RB v UK- the end of the road

The European Court of Human Rights has ruled inadmissible the claim by RB, a man of 41 who suffered an organic personality change after an acquired brain injury, that his detention in a care home violated his rights under Articles 5 and 8.

This was the first time detention under a standard authorisation under the Deprivation of Liberty Safeguards  ("DOLS") has been considered by the European Court since the landmark decision in HL v UK.  That decision exposed the lack of procedural safeguards for those lacking capacity to consent to informal admission.  The response of the UK Government was to bring in the DOLS.  This satisfied the Committee of Ministers of the Council of Europe, although DOLS has received trenchant criticism since its inception and the Law Commission has recommended wholesale reform.  (You can read our post on the proposals here).

The facts are set out in the decision of the Court of Appeal:

1. RB was born on 4th August 1976, so he is now aged 37. He has a past history of homelessness, criminality and sleeping rough. He has an extensive criminal record, which led to numerous custodial sentences in a young offenders' institution or prison. From the age of 15 onwards RB was dependent on alcohol. He committed most of his offences when under the influence of alcohol or drugs.
2. On the 18th June 2007 RB was found collapsed in the street, having sustained a severe head injury. It is not known whether this was caused by an assault or a road traffic accident. RB was admitted to hospital, where he was found to have a subdural haemorrhage resulting in subdural haematoma. An immediate operation was carried out to evacuate the haemorrhage. After eight months treatment in hospital, on 28th February 2008 RB was transferred to a neurorehabilitation facility to which I shall refer as S House. This is a "care home" within the meaning of schedule A1 to the MCA.
3. RB was in need of rehabilitation, because he had suffered serious injuries. The accident had caused damage to RB's frontal lobe, which impaired his mental processes. RB also had major physical disabilities. He was and is confined to a wheelchair most of the time. He wears a leg brace and has lost effective use of his left hand.
4. To begin with all went well. RB participated in the rehabilitation programmes and made distinct improvements in mobility and speech. In early 2011 the local authority started making arrangements for RB to move into a flat, where he would be assisted by regular carers. These arrangements fell through because of concerns that RB could not manage on his own. It was feared that he would be unsafe, self-neglecting and a source of risk to other residents.
5. The collapse of these arrangements seems to have led to a breakdown of the relationship between RB and the staff at S House. RB ceased co-operating with the rehabilitation programmes. He then decided to resume his former lifestyle, which included going out, socialising with homeless persons and becoming drunk. There were repeated incidents during 2011 of RB going out and coming back to S House intoxicated or alternatively presenting himself to the accident and emergency department at the local hospital.
6. The care home applied for a standard authorisation pursuant to the MCA schedule A1."

The European Court held that "fair and proper procedures to protect against the potential arbitrariness of the applicant’s detention were in place".  However it then went on to consider whether, in the circumstances, RB's detention was necessary, applying the Winterwerp criteria:

"firstly, he must reliably be shown to be of unsound mind; secondly, the mental disorder must be of a kind or degree warranting compulsory confinement; and thirdly, the validity of continued confinement depends on the persistence of such a disorder (see Winterwerp v. the Netherlands, 24 October 1979, § 39, Series A no. 33)."

RB's case had been that the reason for his detention was not, in fact, his mental disorder but his alcoholism.  The Court of Appeal summaarised his argument thus:

1. Mr Gordon advances a causation argument, relying upon the reasoning of Lord Hoffmann in Environment Agency (Formerly National Rivers Authority) v Empress Car Co (Abertillery) Ltd [1999] 2 AC 22 at pages 29-30. Mr Gordon submits that the frontal lobe damage is not the cause of RB's inability to weigh up and use relevant information. He argues that the difference between RB's present condition and that of an alcoholic without brain injury is "wafer thin".
2. I do not accept this argument. The expert evidence establishes that the brain injury has substantially impaired RB's ability to weigh up and use relevant information: see, for example, Dr Grace's second report at pages 9-11. The district judge accepted that evidence. This court will not go behind that conclusion reached by the trial judge.

In considering whether RB's detention was "necessary" the Court held:  

"The applicant has also argued that he was detained as an “alcoholic” and that this was unlawful under domestic law. The domestic courts examined that question and concluded on the basis of the expert medical evidence that his detention was lawful because he was not detained as an “alcoholic”, but due to his lack of capacity to make decisions as a result of brain damage following his injury. The loss of capacity caused by his brain injury meant he had no control over his decisions to drink and when he drank, he jeopardised his own safety to the extent his life was at risk (see paragraphs 8, 9 and 11).

37. It does not appear that the applicant contested this medical evidence before the domestic courts. Nor has he provided any additional arguments in his application which would call into question the assessments of the domestic courts. The Court therefore concludes that the applicant was detained in accordance with the domestic law due to his lack of capacity (not as an “alcoholic”), or in Convention terms as a person of “unsound mind”.

This appears to equate lack of capacity for the purpose of the MCA with unsoundness of mind for the purpose of Article 5: however the court then went on to consider whether there was evidence from "objective medical expertise" that RB had a "true mental disorder" and that the disorder persisted.  At the trial at first instance, the parties had jointly instructed Dr Janet Grace a consultant near-psychiatrist and District Judge Glentworth had accepted her oral evidence that "RB had an impairment in the functioning of his brain with elements of psychotic illness, personality disorder and cognitive impairment. The principal cause of these disabilities was damage to RB's frontal lobe sustained in the accident."

The court went on to note the detention purely on the basis of alcoholism is, in fact, permitted by the Convention, even though it is not permitted under domestic law; although there was no need for the court to consider this argument.  No separate arguments were raised under Article 8, nor had any been raised in the domestic proceedings and therefore RB had not exhausted his domestic remedies.

The court therefore dismissed RB's application, bringing his long fight to an end.