In Rooman v Belgium  ECHR 105, the Grand Chamber of the European Court of Human Rights undertook an important review and clarification of its approach to Article 3 and Article 5 ECHR in the context of deprivation of liberty on the basis of ‘unsoundness of mind.’
The case was brought by a Belgian prisoner detained in a “social-protection facility,” who contended that, that as a result of the failure to provide psychiatric and psychological treatment in the facility in which he was detained, his compulsory confinement entailed a violation of Articles 3 and 5(1) ECHR.
The Grand Chamber took the opportunity to ‘recapitulate’ its principles in relation to Article 3 ECHR. Most of these were relevant to the position of prisoners, but in a statement that perhaps reveals that Strasbourg has a different idea about deprivation of liberty to the Supreme Court in Cheshire West, the Grand Chamber observed (at paragraph 142) that “[m]easures depriving persons of their liberty inevitably involve an element of suffering and humiliation.” It noted that “the detention of a person who is ill in inappropriate physical and medical conditions may in principle amount to treatment contrary to Article 3” (paragraph 144), highlighting the particular vulnerability of detainees with mental disorders. It further noted that it takes account of the adequacy of the medical assistance and care provided in detention and that “[a] lack of appropriate medical care for persons in custody is therefore capable of engaging a State’s responsibility under Article 3 […] In addition, it is not enough for such detainees to be examined and a diagnosis made; instead, it is essential that proper treatment for the problem diagnosed should also be provided [..], by qualified staff […]” (paragraph 146). Logically, therefore “[w]here the treatment cannot be provided in the place of detention, it must be possible to transfer the detainee to hospital or to a specialised unit” (paragraph 148).
Turning to Article 5 ECHR, the Grand Chamber considered that “in the light of the developments in its case-law and the current international standards [including the CRPD] which attach significant weight to the need to provide treatment for the mental health of persons in compulsory confinement, it is necessary to acknowledge expressly, in addition to the function of social protection, the therapeutic aspect of the aim referred to in Article 5 § 1 (e), and thus to recognise explicitly that there exists an obligation on the authorities to ensure appropriate and individualised therapy, based on the specific features of the compulsory confinement, such as the conditions of the detention regime, the treatment proposed or the duration of the detention” (paragraph 205).
Conversely, and in the most explicit terms used to date, the Grand Chamber made clear that “Article 5, as currently interpreted, does not contain a prohibition on detention on the basis of impairment, in contrast to what is proposed by the UN Committee on the Rights of Persons with Disabilities in points 6-9 of its 2015 Guidelines concerning Article 14 of the CRPD.”
The Grand Chamber undertook a detailed examination and review of its own case-law to highlight that:
208. [..] the current case-law clearly indicates that the administration of suitable therapy has become a requirement in the context of the wider concept of the “lawfulness” of the deprivation of liberty. Any detention of mentally ill persons must have a therapeutic purpose, aimed specifically, and in so far as possible, at curing or alleviating their mental-health condition, including, where appropriate, bringing about a reduction in or control over their dangerousness. The Court has stressed that, irrespective of the facility in which those persons are placed, they are entitled to be provided with a suitable medical environment accompanied by real therapeutic measures, with a view to preparing them for their eventual release.
The Grand Chamber further emphasised at paragraph 209 that the level of care required must go beyond basic care: “[m]ere access to health professionals, consultations and the provision of medication cannot suffice for a treatment to be considered appropriate and thus satisfactory under Article 5.” It then highlighted the fact that deprivation of liberty had to take place in an appropriate institution, and such that a “specialised psychiatric institution which, by definition, ought to be appropriate may prove incapable of providing the necessary treatment” (paragraph 210). It had, earlier, noted (paragraph 203) that “although the persistent attitude of a person deprived of his or her liberty may contribute to preventing a change in their detention regime, this does not dispense the authorities from taking the appropriate initiatives with a view to providing this person with treatment that is suitable for his or her condition and that would help him or her to regain liberty”
The interaction between Articles 3 and 5
The court noted that the
213. […] question of a continued link between the purpose of detention and the conditions in which it is carried out, and the question of whether those conditions attain a particular threshold of gravity, are of differing intensity. This implies that there may be situations in which a care path may correspond to the requirements of Article 3 but be insufficient with regard to the need to maintain the purpose of the compulsory confinement, and thus lead to a finding that there has been a violation of Article 5 § 1. In consequence, a finding that there has been no violation of Article 3 does not automatically lead to a finding that there has been no violation of Article 5 § 1, although a finding of a violation of Article 3 on account of a lack of appropriate treatment may also result in a finding that there has been a violation of Article 5 § 1 on the same grounds.
214 . This interaction in the assessment of complaints which are similar but are examined under one or other provision arises naturally from the very essence of the protected rights. The assessment of a threshold for Article 3, guaranteeing an absolute right, to come into play is relative, and depends on all the circumstances of the case, such as the duration of the treatment, its physical and mental effects and, in some cases, the sex, age and state of health of the victim. With regard to Article 5 § 1 (e), the deprivation of liberty is ordered, inter alia, on account of the existence of a mental disorder. In order to ensure that the link between this deprivation of liberty and the conditions of execution of this measure is preserved, the Court assesses the appropriateness of the institution, including its capacity to provide the patient with the treatment that he or she requires.
On the facts of the case, the court found that there had been breaches of both articles for a period from 2004 to August 2017, but that, following changes in the regime for the complainant, there was no breach for the subsequent period. Partially dissenting judgments from six of the judges made it clear that they would have found that the breaches continued, in essence on the basis that the changes were inadequate.
It is also clear now beyond shadow of doubt that the clash between Strasbourg and Geneva regarding deprivation of liberty in the context of disability is not going to be resolved any time soon, but this comment will not dwell on this because the stalemate is, frankly, not very productive, and diverts attention from all the steps that can be taken to ensure that the only decision to take is whether to detain or not.
This decision is both extremely useful, as a summary and clarification of what is now an extensive body of case-law, and challenging for ‘how things are done’ in the mental health context, in particular. An immediate observation is that it is remarkably difficult in face of this decision to see the basis upon which the majority of those with learning disability/autism can sensibly be said to lawfully to be deprived of their liberty in ATUs or psychiatric hospitals (whether this is under the framework of the MHA or DOLS), as it would appear difficult to see the basis upon which such institutions can be said to be appropriate. The case may also suggest that we need to revisit in the DoLS / LPS context the previous reluctance of the courts to investigate the appropriateness of particular facilities once a broad ‘umbrella’ justification for deprivation of liberty on the basis of unsoundness of mind has been established: see, for instance, North Yorkshire CC v MAG  EWCOP 6.
It also interesting to note the observation by the Grand Chamber that, almost axiomatically, deprivation of liberty involves an element of suffering and humiliation. This presumably applies to MIG and MEG in the Supreme Court before Cheshire West, or Steven Neary if he is to be found to be deprived of his liberty on the Re X application currently before the Court of Protection. Is that quite right? Or does it suggest that we have developed a domestic concept of deprivation of liberty going beyond the overbearing of the will suggested by this decision?