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The proportionality principle and what it means in practice

  • Martin Curtice (a1), Fareed Bashir (a2), Sanjay Khurmi (a3), Juli Crocombe (a4), Tim Hawkins (a5) and Tim Exworthy (a6)...
Summary

The Mental Health Act 2007 and the Mental Capacity Act 2005 have been made compatible with the European Convention on Human Rights (as enacted in the UK by the Human Rights Act 1998). The respective Codes of Practice have now embedded within them a human rights-based approach. Central to this is the principle of proportionality, which is regarded as the dominant theme underlying the Convention. This article explores the legal basis of proportionality, specifically analysing its use in relation to the Mental Health Act and the Mental Capacity Act. In doing so, it considers the use of the principle of proportionality in clinical practice.

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Corresponding author
Martin Curtice (mjrc@ukonline.co.uk)
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None.

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References
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1 Department for Constitutional Affairs. Mental Capacity Act 2005 Code of Practice. TSO (The Stationery Office), 2007.
2 Department of Health. Code of Practice: Mental Health Act 1983. TSO (The Stationery Office), 2008.
3 De Burca, G. The principle of proportionality and its application in EC law. Yearb Eur Law 1993; 13: 105–50.
4 McBride, J. Proportionality and the European Convention on Human Rights. In The Principle of Proportionality in the Laws of Europe (ed Ellis, E): 2335. Hart Publishing,, 1999.
5 Reid, A. A Practitioner's Guide to the European Convention on Human Rights (3rd edn). Thomson, 2007.
6 Soering v. UK (1989) 11 EHRR 439.
7 R (on the application of Razgar) v. Secretary of State for the Home Department [2004] UKHL 27.
8 Curtice, M. Article 8 of the Human Rights Act 1998: implications for clinical practice. Adv Psychiatr Treat 2009; 15: 2331.
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10 Ezeh and Connors v. The United Kingdom (2003) ECHR Application nos. 39665/98 and 40086/98 9th October.
11 de Freitas v. Permanent Secretary of Ministry of Agriculture, Fisheries, Lands and Housing [1999] 1 AC 69.
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13 Wadham, J, Mountfield, H, Gallagher, C, Prochaska, E. Blackstone's Guide to the Human Rights Act 1998 (5th edn). Oxford University Press, 2009.
14 R (on the application of S and Others) v. Broadmoor Special Hospital Authority and Secretary of State for Health [1997] EWHC Admin 875.
15 Curtice, MJR. Medical treatment under Part IV of the Mental Health Act 1983 and the Human Rights Act 1998: review of Article 3 and 8 case law. Psychiatr Bull 2009; 33: 111–5.
16 Herczegfalvy v. Austria [1992] 15 EHRR 437.
17 Ministry of Justice. Mental Capacity Act 2005: Deprivation of Liberty Safeguards – Code of Practice to Supplement the Main Mental Capacity Act 2005 Code of Practice. TSO (The Stationery Office), 2008.
18 Equality and Human Rights Commission. Human Rights in Britain since the Human Rights Act 1998: A Critical Review (Research Report 28). Equality and Human Rights Commission, 2009.
19 Joint Committee on Human Rights. The Work of the Committee in 2007 and the State of Human Rights in the UK, Sixth Report of Session 2007–08 (HL Paper 38 HC 270). TSO (The Stationery Office), 2008.
20 Curtice, MJ, Exworthy, T. FREDA: a human rights-based approach to healthcare. Psychiatrist 2010; 34: 150–6.
21 Goold, B, Lazarus, L, Swiney, G. Public Protection, Proportionality, and the Search for Balance (Ministry of Justice Research Series No.10/07). Ministry of Justice, 2007 (www.justice.gov.uk/docs/270907.pdf).
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BJPsych Bulletin
  • ISSN: 1758-3209
  • EISSN: 1758-3217
  • URL: /core/journals/bjpsych-bulletin
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The proportionality principle and what it means in practice

  • Martin Curtice (a1), Fareed Bashir (a2), Sanjay Khurmi (a3), Juli Crocombe (a4), Tim Hawkins (a5) and Tim Exworthy (a6)...
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