Abstract
Persons with disabilities are subject to unique forms of deprivation of liberty, often justified by reference to the need to protect their right to life, right to health, and to protect the human rights of others. This paper examines disability-specific forms of deprivation of liberty, particularly those authorised in mental health and capacity law, in light of their compliance with European and international human rights frameworks. It explores the apparent tension between Article 5 of the European Convention on Human Rights, which permits deprivation of liberty of ‘persons of unsound mind’ in certain circumstances, and Article 14 of the UN Convention on the Rights of Persons with Disabilities, which states that ‘the existence of a disability shall in no case justify a deprivation of liberty.’ The challenges in attempting to comply with both provisions are illustrated through reference to developments in England and Wales. This paper also seeks to offer a way forward for States Parties to both Conventions, in order to protect the rights of persons with disabilities.
Highlights
This paper seeks to address the perceived conflict in the framing of the right to liberty in both the European Convention on Human Rights (ECHR) and the Convention on the Rights of Persons with Disabilities (CRPD)
This paper examines disability-specific forms of deprivation of liberty, those authorised in mental health and capacity law, in light of their compliance with European and international human rights frameworks
It explores the apparent tension between Article 5 of the European Convention on Human Rights, which permits deprivation of liberty of ‘persons of unsound mind’ in certain circumstances, and Article 14 of the UN Convention on the Rights of Persons with Disabilities, which states that ‘the existence of a disability shall in no case justify a deprivation of liberty.’
Summary
The Court is restricted in its scope here by the wording of Article 5 which includes reference to a ‘procedure prescribed by law’ and by the wide margin of appreciation accorded to States to determine whether a deprivation of liberty is necessary in an individual case For these reasons, since the Court’s jurisprudence has not yet addressed the core question of whether disability-specific deprivations of liberty are in themselves human rights violations, I will not analyse in further detail the significant body of ECHR case law on Article 5. The principle it establishes is an important one, and as the CRPD represents the most recent expression of how the right to liberty should be applied to persons with disabilities, as well as a text which was negotiated with significant involvement of persons with disabilities,[32] I believe that states would do well to regard this interpretation as the best means to ensure equal application of universal human rights in the specific context of disability
Sign-in/Register to view highlights & summary Sign-in/Register to access full text options 
Free) 
Talk to us
Join us for a 30 min session where you can share your feedback and ask us any queries you have
Schedule a call
