With regard to the paradigm of a prison cell there are also several references to psychiatric settings. In reality the majority of wards now see P being behind double or triple locked doors with the prospect of the MHA being used compulsorily if needed.
I accept that we now have a multifactorial approach but would most psychiatric settings that are locked fail the objective assessment and the subjective element would then need to be considered? Even then P can be in a catch 22 of “if I don’t agree, I will be sectioned” and they won’t or can’t express this.
What are peoples thoughts?
In the AGNI ruling it states:
The paradigm case of deprivation of liberty is detention in a cell, but so far as article 5(1)(e) is concerned, this has extended to include detention in psychiatric hospitals and certain social care institutions.
It cites the Bournewood case:
…he was admitted informally to Bournewood Hospital, a secure psychiatric hospital. The court held that article 5(1) and (4) had been breached because the deprivation of liberty was not in accordance with a procedure prescribed by law..
at paragraph 55:
We do not assume that because an individual is cared for in a community setting, their care arrangements are necessarily less restrictive than in a psychiatric hospital…
and
Moreover, although the Attorney’s written case suggests that the Revised Code would not apply to mental health hospitals in Northern Ireland
at paragraph 154:
Since the power of compulsory detention was kept in mind by the authorities throughout as an option to be used immediately if HL ever showed signs of wanting to leave it is unsurprising that the court regarded compulsory detention as the relevant analogy, rather than voluntary acceptance of his situation: see also M v Ukraine, paras 71–74 (discussed at paras 168–169 below). In psychiatric practice an effort is usually made to persuade someone who needs intensive treatment to enter hospital voluntarily, in order to avoid stigmatisation and to foster good relations between them and those treating them with a view to improving therapeutic outcomes; but the debate with the individual to try to persuade them to do this typically occurs against a background, understood by both sides, that compulsory powers will be used immediately if needed
at paragraph 169:
Although admitted as a voluntary patient, but against the background of being vulnerable to immediate detention should she not cooperate, the applicant in M v Ukraine was not free to leave the hospital and was subjected to the same restrictive regime as involuntary patients; and the conclusion was drawn that throughout the period of the fourth hospitalisation she was deprived of liberty within the meaning of article 5(1)…
at paragraph 183:
The Strasbourg jurisprudence to which we have referred confirms that the European court has continued to apply the multifactorial test in determining when an individual is deprived of liberty and provides a clear indication of the nature and extent of restrictions that are required before a “person of unsound mind” will be found to be detained in the relevant sense in a psychiatric hospital or social care institution…
at paragraph 193:
The effect of the restrictions on an individual living in their family home with their family, or living in their own home, with opportunities for leaving the place of residence for recreation, education or social contact, is likely to be very different from the effect on an individual held in a psychiatric hospital or a prison