Report on the Review of the Mental Health (Scotland) Act 1984

Chapter 33

EUROPEAN CONVENTION ON HUMAN RIGHTS AND THE COUNCIL OF EUROPE WHITE PAPER ON PSYCHIATRY

The European Convention on Human Rights

1. The European Convention on Human Rights (ECHR) was drawn up in 1950 and ratified by the United Kingdom in 1951.

2. The Convention rights are binding on the Scottish Parliament and the Scottish Executive under the Scotland Act, and on public authorities throughout the UK since the Human Rights Act came into force on 2 October 2000.

3. The Convention rights which apply under the Scotland Act and the Human Rights Act can be summarised as follows:

• The right to life (Article 2)
• Freedom from torture and inhuman or degrading treatment or punishment (Article 3)
• Freedom from slavery and forced or compulsory labour (Article 4)
• The right to liberty and security of person (Article 5)
• The right to a fair and public trial within a reasonable time (Article 6)
• Freedom from retrospective criminal penalties and no punishment without law (Article 7)
• The right to respect for private and family life, home and correspondence (Article 8)
• Freedom of thought, conscience and religion (Article 9)
• Freedom of expression (Article 10)
• Freedom of assembly and association (Article 11)
• The right to marry and found a family (Article 12)
• Prohibition of discrimination in the enjoyment of Convention rights (Article 14)
• The right to peaceful enjoyment of possessions (Article 1, Protocol 1)
• The right to education (Article 2, Protocol 1)
• The right to free elections (Article 3, Protocol 1)
• The right not to be subjected to the death penalty (Protocol 6)

4. Most of these rights are not absolute. The Convention permits limitations to be placed on many of the rights to enable States to secure important objectives such as national security; the prevention of disorder or crime; the protection of health or morals and the protection of the rights and freedoms of others.

Enforcement of the ECHR

5. Since 1966, British citizens have had the right to take a case to the European Court of Human Rights in Strasbourg if they feel that their rights under the Convention have been infringed by the State. Where the Court finds a State to be in breach of the Convention, it may be required to change its law to rectify the breach.

6. However, the Scotland Act 1998 has brought the ECHR into the mainstream of Scots lawmaking and practice. Under the Act it is outwith the competence of the Scottish Parliament and the Scottish Executive to pass any legislation or do any other act which is incompatible with the Convention⁸.

7. Every piece of legislation or act of the Parliament and Executive is potentially challengeable in the courts on ECHR grounds and, if found to be in breach, the courts can strike down the legal provision or act.

8. We note that there have been a large number of legal challenges on ECHR grounds since July 1999, but that only a small proportion of these has been successful. Most of these have been on low-profile matters, but there have been a handful of highly publicised judgements, for example, relating to the appointment of temporary sheriffs.

9. The Human Rights Act 1998 came into force throughout the UK on 2 October 2000. It has important implications for the Westminster Parliament. However, the most significant effect of this piece of legislation in Scotland is that acts of 'public authorities' must now be compliant with the Convention. Acts of public authorities are challengeable in the courts, and a person may rely on Convention rights in proceedings brought against him or her by a public authority. 'Public authority' is a broad term, encompassing all persons or bodies acting in a public capacity, and the Human Rights Act thus extends ECHR rights beyond the provisions of the Scotland Act.

10. In September 2000, the Scottish Executive announced its intention to introduce a Bill dealing with ECHR issues. We understand this Bill primarily deals with criminal justice matters, and does not contain significant proposals in relation to mental health law.

The Convention and the Mental Health (Scotland) Act 1984

11. It is, of course, the case that much of the Mental Health (Scotland) Act 1984 is concerned with compulsory measures, which in many cases will affect rights under the Convention. However, as has already been stated, these rights are not for the most part absolute. The Convention, and judicial interpretation of it, has always recognised that there is a balance to be struck between the general interests of society and the protection of the individual's rights.

12. The most relevant article of the Convention to detention in hospital is Article 5, the right to liberty and security of person. It is Article 5 (1) (e) of the Convention which permits States to undertake detention on mental health grounds. It provides as follows:

"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:

(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"

13. Other Articles which are of key concern in relation to mental health include Article 6 (the right to a fair trial), Article 8 (the right to respect for private and family life), and Article 14 (prohibition of discrimination in enjoyment of Convention rights), although others will of course be appropriate from time to time.

14. Article 6 states that:

"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."

15. This applies to decisions in relation to mental health detention, as well as a range of other decisions which may affect a person's civil rights. It does not mean that a court, as the term is applied in Scotland, is required to review every such case, but it does require that decisions must either be made, or can be appealed to, a body which has key features of a court, including independence, and the power to make a decision which is binding on the affected parties.

16. Article 8 states that:

"Everyone has the right to respect for his private and family life, his home and his correspondence. 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."

17. This is relevant to a range of issues, including sexual relationships (see Chapter 21) and control of patients' correspondence (see Chapter 11).

18. Article 14 states that :

"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."

19. Although mental disorder is not specifically mentioned, the general nature of Article 14 should ensure that people's Convention rights are not unjustifiably affected because of the existence of a mental disorder. The principles of equality and respect for diversity which we propose in Chapter 3 are in line with Article 14.

20. There is a significant body of European case law concerned with mental health. For example, the case of Winterwerp⁹ established criteria under which ongoing liability to detention on the grounds of 'unsound mind' must be justified, namely

• the existence of a true mental disorder established by objective medical expertise
• which disorder is of a nature or degree warranting compulsory confinement, and
• which disorder persists at the time of review.

21. It was the decision of the European Court in the case of X v UK¹⁰ which led to the Government changing the law in the Mental Health (Scotland) Act 1983 to give a right of appeal to the sheriff against the refusal of Ministers to discharge a restricted patient.

22. The recent challenge to the Mental Health (Public Safety and Appeals) (Scotland) Act was based on ECHR arguments¹¹. Although unsuccessful, we understand it is subject to appeal, and it seems likely that this could presage further challenges to aspects of the 1984 Act.

23. The Committee began its work before the relevant provisions of the Scotland Act or the Human Rights Act came into force. However, it has been aware from the outset of the importance that the ECHR would increasingly have in Scotland.

24. We have therefore kept the ECHR very much in mind. We state on occasion throughout this report when our consideration of the Mental Health (Scotland) Act 1984 has been particularly influenced by questions of Convention rights. However, even when we have not said as much, our recommendations have generally been influenced by recognition of the rights of the individual, including under the Convention.

25. However, detailed scrutiny of the compatibility of our recommendations with the European Convention on Human Rights, is not a matter which lies within the remit or responsibilities of the Committee. We asked in our second Consultation whether respondents wished to make comment on the impact of the ECHR on mental health law. There were few responses on this point, which suggests to us that many people working in the field of mental health are not yet sure what the implications of the ECHR are for mental health law.

26. We believe that the general approach which we have taken in this report reflects the general principles of the Convention, and, if implemented, may help to remove doubts about the compatibility of the Mental Health Act with the Convention. Insofar as our proposals are accepted, it will of course be for the Scottish Executive and Scottish Parliament to translate them into legislation, and to ensure that the detailed legislative proposals meet the requirements of the Convention. Caselaw concerning the Convention has made it clear that it should not be interpreted narrowly, but in accordance with developing human rights norms. We anticipate, therefore, that the Scottish Executive and Parliament will wish to ensure that any new mental health act applies the general spirit of the Convention, as well as being compliant with the current case law.

Council of Europe White Paper on Psychiatry and Human Rights

27. We are also aware of the Council of Europe White Paper on Psychiatry and Human Rights, which was published on 3 January 2000 for public consultation purposes. It was drawn up by the Working Party on Psychiatry and Human Rights of the Council of Europe's Steering Committee on Bioethics. The terms of reference of the Working Party require it:

"to draw up guidelines to be included in a new legal instrument of the Council of Europe. These guidelines should aim to ensure protection of the human rights and dignity of people suffering from mental disorder, especially those placed as involuntary patients, including their right to appropriate treatment."

28. It would seem likely that any such instrument will not be finalised, or ratified by the UK government, for some time. The Government will no doubt wish to take account of any developments in mental health law which follow this report, in its dealings with the Council of Europe concerning the proposed new legal instrument.

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