treatment, public authorities must seek authority from the Court of Protection (§ 20-22). Whilst I think this is an essential fall back position, and important for Article 8 issues, I’m not sure this is a very sensible general approach to apply to Article 5(4) situations for various reasons. Firstly, the obligation to go to court – as formulated by Jackson J in § 20-22, but not § 202 – looks as if it is disagreement between professionals and family, rather than P himself, which should prompt an application to the Court of Protection.  But it surely can’t mean that if family and professionals are in agreement, but P objects, that P has no independent rights to challenge his detention. He’s not the family dog, for goodness sake.  Family may very well be an important potential source of support for a person in exercising their Article 5 rights, but they do not own them.  And secondly whilst it may make sense for local authorities to bear the responsibility for apply to court regarding Article 8 issues, surely (?!) the DoLS cannot have been designed with the intention that the detaining authorities themselves would be responsible for triggering an Article 5(4) challenge against their own decisions. Or if they were - surely it would have been a clear statutory duty?  I'm not saying that supervisory bodies should stop applying to court, I'm saying that if this is the way the system was designed, it's not very clear and it's not a great design for a detention safeguard.

If you look at the actual statute – not the DoLS code of practice – I think there is a mechanism which is supposed to satisfy the need for ‘special procedural safeguards’ to enable P to exercise his Article 5(4) rights of appeal, and that is IMCAs under s39D. I don’t know how many times I’ve gone on about this here, but I just don’t think that supervisory bodies and IMCAs understand s39D MCA. If you work with the DoLS and you do anything after reading this post, please read s39D. The first part (s39D(5)) basically requires supervisory bodies to identify people who – like MH in the case MH v UK – would require assistance in being able to apply to the Court of Protection, and make a referral to an IMCA for them. This, I suspect, will be most people detained under the DoLS and many of their representatives: the government impact assessment estimated that 80% of unpaid representatives would require this assistance. The duty to refer under s39D(5) is a proactive duty, not a passive duty. Supervisory bodies aren’t supposed to be sitting around waiting to be asked for an advocate – it’s up to them to assess whether a person needs one and make a referral accordingly. 

The latest DoLS report by the CQC surveyed a large proportion of supervisory bodies and interviewed a selection of them, and found that they were by and large ‘offering’ an IMCA to P and P’s representative (p29). With respect to the CQC, I don’t think the duty is simply to ‘offer’ support from an IMCA under s39D (for example, in a standard letter).  The statute clearly says that the supervisory body ‘must instruct’ an IMCA where P and his representative would need help exercising their rights, not merely offer a referral. I’m not sure that most DoLS detainees would understand the implications of requesting or declining the offer of an s39D IMCA in any case; it strikes me that any failure on the part of P to ‘request’ an advocate wouldn’t mean that the duty to refer under s39D(5) had been discharged, even if an ‘offer’ had been made.  In Neary, failure to make a referral to an IMCA under s39D contributed to a finding of a violation of Article 5(4).

The second issue, which I’ve gone on about time and time again, is that s39D(8) MCA obliges IMCAs to help P to exercise his rights of appeal ‘if it appears to the advocate that P or R wishes to exercise that right’. This isn’t a discretionary duty – the MCA doesn’t say that IMCAs should only help P to appeal if it’s in his ‘best interests’ or if he has strong prospects of success. And I think any temptation to read that into the statute should be quashed by the case law I’ve outlined above which makes very clear that the exercise of Article 5(4) rights should not depend upon the discretion of third parties or a person’s case having good prospects of success.* This was also a concern raised by the CQC in their latest report.  This is my personal view, but I think supervisory bodies which do not proactively make referrals to IMCAs under s39D MCA when P would need assistance in making a s21A MCA application are violating his Article 5(4) rights. And I think s39D IMCAs who sit on their hands when P is objecting and do not help him to make a s21A MCA application (for example, by helping him find a solicitor) may also be violating his Article 5(4) rights (this depends on whether they are a public authority under the HRA), and they are almost certainly violating their statutory duty under s39D(8).

A recent case set me thinking about an additional complication in the DoLS: paid representatives. In Re UF [2013] EWHC 4289 (COP) Mr Justice Charles dealt with some of the legal aid issues that can arise under the DoLS (round of applause for him and UF’s pro bono lawyers!). But in the background to that case is quite a serious question (I think) about the role of paid representatives under the DoLS. For various reasons** I’m pretty sure that UF had a paid representative under the DoLS. The judgment also indicates that UF was objecting to her detention. But it seems as if the representative had taken no action to initiate a s21A MCA challenge – either in their own name, or in UF’s name ‘as the representative agreed with the best interests decision on placement that was made, a clear inference is that he or she would not be inclined to initiate or to take any steps to challenge that decision or the ensuing deprivation of liberty’.  (If I'm wrong about this, and there was a separate legal action which the judgment didn't report, my apologies).

Now, DoLS detainees with a paid representative are not entitled to assistance from a s39D IMCA. So who is supposed to provide the assistance required by Article 5(4) to help a person to appeal (as outlined in MH v UK and Neary)? I strongly suspect it is the paid representative although – as Mostyn J notes in AB v A Local Authority and The Care Manager of BCH [2011] EWHC 3151 (COP) - the role of the RPR is not set out very clearly in Schedule A1 or regulations: there are various rights, but few responsibilities. I think it’s about time the courts – or a revised code of practice – set out precisely the duties of paid representatives (and clarified the duties of s39D upon supervisory bodies and IMCAs). Otherwise, people with paid representatives will find themselves without the assistance they would have been entitled to under s39D MCA to appeal, but may – as appears to have been the case for UF  – have a representative who is unwilling to help them exercise their Article 5(4) rights. That situation cannot be compatible with the ruling in MH v UK. It shouldn’t be left – as it was in UF's case – to relatives to help P to exercise his Article 5(4) rights where he is objecting. Family members, even as representatives, are under no legal duty to help P to apply to the Court of Protection, and there are many many reasons why family members are not in a good position to do so: the DoLS are hideously complicated and family members may themselves not be emotionally or practically in a position to make a court application. And in many cases they might support the detention, or be proposing an alternative which P does not want.  To expect family to trigger the appeal places them under an unreasonable burden.

As I’ve already written, P is not the family dog. His rights of appeal don’t belong to family members, IMCAs, paid representatives or anybody else to dispose of as they wish. It would be totally arbitrary if the only cases reaching the Court of Protection are the ones where P’s family fell out with professionals, regardless of what P himself thinks about his detention. P may be thought to lack capacity but he still has a right for his objections to his detention to be heard and adjudicated on.  IMCAs under the DoLS are not quasi-judges, or – as a leading group of lawyers put it in their evidence to the House of Lords Select Committee on the MCA, ‘pseudo independent best interests assessor[s]’ (see the evidence from Victoria Butler-Cole, Neil Allen, et al). I don't think their role is to decide which cases are worthy of going to court and which are not; when it comes to the DoLS they are advocates, there to assist and enable P to exercise his rights.

I think that our thinking around Article 5 goes a bit woolly when ‘incapacity’ is on the scene. A bit ‘Don’t you worry about that right, I’ll look after it for you’. A bit ‘That old thing?! You don’t want that old thing! What’s somebody like you going to do with a thing like that?’ A bit ‘Here now, don’t you be causing any trouble with that right’. To be blunt, I think we’ve forgotten who the right to challenge a deprivation of liberty belongs to. I think we think it belongs to everybody except the detainee themselves.

*In a purely technical sense, I’m not even sure if the MCA is engaged here. IMCAs aren’t acting as an LPA or a deputy, and the ‘general defence’ of s5-6 applies to acts of care and treatment – but helping somebody exercise their Article 5(4) rights is a legal act. Nothing in the statute says that s39D IMCAs must act in P’s best interests. And even if they must act in a person’s best interests, a person’s legal best interests may be very different from their ‘care and welfare’ best interests – as the Law Society guidance to solicitors in mental health tribunals points out.

**Although the judgment does not say the RPR was not a relative of UF, the judgment does discuss the responsibilities of RPR in an another case involving a paid RPR - AB v A Local Authority and The Care Manager of BCH [2011] EWHC 3151 (COP). In the discussion on who can be UF’s litigation friend, one of the issues is ‘equality of arms’ in the dispute between UF’s children about where UF should reside. If AF – the daughter who objected – were UF’s litigation friend, she would be entitled to non-means tested legal aid to argue her view. The implication was that the other relatives would not – but at least one of them would be if they were the RPR. So I suspect they were probably not the RPR.

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