The ECHR and mental health law

The Convention for the Protection of Human Rights and Fundamental Freedoms, otherwise known as the European Convention on Human Rights, was ratified by the UK in 1951 and came into force in 1953. The right of citizens to petition the court was introduced in the UK in 1966, and the Convention was incorporated into domestic law in 2000.

Human Rights Act 1998

The Human Rights Act 1998 gives domestic effect to most of the European Convention on Human Rights, including those Articles listed below. It obliges UK courts and public authorities to act consistently with Convention rights:

Under s3 HRA, legislation (including, for example, the Tribunal Rules) must if possible be read and given effect in a way which is compatible with the Convention rights.
Under s4 HRA, if a provision of primary legislation is incompatible with a Convention right then the court will make a ‘declaration of incompatibility’; the legislature can then decide how to remedy the incompatibility but until then the legislation remains in force.
The Supreme Court has decided that a public authority, court or tribunal should disapply a provision of secondary legislation which would otherwise result in its acting incompatibly with a Convention right (RR v SSWP [2019] UKSC 52^M).
In international law the UK is bound by Strasbourg decisions to which it is a party (ECHR art 46(1)).
Internally, UK courts must take into account European Court of Human Rights decisions (s2 HRA). Where there is no conflict between domestic precedent and Strasbourg case law, our domestic courts will generally follow ‘clear and constant’ Strasbourg jurisprudence (R (Alconbury Developments Ltd) v SSETR [2001] UKHL 23^B). However, where there is conflict, our domestic courts must follow domestic precedent instead of Strasbourg case law (Kay v Lambeth LBC [2006] UKHL 10^B).

Articles

The following are the European Convention on Human Rights Articles most relevant to mental health law. For further details, see the following pages: Article 2, Article 3, Article 5, Article 6, Article 8 and Article 14.

Article 2 – Right to life

1. Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.
2. Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the 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.

In Savage v South Essex Partnership NHS Foundation Trust [2008] UKHL 74^M the House of Lords decided that Article 2 imposes, in addition to general obligations, a further ‘operational’ obligation on health authorities and their hospital staff: if members of staff know or ought to know that a particular detained patient presents a real and immediate risk of suicide, they must do all that can reasonably be expected to prevent the patient from committing suicide.

This operational obligation applies not only to detained patients but also to informal patients (Rabone v Pennine Care NHS Foundation Trust [2012] UKSC 2^M).

Article 3 – Prohibition of torture

No one shall be subjected to torture or to inhuman or degrading treatment or punishment.

The conditions of a patient’s detention under s136 in a police cell, while waiting for transfer to a medium secure unit, were held by the European Court of Human Rights to be an affront to human dignity which reached the threshold of degrading treatment for the purposes of Article 3 (MS v UK 24527/08 [2012] ECHR 804^M, [2012] MHLO 46).

Article 5 – Right to liberty and security

1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the 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 in order 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 the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered 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 lawful detention 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 persons of unsound mind, alcoholics or drug addicts or vagrants;

f. the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country 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 the reasons 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 shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.
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 following are notable Strasbourg cases:

The ‘Winterwerp’ criteria derive from Winterwerp v Netherlands 6301/73 [1979] ECHR 4^M and are reflected in the Mental Health Act 1983 criteria — ‘In the court’s opinion, except in emergency cases, the individual concerned should not be deprived of his liberty unless he has been reliably shown to be of “unsound mind”. The very nature of what has to be established before the competent national authority – this is, a true mental disorder – calls for objective medical expertise. Further, the mental disorder must be of a kind or degree warranting compulsory confinement. What is more, the validity of continued confinement depends upon the persistence of such a disorder.’

It was following X v UK 7215/75 [1981] ECHR 6^M that 28-day-assessment patients were given the right to apply to the Tribunal, and that the Tribunal was given the power to discharge restricted patients (previously the Tribunal could only recommend the discharge of restricted patients).

In Megyeri v Germany 13770/88 [1992] ECHR 49^M there was a breach of Article 5(4) where the patient was not assigned a lawyer in proceedings similar to Mental Health Tribunal proceedings. — ‘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.’

MH v UK 11577/06 [2013] ECHR 1008^M, [2013] MHLO 94 involved a patient lacking capacity to apply to the tribunal. The court concluded that neither the patient nor her nearest relative were able in practice to avail themselves of the normal remedy granted by the 1983 Act because the special safeguards required under Article 5(4) for incompetent mental patients in a position such as hers were lacking. There was a violation of Article 5(4). The necessary special safeguards ‘may well include empowering or even requiring some other person or authority to act on the patient’s behalf’ (i.e. referring the case to the tribunal).

The ECHR described the complaint in LV v UK 50718/16 [2018] MHLO 22 as: “The applicant complains under Article 5(4) of the Convention that she did not have a speedy review of the legality of her detention. In particular, she contends that her right to a speedy review was violated both by delays on the part of the Public Protection Casework Section and the Parole Board, and from the unnecessary two-stage Tribunal/Parole Board process.” She accepted the government's offer of £2,500 in settlement of her claim (LV v UK 50718/16 [2019] MHLO 32 (ECHR)).

Domestic declarations of incompatibility under the HRA have included the following:

The placing of the burden of proof at Tribunal hearings on the patient was incompatible with Article 5 (R (H) v MHRT North and East London Region [2001] EWCA Civ 415^M). This was the first declaration of incompatibility under the HRA. The relevant section was quickly amended.

The inability of a transferred prisoner to require that his case be considered by the Parole Board while still in hospital (after a positive Tribunal result) was incompatible with Article 5 (R (D) v SSHD [2002] EWHC 2805 (Admin)^M). The Act was subsequently amended so that the matter is no longer a matter for the Secretary of State’s discretion.

Some recent court decisions have dealt with Article 5 deprivation of liberty and how to ensure that such deprivations of liberty are lawful in the context of Mental Health Tribunal proceedings.

Article 6 – Right to a fair trial

1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all 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 the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.
2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.
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 of the 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 sufficient means 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 of witnesses 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 in court.

Article 8 – Right to respect for private and family life

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 inability of a patient to take steps to have her nearest relative displaced was incompatible with Article 8 (R (M) v Secretary of State for Health [2003] EWHC 1094 (Admin)^M). The Act was eventually amended in 2008.

Article 14 – Prohibition of discrimination

The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination 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.

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