the limits of mental health law in Scotland
mental health staff and patients could bring more cases to court
in Scotland under human rights law, explains Rosemarie McIlwhan.
health and human rights became a "hot topic" in Scotland
early after the devolution settlement when the first piece of legislation
passed by the new Scottish Parliament, the Mental Health (Public
Safety and Appeals) (Scotland) Act 1999 was challenged on human
rights grounds (note 1 below).
reason for the challenge was that it was alleged that parts of the
act breached article 5 of the European Convention on Human Rights
(ECHR) and as the Scottish Parliament can not make laws which do
not comply with the ECHR those parts were potentially ultra vires
(outwith the competence of the parliament) and as such were not
5 provides that you can only be detained in certain circumstances
in accordance with the domestic law, one such circumstance is detention
on grounds of "unsound mind" (note 2 below).
is no clear cut human rights definition of "unsound mind"
as medical opinion is constantly developing, however it has been
stated that it is "more than a deviation from normal societal
views or behaviour" and that reference should be made to relevant
domestic law and particular circumstances of the case in light of
current psychiatric knowledge (note 3 below).
requirements for detention on these grounds was laid down in the
Winterwerp case (note 4 below). The challenge to the 1999 Act was
unsuccessful as the court held that article 5 does not require that
the detention be for purposes of treatment, but it must be in a
hospital, clinic or other appropriate institution. The court found
that the 1999 Act complies with this.
then we have seen a number of other pieces of mental health law
introduced by the parliament, all of which have some impact on human
Adults with Incapacity (Scotland) Act 2000 makes a wide variety
of provisions regarding how matters can be dealt with when an adult
lacks capacity. The Regulation of Care (Scotland) Act 2001 which
created the Care Commission increases the protection for people
from abuse by carers. The Mental Health (Care and Treatment) (Scotland)
Act 2003 is, however, of more concern, particularly with regard
to compulsory treatment orders.
to the future there are still many potential challenges under the
Human Rights Act. Access to appropriate medication and medical treatment,
as well as providing staff with adequate protection from abuse or
violence may be raised as an issue under Article 2 ECHR - the right
to life. Article 3 protects the right to be free from inhuman or
degrading treatment such as force feeding , fettering and the conditions
in which you are detained e.g. being fed whilst strapped to the
of access to medical treatment and compulsory treatment could also
be open to challenge under this article. There are also many potential
challenges relating to private and family life, from challenging
interference with correspondence, to intrusive questions from employers
about mental health issues. This article could also be used to challenge
access to family members e.g. where it is being denied or where
it is not desired but is being enforced.
may be many other potential challenges that arise over the next
few years. If used properly, the Human Rights Act is a positive
tool that can help protect the rights of everyone. It can be used
effectively in conjunction with existing legislation to push the
boundaries of the law, however this relies on us knowing about our
rights, enforcing them and our responsibilities, and respecting
the rights of those around us.
A v Scottish Ministers 2001 SC1, Karl Anderson (AP), Brian Docherty
(AP) & Alexander Reid (AP) v. The Scottish Ministers and the
Advocate General for Scotland, 16 June 2000
2. ECHR article 5(2)(e)
3. Winterwerp v Netherlands (1979) A 33 para 39
4. Winterwerp v Netherlands (1979) A 33 para 39
McIlwhan is director of Scottish Human Rights Centre
* This article
is reproduced with permission from The Point
magazine, published by the Scottish Association for Mental Health
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