Lack of Patient Safeguards was Infringement
The claimant had been detained at a mental hospital as in ‘informal patient’. He was an autistic adult. He had been recommended for release by the Mental Health Review Tribunal, and it was decided that he should be released. He was detained further pending suitable arrangements being made for his care. His carers wished him to be returned to them, and the local authority thought not.
Held: The absence of procedural safeguards to protect informal mental patients against the arbitrary deprivation of liberty on grounds of necessity violates article 5(1): the Court was struck by the lack of any fixed procedural rules governing the admission and detention of compliant incapacitated persons, contrasting this dearth of regulation with the extensive network of safeguards applicable to psychiatric committals under the 1983 Act. ‘It is recalled that an individual cannot be deprived of his liberty on the basis of unsoundness of mind unless three minimum conditions are satisfied: he must reliably be shown to be of unsound mind; the mental disorder must be of a kind or degree warranting compulsory confinement; and the validity of continued confinement depends upon the persistence of such a disorder (the Winterwerp judgment, at para 39).’
Citations:
45508/99, (2004) 40 EHRR 761, [2004] ECHR 720
Links:
Statutes:
Eurpopean Convention on Human Rights 5(1)
Jurisdiction:
Human Rights
Citing:
At First instance – L v Bournewood Community and Mental Health NHS Trust Admn 9-Oct-1997
L was adult autistic. He had been admitted to mental hospital for fear of his self-harming behaviours, and detained informally. He complained that that detention was unlawful.
Held: The continued detention of a mental health patient who is . .
At Court of Appeal – Regina v Bournewood Community and Mental Health NHS Trust, Ex parte L CA 2-Dec-1997
The applicant was severely autistic, and unable to consent to medical treatment. He had been admitted voluntarly to a mental hospital and detained under common law powers. The Hospital trust appealed a finding that his detention had been unlawful. . .
At House of Lords – In Re L (By His Next Friend GE); Regina v Bournewood Community and Mental Health NHS Trust, Ex Parte L HL 25-Jun-1998
The applicant was an adult autistic, unable to consent to medical treatment. Treatment was provided at a day centre. He had been detained informally under the Act and against the wishes of his carers, but the Court of Appeal decided he should have . .
See Also – HL v United Kingdom ECHR 10-Sep-2002
(Admissibility) Whether a detention amounts to a deprivation of liberty depends upon all the facts and circumstances of the particular case . .
Cited by:
Cited – MH v Secretary of State for the Department of Health and others HL 20-Oct-2005
The appellant, detained for assessment under section 2, was too disabled to make an application to the court on her own behalf. After a dispute between her mother and the medical officer over her treatment, an application was made to the county . .
Cited – AN, Regina (on the Application of) v Mental Health Review Tribunal (Northern Region) and others CA 21-Dec-2005
The appellant was detained under section 37 of the 1983 Act as a mental patient with a restriction under section 41. He sought his release.
Held: The standard of proof in such applications remained the balance of probabilities, but that . .
Cited – Gillan, Regina (on the Application of) v Commissioner of Police for the Metropolis and Another HL 8-Mar-2006
The defendants said that the stop and search powers granted under the 2000 Act were too wide, and infringed their human rights. Each had been stopped when innocently attending demonstrations in London, and had been effectively detained for about . .
Cited – In re PS (an Adult), Re; City of Sunderland v PS by her litigation friend the Offcial Solcicitor and CA; Re PS (Incapacitated or Vulnerable Adult) FD 9-Mar-2007
The patient an elderly lady with limited mental capacity was to be returned from hospital, but her daughter said she was to come home. The local authority sought to prevent this, wanting to return her to a residential unit where she had lived for . .
Cited – Kambadzi (previously referred to as SK (Zimbabwe)) v Secretary of State for The Home Department SC 25-May-2011
False Imprisonment Damages / Immigration Detention
The respondent had held the claimant in custody, but had failed to follow its own procedures. The claimant appealed against the rejection of his claim of false imprisonment. He had overstayed his immigration leave, and after convictions had served a . .
Cited – G v E and Others CoP 26-Mar-2010
E Was born with and still suffered severe learning difficulties. The court was asked as to the extent of his capacity to make decisions, and as to where he should live, with a family member, the carer or with the local authority, which had removed . .
Cited – G v E and Others CA 16-Jul-2010
E, now aged 19, suffered a genetic disorder leading to severe learning disability and lack of mental capacity. He had been in the care of his sister, the appellant, but had been removed by the local authority when his behaviour became disturbed. G, . .
Cited – Faulkner, Regina (on The Application of) v Secretary of State for Justice and Another SC 1-May-2013
The applicants had each been given a life sentence, but having served the minimum term had been due to have the continued detention reviewed to establish whether or not continued detention was necessary for the protection of the pblic. It had not . .
Cited – Re DE, JE v DE, Surrey County Council and EW FD 29-Dec-2006
JE, wife of DE, who had been taken into residential care by the Local authority, said that the authority had infringed his Article 5 and 8 rights on transferring him between homes. The authority asserted that he did not have mental capacity. She . .
Cited – Osborn v The Parole Board SC 9-Oct-2013
Three prisoners raised questions as to the circumstances in which the Parole Board is required to hold an oral hearing before making an adverse decision. One of the appeals (Osborn) concerned a determinate sentence prisoner who was released on . .
Cited – In re D (A Child) SC 26-Sep-2019
D, a young adult had a mild learning disability and other more serious conditions. He was taken into a hospital providing mental health services. The external door was locked, and a declaration was sought to permit this deprivation of his liberty, . .
Lists of cited by and citing cases may be incomplete.
Human Rights, Health
Leading Case
Updated: 18 April 2022; Ref: scu.231147