The Third Way in Mental Health Policy: Negative Rights, Positive Rights, and the Convention
| DOI | http://doi.org/10.1111/1467-6478.00118 |
| Published date | 01 March 1999 |
| Date | 01 March 1999 |
Mentally disordered patients may be said to have rights in two senses:
negative rights to freedom from arbitrary detention or interference with
their person; and positive rights to expect a certain minimum standard
of service, be that in terms of treatment as an in-patient, or as a patient
in the community. The Labour government has appointed a ‘scoping
group’ to carry out a root-and-branch review of the Mental Health Act
1983. The 1983 Act was mainly concerned with in-patient treatment. The
group is to look at the scope for introducing further compulsory powers
in the community, enhancing the rights of carers and relatives, and is to
take account of recent British and Strasbourg case law. The primary
impact of the Convention on psychiatric patients has been in relation to
protection against arbitrary detention under Article 5, unsoundness of
mind being one of the permitted grounds of deprivation of liberty under
Article 5(1)(e). This article explores the potential impact of Convention
rights in developing what Gostin referred to in the early 1980s as a ‘new
legalism’. The new legalism linked concern for traditional rights to due
process and review by the courts or other external bodies with the
‘ideology of entitlement’ to adequate treatment and services. The article
outlines the current policy context of mental health services and looks
at the development by the European Court of Human Rights of positive
Convention rights to services out of Article 5, whose purpose seems at
first sight to be the protection of due process rights. It examines the
relevance of Convention rights to community powers.1
© Blackwell Publishers Ltd 1999, 108 Cowley Road, Oxford OX4 1JF, UK and 350 Main Street, Malden, MA 02148, USA
* Reader in Law, Cardiff Law School, P.O Box 427, Museum Avenue, Cardiff
CF1 1XD, Wales
103
JOURNAL OF LAW AND SOCIETY
VOLUME 26, NUMBER 1, MARCH 1999
ISSN: 0263–323X, pp. 103–27
The Third Way in Mental Health Policy:
Negative Rights, Positive Rights, and the Convention
PHILIP FENNELL*
1For reasons of space, this article will not survey all the implications of Convention rights
for English mental health law. For a very useful summary, see O. Thorold, ‘The Implications
of the European Convention on Human Rights for United Kingdom Mental Health
Legislation’ [1996] European Human Rights Law Rev. 619–36. See, also, M.C. Wachenfeld,
The Human Rights of the Mentally Ill in Europe under the European Convention on Human
Rights (1992).
104
© Blackwell Publishers Ltd 1999
INTRODUCTION: HUMAN RIGHTS AND MENTAL
HEALTH POLICY
In July 1998 the Secretary of State for Health, Frank Dobson, declared that
community care had failed. He wanted ‘a third way’ in mental health.2The
third way would steer a path between reliance on putting all mentally ill
people in institutions – ‘out of sight – out of mind’ – and community care
where people with mental health problems could be ‘left off the books’
thereby putting themselves and other people at risk. The third way is not
greatly different from the policy proclaimed by Stephen Dorrell in the last
years of John Major’s Conservative government, replacing community care
by ‘spectrum of care’.3Like spectrum of care, the third way involves devel-
oping a range of services, ranging from the top-security special hospitals,
which provide care for patients with dangerous or violent proclivities,
through to community provision. This would include:
specialist regional secure units in every NHS Region; accommodation in every locality
to provide short-term round the clock nursing care and supervision; assertive outreach
teams to keep tabs on people who have been discharged and make contact with people
who shy away from getting help; and changes to enable carers and professionals to
respond promptly and effectively to the needs of mentally ill patients in the community.
The ‘third way’ included a promise of ‘root and branch review’ of mental
health law ‘to reflect the opportunities and limits of modern therapies and
drugs’. ‘It will cover such possible measures as compliance orders and
community treatment orders to provide a prompt and effective legal basis
to ensure that patients get supervised care if they do not take their medication
and their condition deteriorates.’4The Secretary of State subsequently
appointed a ‘scoping’ group chaired by Professor Genevra Richardson to
consider reform of the Mental Health Act 1983. The 1983 Act consolidated
the Mental Health (Amendment) Act 1982 and the Mental Health Act 1959,
and has since been amended by the Mental Health (Patients in the
Community) Act 1995.
The 1959 Act reflected a ‘medicalist’ orientation, conferring on mental health
professionals wide discretionary powers to detain and, it was assumed, to treat
compulsorily.5Although built on the essentially discretionary foundation of
the 1959 Act, the 1983 Act reflects a much stronger rights orientation than its
2Whilst the last years of the Conservative government were characterized by the packaging
of policy in terms of point-plans (usually ten-point plans), the policy mantra of the Blair
government has been ‘the third way.’
3HSG(96)6\LASSL (96)6, The Spectrum of Care – A summary of comprehensive local services
for people with mental health problems, and the NHS Patient’s Charter for Mental Health
Services (NHS Executive EL(97)1).
4 Department of Health press release 98/311 29 July 1998.
5For a fuller discussion of medicalism and the competing philosophy of legalism see P. Fennell,
‘Law and Psychiatry’ in Legal Frontiers, ed. P.A. Thomas (1996) 208–64. It provides under
one legislative umbrella for the detention of both non-offender and offender patients.
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