Mental Health in UK Law

Bensaid is important for its statements of principle about the potential applicability of Article 8 in the context of mental health: the stress that the court placed on mental health as a crucial part of private life, associated with the aspect of moral integrity and on the preservation of mental stability as an indispensable precondition to effective enjoyment of the right to respect for private life.

It is subject to many cross-currents such as partiality, prejudice, self-interest and, above all, imagination and inaccuracy. Those are matters with which the jury, helped by cross-examination and common-sense, must do their best. But when a witness through physical (in which I include mental) disease or abnormality is not capable of giving a true or reliable account to the jury, it must surely be allowable for medical science to reveal this vital hidden fact to them.

Secondly, it appears from Mr Lloyd's note that at no stage of the hearing before the Tribunal announced their decision were the parties before the Tribunal informed of the findings of Dr Cashman as a result of his interview with H.

Indeed, in our experience where a tribunal refuses an application for a discharge it usually gives reasons for doing so that involve a positive finding that the patient is suffering from a mental disorder that warrants his or her continued detention.

Whether or not it is necessary to detain a patient in hospital for treatment may well depend upon the level of facilities available for treatment within the community. Neither Article 5 nor Strasbourg jurisprudence lays down any criteria as to the extent to which member States must provide facilities for the care of those of unsound mind in the community, thereby avoiding the necessity for them to be detained for treatment in hospital.

The Secretary of State is not entitled to abdicate her statutory and public law responsibilities to the relevant health authorities or clinicians in the way deprecated by Singh J in R (HA (Nigeria)) v Secretary of State for the Home Department [2012] EWHC 979 (Admin) at [155] and [181].

(4) If so, is such interference necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others?