FIRST SECTION
DECISION
Application no. 6406/15
R.B.
against the United Kingdom
The European Court of Human Rights (First Section), sitting on 12 September 2017 as a Committee composed of:
Kristina Pardalos, President,
Pauliine Koskelo,
Tim Eicke, judges,
and Renata Degener, Deputy Section Registrar,
Having regard to the above application lodged on 26 January 2015,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Mr R.B., is a British national, who was born in 1976 and lives in Brighton. He was represented before the Court by Mr A. Pitblado, the Official Solicitor to the Senior Courts and Ms N.A. Mackintosh, a lawyer practising in London.
A. The circumstances of the case
2. The applicant is 41 years old and lacks capacity to litigate; he is represented by the Official Solicitor.
3. On 18 June 2007 he was found in the street having experienced an accident and suffering from a significant head injury which included frontal lobe damage. The precise cause of the injury is unknown but assumed to be a traffic accident. He has been diagnosed with an organic personality change due to an acquired brain injury and has a psychiatric history. The injury also caused physical disabilities and he has used a wheelchair since.
4. Following the accident he was hospitalised and, on 28 February 2008, transferred to a neuro-rehabilitation facility (the “Care Home”). At first he made progress and in 2010 accommodation was identified where he could live independently, with support. The aim of his rehabilitation was to prepare him to move into this accommodation. However, his recovery stalled around mid-2011, and his carers decided he was still not ready to live independently. The applicant became frustrated. He stopped co-operating with the rehabilitation programme, escaped from the Care Home on a number of occasions and endangered himself by abusing alcohol. He also became incontinent of urine and took an overdose. He was hospitalised on a number of occasions and twice returned to the Care Home by police.
5. As a result, the Care Home applied to the local authority for a standard (as opposed to urgent) authorisation under Schedule A1 of the Mental Capacity Act 2005 (“MCA”) to allow them to deprive the applicant of his capacity and liberty on the basis he required constant care for his own safety. Authorisation was granted for the first time on 19 September 2011. Subsequent standard authorisations have been repeatedly granted. The initial authorisation stated as follows:
“SB requires 24/7 care in order to ensure his safety. When he leaves the accommodation he puts himself at risk by drinking heavily. He has been diagnosed with an ABI (Acquired Brain Injury) in 2007 following an RTA (road traffic accident).”
6. The applicant is only able to leave the Care Home with permission, and under supervision. The Care Home organises daily activities for him in the local area. Should he choose to co-operate with the rehabilitation programme again, he may make sufficient progress to live independently. According to the Court of Appeal (see paragraph 12 below), the local authority must continue to offer rehabilitation and encourage him to participate.
7. On 24 May 2012, the applicant applied to the Court of Protection to terminate the standard authorisation pursuant to section 21A of the MCA. The district judge in the Court of Protection held a hearing in March 2013 and heard evidence from Dr G. a jointly instructed medical expert, the applicant (who had legal representation throughout the proceedings), his social worker and other professionals involved in his care. The Court of Protection accepted the evidence of the medical expert commenting as follows:
“It was put to [Dr G.] that it does not flow from the fact that RB cannot resist alcohol that he cannot make a decision as to where he should live. She said that for RB residence and care are intertwined. RB needs to have an awareness of his needs. The combination of the frontal and right sided brain damage means that he is not fully aware of the risks to himself. He cannot retain and weigh information and cannot make an independent decision about where to live so that his needs will be met. However, when he is presented with two alternatives both of which can meet his needs he can choose one over the other.”
8. The district judge in the Court of Protection dismissed the applicant’s claim on 15 March 2013. The judge concluded:
“Having considered the evidence I am satisfied that RB has been given and can understand information relevant to the decision. He can also remember what he has been told. However, I am not satisfied that he is able to use and weigh up that information as part of making the relevant decision. I am not satisfied that he understands the consequences of his risky behaviour. I am satisfied he lacks the capacity to decide whether he should be accommodated in the relevant care home for the relevant care to be provided for him. He has shown a clear wish to leave. It would not be right to terminate the standard authorisation.
It is a significant matter to deprive a person of his liberty and any such deprivation needs to be the least restrictive possible. The risk which is presented must be assessed and the restriction must be the least which is absolutely necessary. In this case that means consideration must be given to RB’s expressed wish to spend time alone and with his friends. Ways of minimising the restrictions have been explored previously. A contract of expectations was signed and there was a provision about the maintenance of telephone contact. The fact that they failed then does not mean they should not be tried again. I am satisfied that the restriction on RB going out unaccompanied means he is detained as a resident in a care home in circumstances which amount to a deprivation of liberty. I am satisfied for the reasons I have given that detention is in his best interests. It is necessary for him to remain there, and the detention is a proportionate response to the likelihood of him suffering harm and the seriousness of that harm.
The way in which the standard authorisation is phrased and the steps to be taken must be directed to being the least restrictive possible and there must be a commitment to working towards the position where the restrictions are reduced if they cannot be done away with altogether.”
9. The applicant challenged that decision before the judge in the Court of Protection on appeal, who reviewed his case in detail and agreed with the findings of the District Judge. His claim was dismissed on 4 October 2013. The judge in the Court of Protection on appeal considered that:
“He is not being detained or sought to be detained to keep him sober; he is being detained to prevent the substantial risk of harm which is associated with his drinking behaviour. There is a distinction between alcohol dependency, which is not what [Dr G.] has found, but the consequences of what happens when he gives in easily to stimulus, such as her example of the bottle of whisky that was downed in ten minutes. The drink is a function; it would appear, of his impulse control, rather than alcohol dependency, which is a slightly different thing.”
10. The applicant then appealed to the Court of Appeal, which agreed with the findings of the Court of Protection and dismissed his appeal on 7 May 2014.
11. Lord Justice Jackson gave the lead judgment in the Court of Appeal and concluded:
“In my view RB’s appeal should be dismissed. Because of his brain injury RB is unable to use and weigh relevant information. He does not appreciate the dangers of resuming his former chaotic lifestyle in his present condition. Therefore the mental capacity requirement is satisfied. If RB is discharged in to the community, he is likely to revert to alcoholism and a chaotic lifestyle. Given his current disabilities this is likely to lead to serious injury. Therefore, confinement in S House (the care home) at least for the time being, is in RB’s best interests...”
12. He conducted an analysis of whether alternatives to detention were possible, concluding:
“Section 1(6) of the MCA requires the court to consider whether the purpose can be achieved in a way that is less restrictive of RB’s rights and freedom of action. Regrettably, it cannot.”
In response to the applicant’s argument that he was condemned to a lifetime of incarceration without hope of release, the judge found:
“If only RB would continue to co-operate in rehabilitative programmes (as he did until 2011) he may well become capable of independent living in the future. In order to comply with the MCA section 4(4), the staff at S house (the care home) must continue to offer rehabilitation to RB and must encourage him to participate.
Without proper safeguards a regime of compulsory detention for medical purposes would be unacceptable, indeed Orwellian. However, the carefully drawn provisions of the MCA together with the reviewing function of the court ensure that the power to detain is not misused. In the present case deprivation of liberty is necessary in order to protect RB from seriously injuring himself. That must be in his best interests.”
13. The Court of Appeal refused permission to apply to the Supreme Court. The applicant applied directly to the Supreme Court for permission to appeal, which refused his application on 30 July 2014 on the basis that the application did not raise a point of law of general public importance and the issues were fully addressed by the factual findings of the District Judge.
B. Relevant domestic law and practice
14. The Mental Capacity Act 2005 "MCA”, as amended by the Mental Health Act 2007, provides as follows:
“1. The principles
(1) The following principles apply for the purposes of this Act.
(2) A person must be assumed to have capacity unless it is established that he lacks capacity.
(3) A person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success.
(4) A person is not to be treated as unable to make a decision merely because he makes an unwise decision.
(5) An act done, or decision made, under this Act for or on behalf of a person who lacks capacity must be done, or made, in his best interests.
(6) Before the act is done, or the decision is made, regard must be had to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the person’s rights and freedom of action.”
15. Section 4 of the Act states:
“4. Best interests
(1) In determining for the purposes of this Act what is in a person’s best interests, the person making the determination must not make it merely on the basis of—
(a) the person’s age or appearance, or
(b) a condition of his, or an aspect of his behaviour, which might lead others to make unjustified assumptions about what might be in his best interests.
(2) The person making the determination must consider all the relevant circumstances and, in particular, take the following steps.
(3) He must consider—
(a) whether it is likely that the person will at some time have capacity in relation to the matter in question, and
(b) if it appears likely that he will, when that is likely to be.
(4) He must, so far as reasonably practicable, permit and encourage the person to participate, or to improve his ability to participate, as fully as possible in any act done for him and any decision affecting him.”
16. Schedule A1 to part 1 of the Act allows a person to be deprived of their liberty in a hospital or care home for the purpose of being given care or treatment provided that an authorisation has been obtained. Section 21A of the MCA gives the courts the power to vary or terminate an authorisation of deprivation of liberty. Pursuant to Section 21A, a person deprived of liberty, or their representative can apply to the Court of Protection at any time to terminate the standard authorisation.
C. Developments following H.L. v. the United Kingdom, no. 45508/99, ECHR 2004‑IX
17. In H.L. v. the United Kingdom, the applicant was an informal patient in a psychiatric institution for over thirty years until July 1997. The Court found that the absence of procedural safeguards failed to protect him against arbitrary deprivations of liberty on grounds of necessity. It also noted that it had not been demonstrated that the applicant had available to him a procedure to have the lawfulness of his detention reviewed by a court. Accordingly, the Court held, that there had been a violation of Article 5 § 1, and 5 § 4 of the Convention.
18. Following that judgment, the United Kingdom adopted a number of measures. Satisfied that these would prevent similar violations, the Committee of Ministers of the Council of Europe closed its supervision of H.L. v. the United Kingdom (for details see Resolution CM/ResDH(2014)133).
19. The main measure adopted was the amendment to the MCA by the Mental Health Act 2007, introducing the Deprivation of Liberty Safeguards in England and Wales (DOLS) as Schedule A1 of the MCA. Under the schedule, the power to deprive a person of liberty is exercisable by specified persons or bodies, in defined circumstances, on the basis of objective medical evidence. The schedule sets out a number of safeguards including requirements to specify the reason for deprivation of liberty; limits on the length of time for which an authorisation is granted (a maximum of 12 months for standard authorisations); involvement of relatives, carers and advocates; provision for regular reviews and the possibility to apply to court at any time for a review of the lawfulness of detention.
COMPLAINTS
20. The applicant complained that the authorisation to deprive him of capacity and liberty violated his Convention rights. Under Article 5 § 1 (e) he argued that his detention was unlawful in domestic law and so the Convention because it is unnecessary as the restrictions imposed are excessive and alternative arrangements could be found; his best interests were not taken into account; and it is based on his alcoholism. Under Article 8 he argued that his detention interfered with his rights and it was disproportionate to ignore his wishes and feelings.
THE LAW
A. The complaints under Article 5 § 1 (e) of the Convention
21. Article 5 § 1 (e) reads as follows:
“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 for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants.”
1. General principles
22. Under Article 5 of the Convention any deprivation of liberty must be “lawful”. This includes a requirement that it must be effected “in accordance with a procedure prescribed by law”. On this point, the Convention essentially refers back to national law and states an obligation to comply with its substantive and procedural provisions. It also requires that any measure depriving the individual of his liberty must be compatible with the purpose of Article 5, namely to protect the individual from arbitrariness (see I.N. v. Ukraine, no. 28472/08, § 66, 23 June 2016). As for the substance of the domestic law, in order to ensure protection from arbitrariness, the domestic law must also contain “fair and proper procedures” for deprivation of liberty (see I.N. v. Ukraine, cited above, § 68 and H.L. v. the United Kingdom, cited above, § 115).
23. Moreover, the detention of an individual is such a serious measure that it is only justified where other, less stringent measures have been considered and found to be insufficient to safeguard the individual or the public interest which might require that the person concerned be detained. That means that it does not suffice that the deprivation of liberty is in conformity with national law, it must also be necessary in the circumstances (see I.N. v. Ukraine, cited above, § 69, and Witold Litwa v. Poland, no. 26629/95, § 78, ECHR 2000‑III).
24. Under Article 5 § 1 (e) of the Convention, an individual cannot be deprived of his liberty on the grounds that he or she is of “unsound mind” unless the following three minimum conditions are satisfied: firstly, he must reliably be shown to be of unsound mind; secondly, the mental disorder must be of a kind or degree warranting compulsory confinement; and thirdly, the validity of continued confinement depends on the persistence of such a disorder (see Winterwerp v. the Netherlands, 24 October 1979, § 39, Series A no. 33).
25. Persons who are not medically diagnosed as “alcoholics”, but whose conduct and behaviour under the influence of alcohol pose a threat to public order or themselves, can be taken into custody for the protection of the public or their own interests, such as their health or personal safety. At the same time, Article 5 § 1 (e) of the Convention does not permit detention of an individual merely because of his alcohol intake (see Petschulies v. Germany, no. 6281/13, § 65, 2 June 2016, Witold Litwa v. Poland, no. 26629/95, §§ 61-64, ECHR 2000‑III, and Hilda Hafsteinsdóttir v. Iceland, no. 40905/98, § 42, 8 June 2004).
2. The Court’s assessment
(a) “Lawful” detention “in accordance with a procedure prescribed by law”
26. The Care Home first applied to the local authority in 2011 for a standard authorisation to detain the applicant under schedule A1 of the MCA. The local authority has subsequently granted further authorisations to detain the applicant. The domestic courts examined in detail whether the local authority and Care Home had acted lawfully when detaining the applicant and concluded that they had. While the Court exercises a certain power of review, it is in the first place for the national authorities, notably the courts, to interpret and apply domestic law (see Baranowski v. Poland, no. 28358/95, § 50, ECHR 2000‑III with further references). There is no basis in the materials before this Court to interfere with the domestic courts’ assessment that the detention was in accordance with domestic law in the present case.
27. However, in order to ensure protection from arbitrariness, the domestic law must also contain “fair and proper procedures” for deprivation of liberty (see paragraph 22 above).
28. In this connection, the applicant argues that because he does not want to comply with rehabilitation he is condemned to a lifetime of detention in the Care Home.
29. This Court has previously found that there was an absence of sufficient safeguards in a similar context in H.L. v. the United Kingdom, cited above. The authorities responded to the violations found in that case by introducing the Deprivation of Liberty Safeguards in 2007 in Schedule A1 to the MCA (see paragraphs 17 to 19 above). These safeguards put in place a number of measures including a limitation on the time period for which deprivation of liberty can be authorised (a maximum of 12 months) and regular reviews. There is also a right for those detained to apply to the Court of Protection at any time.
30. Despite his submissions to this Court, the applicant did not make the absence of safeguards a central issue in his domestic claim. Consequently, the domestic courts do not analyse this argument in detail although they do refer to the provisions in Schedule A1 the MCA which allowed the applicant to challenge the deprivation of his capacity and liberty, and which have resulted in the present proceedings.
31. However, the Court notes that there is nothing in the facts of this case which would indicate that the necessary guarantees are missing. On the contrary, the applicant has not challenged the fact that he was detained pursuant to a properly obtained authorisation, and the present proceedings confirm the judicial oversight of the deprivation of liberty. Moreover, the Committee of Ministers’ was satisfied that the measures adopted following H.L. v. the United Kingdom (cited above) (see paragraphs 17 to 19). Accordingly, the Court concludes that in the circumstances of the case, fair and proper procedures to protect against the potential arbitrariness of the applicant’s detention were in place.
32. Nonetheless, the lawfulness of the applicant’s continued detention under domestic law is not decisive, as it is not sufficient for the deprivation of liberty to be in conformity with national law, it must also be necessary in the circumstances (see paragraph 23 above).
33. The applicant argues that his detention is unnecessary and disproportionate because he could be cared for in the community and neither this nor other alternatives were considered.
34. However, under the MCA deprivation of liberty must only be used as a last resort, and an obligation is imposed on those applying for authorisation to consider whether the purpose can be achieved in a less restrictive way (see paragraph 14 above). Moreover, the applicant’s submissions appear to contradict the conclusions of the domestic courts from which it is clear that, in line with the legislative provisions, the domestic decision makers considered alternatives to detention, including the possibility of the applicant living independently, with support (see paragraph 11 above). Only when it became clear that this would not be possible did they apply for authorisation to deprive the applicant of his liberty. Moreover, in accordance with the legislation, the ultimate goal for the applicant and the authorities must be to enable him to live independently if possible, as the concluding remarks of the Court of Protection and Court of Appeal indicate (see paragraphs 8 and 12 above). Therefore, the applicant’s argument that alternatives to detention were not considered is not borne out.
35. In light of the above, the Court concludes that the applicant’s detention in accordance with a procedure prescribed by law, and lawful under Article 5 § 1 (e) of the Convention.
(b) Whether the applicant is a person of “unsound mind”
36. The applicant has also argued that he was detained as an “alcoholic” and that this was unlawful under domestic law. The domestic courts examined that question and concluded on the basis of the expert medical evidence that his detention was lawful because he was not detained as an “alcoholic”, but due to his lack of capacity to make decisions as a result of brain damage following his injury. The loss of capacity caused by his brain injury meant he had no control over his decisions to drink and when he drank, he jeopardised his own safety to the extent his life was at risk (see paragraphs 8, 9 and 11).
37. It does not appear that the applicant contested this medical evidence before the domestic courts. Nor has he provided any additional arguments in his application which would call into question the assessments of the domestic courts. The Court therefore concludes that the applicant was detained in accordance with the domestic law due to his lack of capacity (not as an “alcoholic”), or in Convention terms as a person of “unsound mind”.
38. As the applicant is detained as a person of “unsound mind”, the three minimum conditions of Winterwerp must be fulfilled (see paragraph 24 above) and it appears that they were in this case. First, the applicant was reliably shown to be of unsound mind, as a true mental disorder was established before the domestic courts on the basis of objective medical expertise (see paragraph 8 above). Second, the domestic courts concluded that the disorder was of a kind or degree warranting compulsory confinement (see paragraphs 8, 9 and 11). Third, the validity of the continued confinement depends upon the persistence of such a disorder. In any event, the standard authorisation pursuant to which the applicant is detained lasts for a maximum of 12 months and is also subject to other safeguards (see paragraph 19 above).
39. It may be noted nonetheless that the Convention does permit detention of people whose conduct and behaviour under the influence of alcohol pose a threat to public order or themselves (see paragraph 25 above). However, there is no need for the Court to consider further this basis for detention, given its conclusions set out above.
40. In the light of the foregoing considerations the Court considers that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
B. The complaint under Article 8 of the Convention
41. The Court notes that this complaint does not appear to raise any separate issues. In any event, the applicant did not expressly raise any arguments under Article 8 before the domestic courts and so has failed to exhaust domestic remedies in that respect. The Court therefore dismisses this part of the application in accordance with Article 35 §§ 1 and 4 of the Convention.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 5 October 2017.
Renata DegenerKristina Pardalos
Deputy RegistrarPresident
Full & Egal Universal Law Academy