Article 5

ECHR section I: 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16 , 17 , 18

ECHR section II (Articles 19-51)

ECHR section III (Articles 52-59)

Protocols: 1, 4, 6, 7, 12, 13, 14

Related cases

Any cases with a hyperlink to this legislation will automatically be added here. There may be other relevant cases without a hyperlink, so please check the mental health case law page.

  • AM v SLAM NHS Foundation Trust [2013] UKUT 365 (AAC), [2013] MHLO 80 — It was argued at the tribunal that AM should be discharged from s2 in order to remain in hospital informally. (1) A tribunal should (a) decide whether the patient has capacity to consent, (b) decide whether DOLS is an alternative, and (c) in considering the MHA 'necessity' test identify the regime which is the least restrictive way of best achieving the proposed aim. The tribunal had failed properly to consider whether AM would comply with informal admission (which is relevant to the second question) so the case was remitted to a differently-constituted tribunal. (2) To be compatible with Article 5 ECHR, ss 2, 3 and 72 MHA 1983 have to be applied on the basis that for detention in hospital to be 'warranted' it has to be 'necessary' in the sense that the objective set out in the relevant statutory test cannot be achieved by less restrictive measures. [A more detailed summary is available on the case page.]
  • Austin v Commissioner of Police of the Metropolis [2009] UKHL 5 — (1) The difference between deprivation of and restriction upon liberty is merely one of degree or intensity, not one of nature or substance; it is highly sensitive to the facts of each case. (2) Where the purpose of the measure is relevant, it must be to enable a balance to be struck between what the restriction seeks to achieve and the interests of the individual; there is room, even in the case of fundamental rights, for a pragmatic approach which takes full account of all the circumstances; however, in general, purpose is relevant, not to whether the Article 5 threshold is crossed, but to justification under 5(1)(a) to (e). (3) Measures of crowd control will fall outside the ambit of Article 5 so long as they are not arbitrary, i.e. they must be resorted to in good faith, they must be proportionate, and they must not be enforced for longer than is reasonably necessary; the confinement by the police of the claimant for seven hours in Oxford Circus in order to avoid physical ..→
  • Austin v UK 39692/09 [2012] ECHR 459, [2012] MHLO 22 — Kettling did not breach Article 5. [Summary required.]
  • Birmingham City Council v D [2016] EWCOP 8, [2016] MHLO 5 — (1) A parent cannot consent to the confinement (i.e. the objective element of Article 5 deprivation of liberty) of a child who has attained the age of 16. (2) The confinement was imputable to the state despite the accommodation being provided under s20 Children Act 1989, as the local authority had taken a central role; in any event, even if D's confinement were a purely private affair the state would have a positive obligation under Article 5(1) to protect him. (3) The judge did not resile from his previous judgment that D's parents could consent to his confinement in hospital when he was under 16.
  • Cotterham v UK [1999] ECHR 185 — The 10-month delay between the MHRT application and the hearing at first sight appeared to be a breach of Article 5(4); however, in the circumstances, there was no lack of diligence on the part of the judicial authorities: the delays were due to postponements for an independent report which arrived late and was served later still, and for the solicitor to be available.
  • D County Council v LS [2010] EWHC 1544 (Fam) — The original decision in this case, that LS had capacity to consent to sexual relations and marriage, was revisited in light of the House of Lords decision in R v C. (1) The MCA statutory scheme should be applied in preference to the previous civil case law; the approach in R v C clearly applied to both the civil and criminal arenas, and was consistent with s3 MCA, so would be followed. (2) Capacity requires not only an understanding of the relevant information but also the ability to retain and weigh it in the balance: therefore capacity to consent to sexual relations is person- and situation-specific, and there may be factors (such as irrational fear) impeding or undermining a person's capacity to make a choice. (3) This approach applies equally to marriage. (4) On the facts, the conclusion about capacity was the same. [Caution.]
  • Drew v UK 35679/03 [2006] ECHR 1172 — The requirement to pass an automatic life sentence for the second serious sexual or violent offence in the absence of exceptional circumstances, even for a mentally-disordered offender, did not breach Article 3 or 5.
  • G v E [2010] EWCA Civ 822 — The judge was right to reject the appellant's submission that Article 5 places distinct threshold conditions which have to be satisfied before a person lacking capacity can be detained in his best interests under the MCA 2005. The MCA generally, and the DOLS in particular, plug the Bournewood gap and are Article 5 compliant.
  • G v E [2010] EWHC 621 (Fam) — E lacked capacity and was being deprived of his liberty at a residential unit by the local authority. They had breached his Article 5 rights by doing so without seeking a DOLS authorisation or court order, and had breached his Article 8 rights by actions including a failure properly to involve his carer. However, the court authorised continuing deprivation of liberty at the residential unit pending the final hearing as this was in his best interests. There is no threshold condition for an order under s16 depriving someone of his liberty, other than that P lacks the relevant capacity. When considering DOL there is a clear distinction between a placement at home, with family or an adult carer, and a residential placement. Hearsay from an incompetent witness is admissible but no weight would be given to E's statements.
  • Gajcsi v Hungary 34503/03 [2006] ECHR 822 — The continuation of the claimant's detention for three months was not in accordance with a procedure prescribed by law, in that dangerous conduct had not been considered by the reviewing court; there had therefore been a breach of Article 5(1) and compensation of €7350 was awarded
  • Gorshkov v Ukraine 67531/01 [2004] ECHR 726 — The claimants complaints, relating to his detention in hospital, under Article 2, 3 and 5(1) were manifestly unfounded, but his complaint under Article 5(4) was admissible
  • Gorshkov v Ukraine 67531/01 [2005] ECHR 936 — Although a detained patient's case was regularly reviewed on an automatic basis, the patient had no right to initiate proceedings and was not a party to them; there therefore had been a breach of Article 5(4)
  • Hadzic and Suljic v Bosnia Herzegovina 39446/06 [2011] ECHR 911 — The applicants had been detained for several years in a prison 'Psychiatric Annex' which was an inappropriate institution for the detention of mental health patients, in breach of Article 5(1); the applicants were awarded compensation of €15,000 and €25,000 respectively.
  • Halilovic v Bosnia and Herzegovina 23968/05 [2009] ECHR 1933 — (1) The appellant's detention for 4 years 5 months was pursuant to an administrative decision, as opposed to a decision of the competent civil court as required by the amended domestic legislation, and so breached Article 5(1); compensation of €22,500 was awarded. (2) The Article 3 claim relating to conditions of detention failed.
  • IH v UK 17111/04 [2005] ECHR 934 — The claimant was granted a deferred conditional discharge but subsequently not released as no supervising psychiatrist could be found; the House of Lords found that Article 5(4) had been breached as the Tribunal could not revisit their decision (as the law was then understood). The claimant's Article 5(1)(e) complaint was rejected (on the facts, the alternative to conditional discharge was continued detention rather than absolute discharge), as were his complaints under Article 5(4) (no longer a victim as domestic courts had acknowledged breach and afforded appropriate redress) and Article 5(5) (no longer a victim, no absolute right to compensation).
  • JE v DE and Surrey County Council [2006] EWHC 3459 (Fam) — In determining whether a person is deprived of his liberty, the crucial question is whether he is is “free to leave” the institution, not only for approved outings but also permanently to go or live where or with whom he chooses; there can be deprivation of liberty in the absence of a lock or physical barrier, and it can equally be caused by the misuse or misrepresentation of even non-existent authority
  • KD and LD v LB Havering (2009) EW Misc 7 (EWCOP) — At a hearing which was expected to be merely interlocutory, the DJ made final orders as to capacity and residence, and appointed the local authority as personal welfare deputy. (1) The power to deal with cases summarily exists but was exercised unlawfully in this case. It is to be exercised as an alternative to a hearing, for example in an emergency or where little or no contest is anticipated. It is unlikely to be exercised appropriately where there is a serious issue or potential issue as to the appropriateness of deprivation of liberty and so where Articles 5 and 6 are potentially engaged. The DJ had achieved an impermissible hybrid, in the course of a hearing exercising powers potentially available to the Court instead of a hearing. (2) A summary decision of best interests must be made by reference to the evidence and the matters in MCA 2005 s4, but this exercise was not fully carried out. (3) There was a breach of procedural fairness and Article ..→
  • Kay v UK 17821/91 [1994] ECHR 51 — (1) The recall to hospital without up-to-date objective medical expertise showing that the applicant suffered from a true mental disorder, or that his previous psychopathic disorder persisted - in the absence of any emergency - violated Article 5(1); (2) The subsequent MHRT proceedings were inherently too slow, which breached Article 5(4): the first hearing date offered was five months after referral, and final determination took just over two years.
  • Kepenerov v Bulgaria 39269/98 [2003] ECHR 425 — The claimant was detained for a month by a prosecutor who had no legal power to do so, had not sought a prior medical assessment, and had not specified the length of detention (furthermore, there was no legal means to challenge the detention); there therefore had been a violation of Article 5(1)(e) and compensation of €2000 was awarded.
  • Khudobin v Russia 59696/00 [2006] ECHR 898 — Lack of medical treatment while detained violated Article 3; lack of relevant and sufficient reasons for pre-trial detention violated Article 5(3); undue delays in considering two separate applications for release violated Article 5(4); appeal court's failure to consider refusal of release breached Article 5(4); court's failure to consider entrapment defence violated Article 6(1); damages of €12,000 awarded
  • LB Tower Hamlets v TB [2014] EWCOP 53, [2014] MHLO 130 — "All parties are agreed that TB lacks capacity to make decisions concerning her residence, her care and her contact with SA. The issues that I have to decide are these: (i) Where should TB live in her best interests? ... (ii) If TB does not return to 9 Emerald Mansions what should her contact be with SA, in her best interests? (iii) Does SA have the capacity to consent to sex? This is an abstract question if she does not return to 9 Emerald Mansions, but a very real one if she does. (iv) Whatever I decide about residence does her care regime amount to a deprivation of liberty within the terms of Article 5?"
  • LM v MHTS (2010) ScotSC x — The appellant had been subject to a Short-Term Detention Certificate (STDC), which was followed by an (unlawful) Extension Certificate, which was then followed by a subsequent STDC. Section 44(2) Mental Health (Care and Treatment) (Scotland) Act 2003 prohibits the granting of a STDC when the patient is subject to an Extension Certificate. An application under s50 was made to revoke the second STDC; the MHTS considered the detention criteria and refused the application. This decision was subject to an appeal to the Sheriff Principal who held that as the appellant had not been "subject to" the Extension Certificate (it being unlawful) the second STDC was valid. The Sheriff noted that the appellant could have made an application in terms of section 291 to challenge the lawfulness of his detention; this option met Article 5 requirements and would have been more appropriate as the detaining party would have been the respondent.
  • MM v WL Clinic [2015] UKUT 644 (AAC), [2015] MHLO 103 — (1) For the purposes of Article 5, a restricted patient with the capacity to do so can give a valid and effective consent to conditions of a conditional discharge that when implemented will, on an objective assessment, create a deprivation of liberty. (2) In determining whether to discharge conditionally, the tribunal has to consider whether the consent is freely given and (as raised in KC at [134-139]) consider any practical problems arising from the ability to withdraw consent. (3) MM's case was remitted to the First-tier Tribunal with a direction that it apply the decisions in KC and this case.
  • MS v UK 24527/08 [2012] ECHR 804, [2012] MHLO 46 — MS was taken to a police station under s136 having assaulted his aunt, but the FME assessed him as not fit for interview. The local psychiatric intensive care unit refused to admit him on the basis that he required a medium secure unit but, for various reasons, there was a delay in transferring him there. (1) The delay led to detention beyond the 72-hour limit of s136, but he did not make any claim under Article 5. (2) His claim was instead in negligence and breach of Article 3 and, as the case was summarily dismissed in the domestic proceedings, the Article 3 aspect of the case proceeded to the ECtHR. The ECtHR made no criticism of the initial detention under s136 in a police station, the attitude of the authorities or the material conditions (food and liquid) of detention. It did, however, conclude that - because MS was in a state of great vulnerability throughout his detention, as manifested by the abject condition to which he quickly descended inside his cell, and ..→
  • Magritz v Public Prosecutors Office Bremen [2011] EWHC 1861 (Admin) — In relation to the claimant's extradition, where the sentence was for him to be 'placed in a psychiatric hospital for an indefinite period of time': (1) section 25 of the Extradition Act 2003 (the purpose of which is to protect a requested person whose physical or mental health is so poor that the act of extradition would be oppressive or unjust) was not engaged; and (2) there would be no breach of Article 3, Article 5 or Article 8.
  • McGrady, Re Application for Judicial Review (2003) NIQB 15 — (1) The ability to disclose material to the representative on condition that it was not revealed to the patient was compatible with the Convention (obiter, since no decision had been taken on this yet). (2) The medical member's role is to form a provisional view on the patient's mental condition, rather than on the statutory criteria, and he discloses his conclusion during the hearing; if this approach is taken then there is no violation of Article 5(4), DN v Switzerland 27154/95 [2001] ECHR 235 distinguished.
  • Musial v Poland 24557/94 [1999] ECHR 15 — Requesting a second opinion did not amount to a waiver of the right to a speedy hearing; the court’s agreement to request a second opinion did not absolve it of the duty to ensure speediness (including using powers such as the fining of witnesses); complexity of a medical file was relevant to the issue of speediness; reliance on an out-of-date medical report could breach Art 5. [MHLR.]
  • Nakach v The Netherlands 5379/02 [2005] ECHR 445 — The practice of the Arnhem Court of Appeal, which had upheld the applicant's continued detention, not to keep official records of hearings (on the basis that no appeal could be made from that court) breached domestic law and therefore breached Article 5(1)
  • North Yorkshire County Council v MAG [2015] EWCOP 64, [2015] MHLO 69 — The Council sought a declaration that it was in MAG's best interests (a) to be deprived of his liberty and reside in his current placement, and (b) for the Corporate Director of Health and Adult services to enter into a tenancy agreement on MAG's behalf in relation to the current placement. (1) The reference in Re MN (An Adult) [2015] EWCA Civ 411, [2015] MHLO 41 to the ability of the Court of Protection to explore the care plan put forward by a public authority and the inability of the Court to compel a public authority to agree to a care plan which it is not willing to implement does not apply when the issue is the right to liberty under Article 5. (2) The placement at which MAG had been deprived of his liberty for 9 years did not meet his needs (for instance, there was insufficient room to manoeuvre a wheelchair indoors, so he had to mobilise on his hands and knees causing physical problems including bursitis and a recurring fungal infection in his thigh) and the council ..→
  • Nowika v Poland 30218/96 [2002] ECHR 795 — The detention for 83 days of the applicant under Article 5(1)(b) (the lawful arrest or detention of a person for non-compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law) violated Article 5(1) as it was for longer than necessary for the fulfilment of the obligation to submit to a psychiatric examination; the restriction on visits by her family to one visit per month violated Article 8; compensation of €10,000 was awarded
  • Pankiewicz v Poland 34151/04 [2008] ECHR 148 — It would be too rigid to expect immediate transfer from prison to psychiatric hospital but, although the delay of 2 months 25 days did not at first glance seem particularly excessive, on balance it was not acceptable and violated Article 5(1); the claimant had been compensated by the domestic court so was not a victim for Article 5(3) purposes; the Article 6 complaint was rejected for non-exhaustion of domestic remedies
  • Phillips v UK 64509/01 [2000] ECHR 702 — The Tribunal's conditional discharge decision was delayed, initially to find accommodation, then because no psychiatric supervisor could be found. The applicant argued that his detention from 25 February 1999 (being six months after the Tribunal decision) and 4 August 2000 (when he was released) was in violation of Article 5(1)(e) because he was no longer suffering from mental illness warranting detention for treatment. The government settled the case by paying £5,500 plus costs.
  • R (B) v Ashworth Hospital Authority [2005] UKHL 20 — A patient detained for treatment under the Mental Health Act 1983 could be treated compulsorily under s 63 of that Act for any disorder from which he suffered, and not only for the particular form of disorder from which he was classified as suffering under the application or order which authorised his detention.
  • R (Betteridge) v Parole Board [2009] EWHC 1638 (Admin) — (1) Article 5(4) requires a speedy hearing to determine the lawfulness of detention, independently of any consideration of arbitrariness under Article 5(1). (2) The delay in listing the claimant's Parole Board hearing, due to a lack of panel members, breached his Article 5(4) right to a speedy hearing; however, as there had been no chance of release, there was no claim in damages. (3) The steps being taken to fix the systemic failures, and the ongoing problems, mean that further Article 5(4) delay claims are not appropriate unless in very special circumstances.
  • R (Black) v SSJ [2009] UKHL 1 — The decision on whether to release a determinate sentence prisoner at his parole eligibility date (the half-way point of a long-term Criminal Justice Act 1991 prisoner) did not engage Article 5 as the decision was merely the administrative implementation of the sentence of the court.
  • R (Chahboub) v SSHD [2009] EWHC 1989 (Admin) — Failed asylum seeker's challenge to detention in prison rather than immigration centre. (1) The first of the two periods of detention was outside the 3-month JR time limit so permission was refused in respect of that period. (2) The policy with respect to whether mentally ill people should be detained did not apply to the claimant, who had a personality disorder rather than mental illness. (3) The detention was justified under common law (intention to deport, detention for reasonable period, deportation possible in reasonable period, reasonable diligence to deport). (4) His transfer from the immigration centre to prison, because he had proved unmanageable, was in accordance with policy. (5) The manner of his detention in prison (required to share cell with convicted prisoner, dietary requirements ignored, 23-hour lock-up, limited access to telephone and visitors) was contrary to policy and breached his Article 5 rights.
  • R (Degainis) v SSJ [2010] EWHC 137 (Admin) — In relation to a 7-month delay in holding a Parole Board hearing, the SSJ admitted breach of Article 5(4) and apologised, but the claimant sought damages under Article 5(5). (1) Article 5(5) (which gives an "enforceable right to compensation") and s8 HRA 1998 (which limits the power to award damages) are not inconsistent because compensation in Article 5(5) is not limited to money. (2) The first of two grounds for the claim was that the delay increased the length of detention: because of the number of imponderables in the case it was impossible to conclude this. (3) The second ground was based on an inference that frustration and anxiety had been caused: the judge was not prepared to infer, in the absence of specific evidence, a level of frustration of distress sufficient to warrant an award of damages. (4) In general, as to whether or not to award damages, the length of the delay, the effect of the delay, and the impact on the claimant are relevant factors; the seriousness ..→
  • R (F) v SSJ [2008] EWHC 2912 (Admin) — The medical opinions were based on old assessments and were at best ambigious as to the treatability test; so the decision to transfer under s47 MHA 1983 was Wednesbury unreasonable, and the subsequent detention was unlawful under domestic law and Article 5; (obiter) the decision would not have been ultra vires; based on subsequent reports, the decision would not be quashed, as if the defendant had sough to clarify the medical opinions the decision would have been lawful. [Caution.]
  • R (Faulkner) v SSJ [2009] EWHC 1507 (Admin) — 13 months after referral, the claimant was released by the Parole Board and subsequently absconded. (1) The question of whether to dismiss the claim purely on the grounds that the claimant was a fugitive was left open. (2) The Article 5(4) claim was inconsistent with R (James) v SSJ [2009] UKHL 22: there was no Article 5(4) breach as the system had not broken down entirely (by the PB being denied the information that it needed for such a long period as to make continued detention arbitrary). (3) If that analysis is wrong, there still was no breach as, looking at the totality of the matter, there had been a review within a reasonable period. (4) Even if there had been a breach, it could not be shown that the claimant would have been released earlier. (5) Damages, if appropriate, would have been in the region of £1,000-£2,000, or perhaps £4,000; but, seeing as he had absconded, no damages would have been awarded. [Caution.]
  • R (IH) v SSHD [2001] EWHC Admin 1037 — Section 73 is compatible with Article 5 ECHR: deferred conditional discharge is a provisional decision; the Tribunal can monitor progress, and reconsider and amend the decision if appropriate.
  • R (James) v SSJ [2009] UKHL 22 — (1) Following the introduction of IPP sentences, the Secretary of State was in breach of his public law duty to make reasonable provision to enable IPP prisoners (if necessary by completing treatment courses) to demonstrate to the Parole Board their safety for release. The appropriate remedy was declaratory relief condemning the Secretary of State's failures and indicating that he is obliged to do more. The systemic failure has ended (following amendments including making the IPP sentence generally available only when the notional minimum term is at least 2 years) so no further relief is appropriate. (2) In relation to post-tariff detention, the systemic failure did not: (a) make the detention unlawful (detention remains lawful under statute until Parole Board release); (b) breach Article 5(1) (causal link with objective of detention remained until Parole Board decision); or (c) breach Article 5(4) (which is concerned with procedure not substance) although cases with prior ..→
  • R (Johnson) v SSHD [2007] EWCA Civ 427 — Parole Board delay breached Article 5(4).
  • R (Johnson) v SSJ [2009] EWHC 3336 (Admin) — The Secretary of State's decision that the next Parole Board review would occur 14-15 months after the last review was unsupported by any reason and, on the facts, inconsistent with Article 5(4).
  • R (K) v Camden and Islington Health Authority [2001] EWCA Civ 240 — Following a deferred conditional discharge, the duty under s117 was not absolute but rather to exercise reasonable endeavours (in this case, to find a supervising psychiatrist); continued detention despite these reasonable endeavours would not breach Article 5.
  • R (LV) v SSJ [2013] EWCA Civ 1086, [2013] MHLO 82 — The applicant had been given an IPP sentence then transferred to hospital under s47/49. On 12/12/11 the MHT decided she met the criteria for conditional discharge. The dossier reached the Parole Board on 29/3/12, and the hearing was arranged for 12/3/13. She claimed a breach of Article 5(4) during: (a) the period before the dossier was ready, when no judicial body was responsible for supervising her progress and the potentiality for release, and (b) the subsequent long period until the Parole Board met. The Court of Appeal gave permission to apply for judicial review (being simpler than giving permission to appeal the High Court's refusal of permission to apply for judicial review).
  • R (Lee-Hirons) v SSJ [2014] EWCA Civ 553, [2014] MHLO 23 — (1) A restricted patient who had been recalled argued that the Secretary of State was under a duty to provide written (not merely oral) reasons for recall, that the oral reasons given were inadequate and were not the Secretary of State’s true reasons, and that therefore the recall and consequent detention was unlawful. (2) The Court of Appeal held that: (a) Article 5(1) does not require the reasons for detention to be given immediately upon detention; (b) a fortiori, it does not require reasons to be given in writing; (c) Article 5(2) requires those reasons to be adequately and promptly given to him following detention; (d) on the facts, there had been a breach of the Secretary of State’s policy to provide reasons "as soon as possible and in any event within 72 hours" (HSG(93)20) and a breach of Article 5(2); (e) these breaches did not render unlawful what was originally a lawful recall. (3) The Court noted, in relation to the practice of the Secretary of State in relation ..→
  • R (M) v MHRT [2005] EWHC 2791 (Admin) — There was no appearance of bias where the sentencing judge, who had imposed the hospital order with restrictions, heard the subsequent MHRT appeal; the patient knew the relevant facts and unequivocally decided not to object at the time, so had waived his right to object
  • R (Modaresi) v SSH [2011] EWHC 417 (Admin) — The claimant missed the 14-day deadline for submission of a s2 Tribunal application because of oversight/neglect on the part of Trust employees. Judicial review claims against the Tribunal (for deciding that the application was invalid), the Secretary of State for Health (for refusing to make a reference) and the Trust (for their actions) were all unsuccessful. [Caution.]
  • R (OK) v FTT [2017] UKUT 22 (AAC), [2017] MHLO 3 — The First-tier Tribunal's decision to strike out a case for want of jurisdiction (on the basis that the patient had lacked capacity to make the application) was upheld in these judicial review proceedings. (1) The solicitor had applied to the Tribunal under s66 in relation to a patient detained under s3. She then sought to be appointed under Tribunal rule 11(7)(b) as the client lacked capacity to represent himself. The tribunal panel found that "[i]t does not appear that the patient has the capacity to authorise anyone to make an application on his behalf and has not done so" and adjourned the hearing to allow the patient’s solicitors "to consider whether they agree that the application is invalid or provide reasons why they consider that it is valid." (2) The tribunal had not mentioned Tribunal rule 8 (Striking out a party’s case), but was in effect making a decision under it: the rule required the Tribunal to strike out proceedings where it "does not have ..→
  • R (P) v SSHD [2003] EWHC 2953 (Admin) — The ECHR does not require joint MHRT/Parole Board hearings; the need for consecutive hearings does not breach Article 5(4).
  • R (Pennington) v Parole Board [2009] EWHC 2296 (Admin) — Delays by the Parole Board, both in issuing ICM directions (which caused a 2-month delay in listing the hearing) and in communicating the decision a month late, breached Article 5(4). Claims for "pure delay" - that is where a Parole Board hearing has been delayed because of a lack of resources available to or errors or omissions on the part of the Parole Board - survive the House of Lords decsion in James. Damages to be assessed at a later date.
  • R (RD) v MHRT [2007] EWHC 781 (Admin) — (1) The communication by the medical member of a "very preliminary" view was lawful, even though it went to detainability and not merely to mental condition; (2) the reasons given for not discharging were adequate.
  • R (Rayner and Marsh) v SSHD [2007] EWHC 1028 (Admin) — (1) Section 75 provides an independent legal device by which the detainee may appear before a judge which is not dependent on the good will of the detaining authority and thus is Article 5 compliant; in any event, the section cannot be incompatible as means exist to operate it compatibly. (2) In order for s75 to be compatible the Secretary of State ought to refer the case of a recalled patient at once (in practice, within 72 hours) to the MHRT unless the circumstances of the applicant or his case positively require otherwise. (3) On the facts the delay in making the reference breached Article 5(4).
  • R (Sessay) v South London and Maudsley NHS Foundation Trust [2011] EWHC 2617 (QB) — The police entered the claimant's private accommodation, unaccompanied and without a s135 warrant, purporting to be acting under ss5-6 MCA 2005 in her best interests; she was taken to hospital and, after a 13-hour delay in the s136 suite, detained under s2 MHA 1983. (1) Sections 135 and 136 MHA 1983 are the exclusive powers available to police officers to remove persons who appear to be mentally disordered to a place of safety. Sections 5 and 6 MCA 2005 do not confer on police officers authority to remove persons to hospital or other places of safety for the purposes set out in sections 135 and 136. (2) The MHA provides a complete statutory code for compulsory admission to hospital for non-compliant incapacitated patients, so the common law doctrine of necessity does not apply during the period in which a patient is being assessed for detention under the Act. If there is urgent necessity to detain then the s4 procedure should be followed; ..→
  • R (Sturnham) v SSJ [2011] EWHC 938 (Admin) — Damages of £300 were awarded under Article 5 for anxiety and distress caused by six-month delay in Parole Board hearing.
  • R (TF) v SSJ [2008] EWCA Civ 1457 — (1) Having found that the transfer direction under s47 was unlawful the judge erred by exercising her discretion to refuse relief: an unlawful detention cannot be transmuted into lawful detention by the withholding of relief. (2) A decision to transfer a prisoner to hospital at the end of his sentence deprives him of his liberty and engages Article 5, thus heightening the scrutiny as to the evidence the MoJ and court must apply, and putting the onus on the MoJ to show that the decision maker focused on each of the criteria. (3) Applying this scrutiny it would have been very difficult for the MoJ decision maker to be satisfied that the two reporting doctors had applied their minds to treatability, and it appeared that the decision maker herself had not applied her mind to that question; the decision was therefore unlawful. [Caution.]
  • R v C [2009] UKHL 42 — For the purposes of s30 Sexual Offences Act 2003: (1) lack of capacity to choose can be person or situation specific; (2) an irrational fear arising from mental disorder that prevents the exercise of choice could amount to a lack of capacity to choose; (3) inability to communicate could be as a result of a mental or physical disorder.
  • R v Drew [2001] EWCA Crim 2861 — The requirement to pass an automatic life sentence for the second serious sexual or violent offence in the absence of exceptional circumstances, even for a mentally-disordered offender, did not breach Article 3 or 5.
  • R v Drew [2003] UKHL 25 — The requirement to pass an automatic life sentence for the second serious sexual or violent offence in the absence of exceptional circumstances, even for a mentally-disordered offender, did not breach Article 3 or 5.
  • Re AB; D Borough Council v AB [2011] EWHC 101 (COP) — (1) The test for capacity to consent to sex is set at a relatively low level: 'does she have sufficient rudimentary knowledge of that the act comprises and of its sexual character to enable her to decide whether to give or withhold consent?' (2) Capacity to consent to sexual activity is act-specific, not partner-specific; decisions to the contrary were based on a conflation of capacity to consent to sex and the exercise of that capacity. (3) The test requires an understanding and awareness of (a) the mechanics of the act, (b) that there are health risks involved, particularly the acquisition of sexually transmitted and sexually transmissible infections, and (c) that sex between a man and a woman may result in the woman becoming pregnant; however, not all criteria will apply to every type of sexual activity. (4) The test does not require an understanding (a) that sex is part of having relationships with people and may have emotional consequences, (b) that only adults over the age of ..→
  • Re A (Adult) and Re C (Child); A Local Authority v A [2010] EWHC 978 (Fam) — The circumstances of the domestic care of A and C by their families in the family home did not involve a deprivation of liberty engaging the protection of Article 5.
  • Re C; C v Blackburn with Darwen Borough Council [2011] EWHC 3321 (COP) — C was subject both to guardianship and the DOLS regime at a care home: (1) he was not ineligible for DOLS; (2) he was not deprived of his liberty, so the authorisation was set aside; (3) the authorisation had been lawful albeit perfunctory; (4) the restrictions were necessary; (5) the COP cannot decide on residence when a guardianship residence requirement remains in effect; (6) even if it could, it would only do so in exceptional circumstances; (7) the local authority was invited to reconsider the appropriateness of guardianship.
  • Re MAB; X City Council v MB [2006] EWHC 168 (Fam) — MAB's parents had wanted to arrange a marriage for him in Pakistan. It was declared that MAB did not have capacity to marry; therefore any marriage, even if valid in Pakistan, would not be recognised as valid in English law. His parent's undertakings not to take him to a wedding or out of Britain were accepted and his passport was returned. Any assessment of capacity to marry must take into account the question of capacity to consent to sexual relations. This involved a low level of understanding, which must be same in its essentials as required by the criminal law under the Sexual Offences Act 2003.
  • Re P (fair trial); Knowsley MBC v P [2013] MHLO 5 (COP) — The press has reported this case as follows: (1) A patient was detained in a psychiatric hospital, then transferred to a psychiatric home; when the six-month section was due to expire, the council obtained a Court of Protection order to prolong detention, without consultation with the patient, her family or her advocate. (2) Peter Jackson J approved a consent order in which the council (a) admitted, in relation to the two months of further detention, violating the patient's Article 5 (liberty), Article 6 (fair trial) and Article 8 (family life) rights, and (b) agreed to pay £6,000 compensation. (3) The patient was allowed home following legal intervention and an occupational therapy assessment. (4) The patient was quoted as saying 'I was held prisoner, it's as simple as that. Even though it's been months since I was able to come home, I still can't sleep. I feel like I just can't trust anyone. I'm constantly worried that they're going to turn up and take me away again.' ..→
  • Re RK; RK v BCC [2011] EWCA Civ 1305 — (1) An adult in the exercise of parental responsibility may impose, or may authorise others to impose, restrictions on the liberty of the child. However restrictions so imposed must not in their totality amount to detention. Detention engages the Article 5 rights of the child and a parent may not lawfully detain or authorise the detention of a child. (2) The restrictions authorised by RK's parents did not amount to deprivation of liberty: they were no more than what was reasonably required to protect RK from harming herself or others within her range.
  • Re RK; YB v BCC [2010] EWHC 3355 (COP) — (1) Given the terms of s20(8) Children Act 1989 (that any person with parental responsibility may at any time remove the child) the provision of accommodation to a child under s20(1), (3), (4) or (5) will not ever give rise to a deprivation of liberty within the terms of Article 5. If the child is being accommodated under the auspices of a care order, interim or full, or if the child has been placed in secure accommodation under s25, then the position might be different. (2) In any event: (a) the objective element of deprivation of liberty was not remotely close to being met on the facts; (b) the subjective element was not met, as the parents had consented on RK's behalf; (c) RK's placement was at the behest of her parents and could not be imputed to the state. [Detailed summary to follow.]
  • Re Steven Neary; LB Hillingdon v Steven Neary [2011] EWHC 1377 (COP) — (1) By keeping Stephen away from his home, Hillingdon breached Article 8 and Article 5(1) (notwithstanding DOLS authorisations granted during later stages). (2) By (a) failing sooner to refer the case to the COP, (b) failing sooner to appoint an IMCA, and (c) failing to conduct an effective review of the best interests assessments, Hillingdon breached Article 5(4).
  • Re X (Court of Protection Practice) [2015] EWCA Civ 599, [2015] MHLO 44 — This case concerned the hearings arranged by Munby LJ, the President of the Court of Protection, in relation to devising a streamlined and minimally Article 5 compliant process for the anticipated higher numbers of court applications following Cheshire West. (1) Whether the Court of Appeal has jurisdiction to hear an appeal from the Court of Protection depends on whether there was a "decision" (MCA 2005 s53), which must mean a decision determining an issue arising between parties (involving or about the person concerned) rather than decision made on a hypothetical basis. (2) The President's judgments contained no appealable "decision" as the relevant issues had not arisen in the appellants' cases. (2) (Obiter) In theory the person concerned need not always be a party to deprivation of liberty proceedings if his participation can reliably be secured by other means, but given the tools presently available in our domestic procedural law, the person concerned must always be a party, ..→
  • Reid v Secretary of State for Scotland [1998] UKHL 43 — (1) Treatability test is part of admission criteria for psychopathic disorder, so entitled to discharge when it is not met; definition of treatment is wide and can include treatment only for symptoms rather than underlying disorder, e.g. anger management. (2) Decision not to discharge not irrational.
  • Romanov v Russia 63993/00 [2005] ECHR 933 — (1) Violation of Article 3: The applicant's conditions of detention, in particular the severe overcrowding and its detrimental effect on the applicant's well being, combined with the length of the period during which the applicant was detained in such conditions, amounted to degrading treatment. (2) Violation of Article 5(3): the length of the proceedings (and detention on remand) was attributable neither to the complexity of the case nor to the conduct of the applicant but to the lack of diligence and expedition on the part of court. (3) Violation of Article 6(1) and (3)(c): In view of what was at stake for the applicant the District Court could not, if the trial was to be fair, determine his case without a direct assessment of the applicant's evidence, and the presence of the applicant's lawyer could not compensate for his absence.
  • Rutten v The Netherlands 32605/96 [2001] ECHR 482 — The decision to renew the patient's confinement order was taken after the order had expired, but under domestic law there was nothing requiring release in these circumstances; under Convention law the detention was not arbitrary, being based on a court order and expert evidence, so there was no violation of Article 5(1); however, the lawfulness of detention was not decided speedily, so there was a violation of Article 4(4); this finding constituted just satisfaction.
  • SSJ v RB [2010] UKUT 454 (AAC) — (1) The Tribunal may conditionally discharge with conditions which amount to a regime of detention (deprivation of liberty) to any establishment which is not defined as a 'hospital'. [Caution.] (2) The Upper Tribunal will follow High Court decisions unless it is convinced they are wrong, but where highly specialised issues arise the UT may feel less inhibited than the High Court in revisiting the issues.
  • S v Estonia 17779/08 [2011] ECHR 1511 — Under domestic law S should have been heard 'promptly' after the county court ruled on her compulsory admission to hospital, but was not heard for 15 days; no adequate justification was given; this was a considerable portion of the three-month admission period; the domestic supreme court noted the procedural violation but offered no redress: overall, there had been a breach of Article 5(1), in that she was not detained in accordance with a procedure prescribed by law. Compensation of €5000 was awarded.
  • Shenkel v The Netherlands 62015/00 [2005] ECHR 935 — (1) Violation of Article 5(1): Failure, in breach of domestic law, to draw up an official record of Court of Appeal hearing which rejected the appeal against continued detention. (2) Violation of Article 5(4): Delay of 17 months before determination of Court of Appeal case.
  • Shulepova v Russia 34449/03 [2008] ECHR 1666 — (1) Violation of Article 5(4): Applicant not detained in accordance with a procedure prescribed by domestic law. (2) Violation of Article 6(1): By appointing the hospital's employees as psychiatric experts, the domestic courts placed the applicant at a substantial disadvantage, in breach of the principle of equality of arms.
  • Stanev v Bulgaria 36760/06 [2012] ECHR 46, [2012] MHLO 1 — (1) The applicant's placement in a social care home for people with mental disorders and his inability to obtain permission to leave the home led to breaches of Article 5(1), (4) and (5). (2) The living conditions in the home led to breaches of Article 3, and of Article 13 in conjunction with Article 3. (3) The lack of access to a court to seek release from partial guardianship breached Article 6(1). (4) No separate issue arose under Article 8 so it was unnecessary to examine that complaint. (5) Compensation of €15,000 was awarded.
  • TA v AA [2013] EWCA Civ 1661, [2013] MHLO 120 — A Court of Protection circuit judge twice allowed the Official Solicitor to withdraw MCA 2005 s21A applications which the relevant person's representative (RPR) had made (the first time, the judge had also concluded that the qualifying requirements for DOLS were met). The RPR argued that by failing to determine the legality of AA's continued detention the judge had denied AA his Article 5(4) rights. A High Court judge refused permission to appeal (appeals against circuit judges are made to nominated higher judges: the President of the Family Division, the Vice-Chancellor, or a puisne judge of the High Court). The RPR appealed to the Court of Appeal, which held that it had no jurisdiction to hear an appeal against refusal of permission such as this. Obiter: a full s21A hearing is not necessarily a lengthy, time consuming or expensive hearing.
  • TTM v LB Hackney [2011] EWCA Civ 4 — (1) Where a local authority makes an unlawful application to a hospital for the detention of a patient under the MHA, it can be held liable in damages for false imprisonment when its unlawful act directly causes the detention; (2) although the hospital may act lawfully in detaining such a patient under s6(3) (if the application appeared to be duly made) that does not prevent the detention being held to be unlawful from the outset as against the local authority; (3) an application for detention that is made contrary to s11(4) (in the face of the Nearest Relative's objection) is in breach of Article 5(1); (4) Article 5(5) entitles a person detained in breach of Article 5(1) to compensation, and s139(1) (no liability unless bad faith or lack of reasonable care) can be read down so as to allow such a claim to proceed; (5) the word 'practicable' in s12(2) (requiring a recommendation from a doctor with previous acquaintance of the patient if practicable) should be ..→
  • TW v Enfield Borough Council [2014] EWCA Civ 362, [2014] MHLO 26 — The duty to consult under s11(4), the R (E) v Bristol case, and the Code of Practice, were all considered in light of Article 5 and Article 8. Overturning the High Court's decision, the Court of Appeal stated: "In summary, it seems to me that, as a matter of construction of section 11(4), when an [AMHP] is considering whether it is 'reasonably practicable' to consult the 'nearest relative' before making an application to admit a mental patient pursuant to section 3(1) and 13(1) of the MHA 1983 (in its form as at 29 June 2007), the section imposes on the [AMHP] an obligation to strike a balance between the patient's Article 5 right not to be detained unless that is done by a procedure that is in accordance with the law and the patient's Article 8(1) right to her private life."
  • Tam v Slovakia 50213/99 [2004] ECHR 282 — (1) Violation of Article 5(1): Detention not in accordance with procedure prescribed by domestic law. (2) Violation of Article 5(4): The review procedure failed to provide adequate guarantees to the applicant; in particular, the court failed to appoint a guardian as required by domestic law, and did not hear the applicant or the doctor treating him with a view to establishing whether the applicant’s deprivation of liberty had been justified.
  • Varbanov v Bulgaria 31365/96 [2000] ECHR 457 — (1) Violation of Article 5(1): Deprivation of liberty was not justified under Art 5(1)(e) and had no basis in domestic law which, moreover, did not provide the required protection against arbitrariness as it did not require the seeking of a medical opinion. (2) Violation Article 5(3): The applicant could only appeal to prosecutors and so was deprived of his right to have the lawfulness of his detention reviewed by a court.
  • Wall v Sweden 41403/98 [1997] ECHR 201 — The detention of an alcoholic under Article 5(1)(e) did not breach Article 5(1): the authorities continuously considered less severe measures, they strictly scrutinised the necessity for subjecting the applicant to compulsory care, and the total length of the applicant’s detention was not extended beyond a period reasonable to the aim pursued by domestic law, namely to motivate the applicant in such a way that he become capable of voluntary participation in continuing treatment and capable of receiving support in order to discontinue his abuse.
  • X v Finland 34806/04 [2012] ECHR 1371, [2012] MHLO 128 — "The applicant alleged, in particular, under Article 6 of the Convention that she did not receive a fair hearing in the criminal proceedings against her in that she was not given an opportunity to be heard at an oral hearing on the need to appoint a trustee for her for the purpose of those proceedings and that she was not given an opportunity to examine witnesses on her behalf. She also alleged under Articles 5 and 8 of the Convention that she was unnecessarily and unlawfully subjected to involuntary care in a mental institution and to forced administration of medication. She further claimed under Article 13 of the Convention that she did not have an effective remedy to challenge the forced administration of medication." [Detailed summary available via external link.]
  • X v UK 7215/75 [1981] ECHR 6 — (1) Under Article 5(1), the recall to hospital without the usual Winterwerp guarantees was lawful as it was an emergency; the further detention followed examination by the RMO so was also lawful; (2) Habeas corpus proceedings were inadequate for Article 5(4) purposes; the other legal machinery did not remedy this breach, in particular because the MHRT could not order discharge of restricted patients.
  • ZH v Commissioner of Police for the Metropolis [2012] EWHC 604 (QB), [2012] MHLO 25 — ZH, a severely autistic, epileptic 19-year-old man, became fixated with the water during a school visit to a swimming pool and would not move from the water's edge: the police were called; when an officer touched him on his back he jumped into the water, fully clothed; the police had him taken out of the pool and restrained him. (1) The police actions constituted assault, battery and false imprisonment. There was no need for the police to be aware of the Mental Capacity Act 2005 for the defence in ss5-6 to be made out, but on the facts it was not. When the MCA applies, the common law defence of necessity has no application, but had it applied it would have failed. (2) There was a breach of the DDA 1995 duty to make reasonable adjustments to the normal practice, policy or procedure, and the defence of justification failed. (3) The inhuman or degrading treatment breached Article 3. (4) Even treating purpose and intention as relevant, there was a ..→

Law

Article 5 – Right to liberty and security

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:

a. the lawful detention of a person after conviction by a competent court;
b. the lawful arrest or detention of a person for non-compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law;
c. the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;
d. the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority;
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;
f. the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition.

2. Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him.

3. Everyone arrested or detained in accordance with the provisions of paragraph 1.c of this article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.

4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.

5. Everyone who has been the victim of arrest or detention in contravention of the provisions of this article shall have an enforceable right to compensation.