242: The Supreme Court recalibration of the Deprivation of Liberty and what it means

Perhaps we ought to look at Article 5 in some detail and the provisions in Article 5 which justify deprivation of liberty in the context of care homes, because that's really what we're talking about here.

Absolutely.

So we start out with Article 5.

Article 5 says 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.

So the following cases include at paragraph 1E of Article 5, the lawful detention of persons for the prevention of spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants.

There's a lot to unpack there, but what we're focusing in on is particularly the persons of unsound mind, and it is that subsection 1E that applies in these cases.

And the other parts of Article 5 that are relevant here are paragraph 4 and paragraph 5.

Paragraph 4 provides that a person who's being deprived of their liberty is entitled to take proceedings by which the lawfulness of their detention can be decided by a court, and paragraph 5 provides for compensation in the event that the detention is in contravention of Article 5.

And moving on from that, there is a lot in this case, as you have also seen, Rosalind, a lot about the European jurisprudence.

And I have to say it makes for really interesting reading and a bit of a recap because across a number of different practice areas, you will notice cases that come out.

So if you do inquest cases, there are inquest cases in here as well.

So it covers a lot of ground.

But just looking at it from a high level is what the European jurisprudence has found in terms of the test for an Article 5 deprivation, that there are three elements to it.

First, there is an objective element, and that is, is the person confined to a particular restricted space for a material period of time? The second is a subjective element, and that's what you referred to in your very helpful introduction, Rosalind.

You were talking about the subjective element.

The subjective element is where there is no valid consent.

And the third element is attribution.

So that's where the state is responsible either directly or indirectly for the confinement in question.

And this particularly comes out of a case called Stork and Germany.

That's a 2005 case where those three elements were set out, and you can track it through the European jurisprudence that has followed.

So that's how we've got to where we've got to in terms of a summary point, as it were, in terms of Article 5 and European jurisprudence.

But then if we look at how Article 5 then is linked to domestic legislation, we see that in the Mental Capacity Act in Section 64, which says that references to deprivations of a person's liberty have the same meaning as in Article 5 of the Human Rights Convention.

And then there is also an analogous provision in Section 3061 of the Mental Capacity Act for Northern Ireland.

So when I refer to that link between the domestic legislation and Article 5 ECHR and European jurisprudence, that's the starting off point is this clear link in to that definition of Article 5 in the domestic legislation.