Ashingdane v. The United Kingdom

The applicant was a British national who had been convicted of dangerous driving and unlawful possession of firearms. Because he suffered from mental illness, the court ordered his detention in a psychiatric hospital with out a time limit for his discharge. The applicant attempted to abscond from the psychiatric hospital twice, as a result of which he was transferred to a specially secured hospital where people would be held due to their dangerous, violent or criminal behaviors. Afterwards, the applicant’s case had been examined by the Mental Health Review Tribunal for seven times where it was held that the conditions of the applicant didn’t warrant his discharge as he was diagnosed with paranoid schizophrenia. The reports also stated that the applicant was being medically supervised, was not cooperative for his treatment and thus would be dangerous if discharged from the hospital.

In 1978, the applicant’s psychiatrist reported that the applicant was no longer dangerous and could be transferred to an open hospital. Although the the Secretary of State for Social Services ordered the transfer of the applicant to a local psychiatrist hospital as per the psychiatrist’s report, this couldn’t be achieved as the only hospital that could accommodate the applicant refused to admit him on the ground that Confederation of Health Service Employees at the hospital totally banned the admission of an offender with a restriction order as the applicant. The applicant had to stay detained at the specially secured hospital. In 1979, the applicant instituted a proceeding with the high court which was stayed on the ground that it was precluded (subjected to the showing of bad faith on their part) under the 1959 Act. In October 1980, the applicant discontinued his proceedings after he was transferred to the local psychiatric hospital.

The applicant lodged his claim with the ECHR on account of his prolonged detention at the special hospital for two years after he had been declared fit to be transferred to ordinary psychiatric hospital, and the limitation on bringing action with courts against the authorities, a violation of Articles 5(1) & (4) and 6 of the Convention.

The ECHR hadn't found the deprivation of the applicant's liberty due to his mental illness to be unlawful  as it wasn't in violation of domestic laws. The ECHR noted that there hadn't been a difference between the two hospitals in terms of the deprivation of the applicant's liberty despite the difference they make to the applicant. It thus held that the applicant's liberty couldn't be said to have been limited more than what is provided under Article 5 (1)(e) of the Convention. The ECHR, however, noted that the applicant's and other patients extended stay at the hospital due to lack of staffs and rooms at ordinary hospitals was an injustice although doesn't constitute a violation under Article 5 of the Convention.

The ECHR held that the applicant's claim on being prevented by domestic law from instituting action against the authorities wasn't to be examined under Article 5 (4)'s determination of the lawfulness of detention as the applicant hadn't questioned the lawfulness of the deprivation of his liberty; he demanded a better treatment of his condition that wasn't covered by Article 5 (1)(e). There had, therefore, been no breach of this Article.

The ECHR held that the fact that the domestic law (the 1959 Act) restricted court action from being instituted against the authorities didn't violate the applicant's right to court and wasn't excessive. It thus held that there hadn't been a violation of Article 6 of the Convention. The ECHR also stressed that its conclusion wouldn't change due to the fact that the restriction under domestic law had been removed by the 1983's Act, and even if the applicant had brought his claim afterwards.

"......the "lawfulness" of any detention is required in respect of both the ordering and the execution of the measure depriving the individual of his liberty. Such "lawfulness" presupposes conformity with domestic law in the first place and also, as confirmed by Article 18 (art. 18), conformity with the purposes of the restrictions permitted by Article 5 para. 1 (art. 5-1). More generally, it follows from the very aim of Article 5 para. 1 (art. 5-1) that no detention that is arbitrary can ever be regarded as "lawful"...... The Court would further accept that there must be some relationship between the ground of permitted deprivation of liberty relied on and the place and conditions of detention. In principle, the "detention" of a person as a mental health patient will only be "lawful" for the purposes of sub-paragraph (e) of paragraph 1 if effected in a hospital, clinic or other appropriate institution authorized for that purpose. However, subject to the foregoing, Article 5 para. 1 (e) is not in principle concerned with suitable treatment or conditions ....." [Para. 44]

"n practice, according to two reports (interim report of 1974 of the Committee on Mentally Abnormal Offenders under the Chairmanship of Lord Butler and the special hospitals research report no. 16 of 1980 by Susan Dell, funded by the Department of Health and Social Security), special hospitals have for some years been experiencing increasing difficulties in transferring to ordinary psychiatric hospitals patients no longer considered to be dangerous. The main reasons given by ordinary hospitals for not taking such patients on transfer were lack of room, the patient’s characteristics, nursing-staff refusal and lack of suitable facilities, in particular lack of a secure unit or closed ward." [Para. 28]