Convention Compliance, Public Safety, and the Social Inclusion of Mentally Disordered People
| Author | Phil Fennell |
| Date | 01 March 2005 |
| Published date | 01 March 2005 |
| DOI | http://doi.org/10.1111/j.1467-6478.2005.316_1.x |
JOURNAL OF LAW AND SOCIETY
VOLUME 32, NUMBER 1, MARCH 2005
ISSN: 0263-323X, pp. 90±110
Convention Compliance, Public Safety, and the Social
Inclusion of Mentally Disordered People
Phil Fennell*
The first part of this paper considers the impact of the HRA 1998 in the
courts, and the application of Articles 3, 5, and 8 in relation to
psychiatric detention, treatment without consent, and seclusion. The
second part looks at its effect on the discourse of law reform. Here a
key theme is the way Convention compliance has been used by the
government to justify measures that will lead to a broadening of the
scope of compulsory powers and a reduction in psychiatric service
users' rights.
There are three parallel agenda in mental health law and policy: public
safety; respect for Convention rights; and social inclusion (protection against
discrimination and combating stigma). Since the 1990s successive
governments have pursued a public safety agenda in relation to mental
health services responding to concerns about homici des by mentally
disordered people. Although these fears have been exaggerated, they have
had a disproportionate impact on mental health law and policy, and produce
tensions between the agendas of public safety and social inclusion.
1
The
90
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Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA
* Cardiff Law School, Cardiff University, Museum Avenue, Cardiff CF1
3NX, Wales
1 P. Fennell, `Reforming the Mental Health Act 1983: ``Joined Up Compulsion'''
(2001) 7 Journal of Mental Health Law, 5±20. The social inclusion agenda is
reflected in the National Service Framework for Mental Health: Modern Standards &
Service Models Department of Health; September 1999, accessible at
Government, Strategy Document for Adult Mental Health Services in Wales: Equity,
Empowerment, Effectiveness, Efficiency (2001). See, also, the report of the Social
Exclusion Unit on Mental Health and Social Exclusion (9 June 2004 Office of the
Deputy Prime Minister), where the Prime Ministerial foreword notes the need for
`determined action to end the stigma of mental health ± a challenge not just for
Government, but for all of us.' At the European level the social inclusion agenda is
reflected most recently in Recommendation (2004)10 of the Committee of Ministers
of the Council of Europe to member states concerning the protection of the human
rights and dignity of persons with mental disorder adopted on 22 September 2004.
government h as followed it s immediate pr edecessor s in pursuing a
legislative policy of increased control over mentally disordered people in
the community whilst at the same time, through the non-statementing
National Service Frameworks for England and Wales, promoting policies of
social inclusion, combating stigma, and us er and carer involvement.
Although Convention compliance has been a major issue in mental health
law since at least the 1980s, since October 2000 it has been a direct issue in
the courts, and has also come to be a major, if not the dominant focus of
ethical debate about law reform.
DETENTION ON GROUNDS OF UNSOUNDNESS OF MIND
Article 5(1)(e) of the Convention reflects the attitudes of the 1950s,
authorizing detention on grounds of unsoundness of mind, alcoholism,
addiction to drugs, or vagrancy, provided that detention takes place in
accordance with a procedure prescribed by law. Although the Convention
cannot by any stretch of the imagination be seen as an enlightened statement
of the rights of persons of unsound mind, the Strasbourg Court has striven to
build additional safeguards through its jurisprudence.
The Council of Europe has issued the Bioethics Convention 1997 and the
2004 Recommendation setting out principles for the treatment of people with
mental disorder, although the United Kingdom government has avoided
becoming a party to either. In 1979, in Winterwerp v. the Netherlands,
2
the
Court laid down three important substantive and procedural requirements for
lawful detentions of persons of unsound mind:
(i) Except in emergencies, the individual must reliably be shown to be
suffering from a true mental disorder on the basis of objective expertise.
(ii) The mental disorder must be of a kind or degree justifying confinement.
(iii) Those carrying out the detention must satisfy themselves at intervals that
the criteria for detention continue to be met.
3
Winterwerp established that detention must be a proportionate response to
the patient's circumstances.
4
These requirements are met in the detention procedures under the Mental
Health Act (MHA)1983. Admission is by administrative process, based on
professional expertise and checks and balances. Only an Approved Social
Worker (ASW) (with specialized mental health training) or the patient's
nearest relative may apply for detention, supported by two medical
recommendations, one from a person with psychiatric expertise. The ASW
91
2Winterwerp (1979±80) 2 E.H.R.R. 387.
3 id.; Xv. UK (1981) 4 E.H.R.R. 188, and Van der Leer v. The Netherlands (1990) 12
E.H.R.R. 567.
4Litwa v. Poland (2000) 63 B.M.L.R. 199, (2001) E.H.R.R. 53.
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