Adam Wagner, of UK Human Rights Blog fame, has a new project: the Human Rights Information Project. The aim of the project is to ‘change the face of human rights’ and counteract poor public understanding of human rights. If anyone can do this, it’ll be Adam!
Adam has asked people to nominate their top ten human rights cases by 5pm today. The criteria are that the case must be a domestic or European human rights case, and it must have had a ‘profound impact on people in the UK’ or have the potential to do so.
Here is my list – obviously with a mental health, disability rights and capacity law theme. Once I’d started, it was hard to stop – although Adam did say it was fine to have as many as fifty… I found it very hard to keep under the fifty word count limit, in order to explain the cases and their significance (apologies Adam). I selected some cases because I think they are positive in a legal sense, even if they did not necessarily deliver a brilliant outcome for the litigants themselves. I chose others because they have fundamentally changed the landscape of human rights whether or not people agree with them. And I chose some because they highlight some of the limitations of human rights – or at least, the European Convention on Human Rights (ECHR). I’ve probably overlooked some important cases, so apologies – but if you can think of any I’ve missed you’ve got until 5pm on Friday 27th February to tell Adam yourself!
HL was admitted informally to Bournewood Hospital. Without the safeguards of the Mental Health Act 1983 his family had few legal mechanisms to try to get him home. The European Court of Human Rights found that this violated his Article 5 ECHR right to liberty. Following this case, the government introduced the Mental Capacity Act 2005 deprivation of liberty safeguards. This film by the Equality and Human Rights Commission tells you more about the case, and why it tops my #50cases list:
2. P v Cheshire West and Chester Council and another; P and Q v Surrey County Council  UKSC 19
After HL v UK there was considerable uncertainty about the meaning of ‘deprivation of liberty’ and who should get Article 5 safeguards in community care services and hospitals. In Cheshire West the Supreme Court held that it meant being subject to constant or continuous supervision and control and not being free to leave. This ruling will provide more people with procedural safeguards, but is causing significant upheaval in the health and social care sectors.
Steven Neary was detained under the Mental Capacity Act deprivation of liberty safeguards and it had taken his father a year of campaigning to get him home. The Court of Protection held that the safeguards should not be used by local authorities to ‘get their own way’ and they should have applied to court to resolve the conflict. The case resulted in some rare positive media coverage for a human rights ruling:
Mr Shtukaturov had been deprived of his legal capacity and placed under guardianship. His guardian placed him in hospital without his consent. Without legal capacity he was unable to challenge his detention. The European Court of Human Rights ruled that people who lack legal capacity must still be able to challenge their detention in accordance with Article 5(4) ECHR and that as a ‘relatively autonomous person’ the judge should have met him and been able to question him.
Mr Stanev had been placed by his guardian in a social care home in Bulgaria, where he was very unhappy. The European Court found, for the first time, that a person could be deprived of their liberty in a care home. It also held that people deprived of legal capacity must have ‘direct access to a court to seek restoration of his or her legal capacity’.
The United Nations Convention on the Rights of Persons with Disabilities (CRPD) is often described as a ‘paradigm shift’ in disability rights, and was introduced because disabled people were ‘invisible’ before existing international human rights laws; for example, they do not feature in the usual lists of characteristics that are protected against discrimination. Shockingly, Glor v Switzerland was the first time the European Court of Human Rights found disability discrimination under Article 14 ECHR, and in doing so it relied upon the CRPD.
Mrs KK was living in a care home but wanted to go home and live in her bungalow, despite risks to her health. She said ‘If I die on the floor, I die on the floor. I’d rather die in my own bungalow, I really would.’ Even though expert evidence was unanimous that she lacked mental capacity, by talking to the judge in person she was able to convince him that she had the capacity to make this decision. The case was the first time unanimous expert evidence on incapacity was rejected by a judge in the Court of Protection, and demonstrates the importance of judges meeting people in Mental Capacity Act 2005 cases.
Manuela Sykes was a politician, who had campaigned on feminist and social justice issues, including care services for people with dementia. In later life, she developed dementia and was placed in a care home under the Mental Capacity Act 2005 deprivation of liberty safeguards. She appealed against her detention. The court held that despite the risks, she should be allowed to go home as it was felt that these were risks she would have been prepared to take, and the law should further her important and legitimate interests as ‘her servant, not her master’.
AJ was deprived of her liberty in a care home under the Mental Capacity Act 2005. Her representative was her relative, who supported her detention, so did not help her to appeal against it. The Court of Protection held that people must be helped to appeal even others don’t think it is in their best interests to do so. This ruling will have significant consequences for local authorities, advocates and the Court of Protection.
ZH had autism and was enjoying looking at the ripples in the water on a school trip to the swimming pool. The pool manager called the police, who restrained him and locked and shackled him – cold and dripping wet – in a police van, without talking to his carers first, considering whether he posed a risk to himself or others or looking for less restrictive options. The court found this violated his human rights and constituted disability discrimination. This case will impact on how the police are trained and respond to incidents involving people with mental disabilities.
Elaine McDonald had been a ballerina, but following a stroke and several falls she had mobility problems, which meant that she was unable to access the toilet without assistance. Her local authority, one of the richest in the country, wanted to withdraw overnight care and offer her incontinence pads overnight, even thought McDonald was not incontinent. McDonald felt this was an affront to her dignity. The European Court held that although there were procedural irregularities in how they had done this, which violated her Article 8 ECHR rights to private life, the substantive decision was not faulted as her right to private life was qualified with respect to the ‘economic wellbeing’ of the country. This case shows the significant limitations of the ECHR in advancing economic and social rights and substantive rights to dignity.
The Independent Living Fund (ILF) was set up to provide additional resources to enable disabled people to live independently in the community in their own homes. Bracking and others challenged the government’s decision to close the ILF on the basis that they had not properly considered the consequences of this decision for disabled people. The Court of Appeal held that the government had not adequately considered its positive obligations under Article 19 of the Convention on the Rights of Persons with Disabilities – the right to independent living.
[I’ve crossed this case out, because although it smells like a human rights case, and is about fundamental human rights issues, it actually doesn’t mention human rights once in the entire judgment!]
David James was a musician. A serious infection left him with severe brain damage and serious physical health problems, and was reliant on intensive care support. Aintree hospital felt that he should not undergo certain invasive treatments to prolong his life if his condition deteriorated; his family objected, arguing that he still had a good quality of life. James died before the case reached the Supreme Court. However, the court affirmed that a good quality of life is not the same as recovery of full health but a life worth living to the person themselves. It held that ‘best interests’ requires considering matters ‘from the patient’s point of view.’
The CRPD is a very important disability rights instrument, but unlike the ECHR is not incorporated into domestic law. Some domestic judges had been sniffy about the CRPD, holding that it did not have the requisite standing and ‘significance’ to influence domestic rulings. In Burnip the Court of Appeal rejected this analysis, saying it ‘has the potential to illuminate our approach to both discrimination and justification’ under human rights law.
The social model of disability is a core tenet of the disabled people’s movement. It maintains that disability does not arise solely from a medical condition, but from the interaction of any impairment with the person’s social and physical environment. The social model of disability is inscribed into Article 1 CRPD and the European Courts of Justice have adopted this in preference to ‘medical’ models. Applying this approach in Kaltoft, it held that ‘disability’ could encompass obesity, showing the potential of the social model to expand and enhance protection under disability discrimination laws.
X had been deprived of her legal capacity by a court in proceedings that she had not participated in, with the consequence that ‘she had completely lost her autonomy and had no right to make any decisions concerning her life’. The European Court of Human Rights held that ‘judges adopting decisions with serious consequences for a person’s private life, such as those entailed by divesting someone of legal capacity, should in principle also have personal contact with those persons.’ This ruling helped to established what is sometimes referred to as the ‘rule of personal presence’ for court proceedings concerning capacity and related matters, which will have significant consequences for the Court of Protection.
17. Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania (App no 47848/08) – Grand Chamber Judgment  ECHR 789
When people have died as a result of a human rights violation, human rights claims rely upon somebody with ‘standing’ bringing a claim on their behalf. Usually this is the person’s family. Valentin Capeanu was disabled and had no family. He died in a Romanian institution in the most appalling circumstances – he was left alone, with no bedding and only a pyjama top, with no assistance to use the bathroom or to eat; staff would not touch him for fear of contracting HIV. The Centre for Legal Resources (CLR) happened to witness these conditions on a human rights monitoring visit. When he died shortly afterwards the CLR wanted to bring a human rights claim on his behalf, but because they were not his family they had no standing to do so. The European Court of Human Rights recognised that in circumstances like these, the standing rules would need to be relaxed to ensure that human rights laws provide an effective deterrent for mistreatment of some of the most isolated and vulnerable people.
C had autism and attended a specialist residential school. He frequently took his clothes off, so the school responded by shutting him in a padded ‘blue room’, where he spent most of his time. As well as this resulting in his isolation, his mother complained that it had no toilet and had ‘an acrid and pungent smell of faecal matter’. And independent psychiatrist found that C took his clothes off because he had highly sensitive skin and they caused him pain. The Court found that the school had violated his right to liberty and his treatment constituted inhuman and degrading treatment. A new care plan was drawn up giving him his own flat, with a garden and sensory room, and a team of care staff unfazed by nudity.
The parents of D both had learning disabilities. The local authority had initiated proceedings for D to be removed from their care permanently and adopted. Because D’s father worked the parents were £34 over the means test limit for legal aid. Without lawyers, they would have no chance of representing themselves to oppose the removal and adoption of their child. After they were initially refused exceptional funding, the President of the Family Court called this a ‘stark’ and ‘shocking’ predicament, likely to violate their rights to a fair trial and to family life. After considerable delays they were awarded legal aid on human rights grounds, but the President commented that ‘The parents can be forgiven for thinking that they are trapped in a system which is neither compassionate nor even humane’.
This case established that prisoners seeking parole do not need to demonstrate particular prospects of success to be entitled to an oral parole hearing. The Supreme Court relied upon home grown common law rights, rather than European human rights, to come to this conclusion. One common law authority cited the Bible: God gave Adam a hearing in person, even though he was omniscient and already knew that he had sinned.
 Sorry – this isn’t on BAILII for some strange reason.
 R (NM) v London Borough of Islington & Ors  EWHC 414 (Admin)
 HK Danmark, v Dansk almennyttigt Boligselskab  EUECJ C-335/11 (11 April 2013)