Rusi Stanev was placed under partial guardianship by the Bulgarian authorities in 2002. His guardian was a public official whom he had never met. This guardian asked his municipal authority to place him in a social care home without seeking his consent, and also arranged for Mr Stanev’s small social security income to be paid direct to the home and not to pass through his hands. The home was in Pastra 400km from Mr Stanev’s home town of Ruse. Conditions in the home were found by the CPT in 2003 to be so poor as to amount to degrading treatment for the purposes of Art 3 of the European Convention on Human Rights. When Mr Stanev tried to leave staff brought him back. When he asked to be discharged from guardianship he was told that this was not in his interests. When his lawyer applied to the courts to have him discharged from guardianship she was told that the application could not be heard because his guardian had not authorised it.
The Grand Chamber of the European Court of Human Rights handed down their judgment on the 17th Jan. The judgment can be found on BAILII here.
It is an exciting decision because the court agreed unanimously that Mr Stanev’s rights under Art 5(1) (right to freedom and security of person) , Art 5(4) (the right to challenge deprivation of liberty in court), Art 3, Art 6 (right to a fair hearing) and Art 13 (the right to damages in this case for the violation of Art 3) had all been violated. A further four dissenting judges argued that the court should also have considered violations of Mr Stanev’s Art 8 rights to respect for his private and family life as well.
It is a huge achievement for Mr Stanev’s legal counsel , his advisers from the Mental Disability Advocacy Center and Interights who intervened in the case. But most of all it is an achievement for Mr Stanev himself who has had to work for ten years to achieve recognition of his detention, his loss of legal capacity and the degrading treatment he had suffered. The Bulgarian Helsinki Committee describes his experiences here.
Does the decision in Stanev v Bulgaria have any implications for England?
My Dad (an Aberdonian) used to tell me the (apocryphal) story of the Aberdeen Press and Journal headline: ‘Titanic sinks – North East man feared drowned’. It seems a bit parochial to focus on the implications of this decision for one member of the Council of Europe. But I am going to be parochial anyway.
Stanev sends a clear message to countries which deprive adults of their liberty by placing them in care homes without consent, which still practice plenary guardianship and deny adults deprived of their legal capacity the right to challenge this decision in court: None of these practices are consistent with the European Convention on Human Rights.
Whilst we should never be complacent I think it is clear that the legal framework created under the Mental Capacity Act would make any of these practices illegal in England and Wales. Adults cannot be deprived of their liberty in social care homes in England and Wales unless they lack capacity to make decisions about their care and an independent best interest’s assessor has concluded that the placement is nevertheless in their best interests. This decision must be periodically reviewed and can be challenged in court. Plenary guardianship does not exist under English law and no adult can be defined as wholly or partly incapacitated and be subject to guardianship on those grounds alone. Where the Mental Capacity Act does empower others to reach decisions on behalf of an adult lacking capacity this power is context dependent and does not extend to other areas where the individual may nonetheless retain capacity.
We have less room for complacency in relation to the finding of a violation of Art 3. Superficially our affluence should protect people in social care homes in England from being subject to the degrading conditions Mr Stanev experienced in Pastra (and which were also experienced by the 73 other men resident in the home with him). It would be unusual to find a care home in England unable to provide heating in winter, daily access to a clean bathroom, plumbed in toilets and a diet containing some fruit, vegetables and dairy products. However, the practice of communally washing clothes and then allocating them to residents at random was identified by the CPT as likely to ‘arouse a feeling of inferiority in the residents’ and this was still happening when I last worked in social care for people with learning disabilities ten years ago.
More significantly, nearly 9,000 applications for Deprivation of Liberty Assessments were made in 2010-11 alone and of these more than 57% were found to involve a deprivation of liberty (the vast majority of which were justified). That is a very large number of people detained by the state in social care facilities. The procedural safeguards created by the DoLS were intended to meet the requirements of Art 5(1). But the consequence of this is that we now know we have a large body of individuals, even individuals who may be paying for their care independently, whose conditions of detention are nevertheless the responsibility of the state. And the purchaser/provider split in social care provision means that the authorities which commission services sometimes have very limited knowledge about the conditions that arise. In the worst cases (yes I’m thinking of Winterbourne View) the commissioning bodies quite clearly did not want to be aware of these conditions.
If Mr Stanev had been deprived of his liberty in these conditions in England I trust he would have achieved a domestic remedy, and whilst the abuse was qualitatively different it will be interesting to see what remedies are attained by the residents at Winterbourne View currently considering legal action. But the Strasbourg Court’s unanimous and unconditional acceptance that the appalling conditions at the Pastra home amounted to a violation of Article 3 should focus all our minds on the need for vigilance in the monitoring of social care.