The Potential Impact of the Human Rights Act 1998 on Mental Health Services

Pages29-32
DOIhttps://doi.org/10.1108/13619322200100028
Publication Date01 Sep 2001
AuthorChinyere Inyama
SubjectHealth & social care
Focus on…
The Mental Health Review Volume 6 Issue 3 September 2001 ©Pavilion Publishing (Brighton) 2001 29
The Potential Impact of the
Human Rights
Act 1998
on Mental Health Services
Chinyere Inyama
Solicitor
Inyama & Co Solicitors
Mental Health Act Commissioner
he Human Rights Act 1998 (hereinafter
referred to as ‘the Act’) introduces the European
Convention of Human Rights into English law
(although the courts will not be bound by European
Court of Human Rights case law). No new duties or
obligations are created and there will be no change to
the existing rights of detained patients. The Act will
provide an additional avenue for redress. Its provisions
may be used within formal complaint mechanisms and
court proceedings such as judicial review against
Mental Health Review Tribunal decisions. Claimants
will also be able to take separate proceedings under
the Act. This paper sets out the parts of the Act and
the European Convention of Human Rights that are
likely to have most relevance to the mental health
services and, in the light of the Act’s provisions,
highlights the issues to be considered in the delivery
of mental health services.
The Act
Section 6 – it is unlawful for public authorities
to breach the Convention.
Most bodies involved in mental health provision are
public authorities including private sector bodies
delivering services under NHS contract provisions.
The Convention
Absolute rights
Article 2 – the right to life.
Article 3 – the right not to be subjected to
inhuman or degrading treatment.
TThere is no balancing of these rights with any general
public interest. The positive obligations that arise out
of these rights are likely to be widely construed.
Accordingly, the threshold for their breach will be
very high.
Limited rights
Article 5 – the right to liberty.
Article 6 – access to court and the right to a fair
trial.
These rights are not balanced against any public interest
but by definition include limitations. State derogation
is allowed.
Qualified rights
Article 8 – the right to respect for private and
family life.
Article 9 – the right to freedom of thought,
conscience and religion.
There is a two-tier process to be applied when consid-
ering these rights:
1. consider the right
2. apply the limitation clause.
The limitation allows the public interest to be taken
into account and the courts will be expected to
exercise a proportionality balancing act (does the
public interest justify the restriction on the right?)
Article 14
This article provides that enjoyment of Convention

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