By Laura Davidson
For someone to have been deprived of their liberty under Article 5, a subjective lack of valid (capacitous) consent is a prerequisite. In addition, there must be, objectively, actual confinement “to a certain limited place” for a length of time which is not negligible, and for which the state is responsible (Storck v Germany (2005) 43 EHRR 96). The distinction between a restriction on liberty and a deprivation is one of fact and degree (Guzzardi v Italy (A/39) (1981) 3 EHRR 333 ECHR). In deciding whether or not restrictions have crossed the line and caused a deprivation of liberty, the familiar dicta of Engel v Netherlands (1976) 1 EHRR 647 at 59 has long been applied by the ECtHR: “account should be taken of a whole range of factors such as the nature, duration, effects and manner of execution of the penalty or measure in question”.
Engel was a case involving military conscripts. It was held that the alleged violation of Article 5 required an examination of both the “effect” of various types of military arrest and the “aims” of the alleged deprivation of liberty. However, the ECtHR observed that “[t]he bounds that Article 5…requires the State not to exceed are not identical for servicemen and civilians. A disciplinary penalty or measure which on analysis would unquestionably be deemed a deprivation of liberty were it to be applied to a civilian may not possess this characteristic when imposed upon a serviceman”. This was due to the fact that there are “rather wide limitations upon the freedom of movement of the members of the armed forces…entailed by reason of the specific demands of military service so that the normal restrictions accompanying it do not come within the ambit of Article 5 either” (at 59).
Thus, the ECtHR held that when interpreting and applying the Convention rules it was necessary for the court “in the present case” to “bear in mind the particular characteristics of military life and its effects on the situation of the individual member of the armed forces” (at 54). Military service alone could not amount to a deprivation of liberty since that was expressly sanctioned in Article 4(3)(b). The Court therefore held that only where there was an enforcement of “restrictions that clearly deviate from the normal conditions of life within the armed forces of the Contracting States” would there be a deprivation of liberty for the purposes of Article 5. Hence, even under certain types of military arrest, detention would occur only where a measure or penalty deviated from the normal conditions of military life. It was for the purposes of a determination as to whether that deviation had occurred that account was to be taken of “a whole range of factors such as the nature, duration, effects and manner of execution of the penalty or measure in question”. The dicta was in fact not provided to assist in a determination as to whether or not the restrictions amounted to a deprivation of liberty.
Thus, the author submits, Engel was a special case confined to its own facts which has been wrongly applied in all subsequent case law. However, after four decades of misapplication it would be unrealistic to expect the courts to turn back the clock. It is clear from the words “such as” in Engel that the factors outlined which are to be considered when determining whether restrictions amount to a deprivation of liberty were only examples. However, as the Court considered them worthy of specific mention, they warrant close scrutiny. Having interpreted Engel as of universal application, how has the ECtHR expanded upon the meanings of “nature, duration, effects and manner of execution of the penalty or measure in question”? Bearing in mind that Engel focused on military discipline, it is difficult to see how a “penalty or measure” involving alleged violations of Article 5(1)(a) and (b) might equate to treatment of a mentally disordered person in an Article 5(1)(e) case. Plainly a “penalty” in the context of incapacity would be inapplicable. It should also be noted that the word “type” has crept into the criteria – seemingly as a synonym for “nature” – via Guzzardi v Italy where in paragraph 92 it purported to be referring to the Engel dicta.
Nature or type
It seems that the nature of a measure which deprives someone of their liberty will include the particular environment or place where a detention is carried out. In Mancini v Italy (App. No.44955/98 ECHR 2001-IX at paras.13-26) it was held that in terms of a place of detention the “nature” of a private home was different from a public institution. In the latter, the individual would be assimilated into an overall organisation and subjected to strict supervision by the authorities of the main aspects of his daily life (see also A Local Authority v A, B, and the Equality and Human Rights Commission [2010] EWHC 978 (Fam)). Yet where someone is significantly disabled, there is likely to be a need to supervise the main aspects of their daily life whether or not they are in a private home environment. The identity of the detainer will make no difference to the person being detained if they wish to leave, but are so prevented. In fact, it is common sense that the identity of the detainer cannot be relevant as to whether there is, objectively, a deprivation of liberty at all – regardless of whether a person complies with the restrictions. The significance of the detainer goes to whether or not the state is responsible for (or fails to investigate) the deprivation of liberty – for if it is not, there can be no violation of Article 5.
Duration, effects and manner of execution 
It is uncontroversial that the duration of a restriction may convert it into a deprivation since for a violation of Article 5 to occur, any confinement must be for a “non-negligible” length of time. However, the jurisprudence with respect to “effects” is not well-developed. Is it intended that “effects” attach to the applicant – in other words, to the specific consequences the penalty or measure has for that person in particular (the effect upon them) – or does it apply to the actual requirements or terms of the penalty or measure in question? If the former, even if the effects produced by a penalty or measure on a particular person may be severe, why should that convert the treatment of which there is complaint into a deprivation of liberty where most others would consider it a trifling restriction? If the latter, how might “effects” differ from the requirement to assess the “nature” of the penalty or measure? In HL v UK at 86, the applicant relied on the former interpretation: “[t]he effect on the applicant of his stay in the hospital was a marked deterioration in his well-being”. However, although a violation of Article 5(1)(e) was found, the ECtHR did not specifically endorse this aspect of the Applicant’s contention – and so the matter remains unclear. Further, are “nature” and “manner of execution” distinguishable?
Domestic law
The Deprivation of Liberty Safeguards (DOLS) provide a lawful means of depriving those lacking capacity of their liberty provided that to do so is in their best interests. Para.2.5 of the Code of Practice to the DOLS sets out examples of what factors might be relevant to identifying whether steps taken in relation to those lacking capacity involve more than restraint. Whilst a situation where “[t]he person loses autonomy because they are under continuous supervision and control” could relate to the “effects” of a measure, other factors such as where “[a] request by carers for a person to be discharged to their care is refused” are less easily classified in Engel terms.
The domestic court have held that the “manner of execution” of a measure or restriction may include the use of restraint (including medication; see DH v NHS Foundation Trust v PS [2012] EWHC 1217 (COP)) or the physical locking of doors to prevent someone from leaving a placement. In a care home without locked doors, physical restraint might be used on occasion to prevent someone from leaving. The manner of execution (or ‘method’) of that restraint may differ significantly. It could be effected by one carer with a ‘steering’ hand, or by several burly carers forcibly holding P to the floor. Presumably the “manner of execution” of the measure of restraint would be more likely to amount to a deprivation of liberty in the latter case, as the effect upon P of the restraint (fear, distress, and confusion) would be severe. However, in comparison to the ‘steering hand’, this method of restraint is likely to have an adverse effect upon any person in P’s position. The matter is complicated further since there is an overlap with whether or not the method used is disproportionate; if it is, it cannot be in P’s best interests (and may be unlawful at common law).
The effects of restrictions on a person’s everyday life were held significant in LLBC v TG [2007] EWHC 2640 (Fam) as P was in an “ordinary care home where only ordinary restrictions of liberty applied” (see also Cheshire West and Chester Council v P [2011] EWCA Civ 1257). However, if a person objects to being in that setting, the force used to maintain it (however mild) must have a subjective effect upon P. The English courts appear to accept that the effect of the “execution” of a “measure” may vary from person to person and that this is relevant as to whether a deprivation of liberty occurs. However, just because one person may be particularly sensitive or distressed by a restraining measure (akin to having an ‘eggshell skull’), why should that result in the engagement of Article 5 when it will not have the same result upon a more robust person? Further, if a person does not dissent in relation to the measures taken, then it seems less likely that the restrictions will be considered a deprivation of liberty. Yet in HL v UK (2005) 40 EHRR – the case which led to the introduction of the DOLS – that was exactly the position: HL was deprived both of his liberty and accordingly of access to a review of his detention.
It seems that Engel, a case involving military conscripts which considered what might amount to deviation from military life, was never intended to be of universal application. This may explain why it remains so difficult to determine whether or not there has been a deprivation of liberty, given the problems involved in extrapolating between the “nature” or “manner of execution” of a “measure”. The overlapping of the terms of the Engel dicta has been further complicated in the UK by recent domestic case law. Purpose, reasons, aims and motives relating to restrictions and/or deprivations of liberty will be examined in Part II; criteria which were not specified in Engel, but which feature in several important Court of Protection cases.
Laura Davidson is a barrister at No5 Chambers in London specialising in healthcare law and in particular mental health and mental capacity cases. This article formed the basis of Laura’s article “Turning Back the Clock” published in the Solicitors Journal (SJ 156/22) on 6 June 2012.