What is it?
Article 5 is part of the European Convention on Human Rights (ECHR). This, and other rights discussed below, are known as ‘Convention Rights’. The ECHR was a response to widespread flouting of human rights before and during the Second World War. Every person has a right under the Convention to liberty and security of person. The phrase is to be read as a whole, since it incorporates the right both to physical freedom and autonomy. Article 5 can be breached in certain cases, including in health and social care, provided it is ‘in accordance with a procedure prescribed by law’ Article 5(1) and that the person has the right to challenge the breach speedily to a court.
Where does it come from?
Aspects of the ECHR, such as the importance of liberty enshrined in Article 5, can be traced back to Magna Carta (1215) clause 29, which reads:
‘No freeman shall be taken or imprisoned or deprived of his freehold or of his liberties or free customs, or outlawed, or exiled, or in any manner destroyed, nor shall we go upon him, nor shall we send upon him, except by a legal judgment of his peers or by the law of the land.’
The health and social care condition is contained in 5(1)(e), which describes, in the language of the 1950s, ‘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.’
The other part of Article 5 that is central to health and social care is 5(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.
Why is it important to social work and social care?
Article 5 is central to the legal frameworks that protect the rights of people lacking mental capacity who may be deprived of their liberty, in their own best interests. In particular, 5(1)(e) and 5(4) are clearly to be seen in the Deprivation of Liberty Safeguards, and also in authorisation by the Court of Protection of deprivation of liberty in situations where DoLS cannot be used.
What relevant case law do I need to know?
European Court of Human Rights (ECtHR), and British case law about deprivation of liberty is revisited in the Supreme Court judgement known as ‘Cheshire West.’ This case also clarifies and codified existing judgements to produce an ‘acid test’ to help identify when people lacking capacity is deprived of their liberty.
See: United Kingdom Supreme Court
P (by his litigation friend the Official Solicitor) v Cheshire West and Chester Council & Anor  UKSC 19 (19 March 2014)
Cite as:  COPLR 313,  2 FCR 71,  WLR(D) 140, (2014) 137 BMLR 16,  2 WLR 642,  2 All ER 585,  AC 896,  HRLR 13,  Med LR 321, 137 BMLR 16, (2014) 17 CCL Rep 5,  1 AC 896,  UKSC 19,  PTSR 460
ICLR summary:  WLR(D) 140]
RiPfA customer guide: What are the Deprivation of Liberty Safeguards?
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