Deprivation of liberty must be regularly reviewed

BJ (Incapacitated Adult) sub nom Salford City Council V BJ (By His Litigation Friend The Official Solicitor) [2009] EWHC 3310 (Fam) – Read judgment

Where there is a deprivation of liberty within the meaning of Article 5 of the European Convention on Human Rights, regular reviews by the court are not merely desirable but essential.

This case concerned the application of Article 5 of the European Convention on Human Rights to the ongoing review of the continuing detention of persons lacking capacity.  The individual in question was a 23 year old man, BJ.  As BJ lacked capacity, it was found that his best interests would be served by his continued residence at a location referred to as “MH”.

As such, the care plan devised by the local authority and approved by Lord Justice Munby (in the original hearing of 16 May 2008), required the deprivation of BJ’s liberty within the meaning of Article 5 of the European Convention on Human Rights.

Summary

Given that BJ was being deprived of his liberty, Article 5 required a review by the court of the lawfulness of his detention at ‘reasonable intervals’. Munby LJ had set out the frequency and nature of any review at the previous hearing and at paragraph 10 of this judgment the LJ again highlighted the importance of regular reviews in such circumstances,

“ … the regime which I have approved for BJ involves a deprivation of his liberty within the meaning of Article 5.  And where in a case such as this there is a deprivation of liberty, regular reviews by the court are not merely desirable, not merely a matter of good practice; they go, as both the Strasbourg jurisprudence and the domestic case-law make clear, to the very legality of what is being done.”

The judge also emphasised that there was no need for the review to take the form of an oral hearing on this occasion.  On reaching this view, he made reference to paragraph 40 of his previous judgment, which found that Article 5(4) does not necessitate an oral hearing on every occasion.  Rather, in the appropriate circumstances, the case could be conducted on the papers, but with the safeguard that the parties would be entitled to request (and the judge to require) an oral hearing where appropriate.

On this occasion the parties were agreed that the circumstances did not require an oral hearing.   However, the LJ highlighted at paragraph 12 that the finding that an oral hearing was not required could not be broadly applied to all deprivation of liberty cases, but was dependent upon the circumstances of individual cases.

Munby LJ then went on to consider how the matter would have been dealt with if  BJ has been accommodated in a place falling within Schedule A1, paragraph 1(2) of the Mental Health Act 2007.  Although the safeguarding regime laid down by Schedule A1 did not apply to BJ, at paragraph 23, he highlighted that the 2005 Act provided important guidance as to the nature, intensity and frequency of review, in circumstances such as BJ’s.

This was because the procedure of review under Schedule A1 had been determined by Parliament to be sufficient and Article 5(4) compliant in protecting individuals such as BJ deprived of their liberty under the provisions of the 2005 Act.  Whether or not such individuals fell under Schedule A1, it still provided a good indication of the procedure which would ensure the requirements of Article 5 were met.

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