The Human Rights Act - Assignment Example

The Human Rights Act incorporates into English law the Articles of the European Convention of Human Rights. The Government decided to guarantee basichuman rights under a broad range of circumstances, which encompasses the management of psychiatric patients, who can now challenge many aspects of their treatment. However, European cases suggest that current clinical practice is largely compatible with the act and that future legislation, policy and procedure would be shaped by patients challenging existing practice using the provisions of this act. The result will be a new mental health act and legislation for the detention of dangerous people, which will maintain a balance between the rights of individual patients and the rights of the community as a whole. Article 5 of the Human Rights Act guaranteeing liberty is the most important article for detained mentally disordered people. Interpretations of article 5 in the context of persons of unsound mind resulted from the decision of the European Court in the case of Winterwerp V the Netherlands. Detention under article 5(1) e is considered lawful only if the patient is deemed to be of unsound mind. Also, it is necessary that the mental disorder must be of a kind or degree warranting compulsory confinement. Further, continued confinement should depend on the persistence of the disorder. Finally, the detention must be in accordance with the prescribed law. (Potential impact of the Human Rights Act on psychiatric practice: the best of British values? Rosanne Macgregor­Morris, Jane Ewbank, Luke Birmingham). Scottish and other European Cases challenging restricted medical treatment have largely been unsuccessful as current clinical practice generally does not breach an individual’s human rights and recent Scottish Case Laws, have high - lighted that an individual patient’s rights may be of a lower priority than public safety. Following the decision of the European Court of Human Rights, in X V United Kingdom, 1981, 4EHRR 188, The Mental Health (Scotland) Act 1983, introduced a periodic right of appeal for restricted patients enabling them to apply to the sheriff annually for a discharge. The relevant provision is section 63 of 1984 act. According to this section as long as it is required, the sheriff and Scottish ministers do not discharge a restricted patient from the hospital. This is in order to protect the public from serious harm, regardless of whether, the patient is treatable or not. These cases bring into focus the conflict between the individual’s right to liberty, now enshrined in The European Convention for the Protection of Human Rights and Fundamental Freedom (The Convention) and the duty of the state to protect its citizens from harm. We will now, consider three very important cases in this context. Case One. The applicant Karl Anderson formerly known as Karl Tonner pleaded guilty to manslaughter on the basis of diminished responsibility at Dundee Sheriff Court in 1968 to an indictment containing a charge of culpable homicide in respect of assaulting a girl aged 12 and then killing her, . Tonner was charged with culpable homicide and in the High Court at Edinburgh, on 6 December 1968, the judge authorized his admission to, and detention without time limit in, the State Hospital at Carstairs under Section 55 of the Mental Health (Scotland) Act 1960 ("the 1960 Act"). On 8 July 1999 Anderson appealed to the Sheriff at Lanark under Section 63 of the 1984 Act for an absolute discharge under Section 64. This appeal was based on the 2 August 1999 judgment was given in the case of Ruddle v. The Secretary of State for Scotland 1999 G.W.D. 29-1395. In this case Noel Ruddle appealed to the Sheriff under Section 63(2) of the Mental Health (Scotland) Act 1984. He sought an order in terms of Section 64(1) (a) of that Act directing his absolute discharge. Ruddle’s argument was that he was no longer liable to be detained in a hospital for treatment since: he no longer suffered from a mental illness justifying his detention as a restricted patient as he now suffered from a mental disorder, namely a personality disorder which was persistent and manifested only by abnormally aggressive or seriously irresponsible conduct. He also stated that his disorder was not susceptible to treatment. Ruddle’s Appeal was heard by Sheriff Allan at Lanark Sheriff Court. Case Two. Brian Martin Doherty was convicted at Antrim Crown Court on 15 May 1995 for the kidnapping and murder of a boy aged 11years. The Crown accepted a plea of guilty to manslaughter on the basis of diminished responsibility. On 19 June 1995 the Secretary of State for Northern Ireland, on the basis of medical reports, made a transfer direction in terms of Article 53 of the Mental Health (Northern Ireland) Order 1986 (S.I. 1986 No. 595) ("the 1986 Order") by which Doherty was transferred to Holywell Hospital in Northern Ireland, with a restriction direction in terms of Article 47 of the 1986 Order. On the 27th July 1995, under Section 81 of the 1984 Act the Secretary of State for Northern Ireland authorized Dohertys removal to the State Hospital at Carstairs. On 14 August 1995 Dohertys medical officer furnished a report dated 11 August to the managers of the State Hospital, stating that Doherty was suffering from a mental handicap of a nature or degree which made it appropriate that he should be liable to be detained in hospital for medical treatment. On 22 July 1999 Doherty appealed to the Sheriff at Lanark under Section 63 of the 1984 Act asking the Sheriff to notify the Scottish Ministers under Section 65(1) that, if he were subject to a restriction order, he would be entitled to an absolutely discharge. Case Three. Alexander Reid pleaded guilty at the High Court at Glasgow on 8 September 1967 to a charge of culpable homicide. Based on the evidence of two medical practitioners, the judge ordered him to be admitted to, and detained without time limit in, the State Hospital at Carstairs under Section 55 of the 1960 Act. Reid was neither mentally handicapped nor was he suffering from any mental deficiency, although he did suffer from a mental disorder manifested by abnormally aggressive and seriously irresponsible behaviour. In 1985 Reid was transferred to Sunnyside Hospital in Montrose as a restricted patient. In 1986 he was convicted of an assault on a girl 8 years old and was sentenced to three months imprisonment. After his release from prison, Reid was recalled to the State Hospital. Reid appealed in 1994 for his discharge and the Sheriff at Lanark refused his appeal on 19 July1994. Reid then brought proceedings for judicial review of the Sheriffs decision. The Lord Ordinarys interlocutor dismissing the petition was reversed by the Second Division. On appeal to the House of Lords, the Lord Ordinarys interlocutor was restored, but their Lordships agreed with the interpretation of the legislation which the Inner House had adopted. (R. v. Secretary of State for Scotland 1997 S.L.T. 555; 1998 S.C. 49 and 1999 S.C. (H.L.) 17). Although Reid thus ultimately failed to have the Sheriffs decision reduced, the decision of the House of Lords led to the 1999 Act. In March 2000 Reid appealed by summary application under Section 63 of the 1984 Act asking the Sheriff at Lanark to order his absolute discharge under Section 64. (DRA. Nos. 9, 10 and 11 of 2000 (1) Karl Anderson (2) Alexander Reid and (3) Brian Doherty Appellants v. (1) The Scottish Ministers and (2) The Advocate General for Scotland Respondents From The Inner House Of The Court Of Session Judgment Of The Lords Of The Judicial Committee Of The Privy Council, 15th October 2001). In all these cases the question referred by the Sheriff is whether section 1 is compatible with the rights of restricted patients under article 5(1)(e) and article 5(4) of the European Convention for the Protection of Human Rights and Fundamental Freedom(The Convention). The common factor in all three cases is that the applicants are "restricted patients" within the terms of Section 63(1) of the 1984 Act. The only patients who can be so classified are patients who have been involved at some stage in proceedings before the criminal courts. In the case of the applicants Anderson and Reid, the High Court made an order under Section 60 of the 1960 Act, the equivalent of Section 59 of the 1995 Act, subjecting them to special restrictions relating to their detention. Abuse of human rights is not involved, when a man of unsound mind is detained in a hospital, as this is necessary to protect the public from serious harm. Where such a man then invoked his human right to periodic judicial review of his detention, the fact that the ground to be reviewed was, as a result of the new law, different from the original ground for his detention, was not an abuse of his human rights. Where such a man had started court proceedings for such review, on the argument that the original ground for his detention no longer applied, and that argument was likely to succeed, it was not an abuse of his human rights for the legislature to introduce and pass such laws, as would ensure that it applied to those current proceedings and made it very likely that they would fail. However, that was only so because the new law was proportionate to its objective of protecting the public from violent or lethal attacks by persons with a prior history of homicide related to an untreatable mental disorder. In applying the European Convention on Human Rights, the court required to treat with the greatest possible degree of circumspection any attempt to justify such interference with current litigation. In 1999 Noel Ruddle was released from psychiatric detention, having successfully argued that his condition was not treatable. Subsequent new legislation allowed continued detention on the basis of treatment being likely to prevent deterioration. the key provisions of this emergency Mental Health legislation introduced to the Scottish Parliament are that courts take public safety into account when considering applications for releasing such people, introduce a right of appeal for both parties; introduce a power to detain patients pending the outcome of an appeal by the First Minister; includes personality disorder in the definition of mental disorder; cover all appeals heard after the day on which the legislation is introduced to the Scottish Parliament. In the case under consideration, the argument of the detained patients that this new act was in breach of article 5 of the convention is incorrect because this article does not allow public safety to be jeopardized for the benefit of individuals, also it is incorrect to hold that detention of mentally disordered persons, who pose a danger to the safety of the public at large, is an abuse of article 5 of the Human Rights Convention. Accordingly, in July 2000 three judges unanimously rejected the appeal of these three persons, holding that the convention cannot be approached on the basis as a balance has to be struck between an individuals rights and the communitys interests at large. It was held by these judges that the law allows for the detention of potentially dangerous, untreatable patients within the scope of the Human Rights Act. Sources. Winterwerp v Netherlands (1979) 2 EHRR 387. Potential impact of the Human Rights Act on psychiatric practice: the best of British values? Rosanne Macgregor­Morris, Jane Ewbank, Luke Birmingham R. v. Secretary of State for Scotland 1997 S.L.T. 555; 1998 S.C. 49 and 1999 S.C. (H.L.) 17 Ruddle v. The Secretary of State for Scotland 1999 G.W.D. 29-1395 DRA. Nos. 9, 10 and 11 of 2000 (1) Karl Anderson (2) Alexander Reid and (3) Brian Doherty Appellants v. (1) The Scottish Ministers and (2) The Advocate General for Scotland Respondents From The Inner House Of The Court Of Session Judgment Of The Lords Of The Judicial Committee Of The Privy Council, 15th October 2001 Read More