RB v United Kingdom
When he was 31, RB experienced a significant head injury, including frontal lobe damage, which resulted in an organic personality change and physical disabilities. He was discharged from hospital in 2008 to a neuro-rehabilitation facility. Frustrated with his lack of rehabilitative progress towards independent living, he stopped co-operating with the programme, escaped the care home on a number of occasions and abused alcohol. Now 41, he challenged the standard authorisation and this reference to the European Court of Human Rights followed his unsuccessful appeal in the domestic courts.
RB contended that his rights had been violated. In relation to Article 5(1)(e) he argued that his detention was unnecessary as the restrictions imposed were excessive and alternative arrangements could be found; his best interests had not been taken into account; and the detention was based on his alcoholism. Under Article 8 he argued that his detention interfered with his rights and it was disproportionate to ignore his wishes and feelings. In short, he argued that he would be condemned to a lifetime of detention in the care home because he did not want to comply with rehabilitation.
Being the first time it had passed comment on DoLS, the ECtHR held (in considering the admissibility of the application):
31… there is nothing in the facts of this case which would indicate that the necessary guarantees are missing… Accordingly, the Court concludes that in the circumstances of the case, fair and proper procedures to protect against the potential arbitrariness of the applicant's detention were in place.It found that the alternatives to detention had been properly considered by the domestic courts and his arguments to the contrary were not borne out.
Article 5 ECHR permits the detention of alcoholics but RB argued that domestic law did not and that he was being detained as an alcoholic. Again this was rejected by the court:
37… The Court therefore concludes that the applicant was detained in accordance with the domestic law due to his lack of capacity (not as an "alcoholic"), or in Convention terms as a person of "unsound mind".
38. As the applicant is detained as a person of "unsound mind", the three minimum conditions of Winterwerp must be fulfilled (see paragraph 24 above) and it appears that they were in this case. First, the applicant was reliably shown to be of unsound mind, as a true mental disorder was established before the domestic courts on the basis of objective medical expertise (see paragraph 8 above). Second, the domestic courts concluded that the disorder was of a kind or degree warranting compulsory confinement (see paragraphs 8, 9 and 11). Third, the validity of the continued confinement depends upon the persistence of such a disorder.
Having rejected his Article 5 arguments, the court held that no separate issues arose under Article 8, and declared the application inadmissible.
Albeit only on an admissibility decision, the European Court of Human Rights appears to have given DoLS a clean bill of health, this being the first time it has considered the state of English law since HL v United Kingdom. In particular, it seems that the Court was satisfied that DoLS addresses the criticisms made in HL. There are three noteworthy points about the judgment.
The first relates to the grounds for RB's detention. The Convention refers to "unsound mind". DoLS requires both mental incapacity (under MCA ss2-3) and mental disorder (under MHA s.1). In this case, RB's personality change caused by his acquired brain injury would amount to a mental disorder (as per para 38) but it is interesting that the court equated his "lack of capacity" with "unsound mind" (in para 37).
Do paras 37-38 conflict with each other? Or does mental incapacity provide sufficient grounds for detention under Article 5(1)(e)? The point is quite significant. If mental incapacity alone suffices, there is no need for the DoLS mental health assessment (although objective medical expertise would still be required, presumably in relation to mental incapacity). It would also expand the remit of Article 5(1)(e) ECHR to potentially cover all those who lack mental capacity, and would also, ironically, cut against the trend of the courts trying to 'de-medicalise' capacity and recognise it as a socio-legal construct. Whilst the Northern Ireland Mental Capacity Act 2016 (bravely) dispensed with a separate mental health requirement, the Law Commission was arguably well-advised to retain the mental health requirement for the Liberty Protection Safeguards, at least for now.
The second point to note is the court's clear endorsement of Winterwerp in this context. It demonstrates that the Court of Appeal erred in G v E and others  EWCA Civ 822 in deciding that Winterwerp was not applicable to detention under the MCA 2005.
The third point is that the Court appeared to be entirely unfazed by the current debate as to whether deprivation of liberty on the basis of unsoundness of mind is illegitimate having regard to Article 14 CRPD. As the first time in which the Court had to have regard to the elaborate administrative mechanism created by DoLS, taking Article 5(1)(e) far outside the context of psychiatric hospitals in which it was created, it might have been thought that this was the opportunity for the court to baulk at its very existence in light of Article 14 CRPD. To the contrary – as noted above, it gave DoLS a clean bill of health.
 Note, Alex and Nicola were both instructed on RB's behalf before the ECtHR; while Neil led on the writing of this note, as the case is now concluded Alex has not felt constrained from involvement in drafting by our usual editorial rules about involvement in notes on our own cases.