European Human Rights in the Mental Health Act 2001 and the Criminal Law (Insanity) Act 2006 - PowerPoint PPT Presentation

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European Human Rights in the Mental Health Act 2001 and the Criminal Law (Insanity) Act 2006

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Title: European Human Rights in the Mental Health Act 2001 and the Criminal Law (Insanity) Act 2006


1
  • European Human Rights in the Mental Health Act
    2001 and the Criminal Law (Insanity) Act 2006

Darius Whelan Mental Health and Human Rights
Seminar October 2007
2
Outline
  • Introduction
  • Mental Health Act 2001
  • Criminal Law (Insanity) Act 2006

3
Key Dates
  • 31 Dec. 2003 European Convention on Human
    Rights Act 2003 came into force
  • 1 June 2006 Criminal Law (Insanity) Act 2006
    came into force
  • 1 November 2006 Main parts of Mental Health Act
    2001 came into force

4
  • The 2001 and 2006 Acts in general conform with
    the ECHR
  • Acts are vast improvement on the previous law
  • ECHR had major influence on how 01 and 06 Acts
    were drafted
  • ECHR also impacted on amendments made during
    Oireachtas debates

5
  • Focus in this paper is on possible further
    improvements which might be made in light of ECHR
  • Note ECHR arguments will often be made in
    parallel with Irish constitutional law arguments

6
  • Mental Health Commission
  • www.mhcirl.ie

7
(No Transcript)
8
  • Mental Health (Criminal Law) Review Board
  • www.mhclrb.ie

9
(No Transcript)
10
Mental Health Act 2001
11
Article 5 ECHR
  • Right to liberty. No one to be deprived of
    liberty save in following cases and in accordance
    with procedure prescribed by law art.5(1)
  • One case lawful detention of person of unsound
    mind art. 5(1)(e)
  • Right to information on arrest art.5(2)
  • Right to take proceedings for decision on
    lawfulness of detention art.5(4)

12
Winterwerp v Netherlands (1979)
  • Decision to detain must be based on finding of a
    true mental disorder determined by objective
    medical expertise
  • Mental disorder must be of kind or degree
    warranting compulsory confinement
  • and
  • Validity of continued confinement must be based
    on the persistence of the disorder

13
De Facto Detention
  • Voluntary Patient who
  • does not have capacity to consent to admission,
    and/or
  • wishes to leave centre but fears re-grading as
    involuntary patient

14
Bournewood Gap
  • R v Community and Mental Health NHS Trust, ex
    parte L. (1998)
  • House of Lords De Facto Detention justified by
    common law doctrine of necessity
  • H.L. v United Kingdom (2004)
  • European Court of HR Detention of this kind
    breaches Article 5

15
(No Transcript)
16
  • Reform of law needed in Ireland to deal with
    Bournewood gap

17
  • See also Irish case H. v Russell (2007)
  • Relevant period where a patient was, apparently,
    a voluntary patient was not in substance
    voluntary
  • Detention held to be unlawful

18
Speed of Tribunal Reviews
  • Reviews must be within 21 days of admission or
    renewal order
  • As regards first review, this may not be speedy
    enough to satisfy ECHR
  • L.R. v France (2002) 24 days too long

19
  • Note views of Dept of H C, 2007
  • Tribunal hearings should take place at earliest
    possible opportunity
  • 14-day time period for second consultants report
    should be reduced

20
Frequency of Reviews
  • While automatic reviews are desirable, they do
    not necessarily fully comply with Article 5
  • The detainees access to the judge should not
    depend on the good will of the detaining
    authority.
  • Rakevich v Russia (2003)

21
Definition of unsound mind
  • ECHR has not defined unsound mind
  • Irish case R. v Byrne and Flynn (2007)
  • S.3(1)(a) serious likelihood of immediate and
    serious harm to self/ others envisages a high
    level of probability
  • Harm physical and mental injury are included
  • Serious Infliction of minor physical injury
    to person themselves could be regarded as not
    serious

22
Scope of Review
  • Tribunal has limited powers only two main
    choices confirm or revoke order
  • Arguable that Tribunals need to have more
    extensive powers, e.g. to order conditional
    discharge defer discharge until place available

23
  • UK Postponing Release until suitable place in
    community available
  • Johnson v UK (1997)
  • J. no longer had a mental disorder
  • Discharge must not be unreasonably delayed

24
Burden of Proof
  • Act is silent about burden of proof at Tribunal
    stage
  • On appeal to Circuit Court Burden of proof on
    patient
  • Unclear whether this complies with ECHR
  • R v MHRT, N. E. London, ex parte H. (2001)
  • Is an appeal stage different from first instance
    stage?
  • Delcourt v Belgium (1970) Appeal courts should
    comply with Art. 6

25
Impartiality
  • Patient appears to be only party to Tribunal
    hearing
  • Normal triangular model of Tribunal has not been
    established
  • Tribunals need to take care in questioning
    patient not to act as if against patient

26
Independence of executive
  • Minister appoints Mental Health Commission based
    on criteria in s.35
  • Commission appoints Tribunal members under s.48

27
Article 6
  • Fair and public hearing within reasonable time by
    independent and impartial Tribunal
  • Applies to determination of civil rights
  • Right to liberty is civil right
  • Aerts v Belgium (1998)
  • Equality of arms, reasons for decisions,
    reasonable time, etc.
  • Right to participate effectively

28
  • A v Refugee Appeals Tribunal (2006)
  • Arguably selected previous decisions of Mental
    Health Tribunals need to be made available

29
  • Restriction on right of access to court
  • S.260 Mental Treatment Act 1945
  • ECHR upheld English equivalent Ashingdane v UK
    (1985)
  • Blehein v Minister for Health and Children (2004)
  • Where does Blehein leave s.73 Mental Health Act
    2001?

30
Article 3
  • Freedom from inhuman or degrading treatment
  • No successful case in Europe yet
  • Possible challenges can be envisaged

31
Criminal Law (Insanity) Act 2006
32
Article 5
  • No need for psychiatric report for 14-day
    detention for assessment s.4(6) s.5(3)
  • Can be extended up to 6 months in insanity cases
    after consultation with psychiatrist s.5(3)(b)
  • Keys This may breach Winterwerp principles

33
  • Ní Raifeartaigh
  • Courts should interpret s.4(6) in
    Convention-compliant fashion

34
  • Lack of clarity re personality disorders
  • Minister McDowell It may or may not be that
    s.8 of the 2001 Act is a tacit admission that
    mental disorder could include a personality
    disorder and, therefore, section 8 was necessary
    to take it out of that realm. Alternatively, the
    whole Act could be read as stating mental
    disorder under the 2001 Act was not intended to
    cover personality disorder. (176 Seanad Debates
    259.)

35
  • Lack of clarity may breach requirement in art. 5
    ECHR that detention be in accordance with
    procedure prescribed by law

36
Reviews
  • Initial detention involves judicial decision and
    therefore review not needed
  • Subsequent reviews at least every 6 months
  • Human Rights Commission suggested 3 months
  • Period of time from application for review by
    patient to date of review as soon as may be
    s.13(8) (9)

37
Procedures
  • Minister must consent to procedures of Review
    Board s.12(6)
  • Criticised as Ministerial veto

38
Powers of Courts and Review Board
  • More extensive than Mental Health Tribunals
  • But different powers for different categories of
    case -
  • Unfit for trial cases court may order
    out-patient treatment s.4(5)
  • Insanity cases court does not have this power
    s.5(2)

39
Information
  • No statutory right to information for patient
  • Contrast Mental Health Act 2001
  • Care must be taken to comply with requirement of
    information on arrest

40
Impartiality
  • Only three members of Review Board have been
    appointed
  • How will RB deal with situation where member of
    RB has had previous dealings with patient?
  • What if successful Judicial Review? No
    alternative members available to re-hear case

41
Transfers from Prison
  • Aerts v Belgium (1998)
  • Court can have regard to nature of treatment
    available in prison
  • In Mr As case, detention in prison breached Art.
    5 as he had a mental disorder
  • Contrast Bizzotto v Greece (1996)

42
Independence of executive
  • Minister appoints Review Board members. Very few
    criteria in Act for appointment
  • National Disability Authority feared this
    breached ECHR
  • Mental Health Commission
  • Questions about independence could be raised
  • Could be unfair that composition of RBs would vary

43
Article 6
  • A v Refugee Appeals Tribunal
  • See earlier slide under Mental Health Act

44
References
  • www.irishlaw.org/mentalhealth/oct07paper/
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