Both aggreived mental health staff and patients could bring more cases to court in Scotland under human rights law, explains Rosemarie McIlwhan.

January 31, 2005

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Mental 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).

The 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 actually law.

Article 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).

There 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).

The 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.

Since 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 rights.

The 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.

Looking 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 toilet.

Denial 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.

There 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.

Notes:
1. 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

* Rosemarie 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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