The impact of the Human Rights Act 1998 on medical decision making
October 2000
Which human rights are relevant?
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:
(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.
The right to liberty does not mean that individuals must never be detained against their will and Article 5 provides specific exceptions to permit the lawful detention of those who have committed a criminal offence and to detain those who may pose a risk to themselves or others. "Unsoundness of mind" is one of the exceptions allowed by Article 5(1)(e) although the European Court has taken the view that the meaning of that phrase is not susceptible to a definitive interpretation since it will continually evolve. As a minimum, however, the Court has emphasised that "unsoundness of mind" cannot be used to detain an individual merely because his or her views or behaviour deviate from the norms prevailing in a particular society. This standard is also reflected in the UK mental health legislation. Detention under Article 5(1)(e) is only justified where appropriate procedures have been followed. The European Court has specified that in order for such detention to be lawful, in all but emergency cases, there must be reliable evidence before a competent authority:
- that a true mental disorder has been established by objective medical expertise;
- that the mental disorder is of a kind or degree warranting compulsory confinement; and
- the validity of continued confinement depends upon the persistence of such a disorder. (Winterwerpt-v-The Netherlands (1979).
Article 5 gives patients protection against arbitrary detention and could be used to challenge unjustified detention under the mental health legislation or informal treatment for a mental disorder. In order to ensure that Article 5 is not breached, the proper procedures must be carefully followed. Where an individual is considered to represent a risk to another person, in considering whether compulsory detention would be appropriate, the positive duty to protect life must also be included in the decision-making process.
In 1965 X was diagnosed as having a paranoid psychosis. In 1968 he pleaded guilty to a charge of wounding with intent to cause grievous bodily harm and, after medical reports, was detained in Broadmoor. In 1971, after his condition improved, he was granted conditional discharge. Throughout the time of his conditional discharge X lived with his wife, committed no further criminal offence and settled into regular employment. Regular psychiatric reviews were undertaken finding that, although he still suffered from mental disorder, there was no reason to further restrict his liberty. In April 1974 X's wife reported that his condition was not as she had previously reported, that he remained deluded and threatening, used obscene language and was drinking quite heavily. She intended to leave him the next day but was afraid to stay in the house with him that night. Fearful of a recurrence of violent behaviour by X, the matter was referred to the Home Secretary who ordered X's immediate recall to Broadmoor. X was arrested on his return from work and, he maintained, received no explanation for his detention. X was allowed out of hospital on leave in February 1976 and was conditionally discharged in July 1976. X claimed that his recall to Broadmoor and subsequent detention was arbitrary and unlawful.
In its earlier consideration of the case the UK Divisional Court had stated that very often the only way to allow such patients back into the community was by releasing them on licence with very careful supervision and an immediate reaction in the event of a sign of new danger. The European Court held that in such circumstances the interests of the protection of the public prevailed over the individual's right to liberty to the extent of justifying an emergency confinement in the absence of the usual safeguards implied in Article 5(1)(e). After his emergency detention X was re-examined and the decision was taken that X was in a psychotic state and should continue to be detained for treatment. The Court held that the proper procedures had been followed and that there had been no breach of Article 5(1). The failure to provide information and thus to permit review of the decision for readmission was, however, held to breach Article 5(4)
(X-v-UK (1981) 4 EHRR 188)
In cases where the risk of harm is to the patient him or herself, it might be considered that the suicidal patient has effectively waived his or her Article 2 right to life and thus should not be detained. It is considered very unlikely, however, that such a claim would be upheld since society does not generally accept that people have an unambiguous right to die when they choose. In most cases there will be an initial assumption that suicidal tendencies are a symptom of mental disorder and the patient is likely to be detained using emergency powers for assessment.
Article 5 also permits the lawful detention of individuals for the prevention of the spreading of infectious diseases. This does not, however, mean that individuals who represent a risk to others can be detained in the absence of any legal authority to do so. The Human Rights Act does not provide that authority, it simply states that one exception to the right to be free from detention is where the law has decided that individuals should be detained for the prevention of the spreading of disease. Any statute relied upon in these circumstances must be specific and accessible.
Article 5 - Summary
Article 5 protects patients against arbitrary detention. Whilst it does not prevent compulsory detention of patients, in many ways it reflects existing mental health legislation, requiring that proper and appropriate procedures are followed. Mental health legislation is under review throughout the UK, and all new legislation must be compliant with the Human Rights Act).
Article 5 could be used to challenge inappropriate detention, failure to adequately review the need for detention or informal treatment for a mental disorder.
The Human Rights Act does not provide any authority to detain individuals but simply states that one exception to the right to be free from detention is where the law has decided that those of unsound mind or at risk of spreading an infectious disease should be detained.
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