III. The rights which may be affected
- Any regime for the compulsory assessment and treatment of people with mental disorders will affect the human rights of the patients. The rights particularly at risk are those under the European Convention on Human Rights (ECHR) and the International Covenant on Civil and Political Rights (ICCPR), and, in the case of patients who are under 18, the Convention on the Rights of the Child (CRC). All these bind the United Kingdom in international law. The draft Bill would apply in England and Wales only. In both England and Wales, the Convention rights under the ECHR would bind public authorities under section 6 of the Human Rights Act 1998. In Wales, the National Assembly for Wales, which would be the 'appropriate Minister' for various purposes under the draft Bill, would be acting outside its powers if it made regulations or decisions which violated Convention rights, by virtue of the Government of Wales Act 1998. The rights under the ICCPR and the CRC do not directly apply in domestic law in England and Wales, but can be used as an aid to interpreting the rights under the ECHR. The main rights affected by a regime for compulsory treatment and detention for the purposes of assessment and treatment are the following.
The right to be free of inhuman or degrading treatment
- This arises under ECHR Article 3 and ICCPR Article 7.
ECHR Article 3 states: 'No one shall be subjected to torture or to inhuman or degrading treatment or punishment.'
ICCPR Article 7 states: 'No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation.'
The last sentence of ICCPR Article 7 effectively prohibits experimentation on people who lack capacity to give free consent.
The right to liberty
- The right to liberty is contained in Article 5 of the ECHR and Article 9 of the ICCPR.
ECHR Article 5, so far as relevant, provides that
1. Everyone has the right to liberty and security of the person. No one shall be 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 unsound mind, alcoholics or drug addicts or vagrants; ...
4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.
5. Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation.
- The obligations arising under ECHR Article 5, as interpreted by the European Court of Human Rights, forming part of domestic law by virtue of the Human Rights Act 1998, thus include the following
a requirement for objective criteria for deciding whether the imposition of treatment is justified;
a requirement that the disorder be such as to necessitate confinement either to treat the patient or to protect himself or the public;
a requirement for the lawfulness of detention to depend on the criteria for detention continuing to be satisfied, so that an improvement in the person's condition can lead to release;
a requirement for the judgment about a person's mental condition to be taken by a qualified professional;
a requirement to ensure that the detention is in accordance with a procedure prescribed by law;
a requirement to provide access to proceedings in which the lawfulness of detention can be speedily determined and in which release can be ordered if the detention is unlawful, with a right to compensation for unlawful detention;
a requirement to ensure that the detainee is placed in an appropriate environment and given appropriate treatment for the condition which necessitates detention;
a requirement to provide appropriate facilities outside a hospital environment to allow the patient to be released when his or her disorder no longer necessitates detention for treatment, with appropriate conditions to give appropriate protection to the patient and the public.
- ICCPR Article 9, so far as relevant, provides
1. Everyone has the right to liberty and security of the person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedures as are established by law ...
4. Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful.
5. Anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation.
The right to dignity in detention
- ICCPR Article 10.1 provides, 'All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person.'
The right to respect for private life
- ECHR Article 8 provides
1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
The European Court of Human Rights has given an expansive meaning to 'private life'. It has also interpreted 'necessary in a democratic society' as meaning that an interference, as well as meeting rule of law criteria and advancing one of the listed legitimate aims, must be a response to a pressing social need, interfere with the right no more than necessary, and be proportionate to the need addressed.
The right to privacy
- ICCPR Article 17 goes rather further than ECHR Article 8. Article 17 provides
1. No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.
2. Everyone has the right to the protection of the law against such interference or attacks.
The right of children to participate in decision-making
- CRC Article 12 recognises the right of children to participate in decisions affecting them. It provides
1. States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.
2. For this purpose, the child shall in particular be provided with the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.
The right of children to a periodic review of mental health treatment and placements
- CRC Article 25 provides
States Parties recognize the right of a child who has been placed by the competent authorities for the purposes of care, protection or treatment of his or her physical or mental health, to a periodic review of the treatment provided and all other circumstances relevant to his or her placement.
- Against that human rights background, we now examine the implications of the main provisions of the draft Bill.