Introduction

In some instances, care or treatment in hospitals and care homes will be administered in circumstances which are so restrictive that they unavoidably deprive the patient of their liberty in breach of their rights under Article 5 European Convention on Human Rights. This will be in situations where the patient does not have capacity to consent to the measures being taken and where the measures being taken in the person’s best interests are in order to keep them safe.

Human Rights

An understanding of Article 5, European Convention on Human Rights (ECHR) is key to understanding the concept of Deprivation of liberty. Deprivation of liberty can be either lawful if done in accordance with the person’s rights or unlawful if done in breach of the person’s rights under Article 5. 

Human rights are universal and apply to us all. Some of our rights are ‘absolute’, for example in England and Wales, the right to protection from torture and inhumane and degrading treatment (Article 3). Others are ‘qualified’, meaning that the state can interfere with them if there is a ‘procedure prescribed by law’ to authorise it. Deprivation of a person’s liberty is one of these qualified’ rights and is set out in Article 5 of both the Human Rights Act 1998 and the European Convention, which state –

• Article 5 (1). Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save … in accordance with a procedure prescribed by law.
• Article 5 (4). Everyone who is deprived of his liberty … shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.