In December 2012, the UK Court of Protection ruled in favour of arrangements which aim to safeguard rights under Article 8 of the Europe Convention on Human Rights (ECHR) of people in detention.
The case,
J Council v GU and Others, concerns a 57 year old man detained in a private care home under the
United Kingdom’s Mental Capacity Act 2005. The applicant suffered from a number of mental disorders and lacked capacity to litigate or make decisions regarding his care, medication, contact arrangements, management of finances, property and affairs. It was agreed by all, including his representation, that it was in his best interests to remain in the care home indefinitely. Moreover, it was agreed that he should be subjected to restrictions in relation to his contact with others and correspondence in order to minimise the risks that he presented.
People in detention, whether detained in prison or another institution, retain Article 8 ECHR rights which protect private and family life. Nonetheless, this right is not absolute and the Courts recognise that it may be curtailed in “accordance with the law”. The case of
Herczegfalvy v Austria established three elements which must be present to justify a curtailment of an individual’s Article 8 rights. Firstly, the measure must have a basis in national law. Secondly, it must be accessible to the person and thirdly, the consequence of the measure must be predictable.
The Court considered whether the measures which incorporate the restrictions have a sufficiently authoritative basis and are sufficiently detailed in the scope of their safeguards, such as inclusion of reviews and oversight by a supervisory body. The applicant is on occasion strip-searched, his correspondence intercepted and his phone calls monitored. Whilst such violations of Article 8 are legal once in “accordance with the law”, his representation questioned whether sufficient safeguards were in place to protect his Article 8 rights in the future.
A 52 page document was agreed by the parties and accepted by the Court. This document set out specific details regarding separate policies regulating the circumstances in which the restrictions on the applicant could be implemented. Judge Mostyn accepted that such a policy document was necessary in this case and in any similar case concerning long term care of a person. However, he also clarified that a protection order would remain sufficient in certain circumstances where the restriction was short-term or an isolated incident.
In related news, December 2012 saw the Croatian Parliament enact legislation which allows for people under guardianship to participate politically. Croatia is the first European country in recent times to amend its election laws and allow people with disabilities to vote.