It is easy for psychiatrists and other health professionals when considering detaining someone under the Mental Health Act (MHA), Mental Capacity Act (MCA) or even arranging placement in a care home to only consider the safeguards under the Deprivation of Liberty Safeguards (DOLS) specifically relating to Article 5 of the European Convention of Human Rights (ECHR).

We fully understand the importance of considering Article 5, which is prevalent now, especially since the Government’s final response to the Law Commission’s review1 that states that Parliament will now bring forward legislation to implement the changes highlighted by the Commission. We agree these implementations are well overdue but hope it is not going to have health professionals ‘bogged down’ with educating themselves on the new implemented changes coming from Parliament and in return overshadow the other freedoms of the ECHR.

This article is not to discredit the importance of considering Article 5, but should rather act as a reminder to psychiatrists and health professionals not to forget considering the individual’s other rights and especially that of article 8.

What is Article 8?

Article 8 is one of the fundamental freedoms of the ECHR, which protects the private life of individuals against arbitrary interference by public authorities on four distinct areas: private life, family life, home and correspondence.

We fully understand this is not an absolute right, but rather a qualified right and there are certain circumstances when public authorities may interfere with the private and family life of an individual as set out in Article 8.2

The protection offered by Article 8 is of particular importance to older people, ie. inadequate care arrangements can have a severe impact on an older person’s right to respect for private life. Article 8 gives older people with capacity the right to make their own choices about whether they would like to accept or refuse medical treatment. It can also be used to ensure they are able to maintain a fulfilling and active life and make their own choices as far as possible when they need to go into residential care or hospital.

This article will particularly concentrate on the principle of ‘proportionality’ that has no clear definition established by Parliament but is the vital concept that will always act as the basis for much of the decision-making process under the convention rights.

Right to freedom

To understand the principal on why the courts needed to consider the proportionality test will be to go to the history of the ECHR that came into force on 3 September 1953,2 which was to ensure individual citizen’s rights are being protected. But it was also important for the longevity and practicality of this legislation that each country assigned to the ECHR to have the autonomy to derogate from some of these rights if they can show there is a justified reason.

There is only one right of the ECHR that is an absolute right, meaning no state can restrict their citizens of this right, which is the right to freedom from torture, inhumane and degrading treatment, Article 3. Then we have other rights known as privilege rights, ie. Article 5 and qualified rights such as your right to; respect for private and family life (Article 8), freedom of religion or belief (Article 9), freedom of expression (Article 10) and freedom of assembly (Article 11).

This means that the state can interfere with these individual rights, which have to be balanced against those of the wider community to ensure they can achieve a fair result for everyone concerned. However, it is important to note there needs to be safeguards in place to ensure there is a legitimate interest in doing so.

Legitimate interests are limited by both the Convention and the Act.3 It makes it clear that such interference must be proportionate, in accordance with law and necessary in a democratic society, to protect national security, public safety or the economic wellbeing of the country; to prevent disorder or crime, protect health or morals, or to protect the rights and freedoms of others.

Proportionality

This is where the word proportionality comes into play. It makes it clear that even if the reason for interfering with a human right is legitimate, it must correspond to a pressing social need and it must be proportionate to the aim pursued as seen in the landmark case Sunday Times v UK.4 This was when an English court made an order stopping the Sunday Times newspaper from publishing a draft article that traced how the thalidomide tragedy occurred. The UK government had applied for an order as they felt the article might influence negotiations between the drug company and the victims of the thalidomide disaster.

However, the European Court of Human Rights said the English court’s order infringed the Sunday Times’ freedom of expression as the thalidomide disaster was of undisputed public concern and the public and families of victims had a right to know. The court held, there was no greater “pressing social need” to prevent the newspaper’s publication.

It may also be of interest to note the Supreme Court analogy of the Article 8 test referring to paragraph 74 of Bank Mellat v Her Majesty’s Treasury5 that sets out the proper approach to assessing proportionality by asking the following:

  • “……whether the objective of the measure is sufficiently important to justify the limitation of a protected right
  • whether the measure is rationally connected to the objective
  • whether a less intrusive measure could have been used without unacceptably compromising the achievement of the objective, and
  • whether, balancing the severity of the measure’s effects on the rights of the persons to whom it applies against the importance of the objective, to the extent that the measure will contribute to its achievement, the former outweighs the latter.” 

The first three of these are the criteria listed by Lord Clyde in De Freitas, and the fourth reflects the additional observation made in Huang. I have formulated the fourth criterion in greater detail than Lord Sumption, but there is no difference of substance. In essence, the question at step four is whether the impact of the rights infringement is disproportionate to the likely benefit of the impugned measure.

The above cases make it clear that it is fundamentally important for the State to understand that it cannot use disproportionate measures in order to achieve a legitimate aim. Therefore, proportionality will mean the interference must be no more than is unconditionally necessary to achieve one of the aims in the convention rights as we need to understand there will be an impact on the individual.

It is for this reason important that health professionals need to ensure the least restrictive measure should always be considered in relation to the legitimate interests pursued, as going with the old phrase ‘do not use a sledgehammer to crack a nut’.6

Balance between interests of society and individuals

The important point to note is that there needs to be a balance between the wider rights and interests of society and the fundamental rights of individuals and they should not conflict with one another, as seen in the case Essex County Council Applicant - and - RF (1) Respondents PN (2) JN (3) CP(4).7

In the case, P, a 91-year-old gentleman who suffered from dementia, lived in his own home for around 50 years with his cat following the death of his family. He also had other health problems that included poor mobility, delirium and kidney injury caused by dehydration. His health unfortunately deteriorated to such a level that two independent psychiatrists concluded P lacks capacity to litigate and to make decisions regarding his care and residence and was moved to a care home. With his family and friends disagreeing as they felt it was in P’s best interests to return home with a care package.

District Judge Mort disagreed with the treatment given to P and made the following criticisms on paragraph 54 and 55:

  • “54. I have been greatly troubled by the manner of P’s removal from his home on 2/5/13 and his placement in a locked dementia unit. There is no evidence that consideration was given to the less restrictive option of supporting him at home in accordance with his wish to remain there. Indeed, the independent best interests assessor comments in his report dated 7/7/14 ‘the least restrictive options were never tested’ and further ‘He (P) was never given the opportunity and support to remain in his own home this being the least restrictive option’.
  • 55. It appears that one of the triggers for P’s removal seems to have been concern about the risk to him from financial abuse. If that is correct I fail to understand why P’s removal from his home of 50 years was considered to be a reasonable and proportionate solution to the problem or why his removal and detention was thought to be in his best interests. Action against the perpetrator(s) would have been preferable to the removal of the victim. The problem could have been addressed by the less restrictive and simple option of appointing a deputy to manage his property and affairs…”

District Judge Mort also referred to the important case of Neary for reaching his decision, which is why we feel it is necessary to remind ourselves of the words of Justice Jackson in that case:8

“The parties presented the issues in a different order, with the claim under Article 8 following the claims under Article 5. It nonetheless seemed to me during the hearing that the issue that arises under Article 8 represents the nub of the matter. The principles surrounding the right to respect for family life are well understood. They do not owe their origins to the Mental Capacity Act 2005, or even, I would suggest, to the Human Rights Act 1998, and they apply directly to cases where the legitimacy of the removal of a person from a family is in question. There is no automatic precedence between Convention articles. 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 other necessarily subject wherever he lives.”

Right to private and family life

Both these cases clearly highlights an important reminder for psychiatrists and health professionals, which is that they need to give the same consideration when assessing Deprivation of Liberty and to ask questions as to why the person is in a place where he/she is also going to be deprived of his/hers right to a private and family life. It is also important to understand that our courts will apply a stringent approach when considering the rights of an individual’s private and family life against the state’s argument that such an interference is to pursue a legitimate aim.

These two cases should also act as a kind reminder to health professionals that the Supreme Court judgement in the Cheshire West case9 was never intended to overshadow the individual’s rights to a private and family life. This was never the intentions of Lady Hale when she delivered her judgement especially given the fact that she was also involved in a previous judgement relating to the case involving the famous model Naomi Campbell10 whereby two convention rights were found competing with one another.

In this case, she introduced the balancing act between Article 8 and Article 10 of the ECHR where she said:

  • The interference or restriction with the Article rights must meet the pressing social need
  • It must be proportionate to the legitimate aim pursued (the interference must be no more than is necessary to protect the other right)
  • The reasons given for the interference must be both relevant and sufficient.

It is clear that since the Cheshire judgement that Local Authorities saw a sharp rise in DOLS assessments as official figures published showed the number of DOLS applications submitted in 2016/17 increased to 217,000, compared with 196,000 the previous year.11 This is fully understandable especially given the shortcomings that led to the Cheshire judgment however it is also important to remember that this should not come on the expense of the individual’s right to a private and family life, which is as equally important and needs to be respected.

Conclusion

In light of the above and in the present climate it would be understandable to think that Article 8 runs the risk of being totally overlooked when DOLS is being considered. It is for this reason why we feel it necessary to remind psychiatrists and health professionals again of the importance of understanding the impact upon individuals whose rights are being breached specifically referring to the above cases of Neary and ESSEX COUNTY COUNCIL Applicant - and - RF Respondents.

We fully understand that it can at times be difficult to consider the safety of society without compromising the human rights of the individuals. However, it is important for health professionals to note that they cannot shift the entire responsibility upon our courts to decide and they will also be tasked with the difficulty of applying the balancing act when considering the freedoms of individuals against the argument that it is necessary to pursue a legitimate aim.

We feel it is essential for psychiatrists and health professionals to gain both the theoretical and practical knowledge of how to deal with situations that may infringe on the patient’s fundamental freedoms especially referring to the proportionality test mentioned earlier.

Also, possible guidance for psychiatrist and health professionals may be to re-design the test set in the famous immigration case of Razgar,12 when consider detaining an individual under the Mental Health Act, DOLS or considering placement to a care home, which will be:

  • Why is detention under the Mental Health Act, DOLS or placing the individual into a care home necessary?
  • Where does the individual live and does he enjoy a private and family life where he lives?
  • Would detaining or placing the individual in a care home interfere with his/her enjoyment of that family life?
  • Will such interference be in accordance with law?
  • Will the interference of these rights be in pursuit of a legitimate aim?
  • Will detaining or placing the individual into a care home be necessary, proportionate and a fair balance between his/her rights under Article 8?”

Conflict of interest: none declared

References:

  1. The Right to Freedom and Safety: Reform of the Deprivation of Liberty Safeguards Seventh Report of Session 2017–19, Ordered by the House of Commons to be printed 27 June 2018, Ordered by the House of Lords to be printed 27 June 2018 (https://publications.parliament.uk/pa/jt201719/jtselect/jtrights/890/890.pdf)
  2. European Convention on Human Rights as amended by Protocols Nos. 11 and 14 supplemented by Protocols Nos. 1, 4, 6, 7, 12, 13 and 16 https://www.echr.coe.int/Documents/Convention_ENG.pdf
  3. The exceptions to Articles 8 to 11 of the European Convention on Human Rights by Steven Greer Reader in Law University of Bristol, https://www.echr.coe.int/LibraryDocs/DG2/HRFILES/DG2-EN-HRFILES-15(1997).pdf
  4. The Sunday Times v The United Kingdom (No 1): ECHR 26 Apr 1979
  5. Bank Mellat v Her Majesty’s Treasury (No. 2) [2013] UKSC 39
  6. The Reno Weekly Gazette And Stockman, May 1893 and ‘Don’t Use a Sledgehammer to Crack a Nut’: Less Restrictive Means in the Case Law of the European Court of Human Rights, Human Rights Law Review 15 (1), 2015, 1-30 by Eva Brems, Ghent University-Universiteit Gent, Laurens Lavrysen Ghent University-Universiteit Gent
  7. ESSEX COUNTY COUNCIL Applicant - and - RF (1) Respondents PN (2) JN (3) CP (4) Neutral Citation Number: [2015]
  8. Re Steven Neary; LB Hillingdon v Steven Neary [2011] EWHC 1377 (COP
  9. Cheshire West and Chester Council v P [2014] UKSC 19, [2014] MHLO 16
  10. Campbell v Mirror Group Newspapers Ltd [2004] UKHL 22
  11. NHS Digital Right arrow iconData and information https://digital.nhs.uk/news-and-events/news-archive/2017-news-archive/numberof-deprivation-of-liberty-safeguards-applications-up-11-per-cent
  12. R (Razgar) v SSHD [2004] UKHL 27

Dr Fairooz Hassiem

Locum Consultant in Old Age Psychiatry, Worcestershire Health and Care NHS Trust

fairoozhassiem@hotmail.co.uk

Mr Abdul Kader Yusuf

Kingswood Solicitors, Birmingham