The right to liberty and security: for ombudsman schemes

The right to liberty and security protects you from arbitrary detention.

It is a limited right and the grounds for being lawfully detained are set out in our discussion of Article 5 of the Human Rights Act.

The European Court of Human Rights has said that to understand if there has been a deprivation of liberty, the starting point must be the ‘concrete situation’ of the individual concerned and ‘account must be taken of a whole range of criteria such as the type, duration, effects and manner of implementation of the measure in question’ (Guzzardi v Italy 1980).

Soft law

There are several soft law standards about detention, including:

• UN Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment
• UN Standard Minimum Rules for the Treatment of Prisoners
• UN Rules for the Protection of Juveniles Deprived of Their Liberty
• UN Standard Minimum Rules for the Administration of Juvenile Justice
• Standards of the European Committee for the Prevention of Torture
• Means of Restraint in Psychiatric Establishments for Adults (Revised CPT Standards)

• hospitals
• care homes
• mental health settings
• drug and alcohol issues
• criminal justice
• immigration control
• prisons
• schools
• employment

Public authorities have an obligation to protect individuals from being detained in circumstances that would breach this right by institutions, such as hospitals, care settings, employers and schools.

They also have a positive obligation to ensure robust procedures and adequate staff training to reduce the risk of detaining someone unlawfully.

This includes taking account of the relationship between the reason for detention, and the place and conditions of detention.

Deprivation of liberty, in whatever setting, must be justified as lawful, as unrestrictive as possible, and regularly reviewed as being in an individual’s best interests.

Lawful means, in accordance with domestic law, such as under the Mental Health Act 1983, criminal law or the Deprivation of Liberty Safeguards.

Mental health conditions

If a public authority detains individuals to prevent them harming themselves or others, it must show:

• medical evidence that an individual is, according to legal definition, of ‘unsound mind’ (except in an emergency)
• that the detention is appropriate for the type of mental health condition Aerts v Belgium 1998
• medical evidence that continued detention is because there is still a mental health condition Hutchison Reid v UK 2003

The meaning of ‘unsound mind’ itself is evolving as research, treatments and attitudes change (Winterwerp v The Netherlands 1979), which could affect the circumstances under which a person can reasonably be detained.

The UN Convention on the Rights of Persons with Disabilities (UNCRPD) has sought to challenge attitudes, including about people with mental disabilities, and conventional legal terms, such as ‘unsound mind’. The more recent terms ‘mental capacity’ or ‘fluctuating capacity’ better reflect the fluidity of the concept, and that individuals may have capacity in one area of life but not others.

Authorities are also subject to ‘procedural obligations’:

• A detention must be kept under periodic review to take account of changing circumstances and to ensure it continues to be justified.
• Detained people can ask an impartial court to judge promptly whether detention is lawful and order release if it is not. There must be ‘equality of arms’, with the detained person entitled to be present and heard, with legal representation if necessary.
• If an individual is no longer a risk, he or she must be released immediately.
• Release may come with conditions, such as continuing treatment or supervision in the community. If these conditions cannot be met in the community, an immediate release may not be required Kolanis v UK 2005.
• Domestic laws and procedures governing detention must be of sufficient quality, accessibility and precision to carry out the requirements of the right (Amuur v France 1996).
• Places of detention must have an adequate recording-keeping system about detainees (Ahmet Özkan and Others v Turkey 2004).

A person may lack capacity and not object, or be compliant with the deprivation of his or her liberty. Even so, such people have the same right not to be deprived of their liberty as everyone else. Sometimes their liberty needs to be restricted for their own protection and care – but periodic independent checks are required to ensure the deprivation remains in their best interests.  

De facto detention

De facto detention is when an individual is in theory free to leave an establishment but in practice could not do so.

A recurring example is a voluntary patient (not ‘sectioned’ under the Mental Health Act 1983) subject to de facto detention in a mental health service.

Often elderly and infirm residents of a nursing home have no practical means of leaving, and the institution is not aware that it is depriving liberty. It could also be relevant when an individual’s liberty is taken away at certain times of day, such as locking the room door of a care home resident at night, or confinements for staffing needs.

Courts may consider that disabled people lacking mental capacity who are under continuous supervision and control and are not free to leave their residence may effectively be deprived of their liberty. In P v Cheshire West and Chest Council 2014, the Supreme Court said that such people should have regular independent reviews to ensure that their placement and any restrictions on their movement are still in their best interests.

Authorities should follow soft law in relation to people deprived of their liberty. Some soft law standards describe how people who admit themselves voluntarily to institutions should be treated and restrained if appropriate.

Case study

• Detaining people in a mental health inpatient setting

Restriction of liberty

There is an important distinction between deprivation of liberty and restriction of liberty. The difference between them is ‘one of degree or intensity’, not ‘nature or substance’ (Guzzardi v Italy 1980). Improper use of restraint, whether physical or chemical, is more likely to constitute a restriction rather than deprivation of liberty.

In domestic and European law, ‘security of person’ in this right is the same as ‘liberty’, and is not about protecting your personal safety. This is a different interpretation, however, from the UN Human Rights Committee, which states that ‘security of person’ concerns freedom from injury to the body or mind.

Restraint, therefore, can involve the right to bodily integrity as an aspect of the right to ‘security of person’ under UN law, or separately the right to be free from cruel, inhuman or degrading treatment and the right to private and family life.

It is important not to conflate the two main aspects of this right and the duties that follow from it. There are the circumstances in which authorities can lawfully detain an individual; and there are the procedural safeguards that protect individuals who have been detained.

What to do if this right is relevant to your case

You should aim to establish:

• whether the public authority has met its obligations and followed the procedural safeguards guaranteed by the right
• whether the public authority took expert medical advice prior to detention and in subsequent reviews for continuing detention
• what opportunities the individual had to challenge the detention
• whether those opportunities were prompt and accessible, taking into account an individual’s ability, age, disability or particular needs
• whether the public authority considered alternatives to detention
• why those alternatives were not followed

You may need to check the quality of medical advice used by the public authority with independent experts.

• Detaining people in a mental health inpatient setting
• Working with police forces on stop and search
• Use of covert medication