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Medical Treatment Under Part IV of the Mental Health Act 1983 and the Human Rights Act 1998: Review of Article 3 and 8 Case Law

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Medical Treatment Under Part IV of the Mental Health Act 1983 and the Human Rights Act 1998: Review of Article 3 and 8 Case Law Lawn & McDonald Sexual assault on psychiatric in-patient wards NATIONAL PATIENT SAFETYAGENCY policies to aid prevention. Psychiatric Declaration of interest (2006) With Safety in Mind: Mental Bulletin, 17,274-276. Health Services and Patient Safety. THOMAS, C., BARTLETT, A. & MEZEY, None. Patient Safety Observatory Report 2/ G. C. (1995) The extent and effects of special July 2006. National Patient Safety violence among psychiatric in-patients. articles Agency. Psychiatric Bulletin, 19,600-604. ROYAL COLLEGE OF PSYCHIATRISTS References WARNER, J., PITTS, N., CRAWFORD, (19 96) Sexual Abuse and Harassment in M. J., et al (2004) Sexual activity among BARLOW, F. & WOLFSON, P. (1997) COLE, M., BALDWIN, D. & THOMAS, P. Psychiatric Settings. Royal College of patients in psychiatric hospital wards. Safety and security: a survey of (2003) Sexual assault on wards: staff Psychiatrists. female psychiatric in-patients. actions and reactions. International Journal of the Royal Society of Psychiatric Bulletin, 21, Journal of Psychiatry in Clinical Practice, ROYAL COLLEGE OF PSYCHIATRISTS Medicine, 97, 477-479. (2001) Response: Setting the 270-272. 7,239-242. WELCH, S. J. & CLEMENTS, G.W. (1996) Boundaries; Reforming the Law on Sex Development of apolicy on sexuality for BAYNEY, R. & IKKOS, G. (2003) GUDJONSSON, G. H., HAYES, G. D. & Offences. Royal College of hospitalized chronic psychiatric Managing criminal acts on the ROWLANDS, P. (2000) Fitness to be Psychiatrists. psychiatric ward: understanding the interviewed and psychological patients. CanadianJournal of police view. Advances in Psychiatric vulnerability: the views of doctors, SUBOTSKY, F. (1993) Sexual abuse in Psychiatry, 41,273-279. Treatment, 9,359-367. lawyers and police officers. Journal of psychiatric hospitals: developing Forensic Psychiatry, 11,74-92. COLE, M. (2003) Sexual assaults *Tara Lawn Specialist Registrar in General Adult Psychiatry,William Harvey in psychiatric in-patient units - HOME OFFICE (2000) Setting the House, St Bartholomew’s Hospital, 61Bartholomew Close, London EC1A 7BE, UK, the importance of a consistent Boundaries: Reforming the Law on Sex email:[email protected], Elizabeth McDonald Consultant in approach. Psychiatric Bulletin, 27, Offences. Home Office Communication Perinatal Psychiatry, East London NHS FoundationTrust, City and Hackney Centre 25-28. Directorate. for Mental Health, London Psychiatric Bulletin (2009), 33, 111 ^ 115. d o i: 10.119 2 / p b. b p .10 8 .0 2 0 9 9 0 MARTIN J. R. CURTICE Medical treatment under Part IV of the Mental Health Act 1983 and the Human Rights Act 1998: review of Article 3 and 8 case law SUMMARY includes the Mental Health Act1983 of the Mental Health Act being com- Since the introduction of the Human (andthe2007amendments)and pliant with the Human Rights Act. Rights Act1998, all courts and tribu- mental health review tribunals. Review and analysis of such case law nals are obliged to interpret all laws Mental health case law has evolved can aide everyday clinical decision- and statute consistently and compat- with regard to medical treatment making as well as improving knowl- ibly with the Human Rights Act.This under Part IV (Consent toTreatment) edge of the Human Rights Act. The Human Rights Act 1998 (Office of Public Sector Article 3 Information, 1998) incorporates most of the European Article 3 is an absolute convention right and states that Convention on Human Rights into domestic law and sets ‘no one shall be subjected to torture or to inhuman or out fundamental rights that all people are entitled to degrading treatment or punishment’. enjoy. Since the Human Rights Act came into force, all In the psychiatric setting, this Article is likely to be courts (including mental health review tribunals) must relevant to complaints arising from treatment and now ensure that domestic law is fully compliant with the conditions of detention. Treatment can be construed as Human Rights Act. This includes the Mental Health Act inhuman if it causes intense physical or mental suffering 1983 (Mental Health Act) (Jones, 2006). in the victim; and degrading if the object is to humiliate The important judgment in Herczegfalvy v. Austria and debase the person which could adversely affect their [1992] observed that ‘.. the position of inferiority and personality. It may be found as degrading if it involves powerlessness which is typical of patients confined in treatment which arouses feelings of fear, anguish, psychiatric hospitals calls for increased vigilance in inferiority and that shows lack of respect for or reviewing whether the Convention has been complied diminishes their dignity (Pretty v. UK [2002]). with’. Human Rights Act jurisprudence has emerged with To violate Article 3, case law has concluded that ‘ill- regard to individuals receiving treatment under the treatment must attain a minimum level of severity if it is Mental Health Act. This article analyses important mental to fall within the scope of Article 3’. Furthermore, the health law cases which have concentrated on treatment ‘assessment of this minimum is, in the nature of things, under the Mental Health Act and in particular relying on relative; it depends on the circumstances of the case, Articles 3 and 8 of the Human Rights Act. such as the duration of the treatment, its physical or 111 Curtice Part IV of the Mental Health Act 1983 and the Human Rights Act 1998 mental effects and, in some cases, the sex, age and state R (on the application of Wilkinson) v. (1) of health of the victim, etc’(Ireland v. UK [1978]). special The Article 3 benchmark case remains Herczegfalvy, The RMO Broadmoor Hospital (2) The articles which makes it clear that incapacitated patients are still Mental Health Act Commission Second protected by Article 3. Opinion Appointed Doctor & Secretary of ‘While it is necessary for the medical authorities to decide, State for Health (interested party) [2001] on the basis of the recognised rules of medical science, on the therapeutic methods to be used, if necessary by force, In this case, the Court found that treatment of a to preserve the physical and mental health of patients who protesting patient under the Mental Health Act is a are entirely incapable of deciding for themselves . such potential invasion of his rights under Articles 3 and 8. patients nevertheless remain under the protection of Furthermore, the Court must reach its own view on Article 3’. whether treatment was lawful and in doing so cross- This judgment also demonstrated a core principle in examination of doctors in judicial review hearings must be Article 3 cases when it concluded ‘as a general rule, a permitted (e.g. where there was considerable dispute measure which is a therapeutically necessity cannot be among the medical witnesses that could not be resolved regarded as inhuman or degrading’ and the Court must from written statements alone). satisfy itself that such medical necessity has been The applicant was a 69-year-old patient who had ‘convincingly shown’ to exist. been detained at Broadmoor Hospital for the best part of 34 years. He was classified as suffering from psycho- pathic disorder. He was convicted in 1967 of the rape of a Article 8 young girl and made subject to hospital and restriction orders ss.37 and 41 of the Mental Health Act (initially Article 8 is a qualified right and provides that: under ss.60 and 65 of the Mental Health Act 1959). In (1) Everyone has the right to respect for his private and fa- 1999 his responsible medical officer (RMO) considered mily life, his home and his correspondence. the applicant needed to be treated with antipsychotic (2) There shall be no interference by a public authority with medication to which the applicant was ‘vigorously the exercise of this right except such as is in accordance opposed’ and he made it plain that he would physically with the law and is necessary in a democratic society in resist it. The crux of the case centred upon whether such the interests of national security, public safety or the treatment fell within s.58 of the Mental Health Act - economic well-being of the country, for the prevention being the administration of medication more than 3 of disorder or crime, for the protection of health or months after the patient was first medicated following morals, or for the protection of the rights and freedoms detention. Because the applicant did not consent to the of others. treatment, the treatment plan had to be certified as Court judgments will initially ascertain whether appropriate under s.58(3)(b) by a second opinion Article 8(1) is engaged, i.e. does the infringement in apppointed doctor (SOAD) which happened following a question pertain to private and family life, home and SOAD assessment. The applicant was forcibly injected correspondence, and then, if it does, paragraph 2 which with antipsychotic drugs and on each occasion fought as sets out the exceptions (to be interpreted ‘narrowly’ he had said he would and had to be physically restrained. (Funke v. France [1993]) in which interference with the Because further such treatments were imminent, the right may be permitted, will then be analysed. Under applicant consulted his solicitors whereupon he obtained Article 8(2), before interference with the right is permission to apply for judicial review of the treatment permitted, it must (a) be ‘in accordance with the law’; decisions already taken by the RMO and SOAD and for an (b) it must be ‘necessary in a democratic society’; and injunction prohibiting any further such treatment until the (c) it must be in pursuit of one of the specified objectives. hearing of the substantive challenge. His solicitors also There will be a breach of this Article unless the State obtained an independent psychiatric report expressing establishes that the criteria set out in 8(2) are met, i.e. very different views from the RMO and SOAD on all the interference must be justified by one of the exceptions important medical issues in the case, notably: and must be the minimum necessary to obtain the legit- 1.
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