This human right very much embodies the relationship between a citizen and their State. The four domains of our private life, family life, home and correspondence are protected from unnecessary and/or disproportionate interferences by the State. That protection is both substantive and procedural. In other words, the actions of State and its agents must be justified; they must be for a legitimate aim; and the ends have to justify the means. But the way in which those actions are undertaken must be done right. There must in other words be dignity in the process, or what we might call ‘procedural dignity’.
Article 8 provides a right to “respect” for these four domains of our lives. But “respect” is not some passive duty. To merely acknowledge something is not enough to “respect” it. Something more is required. Importantly “respect” brings with it both negative and positive obligations. So there are times to stay well clear from people’s lives but also times to intervene. Striking that balance – knowing when to act and when to refrain – is the challenge. But if there is an interference, it must be done in accordance with the law.
Health and social care routinely engages with Article 8. Indeed, good care must do so. Providing care and treatment interferes with bodily integrity, an aspect of private life. Doubting and then assessing someone’s mental capacity is to question their autonomy, the personal sphere protected by the right to respect for private life. Best interests decisions where the person is unable to decide are also a form of Article 8 engagement. And where a removal from the person’s home is considered to be in their best interests, all four domains of this human right are potentially engaged.
To use an often-cited judicial principle, public authorities must first remind themselves that they are servants, not masters, of those in need. This, it is suggested, provides the right starting point when the State is contemplating Article 8 interferences. When faced with a state of risk, it is important to pause, take a breath, and ask what is our legal authority for intervening? The time available to answer this question will obviously depend upon the urgency of the situation. But an answer there must be if there is to be an interference.
Where a disorientated man is bleeding out, the answer for the paramedic on the scene should be evident: get him to hospital; save life; use proportionate restraint if necessary; and the legal authority are sections 5-6 of the Mental Capacity Act 2005. Where someone lacking capacity is medically fit for hospital discharge, and we are faced with the physical risks of a return home versus the emotional risks of a residential placement, pausing to reflect on the Article 8 engagements is just as vitally important. And the MCA is there to flesh out the bones of the human rights jurisprudence. We serve; not master. So if the informal authority of the MCA does not provide a public body with the necessary legal authority, we must get it judicially.
Despite the State’s efforts to safeguard the great confinement following Cheshire West, often Article 8 is the nub of the matter. Whether a person’s deprivation of liberty is justified is an Article 5 issue; but should they even be there in the first place is the question Article 8 is there to ask. Consultation is key. And perhaps one of the most significant illustrations of Article 8 is the simple (Neary) principle that significant welfare issues that cannot be resolved by discussion should be placed before the Court of Protection. Because by entitling and enabling significant disputes over often the most vulnerable to be determined judicially, Article 8 provides greater access to justice for us all.