I have written this paper as an academic essay for my LLM International & Comparative Disability Law and Policies at Galway University and shared it with Dr Lucy Series who kindly proposed me to publish it on her blog. This version is a shortened one: among others, all explanation about what is England & Wales MCA 2005 was removed as I suppose my English readers are more aware of the question than I am. For the rest, I tried to be as objective as could be a French national who I am, with a personal (and highly challenging) experience of what is the French legal capacity framework, attempting the comparative analysis of the latter with an equivalent in the jurisdiction where I’m not living and which I know merely ‘remotely’. Since that text, I was able to observe (still remotely) the hearing at COP of Royal Court of London by the same Mr Justice Hayden whose rulings had served me as a material. However, I left that text not amended and will report on that very important experience in further publication.
The following analysis will focus on only one particular aspect: the restriction of liberty of persons with disabilities in segregated settings during pandemic emergency. It will compare the State’s response and policy’s adjustments in two countries – UK (specifically, England and Wales) and France. My main argument consists in the observation that policies based on the assumption that segregated settings are the places of deprivation of liberty (UK’s case) present a more appropriated base to challenge the new issues aroused from the emergency situation, than the policies which refuse such evidence (French case).
This paper doesn’t pretend to state whether the crisis situation management was better in one or the other State. Instead, it reflects about a degree of responsiveness of the existing frameworks during the emergency situation and the paramount importance of their clarity and compliance with a standard established by the Convention of Rights of Persons with Disability with its particular focus on the right to liberty.
1. Existing frameworks of deprivation of liberty in residential settings in UK and France (UK’s section abridged)
England and Wales had adopted, in 2005, the Mental Capacity Act (MCA) along with its inherent part – the Deprivation of Liberty Safeguards (DoLS): this last provision should be replaced by Liberty Protection Safeguards: its entering in force is postponed until April 2022. Thought widely criticized, DoLS have the merit to name clearly the situation (deprivation of liberty) and to allow to challenge it through legal proceeding.
By contrast, France, while had adopted the legal framework of deprivation of liberty in psychiatric hospitals, still doesn’t recognize the care facilities as places of detention.
According to the definition given by the Act initiating the mission of the General Controller of Places of Deprivation of Liberty, the latter are defined as being those, where the persons are placed “by decision of a public authority, as well as any health care institution empowered to receive hospitalized patients without their consent as referred to in Article L3222-1 of the Code of Public health”. There is no trace of any debate or proposition of an amendment to this article aiming to consider the institutions as places of deprivation of liberty: those ones are unanimously seen in France as a progressive achievement, discharging the families from the burden of their dependent relatives.
The interpretation of Article 4(1) and 4(2) of the OPCAT creates the conflict of definition of places of deprivation of liberty: the subsection 1 gives a broad definition including the places where the persons are deprived of their liberty ‘either by virtue of an order given by a public authority or at its instigation or with its consent or acquiescence’ while subsection 2 narrows this definition skipping the terms of ‘consent’ and ‘acquiescence’. That potentially allows to exclude the places where the persons are deprived of liberty without an explicit order of authority – what is mostly the case for residential settings in France. As a result, the residential settings for disabled persons in France are only visited by ‘pricing commission’ (comission de tarification), which can not be considered as independent instance and whose aim is not to monitor the persons’ rights’ respect. The pandemic, with the ban on external visits for detained persons increased the risk of abuse and ill treatment they undergo. While the prisons and psychiatric hospitals in France were still monitored by General Controller’s team, the residential settings were closed to any exterior sight putting the ‘residents’ under extreme risk of all kind of abuse.
There is no French equivalent of the Care Quality Commission operating in England (thought its visits were suspended during lockdown). Outside of pricing commission, the only body of control, still not regular, is the same which delivers the authorisation of opening to the care homes: either Préfet (the State’s regional representative) either ARS (the Hight Authority of Health) The both being the extension of State and involved in the decisions about the placements of persons with disabilities (Préfet having the power to decide about the involuntary hospitalization and ARS’s general director is sitting in CDPAH commissions – the welfare authorities which manage the distribution of the places in residential settings), those bodies can not be considered as independent. [Lucy Seri1]
There is a void in French law regarding the right to liberty of persons in residential settings. Article L311-3 if the Code of Social Action and Families states that the rights and freedoms are guaranteed to every person placed there. In the first subsection the list of those rights is provided as follow: rights to “dignity, integrity, private life, intimacy and security”. Unsurprisingly, the last provision opens the door, through number of interpretations, to the justification of restriction of liberty in the name of ‘protection’. It creates a grey legal area which results in the following situation: the persons in institutions are in theory free to leave (both for a certain time or for a while) but in practice, they are only allowed to leave with their relatives who are either their legal guardians, or have a guardian’s authorization. The decision to leave the residential facility never belongs to the ‘protected’ person but always to the guardian and, in the case of outdoor activities, to the staff. As will be mentioned below, that was still the main principle during Covid outbreak: a person’s guardian can remove her from care home for the period of lockdown without a legal proceeding.
Although the restrain and seclusion can only be practiced in hospital setting following article L3222-5-1 of the French Code of Public Health, the persons in residential settings are often subjected to those measures, practiced without any medical supervision. There is a firm ground to assert that those measures were and still are applied more massively during Covid outbreak as ‘protective’ ones.
Virtually all adults in residential settings are placed there by their guardian with no juridical proceeding. On the difference from UK, the substituted decision making is a lasting norm for the person placed under guardianship: though the less restrictive measures exist, the most restrictive (tutelle and curatelle renforcée) are decided in 96% of cases according to last available statistics from 2015 . The total number of the persons under guardianship in France is unknown (the last quoted number form teh same source being 700 000). There is firm grounds to believe that today it overpasses one million.
The placement in segregated facility, once effective, can be then challenged on the ground of article 459-2 of Civil Code, but such a possibility is only affordable for the persons who are able to access by herselves the legal information of find the lawyer to help to initiate the legal action . The very limited caselaw of such cases demonstrates that litigation of the effective placement can only happen when the person under guardianship is able by herself to challenge her placement. [Lucy Seri5] [maryna py6] While under the DoLS, virtually every next of kin can challenge the decision of placement before the Court of Protection, in France, no third party can contest it: only person herself or her guardian can challenge the placement before the Court. The latter situation is absurd assuming that the placement is decided by the guardian. It creates thus a situation of massive arbitrary deprivation of liberty, as no legal safeguard exists so as to stem the phenomenon.
2. Covid 19 pandemic situation (UK’s Section abridged)
The French Government on the 15th, and the the UK Government on the 24th of March took the decision to restrict the liberty of their citizens to stem the Covid19 spreading. It is noticeable that both governments decided to do so for ‘vulnerable persons’ some days in advance and with no special decree as will be explained in details in next section. None of both Governments made a declaration at the European Court about a derogation from their respective obligations under article 15 of ECHR.
The action of both Governments toward the ‘protection’ strategy for the persons in residential settings were erratic. In France, the State Secretary for the Disabled Persons Sophie Cluzel announced, on the 14th of March, the strict lockdown of all segregated settings for disabled persons. The similar decision for nursing homes for older persons (named generally EHPAD) was announced a week before by Health Minister Olivier Véran. While the lockdown measures for the general population, introduced on the 17th of March was the object of a special decree voted in an emergency by the French Assembly, no official decree was published to specify the particular regime the ‘vulnerable’ persons were submitted to. What was announced and received as directives by institutions, was only published on the Governmental web site as a press release. No PDF document with any official header was available by any time but only an HTML page, with evenly up-dated content.
It was indicated, by the 14th of March on the press release page and then, the 16th of March on Q/A page of State Secretary, that all residential settings in France will undergo a full lockdown – without the right to leave the premises under any circumstances and with no external visits allowed. On the 15th of March it was decided, for the general population, to limit the outside walk to 1km and, otherwise, for strictly necessary travels.
On the 2nd of April, during the TV intervention coinciding with an Autism Awareness Day, the French President Emmanuel Macron announced the ease of confinement rules for persons with autism and other disabilities involving behavioral issues and living in the community: the limitation of the walks, in distance and duration, was waived. The content of relevant pages on the official website was amended in this sense. At the same time, it was confirmed that the persons living in residential settings, will not benefit from any ease. That announcement coincided with the litigation we initiated before French Supreme Court challenging the form and the content of the emergency decisions concerning the persons in segregated settings.
CLE-Autistes v French Government case
As was explained above, the question of deprivation of liberty in residential settings is barely possible to cast into a legal proceeding in France in ‘normal’ time. The Covi19 pandemic created this opportunity as offered the possibility to challenge Governmental decision to restrict drastically (and in a more restrictive manner than the overall population) the liberty of the persons in residential settings. My decision to file a claim was triggered both by observation of the consequences of that restriction and by legal opportunity to go directly to the Supreme Administrative Court (Conseil d’Etat, CE) with an urgent proceeding (référé) against Governmental decision.
On the 28th of March, two weeks after announced lockdown measures, we filed, with French DPO CLE-Autistes who accepted to be a part in the proceeding that I did not want to be initiated as my private one, the claim at CE aiming at the suppression of the special measures toward the persons in institutions and their harmonization with conditions of liberty of movement applicable to a general population, using reasonable accommodation principle. We asked, in addition, the recognition of the residential settings as places of deprivation of liberty and their independent monitoring by the body established under OPCAT. By the time CE treated, as well as other French Courts, only urgent claims; the judgments were delivered after the submission of written statements, without hearing. In absence of the debates, the Court’s very brief written argumentation does not allow to understand the actual reasoning, but the analysis of the defender’s statement is enlightening.
On the 1st of April then French Minister of Health Olivier Veran (designated initially as an observer in our claim registering act) shared his defense statement. Defender’s argumentation is dominated by medical and security reasons, along with a total absence of the reference to human rights. Even though the case is not concerning an identified individual, the ‘group’ approach adopted by defender suggests a deeply rooted segregational vision of the ‘vulnerable groups’.
The main argument of the defense, aside from the justification of measures by ‘vulnerability’ of the aimed group of persons (with disabilities) is that, of the transfer of whole responsibility of the enforcement of the rights to the care home management boards. Referring to the article L311-7 of the Code of Social Action and Families, the defendant argues that the directions of residential facilities have a power to restrict residents’ freedoms. The quoted article mentions the internal operating regulations ‘which define the rights of the person being accommodated and the obligations and duties necessary for compliance with the rules of collective life within the establishment or service’. There is no precision about the nature of the mentioned ‘rights’. Obviously, the defendant interprets this provision as allowing an unlimited restriction of civil rights collectively – and not individually – without any legal proceeding. Such affirmation is in apparent contradiction with the provisions of the articles 5.1 and 8.1 of ECHR and articles 14 and 18 of CRPD as well as by European jurisprudence quoted above.
The list of the instances responsible for the implementation of proposed measures includes, aside of directors of residential homes, the Regional Agency for Health (ARS), and the Departmental House of Disabled Persons (MDPH). Those instances are considered as ‘competent decision makers’. It is said that general recommendations of State Secretary can be ‘modulated’ depending on local context and the ‘type of persons concerned’ by the facilities’ directors in collaboration with the ARS.
Another symptomatic argumentation is given in 2.2.2 paragraph ‘On the freedom to leave and come’. It starts with the statement which is in open contradiction with the previous argument as it evokes the rights of all persons in the residential homes to ‘respect of dignity, integrity, private life, intimacy’ and right to leave (droit d’aller et venir). From that assertion, the defender comes to quote the article 1110-1 of the Code of Public Health which is mainly about the general affirmation of the right to the best standard of health for everybody – with no obvious link with a precedent statement – and then concludes that the restriction of liberty to leave was ‘consented’. Along with the hardly discernible logic, such affirmation surprises, but the following explanation puts all things ‘in order’: indeed, the consent was that, of families to which the choice ‘was always left’ to take their relatives home for the period of lockdown. There is no mention of any attempt to know the will and preference of the persons themselves: for the Minister, the question who gives the consent is resolved upstream.
The Minister’s statement doesn’t mention any possibility to challenge the decision about the place and conditions of confinement: indeed, all those modalities are believed to be consented by guardians and therefore not susceptible to arouse any disagreement. The problem of deprivation of liberty is therefore evacuated: the right (to liberty) does not exist without a right holder. This point is very important as the main argument of French authorities against the interpretation of article 12 of CRPD given by the Committee is a split between ‘right holder’ and ‘right actor’: France asserts that, while everybody holds rights, their exercise sometimes can be delegated to a third person (guardian). The example of the right to liberty, a non-transferable subjective right, demonstrates the inconsistency of that assertion.
The dispute about the deprivation of liberty issue did not attract the attention of the Court which rejected the claim following the argument of defender that the measures contented in the State Secretary’s press release ‘do not present the character of an Act’ and therefore cannot be contested. The full power of application of measures going up to institutions, the legal responsibility of deprivation of liberty (if such would ever be recognized as a fact) is thus diluted, stripping off all possibility to challenge it as neither the party against which the claim could be challenged can be identified, nor does the official Act exist.
4. Two cases law before Court of Protection
I had chosen for my analysis two cases concerning DoLS application brought before England and Wales Court of Protection in the same period of time that the case before the French Supreme Court presented in the next section.
In the first case, the applicant (the daughter of 83 years old man identified as BP) asked for her father’s discharge from care home declaring that it is in his best interest to stay during the lockdown in the applicant’s home with an appropriate package of support. The statement was based on the fact that the new drastic measures were unbearable for BP who is deaf and has Alzheimer and for whom the direct and tactile contact with his relatives was essential. It is to be mentioned that other family members, including BP’s wife, didn’t support the claim, and there wasn’t unity in the family about the issue. The whole proceeding, while taking into consideration the relatives’ standpoints, treated about the rights of BP and did not try to resolve the family disagreement about him. This point needs to be stressed as contrasting with French authorities standpoint presented below, considering the protected persons’s rights as the objects of contracts with families.
The first Court’s decision was based on consideration of both articles 5 and 8 of ECHR, with the mention of two central cases, Storck v Germany and Stanev v Bulgaria. While recognizing the impact of lockdown measures on the degree of deprivation of liberty and interference with the right to private life, the best interest criteria overweighted as Mr J. Hayden, refusing immediate release of BP from the nursing home, asked the detailed MCA assessment be provided remotely. He also noticed that DoLS regime, with its Covid update, does not justify restrictions upon contact (in the center of the contest) and doesn’t address the legal basis of the restriction. The remote assessment was not possible by an appointed specialist and other information were taken under the account, the Judge being open to ‘creative use of the limited options’ so as to gather the critical information. The second decision had eventually confirmed the agreement reached between the parties about the move of BP to his daughter’s home as his mental and physical condition dramatically deteriorated following the restriction of visits and liberty of movement.
The notification of the Court was sent to the UK Government in case the latter would find necessary to ask the derogation under art 15 of ECHR demonstrating the judge’s awareness that there is a question of the exceptional restriction of liberty.
The second case concerned AO, an aged woman living for 10 years in a care home and, by the moment of hearing, on the terminal stage of cancer. Her daughter asked the Court AO be moved to her home for the end of her life. All possibility to do MCA assessment being compromised (mostly because of emergency), the Court’s decision is a balanced weight of ‘ best interest’ argument and the interpretation of what is ‘highly likely that [AO] would say if [she] was capable of expressing her wishes and feelings’. The judge satisfied the claim and AO died two days later surrounded by her family.
Several points are to be noticed in regard to those two cases. First of all, the presence of an elaborated previously frameworks (DoLS with the updates related to Covid-19 emergency) allowed to challenge the impact of lockdown measures through Court proceeding. The first proceeding allowed, on its turn, to question the existing framework from the perspective of emergency situation which, one can hope, could trigger its further evolution and adjustments. The ‘best interest’ argument, which is in conflict with the CRPD’s approach, was considered not exclusively but along with the best interpretation of a person’s supposed wishes, what is clearly inline with CRPD. The mere fact that those Court hearings had happened is highly important. Thought held remotely, using video-conference and thus being challenging from different points of view, it offers a demonstration of consideration given by UK’s legal system to the deprivation of liberty’s issue. That was confirmed in the letter to Directors of Adult Social Services from Mr. J. Hayden on the 4th of May where he rejects the argument that “careful adherence to proper legal process and appropriate authorization may now, at times, be required to give way to other pressing welfare priorities”.
Finally, I would emphasize on the strikingly human tonality of those decisions. For somebody used to read the very formal decisions of French Courts, the style of Court of Protection’s decisions is unusual both in the expressed judge’s personal – somewhat even emotional – standpoint and in the attention given to the details of personality and situation of protected person.
The still ongoing pandemic situation triggered a deep questioning of the existing safeguards protecting the life, liberty and the civil rights of vulnerable persons. However, the mere act of questioning can only happen in a presence of more or less clear legal framework.
The comparison of situations along with cases in two different contexts suggests that the restriction and deprivation of liberty which is not recognized as such, will be reinforced in its arbitrariness in an ‘exceptional’ situation. The void in the French law about the legal situation of the persons placed in residential settings without their free consent, created a highly problematic legal situation. The restriction of liberty applied to the general population during outbreak revealed the fact that an entire part of the French population is already and in a permanent manner under drastic restrictions of liberty to leave. The diluted responsibility of that deprivation in ‘normal’ times and the absence of all possibility to challenge it were brought out by the emergency situation. The decision of the Supreme Court shows a pessimistic perspective about disability rights in France: not only was there no tangible progress in awareness about the issue but there was an explicit acceptation of a ‘liquid’ law with vague statements in an HTML format, of the removing of Government’s responsibility and of its implicit transfer to the institutions with no legal safeguards.
In the UK, which legal framework recognises the deprivation of liberty in residential settings and offers the proceeding safeguards, there was a choice to stick, during the emergency situation, with this established framework by adjusting it and allow the usual way of juridical proceeding to continue. That framework is not perfect nor compliant with CRPD standard: however, there is evidence it was questioned by the emergency situation and there were some signs pointing to the framework’s potential improvement.
It could be objected that, in essence, both situations are not so different: beyond the unmeasurable, for the moment, the real impact of the policies on the rights of vulnerable persons, the arising of liberty’s deprivation issue only happened, in the mentioned UK case law, because the family’s members asked their relatives be allowed to leave the care home and stay with them. The same possibility, without even a need of a legal challenge, was offered, according to the French Minister, to each family in France who wanted to keep their members otherwise living in segregated setting. In other words, a right to leave (the institution) is, in both situation, a subject of availability of an alternative (the relatives keen to host and care about the person). The similarity of the situation is however limited to the current underdevelopment, in both countries, of the independent living alternatives for the persons with complex needs. I believe that the legal system which accepts the gravity of deprivation of liberty issue and recognizes its reality is more likely to give room to claim about the urgent need of such alternative. It can explain why, on the difference of the UK, the mere problem of the compatibility of segregated setting with human rights is still not formulated in France and, still on the difference with their British colleagues, French scholars and lawyers didn’t produce, so far, any single publication pointing to the issue.
 Art L3211-3 Code Santé Publique
 Article 8 Loi n° 2007-1545 du 30 octobre 2007 instituant un Contrôleur général des lieux de privation de liberté
 In his intervention the 11 February 2020 French President E.Macron promised, under applauses, 6000 new places in institutions for next two years:
Les propositions du CNH <https://handicap.gouv.fr/le-secretariat-d-etat/acteurs/comite-interministeriel-du-handicap-cih/la-conference-nationale-du-handicap/article/les-propositions-de-la-cnh-le-11-fevrier-2020> accessed the 9th May 2020
 Articles L313-13 & L313-16 of French Social Action and Families’ Code (CASF)
 Article R241-24 to R241-34 of CASF
 Paul Veron The judge and the freedom to come and go for elder people in institutions, Médecine & Droit 2017 (2017) 25–36
 Paul Veron, 27
 Cour de Comptes Rapport sur la protection juridiaue des majeurs (2016) 25 <https://www.ccomptes.fr/sites/default/files/EzPublish/20161004-rapport-protection-juridique-majeurs.pdf>
 Cour d’Appel de Douai 12/ 06650 (8 February 2013)
Cour de Cassation 14-17735 (9 November 2016)
 Similarly to the Bulgarian framework that we know from Stanev v. Bulgaria EctHR case (2012), according to article 475 of French Civil Code, the person under full guardianship (tutelle) cannot initiate any proceeding by herself and the contest of the placement is thus only open to the persons under curatelle (less restrictive measure)
 Report on disability-specific forms of deprivation of liberty, CDLP NUI Galway, 2019 <http://www.nuigalway.ie/media/centrefordisabilitylawandpolicy/files/DoL-Report-Final.pdf> accessed the 9th May 2020
 Décret n° 2020-293 du 23 mars 2020 prescrivant les mesures générales nécessaires pour faire face à l’épidémie de covid-19 dans le cadre de l’état d’urgence sanitaire
 Conseil d’Etat N 439822, ECLI:FR:CEORD:2020:439822.20200408 <https://www.legifrance.gouv.fr/affichJuriAdmin.do?oldAction=rechJuriAdmin&idTexte=CETATEXT000041808375&fastReqId=1888570292&fastPos=1> accessed the 9th May 2020
 The official standpoint on this matter is formulated in French Governmental submission for the draft of GeneralComment n1 of CRPD Committe: <https://www.ohchr.org/EN/HRBodies/CRPD/Pages/DGCArticles12And9.aspx> accessed the 9th May 2020
 Conseil d’Etat N 439822 §5
 BP v Surrey County Council & Anor  EWCOP 17 & EWCOP 22
VE v AO & others  EWCOP 23
 Storck v Germany n° 61603/00 (2005) ECtHR , Stanev v Bulgaria no36760/06 (2012) ECtHR
 BP v Surrey County Council & Anor  EWCOP 17 § 28
 VE v AO and others  EWCOP 23 § 37
 Celia Kitzinger, When Remote Justice Works <http://www.transparencyproject.org.uk/when-remote-justice-works/> accessed the 9th May 2020
 Court of Protection handbook <htps://courtofprotectionhandbook.files.wordpress.com/2020/05/letter-vp-to-adass-4-may-2020.pdf> accessed the 9th May 2020
 Although being out of the scope of that article, the overall situation with supported living in UK is much better than in France where such facilities only exist for the persons with ‘moderated’ special needs