1. T HE N UB OF THE M ATTER : A RTICLE 8 ECHR Neil Allen Barrister and Lecturer 39 Essex Chambers and the University of Manchester Neil.allen@manchester.ac.uk

2. A RTICLE 5 – Q UICK R ECAP 1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: … (e) the lawful detention … of persons of unsound mind… 2. Everyone who is arrested shall be informed promptly, in a language which he or she understands, of the reasons for his arrest and of any charge against him… 4. 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. 5. Everyone who has been the victim of arrest or detention in contravention of the provisions of this article shall have an enforceable right to compensation.

3. A DMINISTRATIVE D ETENTION : D O LS ( HOSPITALS AND CARE HOMES )

4. T HE 200- YEAR P ARALLEL Madhouses Act 1774 – drop in inspections 1814: York Asylum and Bethlem Hospital Parliamentary Select Committee 1815 – scathing Response = asylums Health and Social Care Act 2008 – drop in inspections 2006: Cornwall. 2012: Winterbourne view Parliamentary Select Committee 2014: scathing Response = “deprived”

5. A M ATTER OF P OLICY Cheshire West and Surrey: “57. Because of the extreme vulnerability of people like P, MIG and MEG, I believe that we should err on the side of caution in deciding what constitutes a deprivation of liberty in their case. They need a periodic independent check on whether the arrangements made for them are in their best interests. Such checks … are a recognition of their equal dignity and status as human beings like the rest of us.” But such Article 5 checks did nothing to identify the Winterbourne View abuse. Long term: need to de-link safeguards from the prison paradigm of Article 5. Meanwhile, lessons from history = –Be alive to the risk of social stigma –Ensure Article 5 does not delay or inhibit the provision of care –Do not rubber stamp!! “10 … Legal formalities may be seen as the antithesis of the normalisation which it is the object of both the Mental Health and the Mental Capacity Acts to achieve.”

6. A RTICLE 8 1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

7. E VEN IF IT IS NOT A DOL…. Westminster City Council v Manuela Sykes [2014] EWHC B9 “If I am wrong [that she is deprived of liberty] then, having regard to Articles 6 and 8 of the Convention, in my view it would still be legally necessary for a court to review the fact that she is prevented from returning to and residing at her own home in a situation where the state intends that her home should be sold and this situation endure for the rest of her life notwithstanding her clear objections. I would still need to decide what I have been asked to decide, that is whether it is in her best interests not to return home and whether to permit such an interference with her Article 8 rights.”

8. O FTEN T HE N UB OF THE M ATTER London Borough of Hillingdon v Neary and others [2011] EWHC 1377 “… the issue that arises under Article 8 represents the nub of the matter. The principles surrounding the right to respect for family life … apply directly to cases where the legitimacy of removal of a person from a family is in question … There will of course be cases where a grave breach of Article 5 overshadows consequences in terms of Article 8, but this will not always be so. In the present case, it seems to me that the real issue relates to Steven’s absence from his family home, rather than the deprivation of liberty to which he is to some degree or another necessarily subject wherever he lives. In saying this, I do not imply that deprivation of liberty issues are unimportant in Steven’s case. But by viewing the case primarily through the prism of art 5 one risks repeating a central fallacy and conflating the secondary question of whether a person is lawfully deprived of his liberty with the primary question of where he should be living.” Why was Article 8 breached? See paragraph 155.

9. D O LS IS NOT THE A NSWER TO A RTICLE 8 DOLS is an article 5 procedure and cannot resolve article 8 disputes (eg as to residence or contact): –DOH Briefing, ‘DOLS - the early picture’ (April 2010): other than as a very short-term measure, DOLS should not be relied on to manage no contact cases. Go to Court. –London Borough of Hillingdon v Neary and others [2011] EWHC 1377: “Significant welfare issues that cannot be resolved by discussion should be placed before the Court of Protection…” –C v Blackburn with Darwen BC [2011] EWHC 3321: “…it is not in my view appropriate for genuinely contested issues about the place of residence of a resisting incapacitated person to be determined either under the guardianship regime or by means of a standard authorisation under the DOLS regime.” Go to Court.

10. I NTERFACE : A RTICLE 8 AND C APACITY A Primary Care Trust v P [2009] EW Misc 10, [58]: “It is of the essence of a free society that people who have capacity can choose lifestyles of which those with health or care responsibilities for them do not approve without on that basis alone being at risk of forfeiting capacity, that is the essence of the Article 8 protection.” Coventry City Council v C, B, CA & CH [2012] EWHC 2190, [28]: “[Where person has capacity] it is essential that any consent so obtained is properly informed and, at least where it results in detriment to the giver’s personal interest, is fairly obtained. That is implicit in a due regard for the giver’s rights under Articles 6 and 8”.

11. I NTERFACE : A RTICLE 8 AND B EST I NTERESTS Re Connor [2004] NICA 45, [29]: Whether the interference can be justified involves an approach which is quite different from a best interests assessment. K v LBX [2012] EWCA Civ 79: The right approach under the MCA 2005 is to “ascertain the best interests of the incapacitated adult on the application of the section 4 checklist. The judge should then ask whether the resulting conclusion amounts to a violation of Article 8 rights and whether that violation is nonetheless necessary and proportionate.” Westminster City Council v Manuela Sykes [2014] EWHC B9: “Once this court has completed its analysis of Ms S’s best interests under the MCA, it must satisfy itself that any infringement of her Article 5 and /or Article 8 rights which arises from its (provisional) conclusion is necessary and proportionate”.

12. W HAT P ROTECTION DOES A RTICLE 8 PROVIDE ?

13. S UBSTANTIVE P ROTECTION Lester et al, Human Rights Law and Practice (2009) para 3.10: 1.The objective must be sufficiently important to justify limiting a fundamental right; 2.The measures designed to meet the objective must be rationally connected to that objective - they must not be arbitrary, unfair or based on irrational considerations; 3.The means used to impair the right or freedom must be no more than is necessary to accomplish the legitimate objective - the more severe the detrimental effects of a measure, the more important the objective must be if the measure is to be justified in a democratic society.

14. S UBSTANTIVE P ROTECTION Adds an emotional dimension to MCA s.4 best interests checklist: FP v GM and a Local Health Board [2011] EWHC 2778. Better quality of care? Re S (adult patient) (inherent jurisdiction: family life) [2003] 1 FLR 292: “If the state is to justify removing children from their parents or vulnerable adults from their relatives, partners, friends or carers it can only be on the basis that the state is going to provide a better quality of care than that which they have hitherto been receiving.” Guards against undue delay, eg in assessing capacity: City of Sunderland v MM [2009] COPLR Con Vol 881. Reinforces right of access to the court. Promotes personal contact between person and court: X and Y v Croatia (app no. 5193/09, 2011).

15. P ROCEDURAL P ROTECTION Strengthens the ‘practicable and appropriate’ consultation requirement in MCA s.4(7). G v E, Manchester City Council and F [2010] EWHC 621: “88… Article 8 gives the families of such adults (and by “families” I include relationships between such adults and long-term foster carers) not only substantive protection against any inappropriate interference with their family life but also procedural safeguards including the involvement of the carers in the decision-making process, seen as a whole, to a degree sufficient to provide them with the requisite protection of the families' interests. If they have not, there will have been a failure to respect the family life of the incapacitated adult (and of course the carer.)” This reinforces the procedural dignity afforded to P’s family members whose Article 8 rights are also being interfered with.

16. P ROCEDURAL P ROTECTION G v E, Manchester City Council and F [2010] EWHC 621: “89. There was no adequate involvement of F in the decision to remove E from her care. Furthermore, as Miss T conceded in evidence, the local authority did not ask either F or any family member for their views when the decision was taken to move E from the V Unit into Z Road. They had no contact with G for some time, and they did not speak to F because they considered, having regard to the reports received, that E needed a placement in residential care. 90. For these reasons I find that the removal from F's care, the failure to give any or any adequate consideration to his family life with F at the time of the removal or for many months thereafter, the failure adequately to involve F in the decision-making process about E's future, and the impediments to contact between E and F for several months after his removal constituted a serious breach of his Article 8 rights.”

17. “I N ACCORDANCE WITH THE LAW ”: A R EGULATORY R OLE ? J Council v GU and others [2012] EWHC 3531 “George” had paedophilia which manifested itself through compulsive letter writing about child sex fantasies. In private care home where he was strip-searched, and had his correspondence and telephone conversations monitored. Were these Article 8 interferences “in accordance with the law”? “... not every case where there is some interference with Art 8 rights in the context of a deprivation of liberty authorised under the 2005 Act needs to have in place detailed policies with oversight by a public authority… But where there is going to be a long-term restrictive regime accompanied by invasive monitoring of the kind with which I am concerned, it seems to me that policies overseen by the applicable NHS Trust and the CQC akin to those which have been agreed here are likely to be necessary if serious doubts as to Article 8 compliance are to be avoided. 52-page policy document written to address the issues.

18. “I N ACCORDANCE WITH THE LAW ”: A R EGULATORY R OLE ? AJ v A Local Authority [2015] EWCOP 5 “…in any case in which physical restraint is used in the care of an incapacitated adult, any physical intervention, whether considered to amount to “restraint” or not, should be recorded in the care plan maintained by the service provider and monitored by the statutory body responsible for commissioning the person’s care. Furthermore, precise details of all physical interventions should be ascertained and documented as part of the Deprivation of Liberty Safeguards process or indeed any best interest assessment from direct discussion with care staff implementing the interventions.”

19. T HE N UB OF THE M ATTER : A RTICLE 8 ECHR Useful websites www.39essex.com/resources-and-training/mental-capacity-law/ www.scie.org.uk/mca-directory/index.asp www.mentalhealthlaw.co.uk/Mental_Health_Law_Online (get free updates) www.justice.gov.uk/about/opg