One of the things that sometimes concerns me is what in the past I’ve called “human rightsism“: the tendency to think all social problems should be cast and resolved in terms of human rights. It’s related I think to seeing human rights as applying to everything; and in practical legal terms, to seeing Convention rights as engaged in almost every situation – for instance, whenever the state does anything.
In contrast, it’s refreshing to read Lord Justice Munby’s approach to the application of the article 5 Convention right not to be arbitrarily detained, in Cheshire West and Chester Council v P  EWCA Civ 1257. P’s a thirty-nine year old man with significant physical and learning disabilities, and lacks the mental capacity to make decisions as to his care and residence. He lived with his mother until in 2009 her health meant she was no longer able to care for her son. He’s now being cared for by the local authority at a place called Z House.
The legal question is whether his placement amounts to a “deprivation of liberty” for the purposes of article 5. I won’t go into the details: I suggest you read the full facts, and Munby LJ’s reasoning as a whole. I think he’s right. The alternative (unless, unlike me, you think only the state can ever interfere with your rights) is to see most situations in which one person cares intensely for another as involving detention in legal terms.
What people like P need, it seems to me (and this is a point I made on Law in Action this week) is the most humane and effective social care system possible. That means well-funded social care with a highly-skilled, well-paid and committed workforce that’s well regulated and constantly improving. I suppose applying human rights law to what happens in social care might sometimes help – but I doubt it often does. It seems to me a poor second best to the kind of radical reform, resourcing and regulation that could really deliver what we all want.
Problem is, with our current government radical reform is only likely to lead to more cuts to the services you envisage, services which i totally agree should be available
Sounds to me like you’re coming dangerously close to saying that disabled people should not be able to enjoy the same human rights protection as others; as if we are subordinate.
My experience as a Deaf person tells me that the state cannot always be trusted to take care of disabled people. The government’s vile welfare “reform” is a good example.
I don’t think I’m saying that at all, Tim, or anything like it. I think what you’re saying is that because the state can’t always be trusted to take care of disabled people, therefore the state must be regarded as detaining them.
That doesn’t stack up legally – whether or not there’s a deprivation of liberty depends on the nature of what’s done in relation to the alleged detainee, not on who does it to them or how much you trust them – but it also reveals a double standard. Private carers can’t always be trusted to take care of disabled people, either (unless you just follow a “private good, public bad” philosophy), but you wouldn’t therefore say that P’s mother (before he was placed at Z House) should therefore have been regarded in law as detaining him. Would you?
This decision only applies in those situations in which the person lacks capacity. Where the person has capacity, Article 5 is engaged, whether he or she is detained by the state or by a private individual.