HUMAN RIGHTS ACT 1998                                           & MENTAL HEALTH                                        Pro...
INVOKING THE CONVENTIONPeople or organisations may argue that their Convention rights have been infringed by a public auth...
Effect of a declarationActs of Parliament: The Human Rights Act is intended to provide a new basis for judicial interpreta...
The article requires hospitals to have regulations for the protection of patients’ lives, and an effectivesystem of judici...
inhuman or degrading. The Court must nevertheless satisfy itself that the medical necessity has beenconvincingly shown to ...
conditions in the psychiatric wing were unsatisfactory and not conducive to effective treatment. Indeed, avisitorial body ...
Aerts v Belgium (European Court, 30 July 1998)In Aerts, Belgian legislation provided for the detention of a mentally ill p...
‘with the recall, perhaps in circumstances when some danger is apprehended, of patients whose      discharge from hospital...
Luberti v Italy (European Court, 27 January 1984)In the Luberti Case, the European Court accepted that the termination of ...
Other challenges under Article 5(1)Whilst Article 5(1)(e) authorises detention on the ground of unsoundness of mind, Artic...
before a court to put in issue the lawfulness ... of his detention, whether that detention was ordered by acivil or crimin...
It was doubtful, to say the least, whether Mr Megyeri, acting on his own, was able to marshal and presentadequately points...
Right to a speedy determinationArticle 5(4) requires that the proceedings testing the lawfulness of a patient’s detention ...
RSC v United Kingdom (European Commission, 28 May 1997)The applicant was a restricted patient who was recalled to Broadmoo...
Mr Smith complained that , due to the implementation of the 1983 Act, he was suffering a heavier penaltythan that applicab...
for achieving those aims. The Court recalled that the expression ‘in accordance with the law’ requiredfirstly that the imp...
ARTICLE 10 — FREEDOM OF EXPRESSIONArticle 10 provides as follows: ‘(1) Everyone has the right to freedom of expression. Th...
683, which held that a tribunal’s decision can be overridden by those whose actions are being    reviewed:            In e...
the withdrawal of applications by patients subject to after-care under supervision (‘Where a               patient subject...
17. Sterilisation of persons suffering from mental disorder18. Matrimonial Causes Act: persons unfitted to marriage on the...
APPENDIX 1 : LIST OF CONVENTION ARTICLESARTICLE 21. Everyones right to life shall be protected by law. No one shall be dep...
(f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into thecountry or of a pers...
2. There shall be no interference by a public authority with the exercise of this right except such as is inaccordance wit...
ARTICLE 18The restrictions permitted under this Convention to the said rights and freedoms shall not be applied forany pur...
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Human rights act and mental health

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Human rights act and mental health

  1. 1. HUMAN RIGHTS ACT 1998 & MENTAL HEALTH Professor Anselm Eldergill§1 — INTRODUCTIONThis paper summarises the main provisions of the Human Rights Act 1998 and the most significantConvention articles and case law concerning persons of unsound mind, with particular reference to casesinvolving the United Kingdom. It also lists some of the sections of the Mental Health Act 1983 which mayinfringe the Convention. §1 Introduction p.1 §2 Human Rights Act 1998 p.1 §3 Case law p.3 §4 The Mental Health Act 1983 and the Convention p.17 App List of Convention Articles p.21§2 — HUMAN RIGHTS ACT 1998Until 2 October 2000, English and Welsh law did not require central and local government, or other personsexercising similar executive powers, to exercise their powers in a way which was compatible with theConvention. The Act changes that by making it unlawful for a public authority to act (or fail to act) in a waywhich is incompatible with a Convention right unless it could not have acted differently or was acting so asto give effect to or enforce a legal provision which is incompatible with the Convention.BODIES COVERED BY THE ACTExamples of persons or organisations whose acts or omissions it is intended should be able to bechallenged include: central government (including executive agencies); local government; the police; immigration officers; prisons; courts and tribunals; privatised utilities.Eldergill 1
  2. 2. INVOKING THE CONVENTIONPeople or organisations may argue that their Convention rights have been infringed by a public authority inour courts at any level. This will enable the Convention rights to be applied from the outset against thefacts and background of a particular case.Individuals or organisations seeking judicial review of decisions by public authorities on Conventiongrounds will need to show that they have been directly affected, as they must if they take a case toStrasbourg.Convention points will normally be taken in the context of proceedings instituted against individuals oralready open to them, but, if none is available, it will be possible for people to bring cases on Conventiongrounds alone.In considering Convention points, our courts will be required to take account of relevant decisions of theEuropean Commission and Court of Human Rights (although these will not be binding).REMEDIESA public authority which is found to have acted unlawfully by failing to comply with the Convention will notbe exposed to criminal penalties.However, the court or tribunal will be able to grant the injured person any remedy which is within itsnormal powers to grant and which it considers appropriate and just in the circumstances.What remedy is appropriate depends both on the facts of the case and on a proper balance between therights of the individual and the public interest. In some cases, the right course may be for the decision ofthe public authority to be quashed. In other cases, the only appropriate remedy may be an award ofdamages.In considering an award of damages, the courts are to take into account the principles applied by theEuropean Court of Human Rights in awarding compensation.INTERPRETATION OF LEGISLATIONThe Act provides that primary and secondary legislation, whenever passed, is to be interpreted so far aspossible so as to be compatible with the Convention.The courts will be required to interpret legislation so as to uphold the Convention rights unless thelegislation itself is so clearly incompatible with the Convention that it is impossible to do so.This goes far beyond the present rule which enables the courts to take the Convention into account inresolving any ambiguity in a legislative provision.The courts will not be bound by previous interpretations of the law. They will be able to build a new bodyof case law, taking into account the Convention rights.When legislation cannot be reconciled with the ConventionIf the courts decide that it is impossible to interpret an Act of Parliament in a way which is compatible withthe Convention, the Act enables a formal declaration to be made that its provisions are incompatible withthe Convention.Declarations of incompatibility may only be made by the House of Lords, the Court of Appeal or the HighCourt (in judicial review proceedings or on appeal from a lower court or tribunal).The Government has the right to intervene in any proceedings where such a declaration is a possibleoutcome.Eldergill 2
  3. 3. Effect of a declarationActs of Parliament: The Human Rights Act is intended to provide a new basis for judicial interpretation ofall legislation, not a basis for striking down any part of it. A declaration will not of itself have the effect ofchanging the law, which will continue to apply. However, it will almost certainly prompt the Governmentand Parliament to change the law.Secondary legislation (regulations and rules): The courts will, however, be able to strike down or set asidesecondary legislation which is incompatible with the Convention, unless the terms of the parent statutemake this impossible. In other words, regulations and rules which could have been phrased differently canbe struck down if they are incompatible with the Convention rights.Amending legislation: In the normal way, primary legislation can be amended only by further primarylegislation, and this can take a long time. Given the volume of Government business, an early opportunityto legislate may not arise; and the process of legislating is itself protracted. The Act provides for a fast-track procedure for changing legislation in response either to a declaration of incompatibility by our ownhigher courts or to a finding of a violation of the Convention in Strasbourg. The appropriate GovernmentMinister will be able to amend the legislation by Order so as to make it compatible with the Convention.The Order will be subject to approval by both Houses of Parliament before taking effect, except where theneed to amend the legislation is particularly urgent, when the Order will take effect immediately but willexpire after a short period if not approved by Parliament.§3 — CASE LAWThe material is arranged under the following headings: Article 2 Protection of right to life Article 3 Inhuman or degrading treatment Article 5(1) Detention of persons of unsound mind Article 5(2) Providing reasons for the detention Article 5(4) Reviews of the lawfulness of the detention Article 6(1) Determination of civil rights Article 7(1) Subseq uent imposition of a heavier penalty Article 8 Right to respect for private life Article 10 Freedom of expression ARTICLE 2 — PROTECTION OF RIGHT TO LIFEArticle 2 provides that everyone’s right to life shall be protected by law.The article covers situations where force is used which may lead to loss of life, and it also imposes onstates a positive obligation to protect an individual from a real and immediate threat.Allowing a person to die by withholding treatment may be permitted (Widmer v Switzerland).The article cannot be used to challenge NHS funding: Taylor v UK (1994).Eldergill 3
  4. 4. The article requires hospitals to have regulations for the protection of patients’ lives, and an effectivesystem of judicial investigation of medical accidents: Erikson v Italy (1999) ARTICLE 3 — INHUMAN OR DEGRADING TREATMENTArticle 3 of the Convention provides that, ‘No one shall be subjected to torture or to inhuman or degrading treatmentor punishment.’Ill-treatment must be of a certain level of severityIn the Ireland v. United Kingdom judgment of 18 January 1978 (Series A no. 25 p.65, para. 162), it was heldthat ‘ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. Theassessment of this minimum is, in the nature of things, relative; it depends on all the circumstances of thecase, such as the duration of the treatment, its physical or mental effects and in some cases, the sex, ageand state of health of the victim, etc.’Seclusion not usually violation of Article 3The case of A. v. United Kingdom (1980) 3 E.H.R.R. 131 concerned a complaint that the conditions andcircumstances of a patients seclusion in Broadmoor Hospital in 1974 amounted to inhuman and degradingtreatment, contrary to Article 3. The patient alleged that he had been deprived of adequate furnishing andclothing, that the conditions in the room had been insanitary, and it had been inadequately lit andventilated. A friendly settlement was reached with an ex gratia payment to the patient of £500 being madeby the Government.Notwithstanding this, in Dhoest v. Belgium 12 E.H.R.R. 135, the Commission noted that it would notnormally consider the segregation for security, disciplinary or protective reasons, of persons committed tohospital in the course of criminal proceedings as constituting inhuman treatment or punishment. In‘making an assessment in a given case, regard must be had to the surrounding circumstances includingthe particular conditions, the stringency of the measure, its duration, the objective pursued and its effectson the person concerned.’It is, however, necessary that those responsible for the patient’s seclusion continuously review thearrangements. In McFeely v. United Kingdom 3 E.H.R.R. 161, the Commission held that prison authorities,when faced with what is regarded as an unlawful challenge to their authority, must maintain a continuousreview of the detention arrangements employed, with a view to ensuring the health and well-being of allprisoners, with due regard to the ordinary and reasonable requirements of imprisonment. In Dhoest, it heldthat the same reasoning applied mutatis mutandis to mental health patients detained in a custodial mentalinstitution under provisions similar to restriction orders under the 1983 Act.Measures which are a therapeutic necessityAs a general rule, a measure which is a therapeutic necessity cannot be regarded as inhuman or degrading(Herczegfalvy v. Austria judgment, of 24 September 1992).In Herczegfalvy, the applicant complained about his medical treatment, in particular that he had beenforcibly administered food and neuroleptics, isolated, and attached with handcuffs to a security bed forseveral weeks.The Austrian Government argued that the measures were the consequence of the applicants behaviour, ashe had refused urgent medical treatment and food which was necessary in view of the deterioration in hisphysical and mental health. Similarly, it was his extreme aggressiveness, and his threats and acts ofviolence against hospital staff, which explained why the staff had used coercive measures, including theintramuscular injection of sedatives, and the use of handcuffs and a security bed. These measures hadbeen agreed to by his curator, their sole aim had always been therapeutic, and they had been terminated assoon as the patient’s state permitted this.According to the European Court, ‘The established principles of medicine are admittedly in principledecisive in such cases; as a general rule, a measure which is a therapeutic necessity cannot be regarded asEldergill 4
  5. 5. inhuman or degrading. The Court must nevertheless satisfy itself that the medical necessity has beenconvincingly shown to exist. In this case it is above all the length of time during which the handcuffs andsecurity bed were used which appears worrying. However, the evidence before the Court is not sufficient todisprove the Governments argument that, according to the psychiatric principles generally accepted at thetime, medical necessity justified the treatment in issue. No violation of Article 3 has thus been shown’ (atparas. 82 and 83).Application of the Herczegfalvy principleThe cases of Buckley v United Kingdom and Aerts v Belgium illustrate the practical effect of theHerczegfalvy principle.Buckley v United Kingdom (European Commission, 26 February 1997)In Buckley v United Kingdom (European Commission, 26 F ebruary 1997), the applicant was the mother ofOrville Blackwood, who died in Broadmoor Hospital on 28 August 1991, where he was detained under theMental Health Act 1983. He died after having been injected with Modecate 150mg intramuscularly andSparine 150 mg intramuscularly. The drugs were administered without consent. His mother complainedthat:1. her son’s death constituted a violation of Article 2 and that his treatment was inhuman or degrading treatment or punishment in violation of Article 3.2. the Mental Health Act 1983 permitted the treatment, namely the administration of the stated psychiatric drugs in the stated doses, which caused her sons death.3. the enforced medical treatment of her son was a violation of the right to respect for private life under Article 8 of the Convention.4. her son suffered discrimination contrary to Article 14, on the ground of race and his status as a patient detained in a special hospital under the Mental Health Act 1983.5. the Mental Health Act 1983, and in particular section 139, which concerns the protection for acts done in pursuance of the said Act, in combination with the law of negligence, resulted in there being no effective remedy before a national authority in breach of Article 13.Adopting the same numbering, the Commission held that:1. The circumstances did not disclose any failure, substantive or procedural, to protect the applicants right to life as required by Article 2 (manifestly ill-founded).2. None of the circumstances disclosed that Orville Blackwood’s treatment was anything other than part of a therapeutic regime. Given that the applicants own medical expert found no grounds on which to criticise the hospital for negligent treatment, the Commission found no grounds on which to depart from the general rule set out in the Herczegfalvy (manifestly ill-founded).3. The complaint concerning Article 8 was rejected for the same reasons as in (i) and (ii) (manifestly ill- founded).4. There was no evidence of discrimination in respect of Mr Blackwood’s treatment, either on grounds of race, or his status as a patient detained in a special hospital under the Mental Health Act 1983 (manifestly ill-founded).5. Article 13 did not require a remedy under domestic law in respect of any alleged violation of the Convention. It only applied if the individual could be said to have an ‘arguable claim’ of a violation of the Convention. The application did not disclose any such ‘arguable claim’ (manifestly ill-founded).Aerts v Belgium (European Court, 30 July 1998)In Aerts, the applicant was detained for seven months in the psychiatric wing of Lantin Prison. The MentalHealth Board expressed the view that the situation was harmful to him. It was not contested that the generalEldergill 5
  6. 6. conditions in the psychiatric wing were unsatisfactory and not conducive to effective treatment. Indeed, avisitorial body considered that the standard of care given to the patients there fell below the minimumacceptable from an ethical and humanitarian point of view, and that prolonging their detention at Lantin forlengthy periods carried an undeniable risk of a deterioration of their mental health. The Government arguedthat the fact that there was a risk of the deterioration of their mental health was not sufficient to establishthat their treatment reached the minimum level of severity which would bring it within the scope of Article 3.The Court reiterated that ill-treatment must attain a minimum level of severity if it is to fall within thescope of Art. 3. There was no proof of a deterioration of Mr Aerts’s mental health, and the living conditionson the psychiatric wing did not seem to have had such serious effects on his mental health as would bringthem within the scope of Article 3. It had not been conclusively established that the applicant sufferedtreatment that could be classified as inhuman or degrading, and there had been no breach of Article 3.Other casesForce-feeding was found not to violate article 3, if in the individual’s best interests: X v Germany (1985), aprisoner case.A failure to provide treatment found inhuman in D v UK (1997) (removal to St Kitts of AIDs victim wouldcause ‘acute mental and physical suffering’) and in Hurtado v Switz (1997) (no medical treatment of anarrestee’s broken ribs for 8 days). ARTICLE 5(1)(E) — DETENTION OF PERSONS OF UNSOUND MINDInsofar as relevant, Article 5(1) provides that, ‘Everyone has the right to liberty and security of person. No one shallbe deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: ... (e)the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsoundmind, alcoholics or drug addicts or vagrants.’Article does not extend to mere restrictions on libertyThe case law confirms that Article 5(1) is concerned with deprivation, rather than restriction, of liberty.Ashingdane case (European Court, 26 April 1985)The applicant complained about his prolonged detention in a special hospital from October 1978 untilOctober 1980, after he had been declared fit for transfer to an ordinary psychiatric hospital (OakwoodHospital). However, the court reiterated that Article 5(1) is not concerned with mere restrictions on libertyof movement, which are governed by Article 2 of Protocol 4.The distinction between deprivation of and restriction upon liberty is one of degree or intensity. In order todetermine whether circumstances involve deprivation of liberty, the starting point must be the concretesituation of the individual concerned, and account must be taken of a whole range of criteria, such as thetype, duration, effects and manner of implementation of the measure in question (see, inter alia, the Engeland Others j udgment of 8 June 1976, Series A no. 22, p. 25, paras. 58-59, and the Guzzardi j udgment of 6November 1980, Series A no. 39, p. 33, para. 92).In Mr Ashingdane’s case, there were important differences between the regimes at Broadmoor and atOakwood; and his transfer to Oakwood had a proximate connection with a possible recovery of liberty, inthat it was a staging post on the road to any eventual discharge into the community. However, since he hadremained a detained patient during his subsequent stay at Oakwood, it could not be said that, whilst beingkept at Broadmoor pending transfer, he was being maintained in detention although medically andadministratively judged fit for a return to liberty.The Court did accept that there must be some relationship between the ground of permitted deprivation ofliberty relied on and the place and conditions of detention, insofar as the detention of a person as a mentalhealth patient would only be lawful for the purposes of Article 5(1)(e) if effected in a hospital, clinic orother appropriate institution authorised for the purpose. However, subject to that, Article 5(1)(e) was not inprinciple concerned with suitable treatment or conditions.Eldergill 6
  7. 7. Aerts v Belgium (European Court, 30 July 1998)In Aerts, Belgian legislation provided for the detention of a mentally ill person in a prison as a provisionalmeasure only, pending designation by the relevant mental health board of the institution where he was tobe detained. The applicant maintained that his detention for seven months in the psychiatric wing of LantinPrison, pending transfer to the Paifve Social Protection Centre (his designated place of detention), breachedArticle 5. The psychiatric wing was not an appropriate institution for the treatment of the mentally ill, andthe treatment he received there had done him harm.The court reiterated that there had to be some relationship between the ground of permitted deprivation ofliberty relied on and the place and conditions of detention. In principle, the detention of a person as a mentalhealth patient will only be lawful for the purposes of Article 5(1)(e) if effected in a hospital, clinic or otherappropriate institution (Ashingdane, supra). Lantin psychiatric wing could not be regarded as an institutionappropriate for the detention of persons of unsound mind and, indeed, on 2 August 1993, the Mental HealthBoard had expressed the view that the situation was harmful to the applicant, who was not receiving thetreatment required by the condition that had given rise to his detention. The proper relationship between theaim of the detention and the conditions in which it took place was therefore deficient, and there had been abreach of Article 5.The Winterwerp CaseIn Winterwerp v The Netherlands, the European Court of Human Rights stated that the lawful detention of aperson of unsound mind under Article 5(1)(e) requires that the following minimum conditions are satisfied:I. the detention must be effected in accordance with a procedure prescribed by law;II . except in emergency cases, the individual concerned must be clearly shown to be of unsound mind, i.e. a true mental disorder must be established before a competent authority on the basis of objective medical expertise;III . the mental disorder must be of a kind or degree warranting compulsory confinement; andI V. the validity of continued confinement depends upon the persistence of such a disorder.Condition I : Conformity with a procedure prescribed by lawThe aim of these minimum conditions is to ensure that the deprivation of liberty is consistent with thegeneral purpose of Article 5, namely the protection of individuals from arbitrariness (Herczegfalvyjudgment of 24 September 1992, Series A no. 244, p. 21, para. 63). Quite apart from conformity withdomestic law, ‘no detention that is arbitrary can ever be regarded as lawful’ (X v United Kingdom, para.43;Winterwerp judgment , pp. 16 and 18, par. 37 and 39).The de facto detention of informal, incapacitated, patients may well contravene the requirement thatdetention must be in accordance with a procedure prescribed by law. It is therefore possible that the Houseof Lords’ judgment in the Bournewood Case will need to be revised, in order to ensure compliance with theConvention (R v Bournewood Community and Mental Health NHS Trust, ex p. L [1998] 3 WLR 107), HL).Condition II: The need for objective medical expertiseSince Winterwerp, there have been two important cases in the United Kingdom concerning the recall ofrestricted patients to hospital by the Home Secretary, without medical evidence first being obtained.Emergency confinement (X v United Kingdom, European Court, 24 October 1981)In X v. the United Kingdom, a restricted patient complained that it had been unlawful for the HomeSecretary to recall him to a special hospital without any doctor having certified first that he was of unsoundmind. This argument was rejected by the court . The court noted that the Home Secretary’s power of recallwas concerned,Eldergill 7
  8. 8. ‘with the recall, perhaps in circumstances when some danger is apprehended, of patients whose discharge from hospital has been restricted for the protection of the public ... The Winterwerp judgment expressly identified “emergency cases” as constituting an exception to the principle that the individual concerned should not be deprived of his liberty unless he has been reliably shown to be of “unsound mind”; nor could it be inferred from the Winterwerp judgment that the "objective medical expertise" must in all conceivable cases be obtained before rather than after confinement of a person on the ground of unsoundness of mind. Clearly, where a provision of domestic law was designed ... to authorise the emergency confinement of persons capable of presenting a danger to others, it would be impracticable to require thorough medical examination prior to any arrest or detention. A wide discretion must in the nature of things be enjoyed by the national authority empowered to order such emergency confinements.’According to the court, the conditions under the 1959 Act governing recall did not appear to beincompatible with the meaning under the Convention of the expression ‘the lawful detention of persons ofunsound mind.’ In such circumstances, the interests of the protection of the public prevailed over theindividuals right to liberty to the extent of justifying an emergency confinement in the absence of theusual guarantees implied in Article 5(1)(e). However, although sufficient reason for the Home Secretary toconsider that the applicants continued liberty constituted a danger to the public justified recall as anemergency measure, and for a short duration, the patient’s further detention in hospital had to satisfy theminimum conditions described in Winterwerp.Kay v United Kingdom (European Commission, 1 March 1994)In Kay, the applicant also complained about his recall to Broadmoor without prior medical assessment onthe expiration of a lengthy prison sentence.The Commission noted that his recall to Broadmoor was in accordance with the procedures prescribed bydomestic law. F urthermore, the Secretary of State was entitled to be concerned about the protection of thepublic, in the light of the applicants history of psychopathy, and his serious criminal record involvingextreme violence towards girls and women.However, this historical background did not mean that one could dispense with the need to obtain up-to-date medical evidence about the applicants mental health before ordering his recall to hospital. The weightof medical evidence at the time of recall was in the applicants favour, for the most recent tribunal decisionin 1986 had found that there was no evidence he was then suffering from any psychopathic disorder. It hadnot been impossible to have him assessed in prison, and the existence of a dissenting report from aBroadmoor doctor who had not interviewed the applicant could not outweigh the tribunal’s finding, norprovide a sufficient scientific basis for his continued compulsory confinement in hospital nearly three yearslater.When the Secretary of State decided to recall the applicant to Broadmoor certain minimum conditions oflawfulness were therefore not respected. In particular, there was no up-to-date objective medical expertiseshowing that the applicant suffered from a true mental disorder, or that his previous psychopathic disorderpersisted. In the absence of any emergency, there were no particular circumstances to justify the omission.Accordingly, the applicants recall and return to Broadmoor could not be qualified as the lawful detentionof a person of unsound mind for the purposes of Article 5(1)(e).Condition III : Disorder of a kind or degree warranting confinementThe Mental Health Act 1983 requires that a person’s mental disorder must be of a certain ‘nature ordegree’ before compulsory admission to hospital is lawful, and this wording duplicates that adopted by thecourt in Winterwerp.Condition IV : Persistence of such a disorderAlthough the Winterwerp j udgment states that the validity of continued confinement depends upon thepersistence of a mental disorder of a kind or degree which warrants compulsory confinement, a formalfinding that an offender patient no longer suffers from such a disorder does not necessarily entitle him toimmediate release.Eldergill 8
  9. 9. Luberti v Italy (European Court, 27 January 1984)In the Luberti Case, the European Court accepted that the termination of the confinement of an individualwho has previously been found by a court to be of unsound mind, and to present a danger to society, is amatter that concerns, as well as that individual, the community in which he will live if released. Havingregard to that fact, and the very serious nature of the offence committed by the applicant when mentally ill,the responsible authority was entitled to proceed with caution, and needed some time to consider whetherto terminate his confinement, even if the medical evidence pointed to his recovery.Johnson v United Kingdom (European Court, 24 October 1997)In June 1989, the applicant’s detention in Rampton Hospital was reviewed by a tribunal. It accepted themedical evidence that he was not then suffering from mental illness, stating that the episode of mentalillness from which he formerly suffered has come to an end. It ordered his conditional, rather thanabsolute, discharge, because he required rehabilitation under medical supervision in a hostel environment,and a recurrence of mental illness requiring recall to hospital could not be excluded. Discharge wasdeferred until arrangements could be made for suitable accommodation. Considerable efforts to secure ahostel for Mr Johnson were unsuccessful. Eventually, on 12 January 1993, a tribunal ordered his absolutedischarge.The applicant complained that his detention between 15 June 1989 and 12 January 1993 violated Article5(1). More particularly, the tribunal in 1989 should have ordered his immediate and unconditionaldischarge, since he had made a full recovery from the episode of mental illness specified in the hospitalorder imposed by the court.However, according to the European Court, it does not automatically follow from a finding by an expertauthority that the mental disorder which justified confinement no longer persists that the patient must beimmediately and unconditionally released into the community. Such a rigid approach would place anunacceptable degree of constraint on the responsible authority’s exercise of judgment when determiningwhether the interests of the patient and the community would be best served by such a course of action.Furthermore, in the field of mental illness, the assessment as to whether the disappearance of thesymptoms of the illness is confirmation of complete recovery is not an exact science. Whether or notrecovery from the episode of mental illness which justified confinement is complete and definitive, ormerely apparent, cannot in all cases be measured with absolute certainty. It is the behaviour of the patientin the period spent outside the confines of the psychiatric institution which will be conclusive of this.Having regard to these considerations, a responsible authority is entitled to exercise a similar measure ofdiscretion in deciding whether it is appropriate to order immediate and absolute discharge in such a case.It is, however, of paramount importance that appropriate safeguards are in place which ensure that anydeferral of discharge is consonant with the purpose of Article 5(1)(e) and, in particular, that discharge isnot unreasonably delayed.Although the tribunal had been entitled to conclude that it was premature to order Mr Johnson’s absoluteand immediate discharge from hospital, it lacked the power to guarantee that he would be relocated to asuitable post-discharge hostel within a reasonable period of time. The onus was on the authorities tosecure a hostel willing to admit him. In between reviews, Mr Johnson could not petition the tribunal to havethe terms of the hostel residence condition reconsidered; nor was the tribunal empowered to monitorperiodically outside the annual reviews the progress made in the search for a hostel, and to amend thedeferred conditional discharge order in the light of the difficulties encountered by the authorities.The imposition of the hostel residence condition by the 1989 tribunal therefore led to the indefinitedeferral of the applicant’s release from hospital. Having regard to this situation, and to the lack ofadequate safeguards, including provision for judicial review to ensure that his release would not beunreasonably delayed, his continued confinement after 15 June 1989 could not be justified under Article5(1)(e) of the Convention.Eldergill 9
  10. 10. Other challenges under Article 5(1)Whilst Article 5(1)(e) authorises detention on the ground of unsoundness of mind, Article 5(1)(b) authorises‘the lawful arrest or detention of a person for non-compliance with the lawful order of a court or in order tosecure the fulfilment of any obligation prescribed by law.’Detention because of deteriorating mental state and public safety concernsIn Roux v. United Kingdom (European Commission, 4 September 1996), the applicant was a restrictedpatient who had been recalled to hospital because of the concern that he was beginning to repeat thepattern of behaviour evident before the commission of his two offences against prostitutes, and becausethe medical opinion was that he should be recalled as his mental state was likely to deteriorate if heremained at his flat.Mr Roux complained that his recall was in breach of Article 5, because there was no non-compliance with acourt order and no breach of an obligation prescribed by law. In particular, he should not have beenrecalled as he had not breached any condition of his discharge, and no court had determined the state ofhis mental health at the time.The Government submitted that the Secretary of States power of recall was not limited by the conditionsattached to release and there could be occasions where recall was appropriate even though no conditionshad been breached. Conversely, some breaches of the conditions of discharge from hospital would notwarrant recall to hospital. In the event, a friendly settlement was reached, whereby the Government agreedto pay £2,000 to the applicant together with the agreed costs of his application. ARTICLE 5(2)Article 5(2) provides that, ‘Everyone who is arrested shall be informed promptly, in a language which he understands,of the reasons for his arrest and of any charge against him.’In Van der Leer v The Netherlands (1990) 12 E.H.R.R. 567–575, the European Court held that the word‘arrest’ in Article 5(2) embraces deprivation of liberty on the ground of unsoundness of mind (see paras.27-28). This recognises the fact that a person who is entitled to take proceedings to have the lawfulness ofhis detention speedily decided cannot make effective use of that right unless he is promptly andadequately informed of the reasons why he has been deprived of his liberty (at para. 28).The Van der Leer judgment imposes a wider obligation on hospitals than does section 132, because itrequires patients to be notified of the reasons for their detention, and not merely the consequences ofbeing detained, the statutory authority for that detention, and the methods of challenging it. Therequirement would probably be satisfied by giving the patient a copy of the application for his detention(as to a patients right to a copy of the application, see also Re Dell, 35 Sol. Journ. 783).In X v United Kingdom (European Court, 24 October 1981), the court similarly emphasised that the needfor the applicant to be apprised of the reasons for his recall followed in any event from paragraph 4 ofArticle 5, because a person entitled to take proceedings to have the lawfulness of his detention speedilydecided cannot make effective use of that right unless he is promptly and adequately informed of the facts,and the legal authority relied on, to deprive him of his liberty. ARTICLE 5(4) — JUDICIAL REVIEWS OF DETENTIONArticle 5(4) provides that, ‘Everyone who is deprived of his liberty by arrest or detention shall be entitled to takeproceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered ifthe detention is not lawful.’The detention of persons on the ground of unsoundness of mind constitutes a special category with itsown specific problems. In particular, the reasons initially warranting confinement of this kind may cease toexist . The very nature of the deprivation of liberty ‘would appear to require a review of lawfulness to beavailable at reasonable intervals. By virtue of Article 5(4), a person of unsound mind compulsorily confinedin a psychiatric institution for an indefinite or lengthy period is thus in principle entitled, at any rate wherethere is no automatic periodic review of a judicial character, to take proceedings at reasonable intervalsEldergill 10
  11. 11. before a court to put in issue the lawfulness ... of his detention, whether that detention was ordered by acivil or criminal court or by some other authority.’(X v United Kingdom, para. 52; referring to Winterwerpjudgment, par. 57 and 60).A person compulsorily confined on the ground of unsoundness of mind therefore has a right to have ajudicial determination of both the substantive and the formal lawfulness of his detention. The reviewshould be wide enough to bear on those conditions which, according to the Convention, are essential forthe lawful detention of a person on the ground of unsoundness of mind. The remedy of habeas corpusdoes not allow a judicial determination as wide as this; when the terms of a statute afford the executive adiscretion, whether wide or narrow, the review exercisable by the courts in habeas corpus proceedings willbear solely upon the conformity of the exercise of that discretion with the empowering statute.The principles enshrined within Article 5(4) were summarised in the Megyeri Case ((European Court, 26February 1992), and they include the following—1. A person of unsound mind who is compulsorily confined in a psychiatric institution for an indefinite or lengthy period is in principle entitled, at any rate where there is no automatic periodic review of a judicial character, to take proceedings ‘at reasonable intervals’ before a court to put in issue the ‘lawfulness’ of his detention (see, inter alia, the X v. the United Kingdom judgment of 5 November 1981, Series A no. 46, p. 23, para. 52).2. Article 5(4) requires that the procedure followed must have a judicial character and give to the individual concerned guarantees appropriate to the kind of deprivation of liberty in question. In order to determine whether a proceeding provides adequate guarantees, regard must be had to the particular nature of the circumstances in which such proceeding takes place (see the Wassink v. Netherlands judgment of 27 September 1990, Series A no. 185-A, p. 13, para. 30).3. The judicial proceedings referred to in Article 5(4) need not always be attended by the same guarantees as those required under Article 6(1) for civil or criminal litigation. None the less, it is essential that the person concerned should have access to a court and the opportunity to be heard either in person or, where necessary, through some form of representation. Special procedural safeguards may prove called for in order to protect the interests of persons who, on account of their mental disabilities, are not fully capable of acting for themselves (see the Winterwerp v. Netherlands judgment of 24 October 1979, Series A no. 33, p. 24, para. 60).4. Article 5(4) does not require that persons committed to care under the head of ‘unsound mind’ should themselves take the initiative in obtaining legal representation before having recourse to a court (see the same judgment, p. 26, para. 66).5. It follows from the foregoing that where a person is confined in a psychiatric institution on the ground of the commission of acts which constituted criminal offences, but for which he could not be held responsible on account of mental illness, he should (unless there are special circumstances) receive legal assistance in subsequent proceedings relating to the continuation, suspension or termination of his detention. The importance of what is at stake for him (personal liberty) taken together with the very nature of his affliction (diminished mental capacity) compel this conclusion.Megyeri v Federal Republic of Germany (European Court, 26 February 1992)The applicant’s confinement was founded on a finding by the Cologne Regional Court in criminalproceedings, to the effect that he could not be held responsible for his acts because he was suffering froma schizophrenic psychosis with signs of paranoia. Some time later, in July 1986, the Aachen Regional Courthad before it expert evidence stating that there had been a further deterioration in his condition, that hewas not willing to undergo treatment, and that he showed a distinct propensity towards aggressivebehaviour and violence. Before the European Commission, Mr Megyeri submitted that the failure to appointa lawyer to assist him in the 1986 proceedings before the Aachen Regional Court concerning his possiblerelease had given rise to a violation of Article 5(4).One of the issues falling to be determined in the 1986 review was whether, if Mr Megyeri were released onprobation, he would be likely to commit illegal acts similar to those that had occasioned the originalconfinement order. In this connection, the Aachen Regional Court not only considered a report by threeexperts but also heard the applicant in person, in order to form its own impression of him.Eldergill 11
  12. 12. It was doubtful, to say the least, whether Mr Megyeri, acting on his own, was able to marshal and presentadequately points in his favour on this issue, involving as it did matters of medical knowledge andexpertise. Again, it was even more doubtful whether, on his own, he was in a position to addressadequately the legal issue arising: would his continued confinement be proportionate to the aim pursued(the protection of the public). There had been a breach of Article 5(4).Meaning of a ‘court’The word ‘court’ is not necessarily to be understood as signifying a court of law of the classic kind,integrated within the standard judicial machinery of the country. The term serves to denote ‘bodies whichexhibit not only common fundamental features, of which the most important is independence of theexecutive and of the parties to the case ... but also the guarantees appropriate to the kind of deprivation ofliberty in question (see De Wilde, Ooms and Versyp j udgment, pp. 41-42, par. 76 and 78). Provided thereview is undertaken by a ‘court’, each contracting state is free to determine what would be the best ormost appropriate system of judicial review in this sphere.Powers of the reviewing body : review is of lawfulness of the detentionThe applicant in R v United Kingdom (European Commission, 18 July 1986) was detained in BroadmoorHospital, subject to hospital and restriction orders. On 23 March 1984, he appeared before a mental healthreview tribunal. The tribunal found that it could not evaluate the degree to which the applicant presented arisk to the public without the evidence of unescorted leave, and he was accordingly not discharged.The applicant complained of a violation of Article 5(4), in that the Mental Health Act 1983 failed to give thetribunal sufficient power to meet the reasonable needs of a ‘court’ within the meaning of Article 5(4). Heclaimed that it was not sufficient for the tribunal to be able to discharge, conditionally or unconditionally; itmust also have ancillary powers, such as the ability to give brief trial leave of absence. F urthermore, it wasdifficult to reconcile the exclusive power of the Home Secretary to authorise even one days escorted leavewith the tribunals power to give an absolute discharge, because the power to grant brief trial leave wasclearly less drastic than a power to order an absolute discharge.According to the Commission, ‘In the present case the Mental Health Review Tribunal had jurisdiction todecide on the substantive lawfulness of the applicants detention and it had the power (indeed the duty) torelease the applicant if the conditions for continued detention were not satisfied. In this respect thepresent Mental Health Review Tribunal is different from that considered by the Court in the case of X vUnited Kingdom’ (para. 1). Article 5(4) ‘does not require any control of detention beyond that of "thelawfulness of his detention" and in the present case the Mental Health Review Tribunal was able to makesuch a review. It follows that this part of the application is manifestly ill-founded’ (para. 1).Frequency of the periodic reviewsThe applicant in Turnbridge v United Kingdom (European Commission, 17 May 1990) was detained inBroadmoor Hospital. He complained that an annual review of the lawfulness of his detention by a tribunalwas insufficient. The Commission found nothing to suggest that the period of a year which the applicantmust respect before reapplying to a tribunal for his discharge was an unreasonable interval in thecircumstances. Inadmissible.Review not previewIn A.R. v United Kingdom (European Commission, 29 November 1995), the applicant escaped fromBroadmoor Hospital in August 1981, and went to Amsterdam where he lived for a year. On 6 August 1982,he was arrested and subsequently convicted of manslaughter, being sentenced to 15 years imprisonment.In June 1992, the Dutch authorities took steps to have him deported to the United Kingdom.The applicant’s solicitors wrote to the Home Office referring to a significant body of evidence to the effectthat he was no longer suffering from mental disorder or illness, and requesting that the Home Office referhis case to a tribunal. Their view was that such a review was necessary in order to establish valid groundsfor continuing to seek his extradition (or deportation). The Home Office took the view that the applicantwas an absconder from hospital, continued to be subject to valid hospital orders, and could apply to atribunal on his return to the United Kingdom. The Commission held that the refusal of the United Kingdomauthorities to grant a review of his case prior to his return did not disclose a violation of Article 5(1)(e).Eldergill 12
  13. 13. Right to a speedy determinationArticle 5(4) requires that the proceedings testing the lawfulness of a patient’s detention ‘shall be decided speedily by acourt’. ‘Lawful’ in this context includes ‘substantive lawfulness.’ In other words, the holding of a hearing concerningthe merits of the individuals detention under the statutory provision authorising it. The domestic law is particularlyvulnerable with regard to delays hearing unrestricted cases. This is because the 1959 Act abolished the previousrequirement that the issue of whether a citizens detention is justified must be determined in advance by a judicialauthority, compensating citizens for this loss by enabling them to have the justification reviewed after the event.Whereas a person could not previously be detained for a prolonged period of treatment unless a judicial order wasfirst obtained, it is now not uncommon for more than half the authorised period of detention to have expired beforethere is a judicial determination of the merits. Consequently, the detention of many patients is brought to an endbefore a judicial hearing takes place, the average period of detention in many hospitals being significantly less thansix months.Barclay-Maguire v United Kingdom (App. no. 9117/80)On 9 December 1981, the European Commission declared admissible an application which alleged that adelay of 18 weeks between the making of a tribunal application and its determination contravened article5(4). The Government, seeking a settlement from the Commission, suggested 13 weeks as a reasonabletarget time. It subsequently failed to meet this target. A number of patients subsequently sought judicialreview in relation to delayed hearings, but judgment was avoided by offering them an earlier date,necessarily at the expense of other patients (see, e.g., the judicial review applications in R. v. Mental HealthReview Tribunal, ex p. Hudson (unreported, 1986) and R. v. Mental Health Review Tribunal, ex p. Mitchell(unreported, 1985).Koendjbiharie v Netherlands (European Court, 27 June 1990)The relevant period began on 17 May 1984, when the application to extend the patient’s confinement wasfiled with the Court of Appeal. The decision was received more than four months later. Such a lapse of timewas incompatible with the notion of speediness. The Court, accordingly, found a failure to comply with therequirement of ‘speediness’ laid down in Article 5(4).Kay v United Kingdom (European Commission, 1 March 1994)The Commission referred to the Courts case-law that periods of eight weeks to five months in mentalhealth determinations were difficult to reconcile with the notion of "speedily" in Article 5(4) of theConvention (E. v. Norway judgment of 29 August 1990, Series A no. 181-A, p. 27, para. 64; Van der Leerjudgment of 21 February 1990, Series A no. 170-A, pp. 14-15, paras. 32-36). It was not contested by theGovernment that mental health review tribunals frequently took up to six months to determine cases likethe applicants. In Kay’s case, the determination took just over two years, and the first hearing dateproposed by the tribunal was nearly five months after referral. In the Commissions view, the system itselfwas inherently too slow, and the tribunal proceedings were not conducted ‘speedily’, within the meaning ofArticle 5(4).Pauline Lines v. United Kingdom (European Commission, 17 January 1997)In Lines, the patient was subject to a hospital order and a restriction order made without limit of time. Shewas readmitted to hospital under section 3 on 27 July 1993, and then formally recalled to hospital by theSecretary of State on 3 December 1993. On 7 December 1993, the Secretary of State referred her case to atribunal, which then heard the matter on 23 February 1994. The patient complained, firstly, that she wasnot entitled to apply to a tribunal while detained under section 3 and, secondly, about the length of time ittook for her to have a review following admission, in both cases contrary to Article 5(4). The Commissionunanimously declared admissible the patients complaints about the lack of entitlement to takeproceedings by which the lawfulness of her detention after 27 July 1993 could be decided speedily by acourt. In the event, a friendly settlement was reached, whereby the Government paid the applicantsrepresentatives £3591.75, of which £2000 represented compensation and the remainder costs.Eldergill 13
  14. 14. RSC v United Kingdom (European Commission, 28 May 1997)The applicant was a restricted patient who was recalled to Broadmoor Hospital on 16 November 1994. On22 November 1994, the Home Secretary referred his case to a tribunal, which adjourned the initial hearingon 20 September 1995, and did not determine his detention until 25 March 1996. The applicant alleged aviolation of Article 5(4), inter alia, because the tribunal failed to consider the reasons for his recall, and didnot decide the matter ‘speedily’.A friendly settlement was reached. The Government agreed to pay to the applicant £2,000 compensation,together with £2800 costs. It also undertook to amend the Mental Health Review Tribunal Rules 1983, sothat when a conditionally discharged patient is recalled there must be a tribunal hearing within two monthsfrom the date on which the case is referred to the tribunal (which must be within a month of recall). ARTICLE 6(1) — DETERMINATION OF CIVIL RIGHTSArticle 6(1) provides that, ‘In the determination of his civil rights and obligations or of any criminal chargeagainst him, everyone is entitled to a fair and public hearing within a reasonable time by an independentand impartial tribunal established by law. Judgment shall be pronounced publicly but the press and publicmay be excluded from all or part of the trial in the interests of morals, public order or national security ina democratic society, where the interests of juveniles or the protection of the private life of the parties sorequire, or to the extent strictly necessary in the opinion of the court in special circumstances wherepublicity would prej udice the interests of justice.’A.R. v United Kingdom (European Commission, 29 November 1995)The applicant, a Broadmoor patient who had escaped to Holland, complained that his status as a patientsubject to hospital and restriction orders was a matter concerning his civil rights, and that he was beingdenied access to a mental health review tribunal for the purposes of determining his rights. He invokedArticle 6(1).The Commission noted that, according to Convention case law, proceedings regarding a persons detentionin a psychiatric hospital do not concern the determination of that persons ‘civil rights and obligations’within the meaning of Article 6(1), unless the detention has indirect effects on the detained person’s rightto administer his property or to carry out legal transactions (Neumeister judgment of 27 June 1968, SeriesA no. 8, p. 43, para. 23; Winterwerp j udgment of 24 October 1979, Series A no. 33, p. 28, para. 73;Wassink case, Comm. Report 12.7.89, para. 64, Eur. Court H.R., Series A no. 185, p. 27-28 para. 64). Therewas no indication in AR’s case that his ability to administer his property had been interfered with, andtribunal proceedings would not involve determining of any of his civil rights and obligations within themeaning of Article 6(1).Other casesArticle 6 does cover medical disciplinary proceedings (Le Compte v Belgium (1982)). It may also renderunlawful public immunity from an action for damages in relation to the negligent release of a prisoner byauthority of the Home Office: Bromiley v UK (1999). ARTICLE 7 — SUBSEQUENT IMPOSITION OF A HEAVIER PENALTYArticle 7(1) provides that a heavier penalty shall not be imposed than the one that was applicable at the time thecriminal offence was committed.Smith v United Kingdom (European Commission, 10 September 1997)The applicant was convicted in 1966 of the manslaughter of a nine year old boy, whom he strangled andthen sexually abused. He was detained at Ashworth Hospital, subject to hospital and restriction orders.Having been conditionally discharged by a tribunal in November 1983, he was recalled to hospital inNovember 1984.Eldergill 14
  15. 15. Mr Smith complained that , due to the implementation of the 1983 Act, he was suffering a heavier penaltythan that applicable at the time when the criminal offence was committed. The Commission noted that hehad initially been detained under the 1959 Act. Even assuming that Article 7 applied to cases where theissue of criminal punishment and detention in a mental health institution was involved, the 1983 Act didnot alter the system of detention or conditional discharge and the right of recall. Indeed, it gave detainedpersons the additional possibility of making an application to the tribunal, who had power to grantconditional or unconditional release. The applicant was therefore in a more advantageous position underthe 1983 Act . Manifestly ill-founded.In relation to a second complaint, made under Article 5(1)(e), the Commission stated that the applicant’stribunal had been entitled to give greater weight to the report of the treating doctor, than that of thepsychiatrist instructed by the patient, who recommended conditional discharge. ARTICLE 8 — RIGHT TO RESPECT FOR PRIVATE LIFEArticle 8 provides as follows: ‘(1) Everyone has the right to respect for his private and family life, his home and hiscorrespondence. (2) There shall be no interference by a public authority with the exercise of this right except such asis in accordance with the law and is necessary in a democratic society in the interests of national security, publicsafety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of healthor morals, or for the protection of the rights and freedoms of others.’Structure of Article 8When a public authority acts in a way which interferes with an individual’s right to respect for their privateand family life, that interference will violate Article 8 unless (a) it is in accordance with the law AND (b) it isnecessary in a democratic society (c) because of one or more of the listed interests (national security, etc).Private and family lifeActivities which form part of an individual’s ‘private life’ include their personal life, relationships, sexualidentity, telephone calls, health, sexual practices, mail, and personal office space.Activities which form part of an individual’s ‘family life’ include family ties, cohabitation, family visits,children and protection from domestic violence.ProportionalityProportionality is fundamental when deciding whether or not some interference with an individual’s privateor family life violates the convention:— Does the national measure, or the local policy or procedure, which interferes with the enjoyment of aConvention right proportionate to the (legitimate) aim which the measure seeks to achieve?— Is the measure actually appropriate?— Does the measure have a wider effect than is strictly necessary?— Does the measure impose an excessive burden? on any individual?Herczegfalvy v. Austria (European Court, 24 September 1992)In Herczegfalvy, the applicant alleged that by administering food to him by force, imposing on him thetreatment complained of, and refusing to send on his correspondence, the hospital authorities had violatedArticle 8.The complaint was directed in particular against the psychiatric hospitals practice of sending all theapplicants letters to the curator for him to select which ones to pass on.According to the court, this interference constituted a breach of Article 8 unless it was ‘in accordance withthe law’, pursued a legitimate aim or aims under paragraph 2, and was ‘necessary in a democratic society’Eldergill 15
  16. 16. for achieving those aims. The Court recalled that the expression ‘in accordance with the law’ requiredfirstly that the impugned measure should have some basis in national law; but it also referred to the qualityof the law in question, requiring that it should be accessible to the person concerned, who must moreoverbe able to foresee its consequences for him, and compatible with the rule of law. Compatibility with therule of law implied that there must be a measure of protection in national law against arbitraryinterferences with the rights safeguarded by Article 8(1). If a law conferred a discretion on a publicauthority, it must indicate the scope of that discretion, although the degree of precision required woulddepend on the particular subject matter.Although the Austrian Government had argued that the impugned decisions were based directly on section51 of the Hospitals Law, and articles in the Civil Code, these very vaguely worded provisions did not specifythe scope or conditions of exercise of the discretionary power. Such specifications appeared all the morenecessary in the field of detention in psychiatric institutions, in that the persons concerned were frequentlyat the mercy of the medical authorities, so that their correspondence was their only contact with theoutside world. In the absence of any detail at all as to the kind of restrictions permitted or their purpose,duration and extent or the arrangements for their review, the provisions did not offer the minimum degreeof protection against arbitrariness required by the rule of law in a democratic society, and there had been aviolation of Article 8.J.T. v United Kingdom (European Commission, 20 May 1998)The applicant was detained under section 3 of the Mental Health Act 1983. The case concerned herinability to change her ‘nearest relative’ for the purposes of the Mental Health Act 1983. Her mother, thenearest relative, had persistently taken her stepfather’s side, he had (allegedly) sexually abused her, andthis was responsible, to a significant extent, for her psychiatric difficulties. That the patient’s mother wasthe nearest relative, and was entitled to receive and discuss with him information concerning tribunalreviews, violated the applicant’s right to respect for her private life.According to the Commission, information concerning the applicants mental condition related to herprivate life (Gaskin v. the United Kingdom judgment of 7 July 1989, Series A no. 160, p. 15, para. 37), andthe disclosure of such information to her nearest relative constituted an interference with her right torespect for her private life. Such an interference therefore constituted a violation of Article 8 unless it isjustified under paragraph 2.The list of grounds contained in section 29(3) of the 1983 Act upon which an application could be made tochange the nearest relative was exhaustive, and did not include the concerns of the applicant. Accordingly,despite the nature of her relationship with her mother and step-father, the impact of those relationships onher, and the significant, unwanted and automatic disclosure of her private affairs to her mother, noapplication could be made to change her nearest relative. The lack of any such provision in section 29(3)was particularly serious given the extensive disclosures made to a nearest relative when that person ordersa patients discharge or applies to a tribunal for a review of the patients detention. In those circumstances,the absence of any possibility to apply to the County Court to change the applicants nearest relative, onthe grounds of her concerns about the identity of that person, rendered the interference with her rightsunder Article 8(1) disproportionate to the aims pursued. There had been a violation.Other casesExcessive delay on the part of a public health service to provide a medical service to which a patient wasentitled can raise an issue under article 8, if the delay has or is likely to have, a serious impact on thepatient’s health: Passannante v Italy (1998).Compulsory tuberculosis screening was held not to be a violation, although it interfered with theindividual’s private life, in Acmanne v Belgium (1983).In Grare v France (1983), a voluntary in-patient complained that the unpleasant side-effects of histreatment violated the article. It was held that, even if the treatment regime constituted an invasion of hisprivate life, it justified in the interests of his health and public order.Eldergill 16
  17. 17. ARTICLE 10 — FREEDOM OF EXPRESSIONArticle 10 provides as follows: ‘(1) Everyone has the right to freedom of expression. This right shall include freedom tohold opinions and to receive and impart information and ideas without interference by public authority and regardlessof frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cinemaenterprises. (2) The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject tosuch formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democraticsociety, in the interests of national security, territorial integrity or public safety, for the prevention of disorder orcrime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing thedisclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.’T v United Kingdom (Committee of Ministers, 4 December 1986)The applicant complained, inter alia, of certain restrictions on the exercise of his freedom of expressionwhile serving a sentence of imprisonment. In accordance with the Commission’s opinion, the Committee ofMinisters decided that:I. there had been a violation of Article 10 of the convention in relation to the denial of access to writing paper and in relation to the complete prohibition on the applicants sending academic writings out of prison;II . there had not been a violation of Article 10 of the convention in relation to the restrictions on the applicants receipt of books;III . there had been a violation of Article 10 of the convention in relation to the restrictions on the applicants access to newspapers and periodicals and in particular its restriction during disciplinary penalties;I V. there had not been a violation of Article 10 of the convention in relation to the scrutiny of the applicants writings.§4 — THE 1983 ACT & THE CONVENTIONPROVISIONS KNOWN TO BE IN BREACH1. Section 29 and fact that the patient cannot apply to have an unsuitable nearest relative replaced.2. Fact that tribunals cannot give directions to ensure that restricted patients whose conditional discharge has been deferred can be discharged.PROVISIONS PROBABLY IN BREACH1. De facto detention of incapacitated patients under the common law: Bournewood (patients not being detained in accordance with a procedure prescribed by law).2. Any reliance on the ‘man must be mad test’ in W v L [1974] QB 711 as commonly interpreted. (‘The words "mental illness" are "ordinary words of the English language. They have no particular medical significance. They have no particular legal significance. How should the courts construe them? ... in the way that ordinary sensible people would construe them.’)3. The fact that a patient whose detention is extended under section 29 is not entitled to a review of their detention.4. The fact that the tribunal provisions require the patient to demonstrate that the legal conditions for detaining him are not satisfied (double-negative test).5. Given that Article 5(4) provides that a detained patient is entitled to a tribunal which can order his release if his detention is not lawful, the decision in R v South Western Managers, ex p M [1993] Q.B .Eldergill 17
  18. 18. 683, which held that a tribunal’s decision can be overridden by those whose actions are being reviewed: In ex p. M, the patient, who was detained under section 2, applied to a tribunal which heard the matter on 14 December 1992. The tribunal was satisfied that she was not suffering from mental disorder of a nature or degree which warranted her detention in a hospital for assessment and accordingly directed her discharge. However, the tribunal directed that she be discharged on 17 December in order that social services could first make arrangements for a suitable support programme. During the period between the giving of the direction and the date fixed by the tribunal for the patients discharge, she was detained under section 3. Laws J. said that there was no sense in which those concerned in making a section 3 application were at any stage bound by an earlier tribunal decision. It is noteworthy that, having decided that the question of the effect of a tribunals direction was one "of pure statutory construction," the court managed to construe the statute without once referring to Part V of the Act . At no stage did it consider for a moment what inferences might be drawn from the tribunal framework and the powers vested in them, confining its attention to the powers vested in doctors and prospective applicants. Nor did it contemplate the fact that the European Convention on Human Rights requires that persons detained on the ground of unsoundness of mind must have access to an independent and impartial court which can speedily determine the issue and direct their release. A tribunals powers under section 72 are of two sorts. It has power to direct (discharge and reclassification) and power to recommend (leave of absence, transfer, supervision). In ex p. K, a restricted patient who had been conditionally discharged by a tribunal was later recalled to hospital by the Secretary of State. McCullough J said that it would be unlawful for the Secretary of State to recall a patient who had recently been conditionally discharged by direction of a tribunal, unless something had hap- pened which justified the belief that a different view might now be taken about one of the factors on which his release had depended. Any other view means that the law has moved not only from the position that a court order is required before a person can be denied his liberty to the position that he has a right to have the justification for his detention judicially reviewed after the event, but to the further position that such retrospective decisions do not entitle the person concerned to be set at liberty. Social workers and doctors become the ultimate judges of when a person may be detained when that is for judges of law to decide. If this is what Parliaments intended, that really is something one would have expected it to make clear.6. Related to this, the power of the Home Secretary in restricted cases to vary the conditions imposed by a tribunal, even where there has been no change of circumstances.7. Delays in tribunal hearings, particularly in relation to section 3 patients (Article 5(4)).8. The interpretation and application of section 134 procedures in relation to special hospital patients; the discretion vested in MHAC as to whether to order the release of a postal package.9. The fact that discharge means discharge from hospital, so that a restricted patient who requires further hospital treatment cannot be released from detention by a tribunal.10. The fact that there is no obligation to absolutely discharge a restricted patient who does not require further hospital treatment and has never been dangerous (ex p Cooper).11. The absence of any duty to give reasons for a person’s detention (Art 5(2), Van der Leer).12. Certain paragraphs in the tribunal rules: the visit by the tribunal’s medical member prior to the hearing; the non-disclosure provisions where justice requires disclosure (‘adversely affect the health or welfare of the patient or others’);Eldergill 18
  19. 19. the withdrawal of applications by patients subject to after-care under supervision (‘Where a patient subject to after-care under supervision fails without reasonable explanation to undergo a medical examination under rule 11, any application relating to that patient may be deemed by the tribunal to be withdrawn’).13. The absence of any provision for seclusion, restraint, force-feeding and the use of handcuffs in Part IV/1983 Act: governed by s.63.14. Article 6(1) and the Court of Protection procedures: making an order without a hearing or legal representation, and on the basis of one recommendation from a GP.PROVISIONS ARGUABLY IN BREACH1. Article 8 and guardianship: The guardianship procedures, insofar as section 132 does not apply; there is no time limit for accepting the application; no requirement to interview the patient; and no tribunal duty to release a patient no longer suffering from mental disorder of a nature or degree warranting guardianship (s.72(4)).2. The cancellation of leave and the recall to hospital provisions in section 17 (by analogy with cases on the recall of restricted patients).3. The lack of an appeal for section 2 patients against the issue of a report barring discharge.4. The lack of equality for the fathers of illegitimate children and for gay couples in the nearest relative provisions, and the fact that some patients have no nearest relative to protect them against unjustified detention.5. The county court procedures concerning evidence in the context of proceedings under section 29.6. In relation to Article 5(1) and Aerts v Belgium, the absence of any magistrates court power to remove mentally disordered persons to hospital if charged with an indictable only offence, and the non- applicability of sections 36 and 48 to persons suffering from mental impairment or psychopathic disorder.7. The fact that only the Home Secretary can order that an in-patient shall cease to be subject to restrictions.8. The fact that a restriction order can be made under section 51 without trial or conviction.9. The entry of patients detained for treatment into clinical trials.10. The fact that persons can be detained in hospital even though not treatable, and the way in which the treatability test has been interpreted by the courts (Winterwerp, disorder not of a kind warranting compulsory confinement)11. Article 8 and fact that MHAC has no remit in relation to patients being cared for in the community.12. Blanket searches of patients at high security hospitals (Article 8).13. Right to respect for private and family life and section 26: inequality of gay relationships; fact that an unsuitable nearest relative cannot be removed on application of the patient.14. Right to respect for home, private and family life: Intrusive guardianship and supervision application regimes, and, following the implementation of any new Act, conditions imposed under a community treatment order.15. Right to respect for home and private life: execution by the police of warrants under section 135.16. Right to respect for one’s private life: sexual relationships in hospital.Eldergill 19
  20. 20. 17. Sterilisation of persons suffering from mental disorder18. Matrimonial Causes Act: persons unfitted to marriage on the grounds of mental disorder19. Right of patients to sexual relationshipsMHRTS & THE CONVENTION The ‘double negative’ burden of proof. The dual role of the medical member (witness and decision maker). Delays in hearing applications A tribunal’s inability to implement its conditions of discharge : Johnson v UK Freedom to instruct a solicitor of the patient’s choice. Grounds for withholding reports from the patient, and patient’s absence during the hearing. Lack of any independent review for those de facto detained. The fact that tribunals are not empowered to terminate the detention of those unlawfully detained. The fact that tribunal decisions are not binding. The fact that tribunals are not empowered to transfer restricted patients or to grant them leave, or to give such a recommendationEldergill 20
  21. 21. APPENDIX 1 : LIST OF CONVENTION ARTICLESARTICLE 21. Everyones right to life shall be protected by law. No one shall be deprived of his life intentionally savein the execution of a sentence of a court following his conviction of a crime for which this penalty isprovided by law.2. Deprivation of life shall not be regarded as inflicted in contravention of this article when it results fromthe use of force which is no more than absolutely necessary:(a ) in defence of any person from unlawful violence;(b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;(c) in action lawfully taken for the purpose of quelling a riot or insurrection.ARTICLE 3No one shall be subjected to torture or to inhuman or degrading treatment or punishment.ARTICLE 41. No one shall be held in slavery or servitude.2. No one shall be required to perform forced or compulsory labour.3. F or the purpose of this article the term "forced or compulsory labour" shall not include:(a) any work required to be done in the ordinary course of detention imposed according to the provisionsof Article 5 of this Convention or during conditional release from such detention;(b) any service of a military character or, in case of conscientious objectors in countries where they arerecognised, service exacted instead of compulsory military service;(c) any service exacted in case of an emergency or calamity threatening the life or well-being of thecommunity;(d) any work or service which forms part of normal civic obligations.ARTICLE 51. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save inthe following cases and in accordance with a procedure prescribed by law:(a ) the lawful detention of a person after conviction by a competent court;(b) the lawful arrest or detention of a person for non-compliance with the lawful order of a court or inorder to secure the fulfilment of any obligation prescribed by law;(c) the lawful arrest or detention of a person effected for the purpose of bringing him before thecompetent legal authority on reasonable suspicion of having committed an offence or when it is reasonablyconsidered necessary to prevent his committing an offence or fleeing after having done so;(d) the detention of a minor by lawful order for the purpose of educational supervision or his lawfuldetention for the purpose of bringing him before the competent legal authority;(e) the lawful detention of persons for the prevention of the spreading of infectious diseases, of personsof unsound mind, alcoholics or drug addicts or vagrants;Eldergill 21
  22. 22. (f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into thecountry or of a person against whom action is being taken with a view to deportation or extradition.2. Everyone who is arrested shall be informed promptly, in a language which he understands, of thereasons for his arrest and of any charge against him.3. Everyone arrested or detained in accordance with the provisions of paragraph 1(c) of this article shallbe brought promptly before a judge or other officer authorised by law to exercise judicial power and shallbe entitled to trial within a reasonable time or to release pending trial. Release may be conditioned byguarantees to appear for trial.4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings bywhich the lawfulness of his detention shall be decided speedily by a court and his release ordered if thedetention is not lawful.5. Everyone who has been the victim of arrest or detention in contravention of the provisions of thisarticle shall have an enforceable right to compensation.ARTICLE 61. In the determination of his civil rights and obligations or of any criminal charge against him, everyoneis entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunalestablished by law. Judgment shall be pronounced publicly but the press and public may be excluded fromall or part of the trial in the interests of morals, public order or national security in a democratic society,where the interests of juveniles or the protection of the private life of the parties so require, or to theextent strictly necessary in the opinion of the court in special circumstances where publicity wouldprejudice the interests of justice.2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according tol a w.3. Everyone charged with a criminal offence has the following minimum rights:(a) to be informed promptly, in a language which he understands and in detail, of the nature and cause ofthe accusation against him;(b) to have adequate time and facilities for the preparation of his defence;(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficientmeans to pay for legal assistance, to be given it free when the interests of justice so require;(d) to examine or have examined witnesses against him and to obtain the attendance and examination ofwitnesses on his behalf under the same conditions as witnesses against him;(e) to have the free assistance of an interpreter if he cannot understand or speak the language used incourt.ARTICLE 71. No one shall be held guilty of any criminal offence on account of any act or omission which did notconstitute a criminal offence under national or international law at the time when it was committed. Norshall a heavier penalty be imposed than the one that was applicable at the time the criminal offence wascommitted.2. This article shall not prejudice the trial and punishment of any person for any act or omission which, atthe time when it was committed, was criminal according to the general principles of law recognised bycivilised nations.ARTICLE 81. Everyone has the right to respect for his private and family life, his home and his correspondence.Eldergill 22
  23. 23. 2. There shall be no interference by a public authority with the exercise of this right except such as is inaccordance with the law and is necessary in a democratic society in the interests of national security, publicsafety or the economic well-being of the country, for the prevention of disorder or crime, for the protectionof health or morals, or for the protection of the rights and freedoms of others.ARTICLE 91. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom tochange his religion or belief and freedom, either alone or in community with others and in public orprivate, to manifest his religion or belief, in worship, teaching, practice and observance.2. Freedom to manifest ones religion or beliefs shall by subject only to such limitations as are prescribedby law and are necessary in a democratic society in the interests of public safety, for the protection ofpublic order, health or morals, or for the protection of the rights and freedoms of others.ARTICLE 101. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions andto receive and impart information and ideas without interference by public authority and regardless offrontiers. This article shall not prevent States from requiring the licensing of broadcasting, television orcinema enterprises.2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject tosuch formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in ademocratic society, in the interests of national security, territorial integrity or public safety, for theprevention of disorder or crime, for the protection of health or morals, for the protection of the reputationor rights of others, for preventing the disclosure of information received in confidence, or for maintainingthe authority and impartiality of the judiciary.ARTICLE 111. Everyone has the right to freedom of peaceful assembly and to freedom of association with others,including the right to form and to join trade unions for the protection of his interests.2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by lawand are necessary in a democratic society in the interests of national security or public safety, for theprevention of disorder or crime, for the protection of health or morals or for the protection of the rightsand freedoms of others. This article shall not prevent the imposition of lawful restrictions on the exerciseof these rights by members of the armed forces, of the police or of the administration of the State.ARTICLE 12Men and women of marriageable age have the right to marry and to found a family, according to thenational laws governing the exercise of this right.ARTICLE 14The enjoyment of the rights and freedoms set forth in this Convention shall be secured withoutdiscrimination on any ground such as sex, race, colour, language, religion, political or other opinion,national or social origin, association with a national minority, property, birth or other status.ARTICLE 16Nothing in Articles 10, 11 and 14 shall be regarded as preventing the High Contracting Parties fromimposing restrictions on the political activity of aliens.ARTICLE 17Nothing in this Convention may be interpreted as implying for any State, group or person any right toengage in any activity or perform any act aimed at the destruction of any of the rights and freedoms setforth herein or at their limitation to a greater extent than is provided for in the Convention.Eldergill 23
  24. 24. ARTICLE 18The restrictions permitted under this Convention to the said rights and freedoms shall not be applied forany purpose other than those for which they have been prescribed. THE FIRST PROTOCOLARTICLE 1Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall bedeprived of his possessions except in the public interest and subject to the conditions provided for by lawand by the general principles of international law.The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws asit deems necessary to control the use of property in accordance with the general interest or to secure thepayment of taxes or other contributions or penalties.ARTICLE 2No person shall be denied the right to education. In the exercise of any functions which it assumes inrelation to education and to teaching, the State shall respect the right of parents to ensure such educationand teaching in conformity with their own religious and philosophical convictions.ARTICLE 3The High Contracting Parties undertake to hold free elections at reasonable intervals by secret ballot , underconditions which will ensure the free expression of the opinion of the people in the choice of thelegislature.Anselm EldergillSolicitors Chambers169 Malden RoadLondon NW5 4HTTel 020 7284 1006 x28F ax 020 7916 2553medicolegal@email.comEldergill 24

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