Deprivation of liberty for the public sector

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Article 5 (right to liberty and security)

Article 5 of the European Convention on Human Rights (ECHR) guarantees the right to personal liberty and provides that no one should be deprived of their liberty in an arbitrary fashion. Article 5(1)(e) permits the lawful detention of, among others, 'persons of unsound mind' in accordance with a procedure prescribed by law.

If a person is being deprived of liberty, then certain safeguards must be provided, including entitlement for the person to take proceedings by which the lawfulness of their detention shall be decided speedily by a court, and their release if the detention is not lawful.

The European Court of Human Rights (ECtHR) has confirmed that there are three elements to a deprivation of liberty:

  1. •

    objective element—confinement in a restricted space for a non-negligible period of time

  2. •

    subjective element—the person has not validly consented to that confinement, and

  3. •

    the deprivation of liberty is imputable to the state

See Practice Note: Private deprivations of liberty.

The Bournewood safeguards

In the case of HL v United Kingdom, also known as the Bournewood

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