1. HUMAN RIGHTS ACT 1998
& MENTAL HEALTH
Professor Anselm Eldergill
§1 — INTRODUCTION
This paper summarises the main provisions of the Human Rights Act 1998 and the most significant
Convention articles and case law concerning persons of unsound mind, with particular reference to cases
involving the United Kingdom. It also lists some of the sections of the Mental Health Act 1983 which may
infringe the Convention.
§1 Introduction p.1
§2 Human Rights Act 1998 p.1
§3 Case law p.3
§4 The Mental Health Act 1983 and the Convention p.17
App List of Convention Articles p.21
§2 — HUMAN RIGHTS ACT 1998
Until 2 October 2000, English and Welsh law did not require central and local government, or other persons
exercising similar executive powers, to exercise their powers in a way which was compatible with the
Convention. The Act changes that by making it unlawful for a public authority to act (or fail to act) in a way
which is incompatible with a Convention right unless it could not have acted differently or was acting so as
to give effect to or enforce a legal provision which is incompatible with the Convention.
BODIES COVERED BY THE ACT
Examples of persons or organisations whose acts or omissions it is intended should be able to be
challenged include:
central government (including executive agencies);
local government;
the police;
immigration officers;
prisons;
courts and tribunals;
privatised utilities.
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2. INVOKING THE CONVENTION
People or organisations may argue that their Convention rights have been infringed by a public authority in
our courts at any level. This will enable the Convention rights to be applied from the outset against the
facts and background of a particular case.
Individuals or organisations seeking judicial review of decisions by public authorities on Convention
grounds will need to show that they have been directly affected, as they must if they take a case to
Strasbourg.
Convention points will normally be taken in the context of proceedings instituted against individuals or
already open to them, but, if none is available, it will be possible for people to bring cases on Convention
grounds alone.
In considering Convention points, our courts will be required to take account of relevant decisions of the
European Commission and Court of Human Rights (although these will not be binding).
REMEDIES
A public authority which is found to have acted unlawfully by failing to comply with the Convention will not
be exposed to criminal penalties.
However, the court or tribunal will be able to grant the injured person any remedy which is within its
normal powers to grant and which it considers appropriate and just in the circumstances.
What remedy is appropriate depends both on the facts of the case and on a proper balance between the
rights of the individual and the public interest. In some cases, the right course may be for the decision of
the public authority to be quashed. In other cases, the only appropriate remedy may be an award of
damages.
In considering an award of damages, the courts are to take into account the principles applied by the
European Court of Human Rights in awarding compensation.
INTERPRETATION OF LEGISLATION
The Act provides that primary and secondary legislation, whenever passed, is to be interpreted so far as
possible so as to be compatible with the Convention.
The courts will be required to interpret legislation so as to uphold the Convention rights unless the
legislation itself is so clearly incompatible with the Convention that it is impossible to do so.
This goes far beyond the present rule which enables the courts to take the Convention into account in
resolving any ambiguity in a legislative provision.
The courts will not be bound by previous interpretations of the law. They will be able to build a new body
of case law, taking into account the Convention rights.
When legislation cannot be reconciled with the Convention
If the courts decide that it is impossible to interpret an Act of Parliament in a way which is compatible with
the Convention, the Act enables a formal declaration to be made that its provisions are incompatible with
the Convention.
Declarations of incompatibility may only be made by the House of Lords, the Court of Appeal or the High
Court (in judicial review proceedings or on appeal from a lower court or tribunal).
The Government has the right to intervene in any proceedings where such a declaration is a possible
outcome.
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3. Effect of a declaration
Acts of Parliament: The Human Rights Act is intended to provide a new basis for judicial interpretation of
all legislation, not a basis for striking down any part of it. A declaration will not of itself have the effect of
changing the law, which will continue to apply. However, it will almost certainly prompt the Government
and Parliament to change the law.
Secondary legislation (regulations and rules): The courts will, however, be able to strike down or set aside
secondary legislation which is incompatible with the Convention, unless the terms of the parent statute
make this impossible. In other words, regulations and rules which could have been phrased differently can
be struck down if they are incompatible with the Convention rights.
Amending legislation: In the normal way, primary legislation can be amended only by further primary
legislation, and this can take a long time. Given the volume of Government business, an early opportunity
to legislate may not arise; and the process of legislating is itself protracted. The Act provides for a fast-
track procedure for changing legislation in response either to a declaration of incompatibility by our own
higher courts or to a finding of a violation of the Convention in Strasbourg. The appropriate Government
Minister will be able to amend the legislation by Order so as to make it compatible with the Convention.
The Order will be subject to approval by both Houses of Parliament before taking effect, except where the
need to amend the legislation is particularly urgent, when the Order will take effect immediately but will
expire after a short period if not approved by Parliament.
§3 — CASE LAW
The material is arranged under the following headings:
Article 2 Protection of right to life
Article 3 Inhuman or degrading treatment
Article 5(1) Detention of persons of unsound mind
Article 5(2) Providing reasons for the detention
Article 5(4) Reviews of the lawfulness of the detention
Article 6(1) Determination of civil rights
Article 7(1) Subseq uent imposition of a heavier penalty
Article 8 Right to respect for private life
Article 10 Freedom of expression
ARTICLE 2 — PROTECTION OF RIGHT TO LIFE
Article 2 provides that everyone’s right to life shall be protected by law.
The article covers situations where force is used which may lead to loss of life, and it also imposes on
states a positive obligation to protect an individual from a real and immediate threat.
Allowing a person to die by withholding treatment may be permitted (Widmer v Switzerland).
The article cannot be used to challenge NHS funding: Taylor v UK (1994).
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4. The article requires hospitals to have regulations for the protection of patients’ lives, and an effective
system of judicial investigation of medical accidents: Erikson v Italy (1999)
ARTICLE 3 — INHUMAN OR DEGRADING TREATMENT
Article 3 of the Convention provides that, ‘No one shall be subjected to torture or to inhuman or degrading treatment
or punishment.’
Ill-treatment must be of a certain level of severity
In the Ireland v. United Kingdom judgment of 18 January 1978 (Series A no. 25 p.65, para. 162), it was held
that ‘ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The
assessment of this minimum is, in the nature of things, relative; it depends on all the circumstances of the
case, such as the duration of the treatment, its physical or mental effects and in some cases, the sex, age
and state of health of the victim, etc.’
Seclusion not usually violation of Article 3
The case of A. v. United Kingdom (1980) 3 E.H.R.R. 131 concerned a complaint that the conditions and
circumstances of a patient's seclusion in Broadmoor Hospital in 1974 amounted to inhuman and degrading
treatment, contrary to Article 3. The patient alleged that he had been deprived of adequate furnishing and
clothing, that the conditions in the room had been insanitary, and it had been inadequately lit and
ventilated. A friendly settlement was reached with an ex gratia payment to the patient of £500 being made
by the Government.
Notwithstanding this, in Dhoest v. Belgium 12 E.H.R.R. 135, the Commission noted that it would not
normally consider the segregation for security, disciplinary or protective reasons, of persons committed to
hospital in the course of criminal proceedings as constituting inhuman treatment or punishment. In
‘making an assessment in a given case, regard must be had to the surrounding circumstances including
the particular conditions, the stringency of the measure, its duration, the objective pursued and its effects
on the person concerned.’
It is, however, necessary that those responsible for the patient’s seclusion continuously review the
arrangements. In McFeely v. United Kingdom 3 E.H.R.R. 161, the Commission held that prison authorities,
when faced with what is regarded as an unlawful challenge to their authority, must maintain a continuous
review of the detention arrangements employed, with a view to ensuring the health and well-being of all
prisoners, with due regard to the ordinary and reasonable requirements of imprisonment. In Dhoest, it held
that the same reasoning applied mutatis mutandis to mental health patients detained in a custodial mental
institution under provisions similar to restriction orders under the 1983 Act.
Measures which are a therapeutic necessity
As a general rule, a measure which is a therapeutic necessity cannot be regarded as inhuman or degrading
(Herczegfalvy v. Austria judgment, of 24 September 1992).
In Herczegfalvy, the applicant complained about his medical treatment, in particular that he had been
forcibly administered food and neuroleptics, isolated, and attached with handcuffs to a security bed for
several weeks.
The Austrian Government argued that the measures were the consequence of the applicant's behaviour, as
he had refused urgent medical treatment and food which was necessary in view of the deterioration in his
physical and mental health. Similarly, it was his extreme aggressiveness, and his threats and acts of
violence against hospital staff, which explained why the staff had used coercive measures, including the
intramuscular injection of sedatives, and the use of handcuffs and a security bed. These measures had
been agreed to by his curator, their sole aim had always been therapeutic, and they had been terminated as
soon as the patient’s state permitted this.
According to the European Court, ‘The established principles of medicine are admittedly in principle
decisive in such cases; as a general rule, a measure which is a therapeutic necessity cannot be regarded as
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5. inhuman or degrading. The Court must nevertheless satisfy itself that the medical necessity has been
convincingly shown to exist. In this case it is above all the length of time during which the handcuffs and
security bed were used which appears worrying. However, the evidence before the Court is not sufficient to
disprove the Government's argument that, according to the psychiatric principles generally accepted at the
time, medical necessity justified the treatment in issue. No violation of Article 3 has thus been shown’ (at
paras. 82 and 83).
Application of the Herczegfalvy principle
The cases of Buckley v United Kingdom and Aerts v Belgium illustrate the practical effect of the
Herczegfalvy principle.
Buckley v United Kingdom (European Commission, 26 February 1997)
In Buckley v United Kingdom (European Commission, 26 F ebruary 1997), the applicant was the mother of
Orville Blackwood, who died in Broadmoor Hospital on 28 August 1991, where he was detained under the
Mental Health Act 1983. He died after having been injected with Modecate 150mg intramuscularly and
Sparine 150 mg intramuscularly. The drugs were administered without consent. His mother complained
that:
1. her son’s death constituted a violation of Article 2 and that his treatment was inhuman or degrading
treatment or punishment in violation of Article 3.
2. the Mental Health Act 1983 permitted the treatment, namely the administration of the stated
psychiatric drugs in the stated doses, which caused her son's death.
3. the enforced medical treatment of her son was a violation of the right to respect for private life under
Article 8 of the Convention.
4. her son suffered discrimination contrary to Article 14, on the ground of race and his status as a patient
detained in a special hospital under the Mental Health Act 1983.
5. the Mental Health Act 1983, and in particular section 139, which concerns the protection for acts done
in pursuance of the said Act, in combination with the law of negligence, resulted in there being no
effective remedy before a national authority in breach of Article 13.
Adopting the same numbering, the Commission held that:
1. The circumstances did not disclose any failure, substantive or procedural, to protect the applicant's
right to life as required by Article 2 (manifestly ill-founded).
2. None of the circumstances disclosed that Orville Blackwood’s treatment was anything other than part of
a therapeutic regime. Given that the applicant's own medical expert found no grounds on which to
criticise the hospital for negligent treatment, the Commission found no grounds on which to depart
from the general rule set out in the Herczegfalvy (manifestly ill-founded).
3. The complaint concerning Article 8 was rejected for the same reasons as in (i) and (ii) (manifestly ill-
founded).
4. There was no evidence of discrimination in respect of Mr Blackwood’s treatment, either on grounds of
race, or his status as a patient detained in a special hospital under the Mental Health Act 1983
(manifestly ill-founded).
5. Article 13 did not require a remedy under domestic law in respect of any alleged violation of the
Convention. It only applied if the individual could be said to have an ‘arguable claim’ of a violation of
the Convention. The application did not disclose any such ‘arguable claim’ (manifestly ill-founded).
Aerts v Belgium (European Court, 30 July 1998)
In Aerts, the applicant was detained for seven months in the psychiatric wing of Lantin Prison. The Mental
Health Board expressed the view that the situation was harmful to him. It was not contested that the general
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6. conditions in the psychiatric wing were unsatisfactory and not conducive to effective treatment. Indeed, a
visitorial body considered that the standard of care given to the patients there fell below the minimum
acceptable from an ethical and humanitarian point of view, and that prolonging their detention at Lantin for
lengthy periods carried an undeniable risk of a deterioration of their mental health. The Government argued
that the fact that there was a risk of the deterioration of their mental health was not sufficient to establish
that their treatment reached the minimum level of severity which would bring it within the scope of Article 3.
The Court reiterated that ill-treatment must attain a minimum level of severity if it is to fall within the
scope of Art. 3. There was no proof of a deterioration of Mr Aerts’s mental health, and the living conditions
on the psychiatric wing did not seem to have had such serious effects on his mental health as would bring
them within the scope of Article 3. It had not been conclusively established that the applicant suffered
treatment that could be classified as inhuman or degrading, and there had been no breach of Article 3.
Other cases
Force-feeding was found not to violate article 3, if in the individual’s best interests: X v Germany (1985), a
prisoner case.
A failure to provide treatment found inhuman in D v UK (1997) (removal to St Kitts of AIDs victim would
cause ‘acute mental and physical suffering’) and in Hurtado v Switz (1997) (no medical treatment of an
arrestee’s broken ribs for 8 days).
ARTICLE 5(1)(E) — DETENTION OF PERSONS OF UNSOUND MIND
Insofar as relevant, Article 5(1) provides that, ‘Everyone has the right to liberty and security of person. No one shall
be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: ... (e)
the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound
mind, alcoholics or drug addicts or vagrants.’
Article does not extend to mere restrictions on liberty
The case law confirms that Article 5(1) is concerned with deprivation, rather than restriction, of liberty.
Ashingdane case (European Court, 26 April 1985)
The applicant complained about his prolonged detention in a special hospital from October 1978 until
October 1980, after he had been declared fit for transfer to an ordinary psychiatric hospital (Oakwood
Hospital). However, the court reiterated that Article 5(1) is not concerned with mere restrictions on liberty
of movement, which are governed by Article 2 of Protocol 4.
The distinction between deprivation of and restriction upon liberty is one of degree or intensity. In order to
determine whether circumstances involve deprivation of liberty, the starting point must be the concrete
situation of the individual concerned, and account must be taken of a whole range of criteria, such as the
type, duration, effects and manner of implementation of the measure in question (see, inter alia, the Engel
and Others j udgment of 8 June 1976, Series A no. 22, p. 25, paras. 58-59, and the Guzzardi j udgment of 6
November 1980, Series A no. 39, p. 33, para. 92).
In Mr Ashingdane’s case, there were important differences between the regimes at Broadmoor and at
Oakwood; and his transfer to Oakwood had a proximate connection with a possible recovery of liberty, in
that it was a staging post on the road to any eventual discharge into the community. However, since he had
remained a detained patient during his subsequent stay at Oakwood, it could not be said that, whilst being
kept at Broadmoor pending transfer, he was being maintained in detention although medically and
administratively judged fit for a return to liberty.
The Court did accept that there must be some relationship between the ground of permitted deprivation of
liberty relied on and the place and conditions of detention, insofar as the detention of a person as a mental
health patient would only be lawful for the purposes of Article 5(1)(e) if effected in a hospital, clinic or
other appropriate institution authorised for the purpose. However, subject to that, Article 5(1)(e) was not in
principle concerned with suitable treatment or conditions.
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7. Aerts v Belgium (European Court, 30 July 1998)
In Aerts, Belgian legislation provided for the detention of a mentally ill person in a prison as a provisional
measure only, pending designation by the relevant mental health board of the institution where he was to
be detained. The applicant maintained that his detention for seven months in the psychiatric wing of Lantin
Prison, pending transfer to the Paifve Social Protection Centre (his designated place of detention), breached
Article 5. The psychiatric wing was not an appropriate institution for the treatment of the mentally ill, and
the treatment he received there had done him harm.
The court reiterated that there had to be some relationship between the ground of permitted deprivation of
liberty relied on and the place and conditions of detention. In principle, the detention of a person as a mental
health patient will only be lawful for the purposes of Article 5(1)(e) if effected in a hospital, clinic or other
appropriate institution (Ashingdane, supra). Lantin psychiatric wing could not be regarded as an institution
appropriate for the detention of persons of unsound mind and, indeed, on 2 August 1993, the Mental Health
Board had expressed the view that the situation was harmful to the applicant, who was not receiving the
treatment required by the condition that had given rise to his detention. The proper relationship between the
aim of the detention and the conditions in which it took place was therefore deficient, and there had been a
breach of Article 5.
The Winterwerp Case
In Winterwerp v The Netherlands, the European Court of Human Rights stated that the lawful detention of a
person of unsound mind under Article 5(1)(e) requires that the following minimum conditions are satisfied:
I. the detention must be effected in accordance with a procedure prescribed by law;
II . except in emergency cases, the individual concerned must be clearly shown to be of unsound mind,
i.e. a true mental disorder must be established before a competent authority on the basis of
objective medical expertise;
III . the mental disorder must be of a kind or degree warranting compulsory confinement; and
I V. the validity of continued confinement depends upon the persistence of such a disorder.
Condition I : Conformity with a procedure prescribed by law
The aim of these minimum conditions is to ensure that the deprivation of liberty is consistent with the
general purpose of Article 5, namely the protection of individuals from arbitrariness (Herczegfalvy
judgment of 24 September 1992, Series A no. 244, p. 21, para. 63). Quite apart from conformity with
domestic law, ‘no detention that is arbitrary can ever be regarded as lawful’ (X v United Kingdom, para.43;
Winterwerp judgment , pp. 16 and 18, par. 37 and 39).
The de facto detention of informal, incapacitated, patients may well contravene the requirement that
detention must be in accordance with a procedure prescribed by law. It is therefore possible that the House
of Lords’ judgment in the Bournewood Case will need to be revised, in order to ensure compliance with the
Convention (R v Bournewood Community and Mental Health NHS Trust, ex p. L [1998] 3 WLR 107), HL).
Condition II: The need for objective medical expertise
Since Winterwerp, there have been two important cases in the United Kingdom concerning the recall of
restricted patients to hospital by the Home Secretary, without medical evidence first being obtained.
Emergency confinement (X v United Kingdom, European Court, 24 October 1981)
In X v. the United Kingdom, a restricted patient complained that it had been unlawful for the Home
Secretary to recall him to a special hospital without any doctor having certified first that he was of unsound
mind. This argument was rejected by the court . The court noted that the Home Secretary’s power of recall
was concerned,
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8. ‘with the recall, perhaps in circumstances when some danger is apprehended, of patients whose
discharge from hospital has been restricted for the protection of the public ... The Winterwerp
judgment expressly identified “emergency cases” as constituting an exception to the principle that
the individual concerned should not be deprived of his liberty unless he has been reliably shown to
be of “unsound mind”; nor could it be inferred from the Winterwerp judgment that the "objective
medical expertise" must in all conceivable cases be obtained before rather than after confinement of
a person on the ground of unsoundness of mind. Clearly, where a provision of domestic law was
designed ... to authorise the emergency confinement of persons capable of presenting a danger to
others, it would be impracticable to require thorough medical examination prior to any arrest or
detention. A wide discretion must in the nature of things be enjoyed by the national authority
empowered to order such emergency confinements.’
According to the court, the conditions under the 1959 Act governing recall did not appear to be
incompatible with the meaning under the Convention of the expression ‘the lawful detention of persons of
unsound mind.’ In such circumstances, the interests of the protection of the public prevailed over the
individual's right to liberty to the extent of justifying an emergency confinement in the absence of the
usual guarantees implied in Article 5(1)(e). However, although sufficient reason for the Home Secretary to
consider that the applicant's continued liberty constituted a danger to the public justified recall as an
emergency measure, and for a short duration, the patient’s further detention in hospital had to satisfy the
minimum conditions described in Winterwerp.
Kay v United Kingdom (European Commission, 1 March 1994)
In Kay, the applicant also complained about his recall to Broadmoor without prior medical assessment on
the expiration of a lengthy prison sentence.
The Commission noted that his recall to Broadmoor was in accordance with the procedures prescribed by
domestic law. F urthermore, the Secretary of State was entitled to be concerned about the protection of the
public, in the light of the applicant's history of psychopathy, and his serious criminal record involving
extreme violence towards girls and women.
However, this historical background did not mean that one could dispense with the need to obtain up-to-
date medical evidence about the applicant's mental health before ordering his recall to hospital. The weight
of medical evidence at the time of recall was in the applicant's favour, for the most recent tribunal decision
in 1986 had found that there was no evidence he was then suffering from any psychopathic disorder. It had
not been impossible to have him assessed in prison, and the existence of a dissenting report from a
Broadmoor doctor who had not interviewed the applicant could not outweigh the tribunal’s finding, nor
provide a sufficient scientific basis for his continued compulsory confinement in hospital nearly three years
later.
When the Secretary of State decided to recall the applicant to Broadmoor certain minimum conditions of
lawfulness were therefore not respected. In particular, there was no up-to-date objective medical expertise
showing that the applicant suffered from a true mental disorder, or that his previous psychopathic disorder
persisted. In the absence of any emergency, there were no particular circumstances to justify the omission.
Accordingly, the applicant's recall and return to Broadmoor could not be qualified as the lawful detention
of a person of unsound mind for the purposes of Article 5(1)(e).
Condition III : Disorder of a kind or degree warranting confinement
The Mental Health Act 1983 requires that a person’s mental disorder must be of a certain ‘nature or
degree’ before compulsory admission to hospital is lawful, and this wording duplicates that adopted by the
court in Winterwerp.
Condition IV : Persistence of such a disorder
Although the Winterwerp j udgment states that the validity of continued confinement depends upon the
persistence of a mental disorder of a kind or degree which warrants compulsory confinement, a formal
finding that an offender patient no longer suffers from such a disorder does not necessarily entitle him to
immediate release.
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9. Luberti v Italy (European Court, 27 January 1984)
In the Luberti Case, the European Court accepted that the termination of the confinement of an individual
who has previously been found by a court to be of unsound mind, and to present a danger to society, is a
matter that concerns, as well as that individual, the community in which he will live if released. Having
regard to that fact, and the very serious nature of the offence committed by the applicant when mentally ill,
the responsible authority was entitled to proceed with caution, and needed some time to consider whether
to terminate his confinement, even if the medical evidence pointed to his recovery.
Johnson v United Kingdom (European Court, 24 October 1997)
In June 1989, the applicant’s detention in Rampton Hospital was reviewed by a tribunal. It accepted the
medical evidence that he was not then suffering from mental illness, stating that the episode of mental
illness from which he formerly suffered has come to an end. It ordered his conditional, rather than
absolute, discharge, because he required rehabilitation under medical supervision in a hostel environment,
and a recurrence of mental illness requiring recall to hospital could not be excluded. Discharge was
deferred until arrangements could be made for suitable accommodation. Considerable efforts to secure a
hostel for Mr Johnson were unsuccessful. Eventually, on 12 January 1993, a tribunal ordered his absolute
discharge.
The applicant complained that his detention between 15 June 1989 and 12 January 1993 violated Article
5(1). More particularly, the tribunal in 1989 should have ordered his immediate and unconditional
discharge, since he had made a full recovery from the episode of mental illness specified in the hospital
order imposed by the court.
However, according to the European Court, it does not automatically follow from a finding by an expert
authority that the mental disorder which justified confinement no longer persists that the patient must be
immediately and unconditionally released into the community. Such a rigid approach would place an
unacceptable degree of constraint on the responsible authority’s exercise of judgment when determining
whether the interests of the patient and the community would be best served by such a course of action.
Furthermore, in the field of mental illness, the assessment as to whether the disappearance of the
symptoms of the illness is confirmation of complete recovery is not an exact science. Whether or not
recovery from the episode of mental illness which justified confinement is complete and definitive, or
merely apparent, cannot in all cases be measured with absolute certainty. It is the behaviour of the patient
in the period spent outside the confines of the psychiatric institution which will be conclusive of this.
Having regard to these considerations, a responsible authority is entitled to exercise a similar measure of
discretion in deciding whether it is appropriate to order immediate and absolute discharge in such a case.
It is, however, of paramount importance that appropriate safeguards are in place which ensure that any
deferral of discharge is consonant with the purpose of Article 5(1)(e) and, in particular, that discharge is
not unreasonably delayed.
Although the tribunal had been entitled to conclude that it was premature to order Mr Johnson’s absolute
and immediate discharge from hospital, it lacked the power to guarantee that he would be relocated to a
suitable post-discharge hostel within a reasonable period of time. The onus was on the authorities to
secure a hostel willing to admit him. In between reviews, Mr Johnson could not petition the tribunal to have
the terms of the hostel residence condition reconsidered; nor was the tribunal empowered to monitor
periodically outside the annual reviews the progress made in the search for a hostel, and to amend the
deferred conditional discharge order in the light of the difficulties encountered by the authorities.
The imposition of the hostel residence condition by the 1989 tribunal therefore led to the indefinite
deferral of the applicant’s release from hospital. Having regard to this situation, and to the lack of
adequate safeguards, including provision for judicial review to ensure that his release would not be
unreasonably delayed, his continued confinement after 15 June 1989 could not be justified under Article
5(1)(e) of the Convention.
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10. Other challenges under Article 5(1)
Whilst Article 5(1)(e) authorises detention on the ground of unsoundness of mind, Article 5(1)(b) authorises
‘the lawful arrest or detention of a person for non-compliance with the lawful order of a court or in order to
secure the fulfilment of any obligation prescribed by law.’
Detention because of deteriorating mental state and public safety concerns
In Roux v. United Kingdom (European Commission, 4 September 1996), the applicant was a restricted
patient who had been recalled to hospital because of the concern that he was beginning to repeat the
pattern of behaviour evident before the commission of his two offences against prostitutes, and because
the medical opinion was that he should be recalled as his mental state was likely to deteriorate if he
remained at his flat.
Mr Roux complained that his recall was in breach of Article 5, because there was no non-compliance with a
court order and no breach of an obligation prescribed by law. In particular, he should not have been
recalled as he had not breached any condition of his discharge, and no court had determined the state of
his mental health at the time.
The Government submitted that the Secretary of State's power of recall was not limited by the conditions
attached to release and there could be occasions where recall was appropriate even though no conditions
had been breached. Conversely, some breaches of the conditions of discharge from hospital would not
warrant recall to hospital. In the event, a friendly settlement was reached, whereby the Government agreed
to pay £2,000 to the applicant together with the agreed costs of his application.
ARTICLE 5(2)
Article 5(2) provides that, ‘Everyone who is arrested shall be informed promptly, in a language which he understands,
of the reasons for his arrest and of any charge against him.’
In Van der Leer v The Netherlands (1990) 12 E.H.R.R. 567–575, the European Court held that the word
‘arrest’ in Article 5(2) embraces deprivation of liberty on the ground of unsoundness of mind (see paras.
27-28). This recognises the fact that a person who is entitled to take proceedings to have the lawfulness of
his detention speedily decided cannot make effective use of that right unless he is promptly and
adequately informed of the reasons why he has been deprived of his liberty (at para. 28).
The Van der Leer judgment imposes a wider obligation on hospitals than does section 132, because it
requires patients to be notified of the reasons for their detention, and not merely the consequences of
being detained, the statutory authority for that detention, and the methods of challenging it. The
requirement would probably be satisfied by giving the patient a copy of the application for his detention
(as to a patient's right to a copy of the application, see also Re Dell, 35 Sol. Journ. 783).
In X v United Kingdom (European Court, 24 October 1981), the court similarly emphasised that the need
for the applicant to be apprised of the reasons for his recall followed in any event from paragraph 4 of
Article 5, because a person entitled to take proceedings to have the lawfulness of his detention speedily
decided cannot make effective use of that right unless he is promptly and adequately informed of the facts,
and the legal authority relied on, to deprive him of his liberty.
ARTICLE 5(4) — JUDICIAL REVIEWS OF DETENTION
Article 5(4) provides that, ‘Everyone who is deprived of his liberty by arrest or detention shall be entitled to take
proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if
the detention is not lawful.’
The detention of persons on the ground of unsoundness of mind constitutes a special category with its
own specific problems. In particular, the reasons initially warranting confinement of this kind may cease to
exist . The very nature of the deprivation of liberty ‘would appear to require a review of lawfulness to be
available at reasonable intervals. By virtue of Article 5(4), a person of unsound mind compulsorily confined
in a psychiatric institution for an indefinite or lengthy period is thus in principle entitled, at any rate where
there is no automatic periodic review of a judicial character, to take proceedings at reasonable intervals
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11. before a court to put in issue the lawfulness ... of his detention, whether that detention was ordered by a
civil or criminal court or by some other authority.’(X v United Kingdom, para. 52; referring to Winterwerp
judgment, par. 57 and 60).
A person compulsorily confined on the ground of unsoundness of mind therefore has a right to have a
judicial determination of both the substantive and the formal lawfulness of his detention. The review
should be wide enough to bear on those conditions which, according to the Convention, are essential for
the lawful detention of a person on the ground of unsoundness of mind. The remedy of habeas corpus
does not allow a judicial determination as wide as this; when the terms of a statute afford the executive a
discretion, whether wide or narrow, the review exercisable by the courts in habeas corpus proceedings will
bear solely upon the conformity of the exercise of that discretion with the empowering statute.
The principles enshrined within Article 5(4) were summarised in the Megyeri Case ((European Court, 26
February 1992), and they include the following—
1. A person of unsound mind who is compulsorily confined in a psychiatric institution for an indefinite or
lengthy period is in principle entitled, at any rate where there is no automatic periodic review of a
judicial character, to take proceedings ‘at reasonable intervals’ before a court to put in issue the
‘lawfulness’ of his detention (see, inter alia, the X v. the United Kingdom judgment of 5 November
1981, Series A no. 46, p. 23, para. 52).
2. Article 5(4) requires that the procedure followed must have a judicial character and give to the
individual concerned guarantees appropriate to the kind of deprivation of liberty in question. In order
to determine whether a proceeding provides adequate guarantees, regard must be had to the particular
nature of the circumstances in which such proceeding takes place (see the Wassink v. Netherlands
judgment of 27 September 1990, Series A no. 185-A, p. 13, para. 30).
3. The judicial proceedings referred to in Article 5(4) need not always be attended by the same guarantees
as those required under Article 6(1) for civil or criminal litigation. None the less, it is essential that the
person concerned should have access to a court and the opportunity to be heard either in person or,
where necessary, through some form of representation. Special procedural safeguards may prove called
for in order to protect the interests of persons who, on account of their mental disabilities, are not fully
capable of acting for themselves (see the Winterwerp v. Netherlands judgment of 24 October 1979,
Series A no. 33, p. 24, para. 60).
4. Article 5(4) does not require that persons committed to care under the head of ‘unsound mind’ should
themselves take the initiative in obtaining legal representation before having recourse to a court (see
the same judgment, p. 26, para. 66).
5. It follows from the foregoing that where a person is confined in a psychiatric institution on the ground
of the commission of acts which constituted criminal offences, but for which he could not be held
responsible on account of mental illness, he should (unless there are special circumstances) receive
legal assistance in subsequent proceedings relating to the continuation, suspension or termination of
his detention. The importance of what is at stake for him (personal liberty) taken together with the very
nature of his affliction (diminished mental capacity) compel this conclusion.
Megyeri v Federal Republic of Germany (European Court, 26 February 1992)
The applicant’s confinement was founded on a finding by the Cologne Regional Court in criminal
proceedings, to the effect that he could not be held responsible for his acts because he was suffering from
a schizophrenic psychosis with signs of paranoia. Some time later, in July 1986, the Aachen Regional Court
had before it expert evidence stating that there had been a further deterioration in his condition, that he
was not willing to undergo treatment, and that he showed a distinct propensity towards aggressive
behaviour and violence. Before the European Commission, Mr Megyeri submitted that the failure to appoint
a lawyer to assist him in the 1986 proceedings before the Aachen Regional Court concerning his possible
release had given rise to a violation of Article 5(4).
One of the issues falling to be determined in the 1986 review was whether, if Mr Megyeri were released on
probation, he would be likely to commit illegal acts similar to those that had occasioned the original
confinement order. In this connection, the Aachen Regional Court not only considered a report by three
experts but also heard the applicant in person, in order to form its own impression of him.
Eldergill 11

12. It was doubtful, to say the least, whether Mr Megyeri, acting on his own, was able to marshal and present
adequately points in his favour on this issue, involving as it did matters of medical knowledge and
expertise. Again, it was even more doubtful whether, on his own, he was in a position to address
adequately the legal issue arising: would his continued confinement be proportionate to the aim pursued
(the protection of the public). There had been a breach of Article 5(4).
Meaning of a ‘court’
The word ‘court’ is not necessarily to be understood as signifying a court of law of the classic kind,
integrated within the standard judicial machinery of the country. The term serves to denote ‘bodies which
exhibit not only common fundamental features, of which the most important is independence of the
executive and of the parties to the case ... but also the guarantees appropriate to the kind of deprivation of
liberty in question (see De Wilde, Ooms and Versyp j udgment, pp. 41-42, par. 76 and 78). Provided the
review is undertaken by a ‘court’, each contracting state is free to determine what would be the best or
most appropriate system of judicial review in this sphere.
Powers of the reviewing body : review is of lawfulness of the detention
The applicant in R v United Kingdom (European Commission, 18 July 1986) was detained in Broadmoor
Hospital, subject to hospital and restriction orders. On 23 March 1984, he appeared before a mental health
review tribunal. The tribunal found that it could not evaluate the degree to which the applicant presented a
risk to the public without the evidence of unescorted leave, and he was accordingly not discharged.
The applicant complained of a violation of Article 5(4), in that the Mental Health Act 1983 failed to give the
tribunal sufficient power to meet the reasonable needs of a ‘court’ within the meaning of Article 5(4). He
claimed that it was not sufficient for the tribunal to be able to discharge, conditionally or unconditionally; it
must also have ancillary powers, such as the ability to give brief trial leave of absence. F urthermore, it was
difficult to reconcile the exclusive power of the Home Secretary to authorise even one day's escorted leave
with the tribunal's power to give an absolute discharge, because the power to grant brief trial leave was
clearly less drastic than a power to order an absolute discharge.
According to the Commission, ‘In the present case the Mental Health Review Tribunal had jurisdiction to
decide on the substantive lawfulness of the applicant's detention and it had the power (indeed the duty) to
release the applicant if the conditions for continued detention were not satisfied. In this respect the
present Mental Health Review Tribunal is different from that considered by the Court in the case of X v
United Kingdom’ (para. 1). Article 5(4) ‘does not require any control of detention beyond that of "the
lawfulness of his detention" and in the present case the Mental Health Review Tribunal was able to make
such a review. It follows that this part of the application is manifestly ill-founded’ (para. 1).
Frequency of the periodic reviews
The applicant in Turnbridge v United Kingdom (European Commission, 17 May 1990) was detained in
Broadmoor Hospital. He complained that an annual review of the lawfulness of his detention by a tribunal
was insufficient. The Commission found nothing to suggest that the period of a year which the applicant
must respect before reapplying to a tribunal for his discharge was an unreasonable interval in the
circumstances. Inadmissible.
Review not preview
In A.R. v United Kingdom (European Commission, 29 November 1995), the applicant escaped from
Broadmoor Hospital in August 1981, and went to Amsterdam where he lived for a year. On 6 August 1982,
he was arrested and subsequently convicted of manslaughter, being sentenced to 15 years imprisonment.
In June 1992, the Dutch authorities took steps to have him deported to the United Kingdom.
The applicant’s solicitors wrote to the Home Office referring to a significant body of evidence to the effect
that he was no longer suffering from mental disorder or illness, and requesting that the Home Office refer
his case to a tribunal. Their view was that such a review was necessary in order to establish valid grounds
for continuing to seek his extradition (or deportation). The Home Office took the view that the applicant
was an absconder from hospital, continued to be subject to valid hospital orders, and could apply to a
tribunal on his return to the United Kingdom. The Commission held that the refusal of the United Kingdom
authorities to grant a review of his case prior to his return did not disclose a violation of Article 5(1)(e).
Eldergill 12

13. Right to a speedy determination
Article 5(4) requires that the proceedings testing the lawfulness of a patient’s detention ‘shall be decided speedily by a
court’. ‘Lawful’ in this context includes ‘substantive lawfulness.’ In other words, the holding of a hearing concerning
the merits of the individual's detention under the statutory provision authorising it. The domestic law is particularly
vulnerable with regard to delays hearing unrestricted cases. This is because the 1959 Act abolished the previous
requirement that the issue of whether a citizen's detention is justified must be determined in advance by a judicial
authority, compensating citizens for this loss by enabling them to have the justification reviewed after the event.
Whereas a person could not previously be detained for a prolonged period of treatment unless a judicial order was
first obtained, it is now not uncommon for more than half the authorised period of detention to have expired before
there is a judicial determination of the merits. Consequently, the detention of many patients is brought to an end
before a judicial hearing takes place, the average period of detention in many hospitals being significantly less than
six months.
Barclay-Maguire v United Kingdom (App. no. 9117/80)
On 9 December 1981, the European Commission declared admissible an application which alleged that a
delay of 18 weeks between the making of a tribunal application and its determination contravened article
5(4). The Government, seeking a settlement from the Commission, suggested 13 weeks as a reasonable
target time. It subsequently failed to meet this target. A number of patients subsequently sought judicial
review in relation to delayed hearings, but judgment was avoided by offering them an earlier date,
necessarily at the expense of other patients (see, e.g., the judicial review applications in R. v. Mental Health
Review Tribunal, ex p. Hudson (unreported, 1986) and R. v. Mental Health Review Tribunal, ex p. Mitchell
(unreported, 1985).
Koendjbiharie v Netherlands (European Court, 27 June 1990)
The relevant period began on 17 May 1984, when the application to extend the patient’s confinement was
filed with the Court of Appeal. The decision was received more than four months later. Such a lapse of time
was incompatible with the notion of speediness. The Court, accordingly, found a failure to comply with the
requirement of ‘speediness’ laid down in Article 5(4).
Kay v United Kingdom (European Commission, 1 March 1994)
The Commission referred to the Court's case-law that periods of eight weeks to five months in mental
health determinations were difficult to reconcile with the notion of "speedily" in Article 5(4) of the
Convention (E. v. Norway judgment of 29 August 1990, Series A no. 181-A, p. 27, para. 64; Van der Leer
judgment of 21 February 1990, Series A no. 170-A, pp. 14-15, paras. 32-36). It was not contested by the
Government that mental health review tribunals frequently took up to six months to determine cases like
the applicant's. In Kay’s case, the determination took just over two years, and the first hearing date
proposed by the tribunal was nearly five months after referral. In the Commission's view, the system itself
was inherently too slow, and the tribunal proceedings were not conducted ‘speedily’, within the meaning of
Article 5(4).
Pauline Lines v. United Kingdom (European Commission, 17 January 1997)
In Lines, the patient was subject to a hospital order and a restriction order made without limit of time. She
was readmitted to hospital under section 3 on 27 July 1993, and then formally recalled to hospital by the
Secretary of State on 3 December 1993. On 7 December 1993, the Secretary of State referred her case to a
tribunal, which then heard the matter on 23 February 1994. The patient complained, firstly, that she was
not entitled to apply to a tribunal while detained under section 3 and, secondly, about the length of time it
took for her to have a review following admission, in both cases contrary to Article 5(4). The Commission
unanimously declared admissible the patient's complaints about the lack of entitlement to take
proceedings by which the lawfulness of her detention after 27 July 1993 could be decided speedily by a
court. In the event, a friendly settlement was reached, whereby the Government paid the applicant's
representatives £3591.75, of which £2000 represented compensation and the remainder costs.
Eldergill 13

14. RSC v United Kingdom (European Commission, 28 May 1997)
The applicant was a restricted patient who was recalled to Broadmoor Hospital on 16 November 1994. On
22 November 1994, the Home Secretary referred his case to a tribunal, which adjourned the initial hearing
on 20 September 1995, and did not determine his detention until 25 March 1996. The applicant alleged a
violation of Article 5(4), inter alia, because the tribunal failed to consider the reasons for his recall, and did
not decide the matter ‘speedily’.
A friendly settlement was reached. The Government agreed to pay to the applicant £2,000 compensation,
together with £2800 costs. It also undertook to amend the Mental Health Review Tribunal Rules 1983, so
that when a conditionally discharged patient is recalled there must be a tribunal hearing within two months
from the date on which the case is referred to the tribunal (which must be within a month of recall).
ARTICLE 6(1) — DETERMINATION OF CIVIL RIGHTS
Article 6(1) provides that, ‘In the determination of his civil rights and obligations or of any criminal charge
against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent
and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public
may be excluded from all or part of the trial in the interests of morals, public order or national security in
a democratic society, where the interests of juveniles or the protection of the private life of the parties so
require, or to the extent strictly necessary in the opinion of the court in special circumstances where
publicity would prej udice the interests of justice.’
A.R. v United Kingdom (European Commission, 29 November 1995)
The applicant, a Broadmoor patient who had escaped to Holland, complained that his status as a patient
subject to hospital and restriction orders was a matter concerning his civil rights, and that he was being
denied access to a mental health review tribunal for the purposes of determining his rights. He invoked
Article 6(1).
The Commission noted that, according to Convention case law, proceedings regarding a person's detention
in a psychiatric hospital do not concern the determination of that person's ‘civil rights and obligations’
within the meaning of Article 6(1), unless the detention has indirect effects on the detained person’s right
to administer his property or to carry out legal transactions (Neumeister judgment of 27 June 1968, Series
A no. 8, p. 43, para. 23; Winterwerp j udgment of 24 October 1979, Series A no. 33, p. 28, para. 73;
Wassink case, Comm. Report 12.7.89, para. 64, Eur. Court H.R., Series A no. 185, p. 27-28 para. 64). There
was no indication in AR’s case that his ability to administer his property had been interfered with, and
tribunal proceedings would not involve determining of any of his civil rights and obligations within the
meaning of Article 6(1).
Other cases
Article 6 does cover medical disciplinary proceedings (Le Compte v Belgium (1982)). It may also render
unlawful public immunity from an action for damages in relation to the negligent release of a prisoner by
authority of the Home Office: Bromiley v UK (1999).
ARTICLE 7 — SUBSEQUENT IMPOSITION OF A HEAVIER PENALTY
Article 7(1) provides that a heavier penalty shall not be imposed than the one that was applicable at the time the
criminal offence was committed.
Smith v United Kingdom (European Commission, 10 September 1997)
The applicant was convicted in 1966 of the manslaughter of a nine year old boy, whom he strangled and
then sexually abused. He was detained at Ashworth Hospital, subject to hospital and restriction orders.
Having been conditionally discharged by a tribunal in November 1983, he was recalled to hospital in
November 1984.
Eldergill 14

15. Mr Smith complained that , due to the implementation of the 1983 Act, he was suffering a heavier penalty
than that applicable at the time when the criminal offence was committed. The Commission noted that he
had initially been detained under the 1959 Act. Even assuming that Article 7 applied to cases where the
issue of criminal punishment and detention in a mental health institution was involved, the 1983 Act did
not alter the system of detention or conditional discharge and the right of recall. Indeed, it gave detained
persons the additional possibility of making an application to the tribunal, who had power to grant
conditional or unconditional release. The applicant was therefore in a more advantageous position under
the 1983 Act . Manifestly ill-founded.
In relation to a second complaint, made under Article 5(1)(e), the Commission stated that the applicant’s
tribunal had been entitled to give greater weight to the report of the treating doctor, than that of the
psychiatrist instructed by the patient, who recommended conditional discharge.
ARTICLE 8 — RIGHT TO RESPECT FOR PRIVATE LIFE
Article 8 provides as follows: ‘(1) Everyone has the right to respect for his private and family life, his home and his
correspondence. (2) There shall be no interference by a public authority with the exercise of this right except such as
is in accordance with the law and is 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.’
Structure of Article 8
When a public authority acts in a way which interferes with an individual’s right to respect for their private
and family life, that interference will violate Article 8 unless (a) it is in accordance with the law AND (b) it is
necessary in a democratic society (c) because of one or more of the listed interests (national security, etc).
Private and family life
Activities which form part of an individual’s ‘private life’ include their personal life, relationships, sexual
identity, telephone calls, health, sexual practices, mail, and personal office space.
Activities which form part of an individual’s ‘family life’ include family ties, cohabitation, family visits,
children and protection from domestic violence.
Proportionality
Proportionality is fundamental when deciding whether or not some interference with an individual’s private
or family life violates the convention:
— Does the national measure, or the local policy or procedure, which interferes with the enjoyment of a
Convention right proportionate to the (legitimate) aim which the measure seeks to achieve?
— Is the measure actually appropriate?
— Does the measure have a wider effect than is strictly necessary?
— Does the measure impose an excessive burden? on any individual?
Herczegfalvy v. Austria (European Court, 24 September 1992)
In Herczegfalvy, the applicant alleged that by administering food to him by force, imposing on him the
treatment complained of, and refusing to send on his correspondence, the hospital authorities had violated
Article 8.
The complaint was directed in particular against the psychiatric hospital's practice of sending all the
applicant's letters to the curator for him to select which ones to pass on.
According to the court, this interference constituted a breach of Article 8 unless it was ‘in accordance with
the law’, pursued a legitimate aim or aims under paragraph 2, and was ‘necessary in a democratic society’
Eldergill 15

16. for achieving those aims. The Court recalled that the expression ‘in accordance with the law’ required
firstly that the impugned measure should have some basis in national law; but it also referred to the quality
of the law in question, requiring that it should be accessible to the person concerned, who must moreover
be able to foresee its consequences for him, and compatible with the rule of law. Compatibility with the
rule of law implied that there must be a measure of protection in national law against arbitrary
interferences with the rights safeguarded by Article 8(1). If a law conferred a discretion on a public
authority, it must indicate the scope of that discretion, although the degree of precision required would
depend on the particular subject matter.
Although the Austrian Government had argued that the impugned decisions were based directly on section
51 of the Hospitals Law, and articles in the Civil Code, these very vaguely worded provisions did not specify
the scope or conditions of exercise of the discretionary power. Such specifications appeared all the more
necessary in the field of detention in psychiatric institutions, in that the persons concerned were frequently
at the mercy of the medical authorities, so that their correspondence was their only contact with the
outside world. In the absence of any detail at all as to the kind of restrictions permitted or their purpose,
duration and extent or the arrangements for their review, the provisions did not offer the minimum degree
of protection against arbitrariness required by the rule of law in a democratic society, and there had been a
violation of Article 8.
J.T. v United Kingdom (European Commission, 20 May 1998)
The applicant was detained under section 3 of the Mental Health Act 1983. The case concerned her
inability to change her ‘nearest relative’ for the purposes of the Mental Health Act 1983. Her mother, the
nearest relative, had persistently taken her stepfather’s side, he had (allegedly) sexually abused her, and
this was responsible, to a significant extent, for her psychiatric difficulties. That the patient’s mother was
the nearest relative, and was entitled to receive and discuss with him information concerning tribunal
reviews, violated the applicant’s right to respect for her private life.
According to the Commission, information concerning the applicant's mental condition related to her
private life (Gaskin v. the United Kingdom judgment of 7 July 1989, Series A no. 160, p. 15, para. 37), and
the disclosure of such information to her nearest relative constituted an interference with her right to
respect for her private life. Such an interference therefore constituted a violation of Article 8 unless it is
justified under paragraph 2.
The list of grounds contained in section 29(3) of the 1983 Act upon which an application could be made to
change the nearest relative was exhaustive, and did not include the concerns of the applicant. Accordingly,
despite the nature of her relationship with her mother and step-father, the impact of those relationships on
her, and the significant, unwanted and automatic disclosure of her private affairs to her mother, no
application could be made to change her nearest relative. The lack of any such provision in section 29(3)
was particularly serious given the extensive disclosures made to a nearest relative when that person orders
a patient's discharge or applies to a tribunal for a review of the patient's detention. In those circumstances,
the absence of any possibility to apply to the County Court to change the applicant's nearest relative, on
the grounds of her concerns about the identity of that person, rendered the interference with her rights
under Article 8(1) disproportionate to the aims pursued. There had been a violation.
Other cases
Excessive delay on the part of a public health service to provide a medical service to which a patient was
entitled can raise an issue under article 8, if the delay has or is likely to have, a serious impact on the
patient’s health: Passannante v Italy (1998).
Compulsory tuberculosis screening was held not to be a violation, although it interfered with the
individual’s private life, in Acmanne v Belgium (1983).
In Grare v France (1983), a voluntary in-patient complained that the unpleasant side-effects of his
treatment violated the article. It was held that, even if the treatment regime constituted an invasion of his
private life, it justified in the interests of his health and public order.
Eldergill 16

17. ARTICLE 10 — FREEDOM OF EXPRESSION
Article 10 provides as follows: ‘(1) Everyone has the right to freedom of expression. This right shall include freedom to
hold opinions and to receive and impart information and ideas without interference by public authority and regardless
of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema
enterprises. (2) The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to
such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic
society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or
crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the
disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.’
T v United Kingdom (Committee of Ministers, 4 December 1986)
The applicant complained, inter alia, of certain restrictions on the exercise of his freedom of expression
while serving a sentence of imprisonment. In accordance with the Commission’s opinion, the Committee of
Ministers decided that:
I. there had been a violation of Article 10 of the convention in relation to the denial of access to
writing paper and in relation to the complete prohibition on the applicant's sending academic
writings out of prison;
II . there had not been a violation of Article 10 of the convention in relation to the restrictions on the
applicant's receipt of books;
III . there had been a violation of Article 10 of the convention in relation to the restrictions on the
applicant's access to newspapers and periodicals and in particular its restriction during disciplinary
penalties;
I V. there had not been a violation of Article 10 of the convention in relation to the scrutiny of the
applicant's writings.
§4 — THE 1983 ACT & THE CONVENTION
PROVISIONS KNOWN TO BE IN BREACH
1. Section 29 and fact that the patient cannot apply to have an unsuitable nearest relative replaced.
2. Fact that tribunals cannot give directions to ensure that restricted patients whose conditional discharge
has been deferred can be discharged.
PROVISIONS PROBABLY IN BREACH
1. De facto detention of incapacitated patients under the common law: Bournewood (patients not being
detained in accordance with a procedure prescribed by law).
2. Any reliance on the ‘man must be mad test’ in W v L [1974] QB 711 as commonly interpreted. (‘The
words "mental illness" are "ordinary words of the English language. They have no particular medical
significance. They have no particular legal significance. How should the courts construe them? ... in the
way that ordinary sensible people would construe them.’)
3. The fact that a patient whose detention is extended under section 29 is not entitled to a review of their
detention.
4. The fact that the tribunal provisions require the patient to demonstrate that the legal conditions for
detaining him are not satisfied (double-negative test).
5. Given that Article 5(4) provides that a detained patient is entitled to a tribunal which can order his
release if his detention is not lawful, the decision in R v South Western Managers, ex p M [1993] Q.B .
Eldergill 17

18. 683, which held that a tribunal’s decision can be overridden by those whose actions are being
reviewed:
In ex p. M, the patient, who was detained under section 2, applied to a tribunal which heard the
matter on 14 December 1992. The tribunal was satisfied that she was not suffering from mental
disorder of a nature or degree which warranted her detention in a hospital for assessment and
accordingly directed her discharge. However, the tribunal directed that she be discharged on 17
December in order that social services could first make arrangements for a suitable support
programme. During the period between the giving of the direction and the date fixed by the
tribunal for the patient's discharge, she was detained under section 3. Laws J. said that there
was no sense in which those concerned in making a section 3 application were at any stage
bound by an earlier tribunal decision.
It is noteworthy that, having decided that the question of the effect of a tribunal's direction was
one "of pure statutory construction," the court managed to construe the statute without once
referring to Part V of the Act . At no stage did it consider for a moment what inferences might be
drawn from the tribunal framework and the powers vested in them, confining its attention to the
powers vested in doctors and prospective applicants. Nor did it contemplate the fact that the
European Convention on Human Rights requires that persons detained on the ground of
unsoundness of mind must have access to an independent and impartial court which can
speedily determine the issue and direct their release. A tribunal's powers under section 72 are
of two sorts. It has power to direct (discharge and reclassification) and power to recommend
(leave of absence, transfer, supervision).
In ex p. K, a restricted patient who had been conditionally discharged by a tribunal was later
recalled to hospital by the Secretary of State. McCullough J said that it would be unlawful for the
Secretary of State to recall a patient who had recently been conditionally discharged by direction
of a tribunal, unless something had hap- pened which justified the belief that a different view
might now be taken about one of the factors on which his release had depended.
Any other view means that the law has moved not only from the position that a court order is
required before a person can be denied his liberty to the position that he has a right to have the
justification for his detention judicially reviewed after the event, but to the further position that
such retrospective decisions do not entitle the person concerned to be set at liberty. Social
workers and doctors become the ultimate judges of when a person may be detained when that
is for judges of law to decide. If this is what Parliament's intended, that really is something one
would have expected it to make clear.
6. Related to this, the power of the Home Secretary in restricted cases to vary the conditions imposed by a
tribunal, even where there has been no change of circumstances.
7. Delays in tribunal hearings, particularly in relation to section 3 patients (Article 5(4)).
8. The interpretation and application of section 134 procedures in relation to special hospital patients; the
discretion vested in MHAC as to whether to order the release of a postal package.
9. The fact that discharge means discharge from hospital, so that a restricted patient who requires further
hospital treatment cannot be released from detention by a tribunal.
10. The fact that there is no obligation to absolutely discharge a restricted patient who does not require
further hospital treatment and has never been dangerous (ex p Cooper).
11. The absence of any duty to give reasons for a person’s detention (Art 5(2), Van der Leer).
12. Certain paragraphs in the tribunal rules:
the visit by the tribunal’s medical member prior to the hearing;
the non-disclosure provisions where justice requires disclosure (‘adversely affect the health
or welfare of the patient or others’);
Eldergill 18

19. the withdrawal of applications by patients subject to after-care under supervision (‘Where a
patient subject to after-care under supervision fails without reasonable explanation to
undergo a medical examination under rule 11, any application relating to that patient may
be deemed by the tribunal to be withdrawn’).
13. The absence of any provision for seclusion, restraint, force-feeding and the use of handcuffs in Part
IV/1983 Act: governed by s.63.
14. Article 6(1) and the Court of Protection procedures: making an order without a hearing or legal
representation, and on the basis of one recommendation from a GP.
PROVISIONS ARGUABLY IN BREACH
1. Article 8 and guardianship: The guardianship procedures, insofar as section 132 does not apply; there
is no time limit for accepting the application; no requirement to interview the patient; and no tribunal
duty to release a patient no longer suffering from mental disorder of a nature or degree warranting
guardianship (s.72(4)).
2. The cancellation of leave and the recall to hospital provisions in section 17 (by analogy with cases on
the recall of restricted patients).
3. The lack of an appeal for section 2 patients against the issue of a report barring discharge.
4. The lack of equality for the fathers of illegitimate children and for gay couples in the nearest relative
provisions, and the fact that some patients have no nearest relative to protect them against unjustified
detention.
5. The county court procedures concerning evidence in the context of proceedings under section 29.
6. In relation to Article 5(1) and Aerts v Belgium, the absence of any magistrates court power to remove
mentally disordered persons to hospital if charged with an indictable only offence, and the non-
applicability of sections 36 and 48 to persons suffering from mental impairment or psychopathic
disorder.
7. The fact that only the Home Secretary can order that an in-patient shall cease to be subject to
restrictions.
8. The fact that a restriction order can be made under section 51 without trial or conviction.
9. The entry of patients detained for treatment into clinical trials.
10. The fact that persons can be detained in hospital even though not treatable, and the way in which the
treatability test has been interpreted by the courts (Winterwerp, disorder not of a kind warranting
compulsory confinement)
11. Article 8 and fact that MHAC has no remit in relation to patients being cared for in the community.
12. Blanket searches of patients at high security hospitals (Article 8).
13. Right to respect for private and family life and section 26: inequality of gay relationships; fact that an
unsuitable nearest relative cannot be removed on application of the patient.
14. Right to respect for home, private and family life: Intrusive guardianship and supervision application
regimes, and, following the implementation of any new Act, conditions imposed under a community
treatment order.
15. Right to respect for home and private life: execution by the police of warrants under section 135.
16. Right to respect for one’s private life: sexual relationships in hospital.
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20. 17. Sterilisation of persons suffering from mental disorder
18. Matrimonial Causes Act: persons unfitted to marriage on the grounds of mental disorder
19. Right of patients to sexual relationships
MHRTS & THE CONVENTION
The ‘double negative’ burden of proof.
The dual role of the medical member (witness and decision maker).
Delays in hearing applications
A tribunal’s inability to implement its conditions of discharge : Johnson v UK
Freedom to instruct a solicitor of the patient’s choice.
Grounds for withholding reports from the patient, and patient’s absence during the hearing.
Lack of any independent review for those de facto detained.
The fact that tribunals are not empowered to terminate the detention of those unlawfully detained.
The fact that tribunal decisions are not binding.
The fact that tribunals are not empowered to transfer restricted patients or to grant them leave, or to
give such a recommendation
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21. APPENDIX 1 : LIST OF CONVENTION ARTICLES
ARTICLE 2
1. Everyone's right to life shall be protected by law. No one shall be deprived of his life intentionally save
in the execution of a sentence of a court following his conviction of a crime for which this penalty is
provided by law.
2. Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from
the use of force which is no more than absolutely necessary:
(a ) in defence of any person from unlawful violence;
(b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;
(c) in action lawfully taken for the purpose of quelling a riot or insurrection.
ARTICLE 3
No one shall be subjected to torture or to inhuman or degrading treatment or punishment.
ARTICLE 4
1. No one shall be held in slavery or servitude.
2. No one shall be required to perform forced or compulsory labour.
3. F or the purpose of this article the term "forced or compulsory labour" shall not include:
(a) any work required to be done in the ordinary course of detention imposed according to the provisions
of Article 5 of this Convention or during conditional release from such detention;
(b) any service of a military character or, in case of conscientious objectors in countries where they are
recognised, service exacted instead of compulsory military service;
(c) any service exacted in case of an emergency or calamity threatening the life or well-being of the
community;
(d) any work or service which forms part of normal civic obligations.
ARTICLE 5
1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in
the following cases and in accordance with a procedure prescribed by law:
(a ) the lawful detention of a person after conviction by a competent court;
(b) the lawful arrest or detention of a person for non-compliance with the lawful order of a court or in
order to secure the fulfilment of any obligation prescribed by law;
(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the
competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably
considered necessary to prevent his committing an offence or fleeing after having done so;
(d) the detention of a minor by lawful order for the purpose of educational supervision or his lawful
detention for the purpose of bringing him before the competent legal authority;
(e) the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons
of unsound mind, alcoholics or drug addicts or vagrants;
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22. (f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the
country or of a person against whom action is being taken with a view to deportation or extradition.
2. Everyone who is arrested shall be informed promptly, in a language which he understands, of the
reasons for his arrest and of any charge against him.
3. Everyone arrested or detained in accordance with the provisions of paragraph 1(c) of this article shall
be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall
be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by
guarantees to appear for trial.
4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by
which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the
detention is not lawful.
5. Everyone who has been the victim of arrest or detention in contravention of the provisions of this
article shall have an enforceable right to compensation.
ARTICLE 6
1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone
is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal
established by law. Judgment shall be pronounced publicly but the press and public may be excluded from
all or part of the trial in the interests of morals, public order or national security in a democratic society,
where the interests of juveniles or the protection of the private life of the parties so require, or to the
extent strictly necessary in the opinion of the court in special circumstances where publicity would
prejudice the interests of justice.
2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to
l a w.
3. Everyone charged with a criminal offence has the following minimum rights:
(a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of
the accusation against him;
(b) to have adequate time and facilities for the preparation of his defence;
(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient
means to pay for legal assistance, to be given it free when the interests of justice so require;
(d) to examine or have examined witnesses against him and to obtain the attendance and examination of
witnesses on his behalf under the same conditions as witnesses against him;
(e) to have the free assistance of an interpreter if he cannot understand or speak the language used in
court.
ARTICLE 7
1. No one shall be held guilty of any criminal offence on account of any act or omission which did not
constitute a criminal offence under national or international law at the time when it was committed. Nor
shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was
committed.
2. This article shall not prejudice the trial and punishment of any person for any act or omission which, at
the time when it was committed, was criminal according to the general principles of law recognised by
civilised nations.
ARTICLE 8
1. Everyone has the right to respect for his private and family life, his home and his correspondence.
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23. 2. There shall be no interference by a public authority with the exercise of this right except such as is in
accordance with the law and is 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.
ARTICLE 9
1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to
change his religion or belief and freedom, either alone or in community with others and in public or
private, to manifest his religion or belief, in worship, teaching, practice and observance.
2. Freedom to manifest one's religion or beliefs shall by subject only to such limitations as are prescribed
by law and are necessary in a democratic society in the interests of public safety, for the protection of
public order, health or morals, or for the protection of the rights and freedoms of others.
ARTICLE 10
1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and
to receive and impart information and ideas without interference by public authority and regardless of
frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or
cinema enterprises.
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to
such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a
democratic society, in the interests of national security, territorial integrity or public safety, for the
prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation
or rights of others, for preventing the disclosure of information received in confidence, or for maintaining
the authority and impartiality of the judiciary.
ARTICLE 11
1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others,
including the right to form and to join trade unions for the protection of his interests.
2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law
and are necessary in a democratic society in the interests of national security or public safety, 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. This article shall not prevent the imposition of lawful restrictions on the exercise
of these rights by members of the armed forces, of the police or of the administration of the State.
ARTICLE 12
Men and women of marriageable age have the right to marry and to found a family, according to the
national laws governing the exercise of this right.
ARTICLE 14
The enjoyment of the rights and freedoms set forth in this Convention shall be secured without
discrimination on any ground such as sex, race, colour, language, religion, political or other opinion,
national or social origin, association with a national minority, property, birth or other status.
ARTICLE 16
Nothing in Articles 10, 11 and 14 shall be regarded as preventing the High Contracting Parties from
imposing restrictions on the political activity of aliens.
ARTICLE 17
Nothing in this Convention may be interpreted as implying for any State, group or person any right to
engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms set
forth herein or at their limitation to a greater extent than is provided for in the Convention.
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24. ARTICLE 18
The restrictions permitted under this Convention to the said rights and freedoms shall not be applied for
any purpose other than those for which they have been prescribed.
THE FIRST PROTOCOL
ARTICLE 1
Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be
deprived of his possessions except in the public interest and subject to the conditions provided for by law
and by the general principles of international law.
The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as
it deems necessary to control the use of property in accordance with the general interest or to secure the
payment of taxes or other contributions or penalties.
ARTICLE 2
No person shall be denied the right to education. In the exercise of any functions which it assumes in
relation to education and to teaching, the State shall respect the right of parents to ensure such education
and teaching in conformity with their own religious and philosophical convictions.
ARTICLE 3
The High Contracting Parties undertake to hold free elections at reasonable intervals by secret ballot , under
conditions which will ensure the free expression of the opinion of the people in the choice of the
legislature.
Anselm Eldergill
Solicitors Chambers
169 Malden Road
London NW5 4HT
Tel 020 7284 1006 x28
F ax 020 7916 2553
medicolegal@email.com
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