Legislating Mental Health Rights

Introduction

The main legislations around mental health and mental health care and treatment are the Mental Health Act 1983 (MHA 1983) and Mental Capacity Act 2005 (MCA 2005). MHA 1983 operates through a procedure that requires application and also supporting medical evidence on designated statutory forms. MCA 2005 manages patients with mental disorder but lacking capacity, and operates with a defence as regards acts of care and treatment for a person done after taking reasonable steps to assess capacity. Both the Acts could lead to deprivation of liberty of a patient. This essay will determine the impact of HRA 1998 and ECHR 1950 and the relevant judgements corresponding to mental health laws, such as MHA 1983 and MCA 2005 in upholding the individual rights while balancing public safety.

The Human Rights Act 1998 (HRA 1998) brought into effect the European Convention of Human Rights 1950 (ECHR 1950), which potentially brought about a positive and speedy effect of implementing rights regarding mental health laws. There have been previous judgements in the European Court of Human Rights and also the British mental health laws. This essay will discuss the extent of relevance of Human Rights Act 1998 and European Convention of Human Rights 1950 on protecting the rights of the patients vis-a-vis the mental health legislations.

Review of the Human Rights Act 1998 and European Convention of Human Rights 1950 impact on UK law on mental health.

Section 128 of National Health Service Act 1977 defines “illness” as including mental disorder and “any injury or disability requiring medical or dental treatment or nursing”. Mental Health Act 1983, s1(1) defines “mental disorder” as any disorder or disability of the mind. The definition is quite simple and straightforward as it looks, but is actually far complicated when dealing with treatment of a person with such mental disorder and when read with human rights perspective. The mental health laws and human rights provisions, such as those provided under HRA 1998 and ECHR 1950 are in a constant dilemma while balancing individual patient’s rights against protection of the public. While the HRA 1998 and ECHR 1950 focus on patient’s right, the mental health laws, example the Mental Health Act 1983 attempts to do so but keeping public protection in mind. The concern on the latter view is justified given that there have been cases of homicides committed by mentally ill patients.

HRA 1998 and ECHR 1950 serve as the guiding legal framework and as limits on state laws while dealing with issues involving human rights in the mental health sphere. HRA 1998 incorporates rights and fundamental freedoms under ECHR 1950 set out in its Articles 2 to 12 and 14; Articles 1 to 3 of the 1st Protocol; and Article 1 of the 13th Protocol; along with Articles 16 to 18 of ECHR 1950. They are subject to derogation or reservation as provided under Sections 14 and 15 of HRA 1998. Some of the articles are most relevant to protection of patients with mental health. Article 2 provides for right to life. Article 3 prohibits “torture or to inhuman or degrading treatment or punishment”. Article 5 provides right to liberty and security. Article 8 provides right to private and family life, and his home and correspondence. Article 10 provides the freedom of expression. Article 12 provides right to marry. Are all of these rights incorporated in or complied with by the mental health laws, or do the mental health laws provide more practical approach while dealing with patient and their rights as against the general rights and security of the public?

Patient to knowing their rights

Mental Health Act 1983, s127 makes ill-treatment of patients an offence punishable with imprisonment. Therefore, knowing rights under HRA 1980 or ECHR 1950 is important to patient in case of detention in under the Act. This is demonstrated by the European judgment in Winterwerp v Netherlands, which made detention of patient of unsound mind lawful, except in an emergency, only if the patient is shown by medical experts to be of unsound mind and that the degree of his mental disorder warrants for compulsory confinement, or continued confinement if the disorder persists. The terms laid out here corresponds with provisions under the MHA Act 1983, s5(2) that calls for detention of the patient for 72 hours. But, the limitation of this provision is that it applies to only patient already admitted in the hospital and not other person with mental illness, thereby putting public safety at risk. A counter argument from human right perspective could be that it is against Article 5 of ECHR 1950 that provides for right to liberty. But, this apparent violation of rights could be tackled with by the right given to patient to appeal to mental health tribunals under MHA 1983, s6. It is understandable that just having legislation is not enough. The authorities must have the political will and take up steps to enforce legislative measures, or empower people to enforce their rights, such as those under Article 5 of the ECHR 1950. An instance of such lack of political will is demonstrated by this article. It does not define or talk about the phrase “unsound mind”. This must be subject to objective medical expertise and to a degree warranting compulsory confinement of the person, which again should be subject to persistent mental disorder. This is seen in the European court judgment in Winterwerp v Netherlands that ruled for this requirement for confinement.

The term “detention” is a matter of intensity of deprivation of one’s liberty instead of its nature of substance. In relevance is the case of R v Bournewood Community and Mental Health NHS Trust which ruled that a person with mental illness cannot avail the right to liberty and security under ECHR 1950, Article 5 if he is non-protesting, and that conditional discharge does not deprive the liberty of the patient. But, what constitutes “non-protesting in respect to the kind and degree of the mental illness or health for that matter? The existing laws do not provide clear explanation. For example, the MCA 2005 provides for admission and treatment of incapacitated and non-protesting patients, but it does not provide clearly that patients, who object, must be discharged until and unless the criteria for involuntary detention are complied with. There is apparently a level of discretion being given to the authority to decide who and when to discharge without appropriately defining the phrase “non-protesting”. Instead of challenging this apparent limitation, the law gives authority to a court under Article 5(4) to order discharge. This power is also validated and extended by the MHA 1983. In X v United Kingdom, the Commission held that the mental health review tribunal’s ruling and power were against the Convention rights when it did not order to discharge X though it held that detention of a restricted patient was no longer justified. The Commission held that the tribunals have functions only and were not competent to determine the lawfulness of detention and to order release. It is left to a court under Article 5(4) to do this. For this reason, it is left to individuals firstly to understand their rights and secondly, to proactive enforce their rights knowing very well the judicial activism in this field. The HRA 1980 and ECHR 1950 along with respective judicial decisions provide enough authority for someone to enforce their rights. HRA 1998 prohibits detention of a person against their wishes without lawful authority. The extent of applicability of this provision has to be reviewed with the detention provisions under the MHA 1983. One good case is R v Hallstrom and another ex parte W. W is an applicant, who has been admitted to mental hospitals on numerous occasions. W lives in a hostel but, she refuses to take medication. Her G.P. and a consultant psychiatrist consider it is necessary for W to continue to take medication for her health while she stays at the hostel. They sign a recommendation under Section of MHA 1983, which gets her admitted to the hospital for a night. She is then granted leave of absence under MHA 1983, s.17 in the belief that W is then a person "liable to be detained" under powers provided under ss.56 to 64 of MHA 1983, which could be brought into operation if she refuses to consent to treatment. The court held that admission and compulsory detention under MHA 1983, s.3 as is done in this case is applicable to patients requiring in-patient treatment, and this section does not authorise a nominal detention where the patients do not require in-patient treatment. W in this case does not require in-patient treatment as it was intended that she receives treatment at the hostel itself. Therefore, the recommendation is held to be unlawful. The same principle is also held in the case of R v Gardner and another ex parte.

Practical problem lies in complex conflict between leaving discretion to the state or the medical authorities to implement the provision of the mental health laws and leaving the human rights enforcement to individuals. This generates violation of human rights laws by authorities when they follow mental health rules, which do not all the time provide clear substance. For example, medical authorities are allowed to use forces, such as force feeding, or physical restraint. But, the rules under ECHR 1950, Article 3 allows such coercive mental health care. Also, Article 5 is flawed as it groups mental illness with drug addicts or vagrants. These flaws have not been dealt with or challenges by the HRA 1998. However, similar kind of flaws that violates human rights could also be found in MHA 1983 as demonstrated by the case of JT v UK, which also shows that the human rights rules act as guiding principles while implementing mental health domestic laws. The issue was with the alleged rigid definition of a “nearest relative”. The patient was detained under Section 3 of the MHA 1983 Act. She had a difficult relationship with her mother, who was her nearest relative as per the MHA 1983. This gave rise to the issue of unwanted disclosure of her confidential information to her mother, in case she got compulsorily admitted again. The issue was with prohibition on the patient to change her nearest relative, and so, there was alleged infringement of her right to respect for private and family life under ECHR 1950, Article 8. The Commission ruled in her favour. However, it cannot be denied that the domestic laws brought some clarity while implementing human right rules. For example, in Winterwerp v Netherlands (1979), ruling by the European Court did not provide any definitions of mental disorders, but left it so open to changes with advances in psychiatric management. This ambiguity is tackled by the Mental Health Act 1983, s1(1) that defines mental disorders. But, this definition is too broad to categorise patients into any clinical types, and includes a broad range including most serious psychiatric disorders to personality disorders or intoxication by drink or by drugs, which may also be regarded by some as just “social problems”. What is still not clear is why this does not contravene Convention rights under judgments delivered by the European Commission or the European Court based on the reason of managing behaviours arising from the disorders without giving any concerns or benefits to the detained patient. This finds validation in the case of Ashingdane v UK that does not provide for Article 5(1e) to require treatment of patient during detention. It was ruled that Article 5(1e) prohibits arbitrary detention and so, requires certain relationship between grounds of permitted deprivation of liberty and the place and conditions of detention, but, it does not concern suitable treatment or condition.

Human rights laws as guiding principles

HRA 1998 empowers patients to bring successful claims against their human rights’ violation. It makes acts of public body unlawful that are not compatible with ECHR 1950. Mental health patients are more vulnerable and their rights are more at risk. HRA makes any institutes or bodies, both private and public, accountable if they violate their rights. For example, in Glass v UK, the patient, a severely physically and mentally disabled child, was awarded €10,000 in compensation. Without the mother’s knowledge, he was administered morphine after the doctor placed a ‘Do Not Resuscitate’ (DNR) order on his notes, which the mother of the patient earlier objected. The court held that this act of the doctor constituted a breach of the patient’s right to respect for private and family life as provided under ECHR 1950, Article 8. Another case that was an example of violation of Article 3, right of prohibition from torture and degrading treatment is MS v UK. The patient was detained for three days under the MHA Act 1983, where he repeatedly banged his head on the wall. He drank from the toilet and also smeared himself with faeces, and then was transferred to a clinic for treatment. The court held that treatment of the patient was against his dignity and as such violated Article 3 as the dire need of psychiatric treatment was not administered to the patient. It must be noted here that MHA 1983, like other mental health laws, regulates involuntary detention and treatment of persons with serious mental illness. Another key mental health legislation is the MCA 2005, which manages patients with mental disorder but lacking capacity. Such patients need medical treatment for mental disorder in their best interest and they do not resist treatment. MHA 1983 operates through a procedure that requires application and also supporting medical evidence on designated statutory forms. MCA 2005 operates with a defence as regards acts of care and treatment for a person done after taking reasonable steps to assess capacity, where there is a reasonable believe that the person lacks capacity and where it is reasonably believe that intervention is in the best interest of that person. In both the Acts, liberty of a patient could be deprived. In MCA 2005, it is allowed by following the Deprivation of Liberty (DoL) procedures, both in hospitals and care homes. The DoL procedure does not require the person to show abnormally aggressive or seriously irresponsible conduct. In MHA 1983, long term deprivation is allowed in hospital and not in a care home. The provisions in both the Acts have medical obligations to be undertaken and at the same time, there are provisions that concern protection of human rights. For example, MHA 1983, s 3 provides for the detention of patients for purposes of treatment for health or safety of the patient and also for the protection of other persons. At the same time, it also gives the right to the patient to make an application under s.75(2) of the Act for absolute discharge. MHA 1983 has shifted from the practice of custody and incarceration to that of integration and rehabilitation of patient with mental disorders. It emphasis on voluntary treatment of such patients in community and integrated health institutions, and opposes segregated mental asylums. It is to be noted that where the legislation lacks enforcement authority, the principles laid down by courts kick in. Examples are those cases where the court laid down the principle that a decision maker on behalf of the patient must give reasons behind its decision. This is illustrated in R (on the application of Wooder) v Feggetter. A duty to give reason is necessary where the subject matter, such as personal liberty, is highly regarded by law. Fairness requires the authority to give reason, at least the particular decision it gives and it must be given as of right. Therefore, in this category falls the decision of the authority to administer medical treatment to a patient who is competent and non-consenting. Similarly, in regard to the MCA 2005, there are cases where court ruled that where a person has mental illness, it does not automatically mean he lacks a decision making capacity about his medical treatment. Also, a patient with capacity to make his own decisions can refuse treatment, despite the possibility that doctors may find those decisions irrational or that they may place the patient’s health or their life at risk. This was demonstrated in the case of Re T (Adult: Refusal of Treatment). Each decision needs separate assessment of capacity. Most of the capacity assessments occur at a non-judicial level as well outside of day-to-day decisions. Healthcare professionals are likely to be the most common assessors. For these reason the quality of the assessor also have an impact on the decision regarding capacity around decision on medical treatment of a patient.

Opportunity to determine tests

It seems the current mental health laws lack controls particularly on involuntary treatment of persons, who are detained under MHA 1983. There is, therefore, an opportunity to discuss as to the scope of permissible compulsory treatment. Courts do have a role in deciding the scope as well as ensuring the compulsory treatment is within the permissible scope. The courts may also refer to standards derived from human rights law, but those laws should also be developed. Also, there are probable issues about determining capacity, as seen above, and that the presence of capacity may be relevant, but cannot be termed determinative as regard enforceability of a medical treatment. It requires an actual understanding of the concerned information, and moreover the ability to know consequences of choices. But, this threshold of capacity is not very authoritative as to bring up the standard of capacity. This seems to be a high threshold to be expected and therefore the decision of a person warrants considerable deference. When a person does not have capacity, the test of best interest comes in the picture. The best interest test is provided under MCA 2005, ss 63 and 58. But, the question could be why this higher standard is applied to psychiatric treatment and not to other medical care. There is, therefore, a grey area, which warrants a human right framework to act as a norm to be mandatorily complied with. In this respect, Lord Donald in Re T (Adult: Refusal of Treatment) gave an explanation from self determination perspective:

“This situation gives rise to a conflict between two interests, that of the patient and that of the society in which he lives. The patient’s interest consists of his right to self-determination—his right to live his own life how he wishes, even if it will damage his health or lead to his premature death. Society’s interest is in upholding the concept that all human life is sacred and should be preserved if at all possible. It is well established that in the ultimate the right of the individual is paramount”

The MHA 1983 provides for a Code of Practice to guide the treatment of patients in s 118. This code provides a non-exhaustive list of disorders, including affective disorders, such as depression and bipolar disorder, neurotic, stress-related and somatoform disorders, organic mental disorders, personality and behavioural changes caused by brain injury or damage and some others disorders behavioural and emotional disorders. Thus, it could be seen that mental disorder is not just directly related to mental capacity to make decisions. The Code of Practice 2015 looks like an attempt to inculcate human rights perspective in the medical practitioners and therefore, it acts as a human right enforcement framework of the MHA 1983. This is supported by the overreaching principles mentioned in the code to include least restrictive measures to treat a patient safely and lawfully without detaining; empower the patient to fully involve him in decisions regarding his care, support and treatment; treat the patients, their families and carers with respect and dignity; appropriate decisions and care guided by national guidelines; effective and quality commissioning and provision of mental healthcare services. How far it is true will have to be determined by analysing the provisions of mental health laws with references to case laws. For example, cases such as R v MHRT London South that finds faults in the mental health review tribunal’s routine deal of hearing by eight weeks as unacceptable, and R (H) v MHRT North and East London Region that states that Section 72 and 73 of MHA 1983 contravene ECHR 1950 are example of how domestic mental health laws do not still live up to the expectation of protection human rights. A counter argument could be that the problem of conflict between personal rights and public safety are left entirely with domestic legislation to bring the balance under constant pressure and expectation of the human rights laws, which focus mostly on individual rights. Expected responsibility of the doctors is to treat and manage patients with social problems, may be having drinking problem or drug addiction as stated earlier. The legislations will require them to detain such patients for protecting public or will otherwise be held liable. This may violate human right rules where compulsory detention of such patient may violate the patient's human rights. This is a moral dilemma. More than that, this is a conflict between laws and the issue of supremacy between two set of laws arises. There has to be test to determine reasonableness and appropriateness of the action taken by medical professionals and institutes. One case that could somewhat show light in this direction is that of B v UK, where the Commission held that non-existence of a single incident grave enough to constitute inhuman and degrading treatment did not occur that could otherwise had possibly contravene the special hospital patient right of life free from violence, overcrowding, and lack of sanitary facilities, fresh air and his privacy. All these cases point towards one thing. The existence of the Code of Practice is also without much authority or does not have enforceability as such to protect human rights of patients from being violated. The reason lies in the code and the mental health legislation. The code is not a set of instructions to be complied with. They are just guidance and therefore cannot make anybody accountable. This was observed in the case of R (Munjaz) v Mersey Care NHS Trust and was supported by the ECtHR that the Code of Practice does not have any binding force of legislation. It is guidance and not an instruction. However, it cannot be treated as mere advice and must not be departed from without giving rational conclusion through critical scrutiny of the court. Similar lack of teeth in the legislation could be said for MCA 2005. Even though it provides for rights to liberty and self‐determination, they are restricted rights. The views of the person lacking mental capacity could be overridden by others, as provided in the Act. The lack of access to social rights also could render the enforceability of the rights, such as availability of domiciliary and community services, useless.

Conclusion

There is a continuous conflicting movement between the HRA 1998 and ECHR 1950 and the mental health legislations. The reason is with the complexity in defining mental disorder or mental illness. If one adopts a broader definition, it is not just to patient with complex mental illness, but at the same time to give specific categories of mental illness. Such complexity become intense when mental health legislations are read with human rights rules.

There is constant dilemma while balancing individual patient’s rights against protection of the public. Those involve in treating the patient also face moral dilemma while treating patient in their best interest and considering public safety as well. However, HRA 1998 and ECHR 1950 serve as the guiding legal framework, which governs state actions. Few observations are made here. Firstly, the legislations must be backed with political will to balance public and private rights and to enforce legislative measures. Secondly, persons with mental illness must be empowered to take charge and enforce their own rights. Knowing rights under HRA 1980 or ECHR 1950 is important to know when one’s right or liberty is deprived unlawfully. This acts as a limiting force on the discretion of the state from contravening human rights laws while implementing mental health laws. Thirdly, the current mental health laws need to have more controls, which could be done by any analysing the provisions of mental health laws with references to case laws.

Bibliography

Books

Kelly BD, Dignity, mental health and human rights: coercion and the law (Routledge 2016).

McSherry B and Penny Weller, Rethinking rights-based mental health laws (Bloomsbury Publishing 2010).

Webley L and Harriet Samuels, Complete Public Law: Text, Cases, and Materials (Oxford University Press 2015).

Ward I, Literature and Human Rights: The Law, the Language and the Limitations of Human Rights Discourse (Walter de Gruyter GmbH & Co KG 2015).

Journals

Bartlett P, ‘The necessity must be convincingly shown to exist’: Standards for compulsory treatment for mental disorder under the Mental Health Act 1983’ (2011) 19(4) Medical law review 514-547.

Bindman J, Samantha Maingay and George Szmukler, ‘The Human Rights Act and mental health legislation’ (2003) 182(2) The British Journal of Psychiatry 91-94.

Mental Health: Critically discuss the relevance of the Human rights Act 1998 and European Convention of Human Rights 1950 on the UK law on mental health.

Boyle G, ‘The Mental Capacity Act 2005: promoting the citizenship of people with dementia?’ (2008) 16(5) Health & social care in the community 529-537.

Donnelly M, ‘Capacity assessment under the Mental Capacity Act 2005: Delivering on the functional approach?.’ Legal studies 29(3) (2009) 464-491.

Leung WC, ‘Human Rights Act 1998 and mental health legislation: implications for the management of mentally ill patients’ 78 (917) (2002) Postgraduate medical journal 178-181.