HUMAN RIGHTS AND THE GOVERNMENT                                                                                                                                                                                              

April 2016      No: 1

In info sheets 2015 Nov (1) and 2016 Feb (3) we hailed the judgement of Charles J in MM v WL Clinic (2015) UKUT 644. He decided that there is not necessarily a deprivation of liberty where a patient has capacity to consent to restrictive conditions and does consent to them. We pointed out the inconsistent approach of the Ministry of Justice in failing to appeal MM even though subsequently seeking to argue that the decision was wrong.

The MoJ appear to have a very self-serving view of human rights. In SoS v RB (2011) EWCA Civ 1608, the MoJ did not want RB to be allowed anywhere in the community. They wanted him under control, detained in a secure hospital. To achieve this, they argued that they were protecting his rights under art 5 HRA by objecting to a discharge with conditions that he be escorted at all times when outside his accommodation. Now the MoJ seek to appeal MM and in doing so, demonstrate the same cynical mindset shown in RB. In seeking to explain why they had not previously appealed the decision of Charles J which effectively overruled RB, they said it was because they were content with that particular patient being released from detention in hospital even though he was subject to conditions which amounted to a deprivation of liberty. So it is reasonable to conclude that the MoJ are rather partial when it comes to safeguarding Art 5 rights. Politicians, heavily influenced by public clamour, might not be the safest guardians of liberty when decisions require cool heads. It is surely unacceptable to have decisions concerning the liberty of the subject turning on the level of public or political controversy it arouses. This is why we have an independent judicial process to make decisions.

The Court of Appeal is expediting the hearing which is to be forced into the list over 8 and 9 June. The appeal judges will reveal what they understand is meant by ‘liberty’. It is to be hoped that someone picks up Charles J’s refreshingly humane and sensible approach rather than the stale and legalistic way the courts have addressed the issue to date (see our Article, ‘Liberty, what is that’ 7/8/15) which spectacularly fails to spot the wood for the trees. We do wonder where this sudden enthusiasm by the MoJ for appealing MM has come from. It surely cannot be related to the fact that RB is currently making a fresh attempt to move from hospital to the community where he would remain perfectly content to be escorted at all times.

John O’Donnell

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