The phrase “Human Rights” refers to the standard rights of all individuals, regardless of nationality, race, religion, ethnicity or gender and are seen as moral rights. A moral right is a natural right that exists from birth, apply to everyone and universal, irrespective of which society someone lives in. These rights cannot be given up or taken away. To have rights implies that others have obligations. The government is required to respect and protect human rights.
Failure by the government to do so would be a violation of human rights. In contrast to moral rights, legal rights are different as they are created by governments, apply only to particular individuals, are not universal and can be given up or altered. The principle of universal rights relevant to everyone was first recognised by a document produced by the United Nations, known as the Universal Declaration of Human Rights1. The document was first signed on 10th December 1948 with an intention of improving human rights worldwide.Every year people are diagnosed with a mental health illness and need special care and support.
Roughly 40% of adults in the UK who suffer from a learning disability also have a mental health condition.2 Depending on an individual’s particular condition and their mental capacity, will determine the most practical care solution. Some patients can be treated in hospitals or care homes while others may have a condition of a more serious nature and need to be admitted to a mental health ward where they will receive round the clock care. Hospitals, care homes and mental health wards are all considered to be a safe and secure environment for both patients and their families. This is to ensure that primarily they are protected, and also to stop them from leaving and causing themselves or others any harm. Sometimes patients are unable to consent to be placed into these environments and therefore are being deprived of their liberty. Article 5 of the Human Rights Act3 states that ‘Everyone has the right to liberty and security of person’.
4The case of HL v United Kingdom5 (also known as the Bournewood case) changed the law entirely and emphasised how patient’s rights were being abused. HL was an autistic man who lived with his carers Mr and Mrs E in their cottage in Surrey. Once a week HL would take the centre’s transport link to his placement. Three years after he had gone to live with Mr and Mrs E, a different driver picked him up and took a different route to his placement.
HL was unsettled by this and taken to hospital where he was detained and his carers were not allowed to visit him. The case failed in the High Court and went to the Court of Appeal ruling in their favour that the informal admission to hospital was unlawful but in 1998 the House of Lords overturned the Court of Appeal’s decision ruling that a man who was admitted informally to hospital without consent had not been unlawfully detained under the common law. His carers argued that the hospital had used a phrase from the Mental Health Act6 which meant all they needed to do was argue it was in his best interest and so they appealed. In October 2004, the Court of Human Rights ruled in HL’s favour stating that the patient had been deprived of his liberty and this was a violation of his human rights under Article 5 of the European Convention on Human Rights. As a result of the decision in Bournewood, the government introduced the Deprivation of Liberty Safeguards (DoLS) which came into action in April 2009.
The Deprivation of Liberty Safeguards is a system that aims to ensure anyone over the age of eighteen who lacks the capacity to give their consent in being placed into hospital or a care home for the purpose of being cared for or given treatment is only being deprived of liberty if is considered in their best interest. The DoLS can be found in schedules A1 and 1A of the Mental Capacity Act7, added by the Mental Health Act8.A more recent case example which shows how human rights are at risk in the UK can be found in London Borough of Hillingdon v Neary9. The patient had autism and serious learning difficulties. Changes to his daily routine would cause him to become anxious and frightened.
The patient lived with his father however when his father became ill in 2009, Steven was placed in a care unit. His behaviour in the care unit was challenging for the care team and because of this, it was decided that Steven would be happier if he were at home. The London Borough of Hillingdon decided that it was not in his best interest to go home but did not inform Steven’s father until April 2010. This case is a perfect example of human rights are at risk in the UK and it is important to acknowledge the extent of the breaches of Steven’s rights under Article 510 and Article 411 and Article 812 of the European Convention on Human Rights.Peter Jackson J ruled the breach of Article 8 to be the “nub” of the matter in this case13. Steven’s Article 8 ECHR rights had been breached and it can be highlighted that although a court disagreeing with the local authority’s beliefs with regards to an individual’s best interests, does not necessarily suggest a breach of Article 8, however due to the lack of any attempt to assess the pros and cons of care at home, and the local authority’s unwillingness to listen to Mr Neary or accept the legitimacy of his concerns, these factors led the judge to presume the local authority had not respected Steven’s Article 8 rights.
With regards to Article 514, it was concluded that no Deprivation of Liberty Safeguards had been put into place and therefore there had been no legal authority to deprive Steven of his liberty between January and April 2010. While there was a DoLS authorisation in place between April and December 2010, the deprivation of his liberty was unlawful because the best interest assessment was inconsistent. Peter Jackson J emphasised that ‘where best interest assessments are inadequate and the supervisory body knows or ought to know this, the supervisory body is not bound to follow the recommendations’15. It was also held that Steven’s rights under Article 5(4) European Convention of Human Rights were breached due to the failure of appointing an Independent Mental Capacity Advocate under s.
39D Mental Capacity Act16 failure to establish an effective review, and the delay in applying to the court. In a later settlement supported by the High Court, Steven Neary was awarded £35,000 in damages.In P v Cheshire West and Chester Council17 concerns of the Deprivation of Liberty Safeguards increased considerably when the Supreme Court held that they applied to foster placements and to the placements that were ‘relatively normal’. Lady Hale makes the point “If it would be a deprivation of my liberty to be obliged to live in a particular place, subject to constant monitoring and control, only allowed out with close supervision, and unable to move away without permission even if such an opportunity became available, then it must also be a deprivation of the liberty of a disabled person.”18. Lord Kerr, who agreed with Lady Hale stated that “Liberty means the state or condition of being free from external constraint.
It is predominantly an objective state. It does not depend on one’s disposition to exploit one’s freedom. No is it diminished by one’s lack of capacity”19The issue here was whether these arrangements amounted to a deprivation of liberty.
By the time of the final hearing in April 2011, Baker J held that P was under the control of the staff at Z House, that he could not “go anywhere, or do anything, without their support or assistance”20. Lloyd LJ said it, “It is meaningless to look at the circumstances of P in the present case and compare them with those of a man of the same age but of unimpaired health and capacity… the right comparison is with another person of the same age and characteristics as P”21In March 2017, the Law Commission proposed an alternative to the Deprivation of Liberty Safeguards (DoLS) and recommended changes be made to the Mental Capacity Act22. The aim of the changes to the Act is to combine the new arrangement, which is known as the Liberty Protection Safeguards (LiPS) and to support an individual’s rights in areas like best interest decisions. The intended scheme would apply to all health and social facilities, and to anyone over the age of sixteen. The new scheme also intends to introduce a two-tier system of security. The “reasonable body” would lead where possible in presenting existing medical assessments, and review an assessment of whether the planned care arrangements are “essential and impartial”.
The second part of the system would involve an independent assessor working for the reasonable body however not involved in the individuals care, to review the assessments and authorise them if satisfied. An approved mental capacity professional would be called in on specific cases if patients object to their care arrangements or have previously implied that they might.Based on the evidence it’s clear that there is a significant risk to Human Rights in relation to the deprivation of liberty in the United Kingdom and despite provisions such as the Deprivation of Liberty Safeguards and the Liberty Protection Safeguards to reduce the risk, not much has changed. 1 http://www.un.org/en/universal-declaration-human-rights/2 www.
mentalhealth.org.uk3 Human Rights Act 19984 https://www.legislation.gov.
uk/ukpga/1998/42/schedule/1/part/I/chapter/45 HL v UK 2005 40 EHRR 326 The Mental Health Act 19837 Mental Capacity Act A1 AND 1A8 Mental Health Act 20079 London Borough of Hillingdon v Neary 2011 EWHC 1377 (COP)10 Human Rights Act Article 511 Human Rights Act Article 4 12 European Convention of Human Rights Article 813 www.lawsociety.org.uk14 Human Rights Act 1998 Article 515 www.
lawsociety.org.uk16 Mental Capacity Act 2005, s.
39D17 P v Cheshire West and Chester Council 2014 UKSC 19; 2014 A.C. 89618 http://www.mentalcapacitylawandpolicy.org.uk/cheshire-west-the-supreme-courts-right-hook/19 http://www.mentalcapacitylawandpolicy.org.uk/cheshire-west-the-supreme-courts-right-hook/20 https://www.supremecourt.uk/decided-cases/docs/UKSC_2012_0068_Judgment21 https://www.supremecourt.uk/decided-cases/docs/UKSC_2012_0068_Judgment22 The Mental Capacity Act 2005