The United Nations Convention on the Rights of Persons with Disabilities is little known outside medical law textbooks, yet its potential impact in the human rights arena is groundbreaking.
The Convention is an authoritative human rights treaty, the purpose of which is contained in Article 1: to “promote, protect and ensure the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities”. By ratifying the Convention in 2009, the UK Government is now legally obliged to ensure that national law and practice are consistent with the Treaty.
The Convention is lengthy, and prompts academic commentary at all stages. I have chosen to home in on Article 14, the right to “liberty and security of the person”, for the purposes of exploring the Convention’s standing in the mental health law context, particularly in relation to the Mental Health Act 1983.
So what is the Mental Health Act, and why does it matter? The Act in question is the primary source of legislative authority regulating mental health service users in England and Wales. Of prime importance in the human rights arena is the Act’s regulatory functions in the detention of the mentally disordered, an area of mental health law which carries with it unparalleled controversy. Although persons can be voluntarily admitted into hospital for assessment and/or treatment under s131, in 2013-14, over 18,000 people were involuntarily admitted to hospital. Part II of the Act makes provision for three methods of compulsory admittance, two of which I find particularly interesting: s2 (detention for assessment) and s3 (detention for treatment).
Instinctively, formal detention, that being detention without consent, is not and cannot be compatible with Article 14 — the right to “liberty and security of the person”. However, the UK Government, in its 2011 initial report on the Convention, seems to think otherwise.
Ultimately, theorising about whether the Act is compatible with the Convention hinges on the existence of a sound interpretation of Article 14, and, unfortunately, there is little consensus about what this interpretation is. The UN High Commissioner, perhaps unsurprisingly, endorses a strict, absolutist approach, according UN law pride of place at the top of the food chain. The High Commissioner’s stringent interpretation focuses heavily on Article 14(1)(b), which says:-
“the existence of a disability shall in no case justify a deprivation of liberty”.
On this reading, compulsory powers must be delinked from disability, which throws into question the very foundations of mental health law in many UN States Parties, England and Wales included.
It is not difficult to see how and why the High Commissioner’s position is wrong, or at least too strong. Absolutism of this kind may well deter signatories from engaging with the Convention, plus a strict position of this kind fails to allow for national level legal diversity, overlooking the ‘margin of appreciation’ advocated by, for example, the European Court of Human Rights. This line of reasoning is exacerbated further by the UN’s profession that the Convention is a codifying treaty — i.e. it does not make new law but rather provides a succinct, structured home for existing law — and it is this which makes the High Commissioner’s interpretation even more of a constitutional novelty.
So, if the High Commissioner’s interpretation of Article 14 is wrong, whose is right? The UK managed to duck the standard endorsed by the High Commissioner by saying that:-
“Safeguards ensure that any such deprivation of liberty is not arbitrary and complies with the law.”
Essentially, the government is arguing as follows: s2 and s3 of the Act are compatible with Article 14 because these sections are underpinned by a raft of legislative and procedural safeguards; these are triggered by an application for compulsory admittance under ss2 or 3, and these ensure that service users “are not deprived of their liberty unlawfully or arbitrarily” (Article 14(1)(b)), and therefore the Article is not infringed.
And what are these justifications? For starters, the Act can only be used to defend the legality of involuntary detention if it can be justified on one of the following grounds: the health or safety of the detainee, or “the protection of other persons” (ss2(2)(b) and 3(2)(c)). And the Act is not alone in providing these procedural safeguards: the Code of Practice (Department of Health, 2015) does too, and detainees have the right to challenge their admittance at a Mental Health Tribunal.
Perhaps the approach endorsed by the government does not wholly cohere with the language of Article 14, but one submits that it provides a solid grounding, and is certainly more States Parties-friendly than that offered by the High Commissioner.
We have an interpretation of Article 14: the Convention will not be breached unless and until the domestic law in question undermines the patient’s right to liberty unlawfully of arbitrarily — and legislative safeguards ensure that this does happen.
It may now seem that this end of the analysis. If the government’s reading of Article 14 has been accepted as true, then s2 and s3 are adequately bolstered by legal safeguards, and there is no breach of the Convention. Maybe this is true, in a strictly legal sense, but, in the words of the (brilliant) Masked AMHP (2014):
“The Law and Reality unfortunately do not overlap perfectly. There is an area of reality which lies outside the law.”
It simply does not follow that law = reality, and reality= law, and the government are misinformed to suggest otherwise. Consider for a moment Article 4 of the Convention, which reads:
“States Parties undertake:
- To adopt all appropriate legislative, administrative and other measures for the implementation of the rights recognized in the present Convention”
This means that not only must have the law in books be compatible with Article 14, but so too must the law in reality — and these are not the same thing.
Let’s have a look at the safeguards that the Government claims ensure that Article 14 has not been breached.
Firstly, there are the legislative justifications: a person cannot be detained unless it is for a good reason – those good reasons being the patient’s health and safety, or the protection of other persons.
The ethical and philosophical strengths of these justifications do not distract from the practical difficulties inherent in detaining for these reasons. Risk management, i.e. detaining as a response to prospective danger, is innately problematic, and can do nothing but lead to arbitrary detentions (the very nature of which Article 14 was designed to prohibit). According to the Royal College of Surgeons (2005), 100 unnecessary detentions lead to one suicide prevention, and between 2,000 and 5,000 unnecessary detentions lead to one homicide prevention.
The procedural safeguards contained in the Code of Practice have an equally dismal application in practice. A report from the Care Quality Commission (2014) evidences that detainee care plans often breach fundamental Code of Practice principles- breaches of the respect principle were evident in 22% of cases, and breaches of the participation principle in 27%. Not only is this frustratingly disempowering for persons detained under the Act, clinical ignorance of the Code endorses an unequal balance of power in the practitioners’ favour. How can this possibly be reconciled with the rights-based position advocated by the Convention, and the Code itself?
If a patient disagrees with his or her involuntary detention, he or she has the right to appeal to a Mental Health Tribunal. This procedural safeguard acts as a statutory means of accessing justice, which coheres with the Article 14(1)(b) requirement that any deprivation of liberty must be “in conformity with the law”. Again, I do not attack the existence of this right, but its practical application. Despite a duty on hospital managers to inform patients about their right to appeal (s132(1)(b)), a study from Campbell (2008) demonstrates an almost universal complaint from service users that the information provided is often inadequate or, worse, absent. Those service users that do use their right to appeal are confronted by indefensibly long waiting times, and may well be unlawfully and/or arbitrarily detained whilst waiting for a hearing.
And so we conclude: ss2 and 3 are not compatible with Article 14. In law, maybe, but in reality, no, and the Government is dodging a bullet by failing to make this crucial distinction. It is unsatisfactory to assimilate ‘the law as codified’ and ‘the law in reality’ and conclude that, because the Act represents a sophisticated attempt at rights protection, the UK has discharged its international obligation under the Convention. States Parties must “ensure that its own domestic law and practice are consistent with what is required by the treaty [emphasis added]” (United Nations, 2007) and, in this respect, the Act is only quasi-compatible with Article 14.
Please like, share and comment on Facebook and Twitter. Let us know what you think of this article. Thanks again to Katie for agreeing to write for THWBlog – it’s a pleasure to have your work on the site!
List of References
Campbell, J. (2008). Stakeholders’ views of legal and advice services for people admitted to psychiatric hospital. Journal of Social Welfare & Family Law. 30 (3).
Care Quality Commission (2014). Monitoring the Mental Health Act in 2012/13. London: Care Quality Commission.
Department of Health (2015). Code of Practice: Mental Health Act 1983. London: The Stationery office.
Mental Health Act 1983 (c.20). London. HMSO. s1(2), s2, s3, s66, s72, s118, s131, s132.
Office for Disability Issues (2011). UK Initial Report on the UN Convention on the Rights of Persons with Disabilities. London: The Stationery Office.
Royal College of Psychiatrists (2005). Joint Committee on the Draft Mental Health Bill: Draft Mental Health Bill Session 2004-05. London: The Stationery Office.
The Masked AMHP. (2014). Legal Black Holes: What Do You Do When There Isn’t a Bed? Available: http://themaskedamhp.blogspot.co.uk/.
United Nations (2007). Handbook for Parliamentarians on the Convention on the Rights of Persons with Disabilities. Geneva: United Nations.
United Nations General Assembly (2007). Convention on the Rights of Persons with Disabilities. GA Res 61/106, UN Doc A/Res/61/106.