Since its inception, Doughty Street Chambers has played a laudable role in seeking to have the rights of those with mental disorders vindicated.
Prior to the incorporation of the European Convention on Human Rights (ECHR) into domestic law by the passage of the Human Rights Act 1998, our barristers made a significant contribution to the development of a body of case law from the European Court of Human Rights (ECtHR) which was protective of the rights of those with mental disabilities.
Though the early case of Ashingdane v UK failed to establish that detention in inappropriate conditions amounted to a violation of Article 5 (which protects the right to liberty), the principle to emerge from it – that even a liberal detention regime still amounted to a deprivation of liberty where the person concerned was not free to leave permanently – has become the premise from which all ECHR and domestic judicial pronouncement on the meaning of the term ‘deprivation of liberty’ starts.
Past and present members of Doughty Street have also contributed to legal developments which culminated in the passage of the Mental Capacity Act 2005 and the Deprivation of Liberty Safeguards (DOLS) scheme. It was in the case of HL v UK (The Bournewood Case) that the ECtHR set out the requirements for the Article 5-compliant detention of incapacitated persons. And it was Bournewood that was the catalyst for legislative change aimed at providing a framework for authorising and regulating the detention of incapacitated persons. It was also in JE v DE that the now President of the Family Division provided an exegetic review of convention law on deprivations of liberty in order to identify the essential ingredients later affirmed as such in Cheshire West.
The Mental Health and Court of Protection Team continues to build upon principles established in Bournewood and Ashingdane. The London Borough of Hillingdon v Neary, NCC v PB and Re MN are good examples of this incremental contribution.
Starting in November 2015, the Mental Health and Mental Capacity Team will be joining forces with MDAC and Linklaters LLP in a Europe-wide strategic litigation project to give effect to the UN Convention on the Rights of Disabled Persons in relation to issues of mental capacity.
For more information about Doughty Street’s work in this area please see our mental health team page.