ISSN 1466-2817 Journal of Mental Health Law Articles and Comment Vindicating the right to bodily security of the incapable in research – Part 1 Vindicating the right to bodily security of the incapable in research – Part 2 “A socially excluded group”? – Hearing the voice of victims Provocation: the fall (and rise) of objectivity Mental Health in the Workplace (1) – ‘Stress’ Claims and Workplace Standards and the European Framework Directive on Health and Safety at Work Casenotes Executive Action and Convention Compliance? A Risk Unrecognised by the House One Code to rule them all, one code to bind them – the seclusion of detained patients Paternalism or Power? – Compulsory treatment under section 58 of the Mental Health Act 1983 Book Reviews Seminal Issues in Mental Health Law by Jill Peay Mental Health Tribunals – Essential Cases by Kris Gledhill May 2006 pages 1–108 Journal of Mental Health Law May 2006 Edition No. 14. Pages 1–108 Editorial Board John Horne (Editor) Northumbria University Professor Peter Bartlett Nottingham University William Bingley Christina Bond Northumbria University Anselm Eldergill Solicitors Chambers, London Charlotte Emmett Northumbria University Professor Phil Fennell Cardiff Law School Simon Foster Solicitor, London Professor Michael Gunn Nottingham Trent University David Hewitt Solicitor, Hempsons, Manchester Dr Martin Humphreys University of Birmingham Richard Jones Solicitor, Morgan Cole, Cardiff Mat Kinton Mental Health Act Commission Edward Myers Solicitor, Barratts, Nottingham Professor Jill Peay London School of Economics Professor Genevra Richardson King’s College, London David Sheppard Institute of Mental Health Law Notes for contributors Footnote style must conform to the standards set forth in a Material intended for publication should be sent to the Editor, Uniform System of Citation, published by Harvard Law Review John Horne, School of Law, Northumbria University, Association. 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Contents Contents Page Foreword ........................................................................................................................................4 Articles and Comment Vindicating the right to bodily security of the incapable in research – Part 1 Austen Garwood-Gowers .......................................................................................................7 Vindicating the right to bodily security of the incapable in research – Part 2 Austen Garwood-Gowers .....................................................................................................17 “A socially excluded group”? – Hearing the voice of victims Claire Bentley.....................................................................................................................26 Provocation: the fall (and rise) of objectivity Kevin Kerrigan...................................................................................................................44 Mental Health in the Workplace (1) – ‘Stress’ Claims and Workplace Standards and the European Framework Directive on Health and Safety at Work Kay Wheat.........................................................................................................................53 Casenotes Executive Action and Convention Compliance? A Risk Unrecognised by the House Kris Gledhill ......................................................................................................................66 One Code to rule them all, one code to bind them: the seclusion of detained patients Simon Foster .......................................................................................................................76 Paternalism or Power? – Compulsory treatment under section 58 of the Mental Health Act 1983 Paul Hope..........................................................................................................................90 Book Reviews Seminal Issues in Mental Health Law by Jill Peay Mat Kinton......................................................................................................................102 Mental Health Tribunals – Essential Cases by Kris Gledhill David Hewitt....................................................................................................................107 3 Journal of Mental Health Law May 2006 Foreword The Foreword to the November 2005 issue of the JMHL voiced ‘uncertainty’ about the future of the Draft Mental Health Bill 20041 . A presumption was made that "the position will be clearer by the time of publication of the May 2006 issue". Well, the future of the 2004 Draft Bill has of course now been resolved - as all readers will know, it has followed the 2002 Draft Bill2 into the shredder. Instead the 1983 Act is to be amended, as recommended by (amongst others) David Brindle, public services editor of the Guardian, way back in March 20053 . So there is fresh ‘uncertainty’ to concern us - on this occasion, uncertainty about the detail of the proposed amendments. The debate over the direction of mental health law reform which was started with the appointment of the Expert Committee in October 19984 , and in which so many people and organisations have participated over the last eight years, is not yet concluded. The Department of Health have helpfully issued ‘Briefing Sheets’5 which give a flavour of the Government’s intentions and hopes, but as relevant ministers and civil servants will know all too well, it will not be a smooth ride from briefing sheet to legislation. Following publication of the briefing sheets, we made attempts to commission a speedy response from various leading participants in the debate, but they were soon abandoned. All agreed that JMHL readers would prefer commentaries and reflections on the detail of the amendments rather than on what is presently in the public arena. On the presumption (yet another) that the proposed amendments will be published by the time the next issue is being prepared, we give an assurance that they will be considered then. So far as this issue is concerned, we have decided to publish both articles which clearly sit within the term ‘mental health law’, and others which might be viewed as more on the fringes, but presumed to be on matters of interest to the majority, if not all, the JMHL readership. We start off with two articles by Austen Garwood-Gowers, or, to be more honest, one article in two parts. Craftily (admittedly on our suggestion and with our encouragement) negotiating his way around our editorial policy of ‘5000 words maximum’ per article, Dr. Garwood-Gowers in ‘Vindicating the right to bodily security of the incapable in research (Parts 1 and 2)’ casts a knowledgeable, thoughtful, and critical eye over domestic and international provisions regulating research targeted at incapable persons. The trigger for this reflection is of course sections 30 – 34 1 Cm 6305-1 (September 2004) 4 The Report of the Expert Committee ‘Review of the 2 Cm 5538-1 (June 2002) Mental Health Act 1983’ was published by the Department