The Human Rights Act 1998 came into force in October 2000, bringing the rights set out in the European Convention on Human Rights into domestic law. Although many aspects of English mental health law have previously been tested against the European Convention on Human Rights in the European Court of Human Rights, it has been suggested that by removing the necessity to take ‘the long road to Strasbourg’, the Human Rights Act could result in a flood of legal cases concerning the management of mental disorder (Reference Macgregor-Morris, Ewbank and BirminghamMacgregor-Morris et al, 2001). We will consider the relationship between previous judgements in the European Court of Human Rights and domestic mental health law; review mental health cases brought under the Human Rights Act in its first year; and discuss its possible impact on clinical practice.

THE EUROPEAN CONTEXT

The important judgements of the European Court of Human Rights concerning mental health law have been reviewed in detail by Gostin (Reference Gostin2000). Article 5 (Appendix 1) has received the most attention. The Court has considered the meaning of ‘lawful detention’, which must not be arbitrary and requires at least a minimally therapeutic environment. The meaning of ‘unsound mind’ has not been defined, although it should be based on ‘objective medical expertise’ and be of a ‘kind or degree warranting compulsory confinement’, and the validity of continued confinement depends upon the persistence of the disorder. Detention is a matter of the ‘degree or intensity’ of deprivation of liberty rather than its ‘nature or substance’. This may exclude ‘non-protesting’ patients, such as the subject of R v. Bournewood Community and Mental Health NHS Trust (1998), from the protection of article 5, and it has also been found that conditional discharge does not amount to ‘deprivation of liberty’. A mental health review tribunal constitutes a court for the purposes of article 5(4), provided that it has the power to order discharge, and its power to do so was extended in the Mental Health Act 1983 in response to a judgement in the European Court of Human Rights ( X v. United Kingdom, 1981). Coercive mental health care has also been challenged under article 3, but the resulting jurisprudence is described by Gostin (Reference Gostin2000) as ‘highly deferential to mental health authorities’. The European Court of Human Rights has allowed force-feeding and physical restraint, by prolonged strapping to a bed, as ‘medically justified’ and declined to find that very poor conditions in prison hospitals or secure units were inhuman or degrading.

Deference to medical expertise, also apparent in domestic jurisprudence, may have been well intentioned. Declining to define what is meant by ‘unsound mind’, the European Court of Human Rights observed, in Winterwerp v. The Netherlands (1979), that ‘it is a term whose meaning is continually evolving as research in psychiatry progresses, an increasing flexibility in treatment is developing and society's attitudes to mental illness change... so that a greater understanding of the problems of mental patients is becoming more widespread’. However, at a time when it appears to psychiatrists that mental health law reform is being driven by a change in society's attitudes in precisely the opposite direction (Royal College of Psychiatrists, 2001), this view may be out of date.

In summary, although the jurisprudence of the European Court of Human Rights has had some impact on the Mental Health Act 1983 and its interpretation, it has not set a high standard for modern mental health services. Some judgements may strike present-day clinicians not so much as protecting patients' rights but as permitting undesirable practices. This is perhaps not surprising when it is considered that the European Convention on Human Rights, signed in 1950, harbours old prejudices against those with mental illness. These are apparent in the language of article 5, which groups persons of ‘unsound mind’ with ‘vagrants’ and ‘drug addicts’ as being exempted from the protections afforded to others. In incorporating the European Convention on Human Rights, the Human Rights Act perpetuates rather than challenges the lesser regard for the autonomy of patients with mental illness than of other medical patients, which is at the heart of conventional mental health legislation (Reference Szmukler and HollowaySzmukler & Holloway, 2000). Patients' capacity to make treatment decisions is essentially ignored.

THE HUMAN RIGHTS ACT AND MENTAL HEALTH LAW

A total of 192 cases raised human rights issues under the European Convention on Human Rights in the higher courts in the first year in which the Human Rights Act was in force (Human Rights Act Research Project, 2001). We reviewed these cases and identified seven in which the Mental Health Act 1983 or the actions of mental health services were at issue. We also consider a subsequent case below. Details of the cases are given in Appendix 2. Four of the seven cases related to the ability of the mental health review tribunal to meet the requirements of article 5(4). R v. MHRT London South (2001) established that routinely delaying hearings by 8 weeks was unacceptable. The case of R v. MHRT North and East London Region (2001) resulted in a declaration that sections 72 and 73 of the Mental Health Act 1983 are incompatible with the European Convention on Human Rights (one of only two such declarations in the first year of the Human Rights Act) because, rather than requiring that the lawfulness of continuing detention should be proven before a mental health review tribunal, these sections effectively reversed the burden of proof by requiring the patient to prove that the conditions for detention were no longer satisfied. A remedial order rewording these sections has been made, so that a mental health review tribunal must now direct the discharge of a patient if it is not satisfied that the conditions for detention are met. In East London and the City MH NHS Trust & Snazell v. von Brandenberg (2001), deferred discharge by the mental health review tribunal was prevented by renewed detention before the patient could leave hospital and in R v. Camden and Islington Health Authority (2001), conditional discharge by the tribunal was prevented by failure to provide community care meeting the conditions. In both cases, it was argued that if the mental health review tribunal could not effect discharge, then article 5(4) would be breached, but neither case succeeded. In two cases concerning patients in special hospitals, it was argued that article 8 was violated by security measures (random monitoring of telephone calls and restricting visits by children) but again, neither case succeeded. Finally, a patient who was receiving treatment under the Mental Health Act failed in an attempt to argue that article 3 would be violated by his deportation to Malta, on the grounds that this might cause deterioration in his mental health and increase his risk of suicide.

REFORM OF THE MENTAL HEALTH ACT

The White Paper on the Reform of the Mental Health Act carries the necessary declaration that the proposed legislation will be fully compatible with the Human Rights Act (Department of Health, 2000). As discussed above, in many respects this is not a difficult test to meet. The most controversial aspects of the White Paper have been the proposal to introduce compulsory treatment in the community and the introduction of the concept of ‘dangerous severe personality disorder’ as the basis for detaining people with a diagnosis of personality disorder posing particular risks (Reference GroundsGrounds, 2001). The use of the proposed Care and Treatment Order to require acceptance of treatment in the community is unlikely to be regarded as amounting to ‘detention’ under article 5. The order may also be insufficiently invasive or serious to violate articles 8 (respect for private and family life), 11 (freedom of association) or 13 (effective remedy for violation of rights), although the question remains open (Reference GostinGostin, 2000). Detaining people who are diagnosed as having personality disorder and have been convicted of offences may be lawful under article 5(1)(a), even where the diagnosis can be challenged or the likely response to treatment is uncertain. For non-offenders who have been diagnosed as having personality disorder, detention could be open to challenge on the grounds either that their disorder does not constitute, on ‘objective medical expertise’, a ‘true mental disorder’, or that detention could not be regarded as lawful for a condition not regarded as treatable (Council of Europe, 2000). However, the latter argument was rejected by the Scottish courts prior to the Human Rights Act and again, subsequently, on appeal to the Privy Council ( Anderson and Others v. The Scottish Ministers and Another, 2001).

CONCLUSIONS

In mental health, as in other areas of law, the first year of the Human Rights Act has led to a steady trickle rather than a flood of cases, and few have successfully challenged existing practice. However, the Act may yet have a significant impact. The European Court of Human Rights tries to defer to national courts where possible to take account of the widely varying legal systems of the Contracting States (the ‘margin of appreciation’), and this tends to make its jurisprudence conservative. The domestic courts are less constrained and can use the European Convention on Human Rights as a starting point for more radical changes. In addition, the Human Rights Act introduces the European doctrine of proportionality, which requires that any claimed exemption from the European Convention on Human Rights must be to the minimum extent possible. This may lead the domestic courts to go beyond the traditional process of judicial review, which tends to focus on the reasonableness of the decision-making process, and concern themselves with the actual merits of a doctor's decision (British Medical Association Committee on Medical Ethics, 2000). An early example of this is the case of R v. The Responsible Medical Officer Broadmoor Hospital and Others (2001), in which a patient sought judicial review of a decision to administer compulsory treatment. The court concluded that article 6 required that the court should investigate and resolve the medical issues, rather than restrict itself to scrutinising the decision-making process, and that the doctors should attend for cross-examination.

If the courts do begin to scrutinise the proportionality of clinical decisions (a function currently carried out only haphazardly by mental health review tribunals (Reference PerkinsPerkins, 2000)), the impact could be considerable. Many of the cases involving the European Convention on Human Rights to date have concerned patients in maximum security or with significant forensic histories, and it is not surprising that continued detention and compulsory treatment are often found to be justified or the infringement of rights to be proportionate. However, a decision, for example, to compel a ‘revolving-door’ patient without a history of offending to accept community treatment might be judged to be disproportionate if founded on weak scientific evidence of risk or benefit.

Although some clinicians might not welcome increased scrutiny of professional judgements by the courts, others may see the benefits of a counterbalance to the increasing social and political pressures to treat coercively.

APPENDIX 1

APPENDIX 2

DECLARATION OF INTEREST

None.