The extent of MHA Part 4 being Human Rights Compliant Flashcards
What did the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment (2000) state?
That Compulsory Detention should not automatically authorise Compulsory Treatment, but that is what section 63 does. This highlights the discrepancy between European Committee and Part 4.
What did the Council of Europe on the Protection of the HR’s and Dignity of People Suffering from MD state (2000) recommend?
Recommended an embargo on imposing compulsory treatment on all capacitous patients.
What is the relevance of Keenan v UK and article 3?
“Ill-treatment must retain a level a level of severity if it is to fall within the scope of article 3”.
Duration, physical/mental effects, sex/age/state of health.
Key point: threshold of severity for article 3 to be contemplated.
What is the relevance of Herczegfalvy v Austria?
“A general rule, a measure which is a therapeutic necessity cannot be regarded as inhuman or degrading. The court must nevertheless satisfy itself that the medical necessity has been convincingly shown to exist”.
What was the ruling of R (PS) v G and W?
Capacity was relevant but not determinative in deciding whether article 3’s level had been reached. Instead - had to consider the therapeutic regime as a whole to determining whether the treatment was medically necessary.
What did the judgement say in R (PS) v G and W?
That the SOAD’s function mirrors the best interests test, even when the P has capacity. In the view that doctors can override P’s objections even when P has capacity.
What was the importance of Wilkinson v Broadmoor?
Due to it involving controversial area of human rights law of compulsory treatment - Hale said that judicial review should give full merit review.
What case shown a retreat from Wilkinson v Broadmoor?
R (B) v Haddock, Rigby and Wood:
Stated that Part 4 is compatible with HRA.
Why is X v Finland so significant in relation to Article 8?
Finland had a similar Section 63, in that once detained, there was an automatic authorisation to treat even against P’s will - including forcible administration of treatment. The Court find that ‘forced administration of medication represents a serious interference with a persons physical integrity and must accordingly be based on a law that guarantees proper safeguards against arbitrariness’. Also Applicant had no available remedy.
X v Finland impact England MH law?
It is arguable that section 63 breaches article 8 on the back of X v Finland. X v Finland clearly stated that there should not be automatic powers to compel patients into treatment that flow from compulsory detention.
