ECHR 1809, Application no. 45026/07)
Article 5 ECHR - Deprivation of liberty
The (relative) flurry of decisions from Strasbourg upon deprivation of liberty in the context of care homes continues apace.
This case (as with Stanev v Bulgaria and DD v Lithuania) concerned the placement of a person in ‘an adult social care home.’ Mr K’s brother, in his role as Court-appointed guardian, asked that he be placed in a social care home, where he remained for a decade from 2002. It would appear that, under Polish law, his admission was considered voluntary and did not require approval by a court. He made repeated attempts both to challenge the lawfulness of his detention, and also to have his capacity restored, the latter it would seem primarily so that he would be allowed to leave the home. His attempts proving fruitless, he made an application to Strasbourg. Upon the application, the ECtHR had cause to consider the following:
- whether he was deprived of his liberty at the care home;
- if so, whether the deprivation of his liberty was lawful for purposes of Article 5(1)(e) ECHR;
- whether he had at his disposal a procedure complying with the requirements of Article 5(4) ECHR to challenge the necessity for his continued stay in the social care home and to obtain his release;
- whether his right of access to a court had been breached contrary to Article 6(1) ECHR.
The application also raised an issue under Article 8, but the Court did not consider it separately.
We address each of the four main issues in turn.
Whether Mr K deprived of his liberty
The submissions of the parties (including an intervention from the admirable Mental Disability Advocacy Centre) took a form that is now familiar, in particular in the reliance by the Polish Government upon the decision in HM v Switzerland ((2002) 38 E.H.R.R. 314).
At paragraphs 54-6, the Court noted the general principles at play in a form very similar to that set out in DD, noting that it had in that case and in Stanev "had the opportunity to examine placements in social care homes of mentally incapacitated individuals, and to find that it amounted to deprivation of liberty within the meaning of Article 5 § 1 of the Convention." Applying those principles, the Court held thus as regards the objective element:
"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."
As regards the subjective element, the Court adopted a similar approach to that in Stanev and DD, concluding that:
"58 … In sum, even though the applicant had been deprived of his legal capacity, he was still able to express an opinion on his situation, and in the present circumstances the Court finds that the applicant had never agreed to being placed in the social care home."
The Court found that, although the applicant’s admission was requested by his guardian, a private individual, it was implemented by a state-run institution (the care home), and hence the responsibility of the authorities for the situation complained of was engaged; and that he was deprived of his liberty for purposes of Article 5(1) with effect from February 2002 (paragraph 60).
Whether deprivation of liberty lawful for purposes of Article 5(1)(e)
Taking a very similar approach to that adopted in DD, the Court reiterated the need to go beyond a mere compliance with formal compatibility with the procedural requirements of the domestic law in question to examine whether those procedures provided sufficient guarantees against arbitrariness. The Court therefore examined the procedures in Poland to see whether they complied with the criteria set down in Winterwerp v Netherlands (1979) 2 E.H.R.R. 387 at 39. It reiterated in so doing that the mental condition of a person must have been established at the time of the deprivation of liberty (paragraph 66); in the case before it, an assessment conducted a little over a month previously could be considered sufficiently current (paragraph 67). However, the Court found that the assessment had been solely for purpose of determining the issue of his legal protection, rather than to decide whether his state of health required his detention, such that it could not stand as evidence that the mental disorder in question warranted detention (paragraph 68), and that there had been a "total lack" of continued assessment of his disorder (paragraph 71), such that his placement in the home was not ordered in compliance with a procedure prescribed by law and was hence not justified by reference to Article 5(1)(e)(ibid).
Turning to the applicant’s complaint under Article 5(4) ECHR, the Court reiterated the ‘mantra’ from DD as to the relevant principles in the context of those detained as being of unsound mind thus:
"75. Among the principles emerging from the Court’s case-law on Article 5 § 4 concerning "persons of unsound mind" are the following:
(a) a person detained for an indefinite or lengthy period is in principle entitled, at any rate where there is no automatic periodic review of a judicial character, to bring proceedings “at reasonable intervals” before a court to put in issue the “lawfulness” – within the meaning of the Convention – of his detention;
(b) Article 5 § 4 requires the procedure followed to have a judicial character and to afford the individual concerned guarantees appropriate to the kind of deprivation of liberty in question; in order to determine whether proceedings provide adequate guarantees, regard must be had to the particular nature of the circumstances in which they take place;
(c) the judicial proceedings referred to in Article 5 § 4 need not always be attended by the same guarantees as those required under Article 6 § 1 for civil or criminal litigation. Nonetheless, it is essential that the person concerned should have access to a court and the opportunity to be heard either in person or, where necessary, through some form of representation (see Megyeri v. Germany, 12 May 1992, § 22, Series A no. 237-A; see also Stanev, cited above, § 171).
76. This is so in cases where the original detention was initially authorised by a judicial authority (see X v. the United Kingdom, 5 November 1981, § 52, Series A no. 46), and it is all the more true in the circumstances where the applicant’s placement in the care home has been instigated by a private individual, namely the applicant’s guardian, and decided upon by the municipal and social care authorities without any involvement by the courts (see D.D. v. Lithuania, cited above, § 164)."
The Court noted that the framework in place in Poland fell notably short of the requirements of Article 5(4), in particular because there was no provision for automatic judicial review of the lawfulness of admitting a person to, and keeping him in, an institution such as a social care home, and a review could not be initiated by the person concerned if that person has been deprived of his legal capacity, such that Mr K was prevented from independently pursuing any legal remedy of a judicial nature to challenge his continued involuntary institutionalisation.
The Court noted that it had, in Stanev, in respect of partially incapacitated individuals, that given the trends emerging in national legislation and the relevant international instruments, Article 6(1) of the Convention must be interpreted as guaranteeing a person, in principle, direct access to a court to seek restoration of his or her legal capacity. It reiterated (paragraph 89) that "the Court reiterates that the right to ask a court to review a declaration of incapacity is one of the most important rights for the person concerned, since such a procedure, once initiated, will be decisive for the exercise of all the rights and freedoms affected by the declaration of incapacity, not least in relation to any restrictions that may be placed on the person’s liberty." On the facts before it, and in particular given that there had been a judgment from the Polish Constitutional Court to the effect that lower courts should not limit procedural rights of incapacitated adults even before legislation to that end had been completed, a judgment which had been signally ignored prior to the enactment of the legislation in question, the Court concluded that there had been a breach of Article 6(1).
The Court awarded Mr K the sum of €10,000 in respect of non-pecuniary damage to reflect the breaches of his rights under the Convention.
Even if it could be said previously that the English Courts were required to deduce the relevant principles applicable to the deprivation of liberty of incapacitated adults in care homes from Strasbourg jurisprudence which was not directly on point (for instance, HL v United Kingdom, concerned with informal admission to psychiatric hospital), that cannot be the case now. In Stanev, DD and now Kedzior, we have a trinity of cases which are expressly concerned with the placement of those without the relevant capacity in care homes. Unsurprisingly, perhaps, the approach adopted in each of the cases to the determination of the objective element of the deprivation of liberty is both internally consistent and consistent with that adopted in HL. None of the cases (with the possible but ambiguous exception of dicta in Stanev) rely upon questions of purpose, reason or motive; none proceed by reference to a comparator in the way adopted by the Court of Appeal in Cheshire West.
The divergence between the path adopted in England and Wales and that set down by Strasbourg would seem only to be widening. The need for the Supreme Court to grapple with the question of what constitutes a deprivation of liberty for purposes of the MCA 2005 only becomes more urgent; it is therefore all the more regrettable that we understand that the case is not listed until the autumn of 2013.
Kedzior is also of significance for confirming – if such confirmation was required – that the Winterwerp criteria are directly in play when it comes to consideration of those to be deprived of their liberty under the DOLS regime. To that extent, therefore, Kedzior (and DD before it, which addressed the matter more briefly) therefore answers the Court of Appeal’s complaint in G v E  EWCA Civ 822  COPLR Con Vol 431 that the "European jurisprudence derives exclusively from the fact that in the cases which have reached the ECtHR, the issue has involved alleged mental illness and detention in a psychiatric hospital" (paragraph 59). The steps required to ensure that a person satisfies the mental health requirement of Schedule A1 would appear to meet the requirements set down by Strasbourg, albeit that Kedzior does sound as a powerful reminder that it is necessary that (save in the case of emergency) the evidence upon which reliance is placed to justify detention must be (1) current at the point of detention; (2) prepared with a view to identifying why the disorder warrants detention; and (3) kept under regular review.