Essay: Critical evaluation of whether the law adequately protects the interests of individuals with mental disorders in light of the Human Rights Act.

PART 2:
Critical evaluation of whether the law adequately protects the interests of individuals with mental disorders in light of the Human Rights Act.
The following critically evaluates, in particular, the Human Rights and the Mental Capacity Acts, to determine whether the law adequately protects the interests of individuals with mental disorders in light of the HRA.
2.1 Human Rights Act 1998
The Human Rights Act sets out the fundamental rights and freedoms to which everyone in the United Kingdom is entitled. It incorporates the rights set out in the European Convention on Human Rights (ECHR) into domestic British law and came into force in October 2000. The Act has three main effects :
1. Cases Can Be Heard in a British Court
The Act incorporates the rights set out in ECHR into British law. Therefore, once there is an alleged breach, the case can now be heard before a British Court rather than the European Court of Human Rights.
2. Public Bodies must Respect Individual Rights
The Act requires all public bodies, including Courts, Police, local authorities, hospitals and publicly-funded schools and other bodies carrying out public functions, to respect and protect individual human rights.
3. New Laws are Compatible with Convention Rights
Parliament should ensure that new laws are compatible with the rights outlined in the ECHR (although ultimately Parliament is sovereign and can, if it wishes, pass laws which are incompatible). The Courts will also, where possible, interpret laws in a way which is compatible with Convention Rights .
In relation to the treatment and detention of mentally disordered persons, the following ‘Convention Articles’ are now incorporated into domestic law :
Article 2 Right to Life
Article 3 Freedom from Torture and Inhuman or Degrading Treatment
Article 5 Right to Liberty and Security
Article 8 Right to Family and Private Life
Article 14 Prohibition on Discrimination
Although this paper is primarily concerned with the detention and treatment against the will of a mental disordered person, Article 2 may also be relevant where a person’s mental degeneration has reached a stage where no useful purpose would be served in prolonging that person’s life.
This was the issue with Alfie Evans, a child in hospital suffering from an incurable degenerative neurological condition. Although the parents’ application to Appeal was unsuccessful , they still pursued their case, a key element of which was the child’s right to live.
In this case, the medical evidence regarding quality of life overrode the right to live, which the courts accepted . The parents, although reconciled to the terminal nature of Alfie’s child’s condition, had argued that it was not for the British hospital to determine the circumstances, including the time and place, in which Alfie should be treated.
Nevertheless, the effectiveness of HRA in relation to detention of mentally disordered persons has been evident in several cases where the Courts had to decide between family wishes and mental health professionals. This was established in R (on the application of H)-v-Mental Health Review Tribunal for North & East London, where a man admitted into hospital under s 3 MHA, sought his discharge. The Court ruled that Sections 72 and 73 MHA were incompatible with Article 5. A Mental Health Review Tribunal for his discharge was unnecessary because it could not be shown that he was suffering from a mental disorder that justified his detention. S 10 HRA was applied and a Remedial Order was used to correct the incompatibility. The legislation was subsequently amended by the MHA 1983 (Remedial) Order 2001.
Similarly, in R (on the application of MH) -v-Secretary of State for Health, a patient detained under s 2 MHA was deemed incompetent to apply for discharge from detention which was extended under the provisions of MHA . S 2 MHA was held incompatible with Article 5(4) of ECHR . There was no provision for a referral to Court. The patient was mentally incompetent and detained under s 2. Despite there being a right to apply to a Mental Health Review Tribunal, it was incapable of being exercised. Furthermore, there was no right to take the issue before a Court when a person’s detention was extended .
On appeal, the House of Lords overturned the declaration and held that the statute could give practical effect to a patient’s rights under Article 5(4). Tribunals were designed to provide appropriate expertise and easy access. The Secretary of State could at any stage refer the patient’s case to a tribunal under s 67 MHA.
These two cases show that the HRA is capable of protecting a person’s rights if it is shown that Mental Health legislation is incompatible with a person’s fundamental rights. The latter case also demonstrates that the House of Lords (now the Supreme Court) is the final arbiter in these matters.
Since the HRA incorporates the fundamental rights and freedoms under the ECHR, cases decided by the European Court of Justice (ECJ) can often be helpful as a guide to whether the rights of mentally disordered persons have been infringed upon. Although most cases arise within other European countries, the decisions are still relevant when applied to similar circumstances arising in the UK.
The ECJ has repeatedly held that the detention of a person who is ill may raise issues under Article 3, which prohibits inhuman or degrading treatment. Therefore, the lack of appropriate medical care may be contrary to Article 3. This is particularly the case in respect to mentally ill persons, whose vulnerability and inability, in some cases, to complain coherently about how they are being treated, is not taken into consideration .
In relation to the compatibility of an applicant’s mental health with his detention, the ECJ outlined in Slawomir Musial v. Poland, three particular aspects to take into consideration:
a. The detainee’s medical condition;
b. The adequacy of medical assistance and care provided in detention; and,
c. The advisability of maintaining the detention measures in view of the applicant’s state of health .
Nevertheless, two British cases namely Keenan v United Kingdom (Keenan) and M.S. v United Kingdom (M.S.) brought before the ECJ alluded that in some circumstances, applicants felt that the English Courts were not always capable of protecting the rights of mentally disordered persons.
In Keenan, the applicant alleged that her son, who had been receiving intermittent anti-psychotic medication for several years, and whose medical history included symptoms of paranoia, aggression, violence and deliberate self-harm, had died from suicide in prison due to a failure to protect his life by the prison authorities. Additionally, he had suffered inhuman and degrading treatment due to the conditions of detention imposed on him. The Court held that there had been no violation of Article 2. It was not apparent that the authorities had outlined any step which should have reasonably been taken. It noted that schizophrenics suffered from a condition in which the risk of committing suicide was high and well known .
In M.S., a mentally-ill man complained about being kept in Police custody during a period of acute mental suffering, while it had been clear to all that he was severely mentally ill and urgently required hospital treatment. The Court held that there had been a violation of Article 3, because, although there had been no intentional neglect on the part of the Police, the applicant’s prolonged detention without appropriate psychiatric treatment had diminished his human dignity .
2.2 Mental Capacity Act
In the various cases involving mentally disordered persons, such persons can often be detained against their will. In some cases, however, they have to agree with this particular course of action. Accordingly, when the powers under s 135 MHA are exercised, the person may have to agree to continue being detained at a place of safety. This raises an important issue with regard to communication with mentally disordered persons. As far as possible, they should be aware of the circumstances and the reason for their detention and, likewise, their rights to humane treatment once they are detained.
In Rooman v Belgium, a sex offender with a mental health issue was detained for 13 years without appropriate psychiatric care. It was established that there was a violation of Article 3 because:
• there was no evidence of any realistic prospect of change; and
• he was subjected to distress of an intensity exceeding the level of unavoidable suffering inherent in detention .
Nevertheless, the current legal position in England and Wales in relation to a person’s mental capacity is penned in the Mental Capacity Act 2005 (MCA). This provides a legal framework for acting and making decisions on behalf of individuals who lack the capacity to make decisions for themselves. The Act applies to everyone involved in the care, treatment and support of persons aged 16 or over.
Section 1 of MCA sets out five ‘Statutory Principles’, namely:
1. A person must be assumed to have capacity unless it is established that they lack that capacity;
2. A person is not to be treated as unable to make a decision unless all practicable steps to help him have been taken, but without success;
3. A person is not to be treated as unable to make a decision merely because he makes an unwise decision;
4. An act done, or decision made, under this Act, for or on behalf of a person who lacks capacity must be done or made in his best interests; and
5. Before any act is done, or decision made, regard must be had to whether the purpose for which it is needed can be effectively achieved in a way that is less restrictive of the person’s rights and freedom of action .
The MCA was endorsed by Lord Falconer in the MCA Code of Practice 2007, where he acknowledged the vital importance of the legislation and the difference it made in the lives of people lacking mental capacity. He added:
“…..…it will empower people to make decisions for themselves wherever possible, and protect people who lack capacity by providing a flexible framework that places individuals at the very heart of the decision-making process. It will ensure that they participate as much as possible in any decisions made on their behalf, and that these are made in their best interests .”
Falconer also noted that the MCA needs to be supported by practical guidance. He referred to the Code of Practice as explaining the day-to-day operation of the Act, coupled with illustrating best practice to carers and practitioners.
Significantly, there is no legal duty imposed on anyone by the Act to comply with the Code. Instead, it must be viewed as guidance rather than instructions. Nevertheless, if there is non-compliance with the relevant guidance contained in the Code, one is expected to give good reasons for such non-compliance.
Despite the MCA and it’s Code of Practice, the ECHR established in the Bournewood Case, that a man who was unlawfully detained in hospital for psychiatric treatment without utilising the safeguards sectioned under the MHA, was unlawfully deprived of his liberty, which was, therefore, a breach of Article 5 .
This became known as the “Bournewood Gap” . The gap referred to compliant or non-resisting patients who lack the mental capacity to make decisions for themselves and are detained in hospital, but not formally detained under s 2 MHA. As a result, a widespread consultation on providing legal safeguards for mentally disordered persons was prompted. The government subsequently proposed a ‘Protective Care’ concept with similar safeguards to those in the existing MHA .
This case brought to light the lack of safeguards in certain situations where mentally disordered persons were being detained. In response, the UK Government initiated a widespread consultation which resulted in the MCA 2005 being amended to include the administrative and judicial safeguards now known as the Deprivation of Liberty Safeguards (DOLS) .
The DOLS are an amendment to the MCA 2005 and only apply in England and Wales. Although the MHA allows restraints and restrictions in the interests of a mentally disordered person, it was felt that additional safeguards were necessary. DOLS can only be used if the person concerned will be deprived of their liberty in a care home or hospital. In other situations, a Court of Protection can decide if there has been a Deprivation of Liberty . Care homes or hospitals can request a standard authorisation from the Local Authority and there are six assessments which have to take place before a standard authorisation can be given:
1. Age Assessment;
2. Mental Capacity Assessment;
3. Mental Health Assessment;
4. No Refusals Assessment;
5. Eligibility Assessment; and
6. Best Interest Assessment .
When a standard authorisation is granted, one key safeguard is that the mentally disordered person have someone appointed with legal powers to represent them . This person is called the ‘Relevant Person’s Representative’ and will usually be a family member or friend . Diagram 2 sets out this process and the occurrence various stages during 2016/17.
Diagram 2: DOLS Decision Making Process
Safeguards include a right to challenge authorisations in the Court of Protection, and a right of access to Independent Mental Capacity Advocates. The process of how to challenge the DOLS assessment or detention is outlined in diagram 3.
Diagram 3: How to challenge DOLS Assessment or Detention
Notably, all the stages described and shown in the above diagrams have been synoptically analysed and show how the laws adequately protect the interests of persons with mental disorder.
Conclusion
Since the HRA outlines the fundamental rights and freedom of individuals, it could be assumed that it is an effective vehicle for preserving these liberties, including those which affect mentally disordered persons. However, the Act has been criticised in that it is too closely linked with the ECHR and that the supremacy of the British Courts over the European Court of Justice (ECJ) has not been established, since referrals to the ECJ can still be made.
It is important to note that referrals to the ECJ can be a lengthy process. It is felt by some that the British Courts should establish its own jurisprudence and case law in relation to human rights, although this tends to ignore the fact that fundamental human rights are embedded in international conventions to which the UK is a signatory. The former Prime Minister, David Cameron, was even minded to repeal the HRA and replace it with the Bill of Rights but many thought this was merely a nostalgic return as far back as the Magna Carta. It could also affect our relationship with the ECtHR and create a wave of uncertainty which would undermine the protection of those suffering mental health issues.
In my opinion, the Courts in the United Kingdom and Europe have demonstrated that they are capable of preserving the basic rights and interests of individuals, including mentally disordered persons. This was encapsulated by Baroness Hale in a notable judgment where the best interest test was accentuated . Correspondingly, the aforementioned recent application to ECtHR, concerning Alfie Evans, a child in hospital with an incurable degenerative neurological condition, was declared inadmissible . The ECtHR maintained that there was no apparent violation of the rights and freedoms in the European Convention on Human Rights .
However, in order to preserve the basic rights and interests of persons with mental disorder, Court rulings must be adhered to and best practice must be embedded in Codes of Practice. Likewise, the supervision and regulation of these Codes are also essential elements in securing the rights and best interests of persons with mental disorder. Hence, after evaluating the above-noted legal frameworks for detaining and treating a person with a mental disorder against their will; in light of the HRA, I surmise that the law adequately protects their interests.
BIBLOGRAPHY
RESOURCES
1. Table of Cases
1. Alder Hey Children’s NHS Foundation Trust v Thomas Evans and Others [2018] EWHC 308 (Fam).
2. Aintree University Hospital NHS Trust v James [2013] UKSC 67.
3. E (A Child) [2018] EWCA Civ 550 King.
4. Evans v the United Kingdom 14238/18 (Inadmissible) (2018) ECHR 297 (28 March 2018).
5. HL v UK (App No 45508/99) 40 EHRR 761 (2004).
6. Keenan v United Kingdom 242 (App No 27229/95) ECHR (2001).
7. MS v United Kingdom (App No 24527/08) (2012).
8. R (On the Application of H) v Mental Health Review Tribunal for North & East London (2001) EWCA Civ 415.
9. R v Bournewood Community & Mental Health NHS Trust [2004].
10. R v Bournewood Community and Mental Health NHS Trust Ex p. L [1998] UKHL 24.
11. R (On the Application of MH) v Secretary of State for Health (Court of Appeal) (2004) EWCA Civ 1609.
12. Rooman v Belgium (App No 18052/11) ECHR (2017).
13. Sarjantson v Chief Constable of Humberside [2014] QB 411 para 25.
14. Slawomir Musial v Poland (App No 28300/06) ECHR (2009).
2. Table of Legislations
1. European Convention on Human Rights, Article 2, 3, 5, 8 and 14.
2. United Nations Convention on the Rights of Persons with Disabilities.
3. Human Rights Act 1998, (c.42) S.1.
4. Human Rights Act 1998, (c.42), Schedule 1: Article 2, 3, 5, 5(4), 8 and 14.
5. Mental Capacity Act 2005, (c.9) S.1.
6. Mental Capacity Act 2005, (c.9), Schedule A1: Hospital and Care Home Residents: Deprivation of Liberty, Part 4: Standard Authorisations, 33(2).
7. Mental Capacity Act 2005, (c.9), Schedule A1: Hospital and Care Home Residents: Deprivation of Liberty, Part 10: Relevant Person’s Representative.
8. Mental Capacity (Deprivation of Liberty: Appointment of Relevant Person’s Representative) Regulations 2008.
9. Mental Health Act 1983, (c.20) S.1-4, S.6(3), S.35-37, S. 45, S. 67, S. 72-73, S. 135-136.
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11. Police Crime Act 2017 (c.3) S. 80.
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1. Code of Practice to MCA on Deprivation of Liberty Safeguards 2008.
2. Code of Practice 2015 to MHA 1983 for England.
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4. Code of Practice 2016 to MHA 1983 for Wales.
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