4(B)(ii). Liberty

In MDAC’s experience, people in institutions frequently want to gain their freedom. One of the ways a lawyer can help is by arguing that the client is (a) detained and (b) their detention is unlawful. The European Court of Human Rights (ECtHR) has established case law on liberty and detention of people with mental disabilities.^[14] The proposition that laws can allow States to lock up people with mental disabilities – for whatever purpose – is contentious legal territory since Article 14 of the CRPD provided that in no case should disability justify detention. Numerous controversies have surfaced in this connection which are beyond the scope of this handbook to assess in detail. It is, however, advisable for lawyers entering this field to consider arguments likely to be used by governments to justify a deprivation of liberty, and be ready to challenge those based on a disability or diagnosis.

In Stanev, the ECtHR established for the first time that the involuntary placement of a person with a disability in an institution constituted a deprivation of liberty under Article 5 of the European Convention on Human Rights, which sets out the right to liberty. The Court held that Mr Stanev should have had access to a court proceeding to challenge his deprivation of liberty, and should have had access to a legal system which could award compensation for unlawful detention. The ECtHR further held that the need for housing and social services could not be used to justify a deprivation of liberty and that people with mental disabilities should have a say in what services they receive and where they receive them:

[T]he objective need for accommodation and social assistance must not automatically lead to the imposition of measures involving deprivation of liberty. The Court considers that any protective measure should reflect as far as possible the wishes of persons capable of expressing their will.  Failure to seek their opinion could give rise to situations of abuse and hamper the exercise of the rights of vulnerable persons. Therefore, any measure taken without prior consultation of the interested person will as a rule require careful scrutiny.^[15]

In Mr Stanev’s case, one of the main points was that, as a person under guardianship, he was stripped of his decision-making rights and so was prohibited from deciding to leave the institution. The Court here addressed the issue of legal capacity, which is dealt with under Article 12 of the CRPD.^[16]

Lastly, lawyers should remember that the opposite of detention is freedom; the opposite of a locked door is an open one. The lawyer should act on the client’s instructions, with the knowledge that the remedy in a claim which relies solely on the right to liberty of a person in an institution may simply amount to letting the client leave the institution: this may be what the client wants, but the client may find him or herself living on the streets. MDAC recommends a more holistic approach to persuade the court to order the government to provide community support services, as discussed in section 4(B)(i), above.