Human Rights Law – Mental Health Act – Essays

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02/02/18 General Law Reference this

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Outline and critically evaluate doctors statutory and common law powers to treat mentally disordered patients without their consent.

Explain the effect of the Human Right
Act 1998 on this area

Introduction:

The area of
mental health has always posed a difficult area for doctors and human rights
and consent is the key problem, because where does the law draw the line for
treatment against or without the patient’s will? In most normal circumstances
no treatment can be performed without the patient’s consent; however how does
this work if the patient has been determined mentally incapable of making
rational decisions and therefore unable or unwilling to give consent. Should
the doctor’s still proceed as it is in the best welfare of the patient or
withhold treatment because the patient is unable or unwilling to give consent?
Prior to the enactment of the HRA 1998 the problem of consent was a lot
less murky as rights were given on the basis that there was no law restricting
them, i.e. civil liberties. Therefore if parliament deemed that that rights
such as consent for medical treatment should be restricted because of one’s
mental health this was justification enough, as parliament is supreme. The HRA
1998 changed this because a set of inherent rights were introduced which
conflicted in cases with the will and supremacy of parliament, of which the
right to a private life and the liberty and security of the person came to the
forefront of the debate of consent and mental health, i.e. the person has the
control to determine what happens to their body and freedom and this is not
determined by the wishes, albeit good of parliament. In order to determine the
legitimacy of the current law of consent and treatment under the Mental
Health Act 1983 (MHA 1983) and through common law provisions with reference
to the rights contained in the HRA 1998 this discussion will; consider
the difference between civil liberties and human rights; consider the statutory
and common law provisions in respect for the need of consent for mental health patients; and finally determine whether the current law meets the inherence of
modern human rights.

Civil Rights v Inherent Rights –
The Nature of Rights Pre & Post HRA 1998:

Under
Hohfeld’s view it becomes clear that, traditionally, most freedoms were merely
liberties; one did no wrong to exercise them, but there was no positive duty on
any organ of the state to allow or facilitate them Nevertheless, some of our
entitlements clearly had and have the quality of Hohfeldian claim-rights
[akin
to inherent rights] in that they are protected by a positive correlative
duty However, even when a citizen holds a right, there were – under domestic
law – no legal guarantees that the legislation providing the positive
protection would not be repealed. When the Human Rights Act 1998 came fully
into force many Hohfeldian liberties became rights in Hohfeldian terms since
public authorities have been laid under a positive duty to respect them and
will act unlawfully if they do not, unless the only possible reading of
contrary primary legislation is that the right must be infringed The 1998 Act
does not provide a set of immunities since it can be overridden by primary
legislation
[as these rights would stand under the ECHR or under US
Constitution]. But the Act clearly represents a dramatic shift in rights
protection in the UK, away from residual freedoms towards positive rights.

Therefore the HRA 1998 has
provided a new vision of rights, which the UK has to deal with and only after
almost four years of being in force, it cannot be expected that the hundreds of
years of English Legal development has to change course.

Traditional rights in
the UK are known as civil liberties, which follows he arguments of
utilitarianism. Modern utilitarian theorists have extended the theory of
Bentham, but have put it in more modern terms. Instead of maximising the pleasures
and desires of the individual the government would be maximising the
general welfare of individuals therefore minimising frustration of wants
and preferences.
Therefore what one can see is that the governing bodies must put the general
welfare first, yet minimise the individual’s needs – therefore causing a
conflict of rights between what is in the name of the society and what the
individual wants. The problems with this theory is it is socially constructed,
there is no autonomy of being and no argument for universal rights that
transcend all cultures and religions, therefore falling short of what is needed
for an all-encompassing human rights theory, as the general welfare can
be different for differing cultures. Hart’s theory is based within the positive
and negative liberties; it follows the traditional civil liberties method
whereby the rights are either given directly or impliedly by the state. This is
based upon a traditional positive frame, but there is an understanding that the
duties between the right holder and the duty bearer are not within the
traditional form. The traditional view was that the rights holder should be
regarded as a beneficiary of the legal obligation to be performed by the duty
bearer: a recipient in other words, of the benefit provided by such
performance.

Inherent human
rights are based on core rights theorists. The basis of the core rights
theorists is the work of Immanuel Kant. Kant’s argument, which is more
commonly known as Kant’s ethic,
tries to get away from the needs, desires and wants, which are the basis
of the rights from the state of nature. Instead it is an a priori ethic,
which transcends all needs, desires, wants, purposes and end. In other
words it is not part of human construction. How does Kant argue that this is an
all-encompassing ethic outside of societal conventions, without the aid of a
divine being? Kant argues that it is the individual’s ability to reason and
autonomous will that is the basis of his a priori argument. Shestack
describes the basis of Kant’s argument as; ‘rights then flow from the autonomy
of the individual in choosing his and her ends, consistent with a similar
freedom for all… In short, Kant’s imperative is that the central focus of
morality is ‘personhood’, namely the capacity to take responsibility as a free
and rational agent for one’s system of ends’.

In modern theories
there are different strands of this Kantian argument; however they all base
round a transcendental need for the autonomous nature of the individual to be
free in society. There are arguments from necessity, i.e. the minimum rights
and freedoms to ensure the autonomous being; yet again it seems to be just a
new veneer of the Kantian ethic. This ethic was one of the most influential
arguments for universal human rights, in response to Nazism, eugenics and
ethnic cleansing, which can be illustrated in the Universal Declaration of
Human Rights with words such as inherent, inalienable and equality applied
to rights and the basis of these rights are the foundation of freedom,
justice and peace in world.

The traditional civil
liberty view has been eclipsed with the HRA 1998 because the ECHR
contains inherent rights and not mere civil liberties. Therefore for English
mental health law to succeed it can only encroach on one’s rights to the
liberty and security of the person in certain specific circumstances. Under
Article 5(1)(e) it allows the detention of persons of unsound mind on the basis
of lawful detention and procedure is prescribed under domestic law. The
definition of unsound mind was left to an evolving definition in Winterwerp
v Netherlands;
however detention can not be made merely on the basis that the
individual’s belief system and behaviour are deviate from the norm. The use of
detention under 5(1)(e) can only be for self-protection or the protection of
the public, whereby the detention should only occur when; a medical disorder by
an objective medical personnel; the nature and degree of the disorder is
significantly extreme; and the detention is only as long as the medical
disorder. In Ashingdane v UK it was added that detention can only occur in a hospital or appropriate medical
institution. The only circumstances that these requirements are weakened are
with respect to emergency admissions but the detention should be properly
assessed and continued detention should cease if the person is not of unsound
mind.

Detention is an important part of mental health treatment and it is in these
cases that treatment against one’s wishes will occur. Therefore if the
requirements of detention are fulfilled then can further treatment such as
medications or therapies be enforced? This is a question of physical integrity,
which falls under Article 8 and Article 3. If torture, inhumane and degrading
treatment is not sufficed then Article 8 is used; however this article can be
restricted. In most cases the question of withholding medical treatment is the
key; however if a person does not want treatment and the doctors still proceed
this breaches one’s dignity and physical integrity. The state is required to
provide an adequate level of medical treatment, including psychiatric care.
An individual of sound mind can stop any medical procedures and treatment,
therefore should this not be the same for those who are mentally ill? The
problem is do they understand their actions, because not all mental health
patients have no understanding at all. If it can be shown that the individual
has no further understanding than a child then it should be the decisions of
the individual’s relatives and not doctors. This is a clear case that treatment
without consent should not occur without positive medical proof that the person
can not make the decision, therefore there should not be a blanket law clumping
all mental health patients as the same. This will be the main problem with the
UK law, because it sets to limit without respecting the inherent rights of
individuals.

Mental Health Patients and the
Nature of Consent:

The MHA 1983
12(2) allows for doctors to treat mental health patients without consent,
except in specific circumstances. Certain treatments require consent or a
second opinion, and others require both consent and a second opinion. The
actions that require both include neurosurgery and hormone, sterility treatment
– in these cases if an individual cannot or will not give consent then the
treatment will not go ahead. There have been proposed changes such as not
allowing Electroshock Therapy (ECT) without both consent and a second opinion,
but at the same time as relaxing the stringent tests surrounding consent, i.e.
if an individual is incapable of giving consent. The problem with this act is
that is acts from the presumption that there are no human rights and doctors
can treat mental health as they wish except in extreme therapies. This seems to
be direct contravention of inherent human rights, because if the person was not
mentally ill treatment without consent would be regarded as degrading treatment
at the worst and breach of a person’s physical integrity at best.

The common law approach
follows this approach as well, in F v West Berkshire Health Authority it was held if a person lacks capacity to give consent then the doctor may do
as he or she deems fit. Those detained under the MHA 1983 can decline
treatment as long as they meet the Re C Test:

  • v     Can
    the patient understand and retain the relevant treatment information?
  • v     Does
    the patient believe it?
  • v     Can
    the patient weigh the information in the balance to arrive at a choice?

The third
part of the above criteria may easily be weighted against the mental health
patient because this individual is unsound of mind, therefore how can they
balance the information to come to a choice? Therefore giving an opt out for
doctors to get consent in most mental health treatments in detention. Also
under the MHA 1983 58 this consent cannot be overridden in respect to
ECT and medication over 3 months. Also Section 63 denies the need for
consent if treatment is issued by a responsible medical officer. Under English
law mental illness has been broadly interpreted as per B v Croydon Health
Authority
in order to include force feeding of an anorexic; however overriding
the consent of a sectioned patient can only occur in relation to a recognized
mental illness of which the patient has been classified.
It is believed that as long as the actions are done in accordance to the MHA
1983 it would not breach Articles 3 or 8, as concluded in R (PS) v Dr
G and Dr W.
Therefore the rights of mental health patients are greatly reduced and
regardless if the individual can come to a decision about treatment themselves
in all likelihood it would be overridden. At this point the only UK case taken
to the European Court of Human Rights was the Bournewood Case (HL v UK) which was purely in reference to detention which found informal detentions as a
breach of Article 5. As of yet the medical treatment and consent procedures
have not gone to the European Court of Human Rights but the overriding of
consent seems not be proportionate or necessary, where it may not reach the
severity of Article 3 it must reach the level of Article 8. Also how can giving
ECT or forced treatment without consent not be just as bad as or worse than
hitting a child? The ECHR cases have purposely left the definition of
mental health and treatment out in order to allow for the evolution of human
rights in this area. Mental Health has always been a much misunderstood area of
medicine and it should not follow that the individual has no thought processes
just because they have a mental illness, such beliefs led to mass sterilization
and in some cases eugenics of the mentally ill. In a world repulsed by eugenics
and the fear of cloning we still treat mental health patients as less than
equal and this must be stopped otherwise the fears that the human genome
project bring may cause the eradication of difference and deviation from the
norm. The greatest fear is that the Human Genome Project will create
inequalities in society; hence creating a society which is contrary to
fundamental human rights theory and law. The first main problem is whether
enhancing individuals will erode the essence of the individual? It seems to be
in this area scientists are being very cautious in order not to destroy this
essence. It is important to understand what makes the human being, before one
can enhance it. Therefore the best response to such fears is through applying
the EC’s precautionary principle, i.e. no action should be taken without
knowing the harm, in this case to the rights and integrity of the individual.
The actions in House of Lords have been to ignore such proportionate responses
to mental health and the rights of these patients, as was the case in the Bournewood
Case:

Further, the amorphous nature of the beast
is well illustrated when the House of Lords can unanimously and decisively
reverse a unanimous decision of a strong Court of Appeal (presided over by the
Master of the Rolls), a judgment which had been widely acknowledged to make
logical sense and strike a blow for the protection of the liberties of some of
the weakest members of the community, whatever practical problems might have
arisen in its wake.

Bibliography:

Health:

  • Hewitt, 2004, Between Necessity and Chance, NLJ
    154(7124)
  • Mahendra, 1998, Unto the Breach, The Practioner,
    in the NLJ 148(6857)
  • NHS, Section 12(2) of MHA 1983 Website, can be found at:
    Fenwick, 2002, 15
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