Mental Disability and the European Convention on Human Rights by Peter Bartlett, Oliver Lewis and Oliver Thorold

AuthorAndreas Dimopoulos
Date01 January 2008
Publication Date01 January 2008
Peter Bar tlett, Oliver Lew is and Oliver Thorold, Mental Disabilityand the European
Convention on Human Rights,xlvþ377pp, hb d130 .0 0, Leiden: Martinus
Nijho¡, 2006
This book aims to provide a comprehensive analysis of issues relating to mental
disability under the European Convention of Human Rights (ECHR). Mental
disability is used in the book as a generic term to cover mental illness, intellec-
tual disabilityand dementia.The authors examine inparticular the impact mental
disability issuesmay haveon the development of humanrights u nder the ECHR.
They also explore ways inwhich the ECHR may improve the protection of the
human rights of mental lydisabled persons.
The book provides an extensive analysis of every case brought before the Eur-
opean Court of Human Rights (ECtHR) by a mentallydisabled applicant. After
a brief presentation of the facts of each case, the authors discuss substantive points
of the judgments. It comes as a pleasant surprise that the structure of the analysis
of the case law is not broken down in chapters devoted to each article of the
ECHR. Rather, the authors identify very early in the introductorychapter three
major areas where national law and human rights concerns come into play in
the case of mentally disabled persons: detention; involuntary treatment; and
guardianship laws. The structure of the analysis therefore allows the thematic
clustering of each chapter around a speci¢c human rights issue. For instance,
Chapter 2 covers the admission and discharge from mental institutions, whereas
Chapter 3 deals with human rights issues which may arise whilst the mentally
disabledperson is institutionalised.Withineach chapter, these issues are subsumed
under speci¢c articles of the ECHR, which are then analysedtogether in a coher-
ent and lucid manner.
The coverage of the relevant case law on mental disability is exhaustive,
although minor reservations may be made about some of the case analysis. For
instance, the seminal case XandYvtheNetherlands[1985] 8 EHHR 235, receives
only passing mention in the context of positive obligations in relation to health
care (113). The case is especially important in relation to intellectually disabled
applicants. Y was an intellectually disabled sixteen-year old, who was raped in
the mental institution she was placed. As she was legally incapacitated, she
could not institute criminal proceedings either on her own or by proxy. The
ECtHR found a violation of Article 8 in her case. The judgment merits closer
attention both in terms of standards of institutional con¢nement and issues of
legal representation and guardianship laws, issues which feature prominently in
Chapter 7 and Chapter 9 of the book respectively.
Chapter 7 stands out in the process of case analysis.The authors here identify
rightswithin the ECHRwhich mayin future becomelegally signi¢cant for men-
tally disabled persons. For instance, the authors stress the importance of the right
to community integration or the right to work for the lives of those with mental
r2008 The Authors.Journal Compilation r20 08The Modern Law Review Limited.
Published by BlackwellPublishing, 9600 Garsington Road,Oxford OX4 2DQ,UK and 350 Main Street, Malden, MA 02148, USA
(2008) 71 (1) 145^158

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