Saturday 18 May 2013

Domestic Law and the European Convention on Human Rights - No. 4

This is the fourth post in a short series aimed at showing how the European Convention on Human Rights (E Conv HR) and the Human Rights Act 1998 (HRA) have made significant and beneficial changes to our domestic law.  The earlier posts in the series are Part 1, Part 2 and Part 3.

The Convention has had a profound impact upon the way in which those with mental health problems are treated and cared for.  The British Institute of Human Rights (BIHR) has just published an excellent document - Mental Health Advocacy and Human Rights: Your Guide.   Aimed at both advocates and people who use services, this handy guide explains how the Human Rights Act can be used in mental health settings to secure better treatment and care for people. It draws on real life stories of how laws and legal cases can be used in everyday advocacy practice, providing helpful flow-charts, worked through examples and top tips. Here is a direct link to the document (pdf - 24 pages).

Sanchita Hosali, Deputy Director of the British Institute of Human Rights said:

“BIHR is delighted to launch Mental Health Advocacy and Human Rights: Your Guide.  As we know from working with our partners in Mind Brighton and Hove, Wish and NSUN, all too often people with mental health problems are marginalised or overlooked. We also know that when people understand that they have human rights which are protected by the law; this can give them and their advocates the confidence and power to voice their concerns and get the changes that are needed. We hope that our latest guide will be valuable resource for advocates and individuals, helping to ensure people with mental health problems are treated with equal dignity and respect.”

The Mental Capacity Act 2005 (MCA)  - (link to the Act).

As BIHR point out in the Guide, the MCA was designed to protect those who cannot make decisions for themselves. The MCA is underpinned by human rights principles that aim to ensure its provisions are applied in a way that respects our human rights. Guiding principles of the MCA include:
  • Presumption of capacity: recognition that everyone has the right to make their own decisions if they have the capacity to do so.
  • Maximising decision making capacity: people should be supported and empowered to be able to make their own decisions.
  • Right to make unwise decisions: people have the right to make decisions that others might think are unwise.
  • Best interests: any decision or action carried out on someone’s behalf must be in their best interests.
  • Least restrictive option: any decision or action carried out on someone’s behalf must be the least restrictive on a person’s rights or freedoms (this is called proportionality).
The House of Lords has just announced the formation of a committee with a remit to examine the Mental Capacity Act in the light of concerns that the procedural safeguards in the Act may not be meeting the requirements of the Human Rights Act 1998.   

The papers establishing the Committee go on to say - “The Mental Capacity Act was amended in the light of the Bournewood judgment which found the UK in breach of [the right to liberty]…The recent findings about the treatment of residents at the Winterbourne View care home, together with a recent Mencap report highlighting deficiencies in the care of mentally disordered patients, suggest that the legislative regime for mentally incapacitated adults would merit scrutiny by a House of Lords post-legislative scrutiny committee. Such scrutiny could include consideration of external oversight of the decisions made on behalf of incapacitated individuals by medical professionals and guidelines on “best interests” decisions, where social workers and others have taken over decision-making in areas such as personal welfare, type of care or financial affairs on someone else’s behalf.”

The 'Bournewood' judgment is HL v UK [2004] ECHR 471.    The case concerned an autistic man
(HL) with a learning disability, who lacked the capacity to decide whether he should be admitted to hospital for specific treatment. He was admitted on an informal basis under common law in his best interests, but this decision was challenged by HL’s carers. In its judgment, the E Ct HR held that this
admission constituted a deprivation of HL’s liberty and, further, that: the deprivation of liberty had not been in accordance with ‘a procedure prescribed by law’ and was, therefore, in breach of Article 5(1) of the E Conv HR.  Also, there had been a contravention of Article 5(4) of the ECHR because HL had no means of applying quickly to a court to see if the deprivation of liberty was lawful.

Deprivation of Liberty Safeguards (DOLS) are part of the Mental Capacity Act - see Schedule A1 inserted by the Mental Health Act 2007.  They are intended to offer additional safeguards for people who lack capacity to ensure they do not have their freedom restricted more than is absolutely necessary, and that any restriction is in their best interests. The DOLS were created as a result of  HL v UK.   HL was not normally detained (“sectioned”) at Bournewood Hospital.  There were no specific guidelines or safeguards for adults without capacity who are deprived of their liberty in hospitals and care homes whilst voluntary patients. The Court found that the detention of the man had been unlawful, and identified a gap in mental health law. The DOLS were designed to plug this gap by requiring an authority that wishes to deprive an adult who lacks capacity of their liberty to do so in a way that respects their human rights.

Court of Protection:

Please see Overview of the Court of Protection.  Parliament established the court by enacting Part 2 of the Mental Capacity Act 2005.  It came into existence from 1st October 2007 and replaced earlier arrangements often confusingly referred to as court of protection proceedings.

Mental Health Act 2007 - (link to the Act)

The Mental Health Act 1983 allows you to be detained and treated if you have a mental health disorder.   The 2007 Act made several important changes to the 1983 Act - see the summary in the Explanatory Notes.   For example, the MHA now places a duty on the authority to make reasonable arrangements for ‘qualifying patients’ to have access to an Independent Mental Health Advocate (IMHA). An IMHA can provide a range of support including helping people access information about their rights or any conditions or restrictions they have been placed under, and any medical treatment they are being given. 

Care Quality Commission:

There are considerable legal difficulties in relation to the whole area of "care homes" for the elderly and the vulnerable.  A Care Quality Commission was created by the Health and Social Care Act 2008  The Commission enjoys considerable powers relating to registration of service providers and to inspection and enforcement - (see section 2 of the 2008 Act).

Following the events at Winterbourne View, the UK Human Rights Blog published an excellent article looking at the legal mechanisms available to prevent abuses or to achieve justice for victims - Panorama at Winterbourne Park: the Human Rights angle


The E Conv HR has been instrumental in improving the lot of those with mental health problems and the convention continues to have influence via the developing case law as well as through mechanisms such as the recently announced House of Lords committee on the Mental Health Act 2005.  Without the requirement in the Human Rights Act 1998 section 6 for public authorities to act compatibly with convention rights, it is doubtful that these improvements would have been made.  There is however no room for complacency as events such as Winterbourne demonstrate.


Thanks to Sanchita Hosali of the British Institute of Human Rights for agreement to the inclusion in this post of extracts from Mental Health Advocacy and Human Rights: Your Guide.

Other Links:

Alzheimer's society - Deprivation of Liberty Safeguards

Morgan Cole - Deprivation of Liberty Safeguards

Social Care Institute for Excellence - Deprivation of Liberty Safeguards

Mills and Reeve - Case Law - pdf - a number of cases are considered concerning the Deprivation of Liberty Safeguards

Ministry of Justice - Protecting the vulnerable - Mental Capacity Act

BBC News Bristol - Timeline: Winterbourne View abuse scandal

Winterbourne View - Staff Convicted

Winterbourne View Hospital: Department of Health Review and Response

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