Human rights and mental health services

Dr Fareed Bashir (Psychiatric Bulletin correspondence, December 2003, 27, 463) is absolutely right in mentioning the influence that the European Convention on Human Rights (ECHR) had on the Mental Health Act 1983, long before its implementation into English law in 1998 (Human Rights Act 1998). In my article on Consent in medicine (Psychiatric Bulletin, August 2003, 27, 285-289) I specifically mention the fact that the content of the ECHR was de facto accepted in Britain since the 1950s. Contrary to Dr Bashir’s suggestion, I never expected that the implementation of the Human Rights Act 1998 was a sea-change or would dramatically improve the treatment of psychiatric patients. On the contrary, I pointed out how few practical changes are going to result from the Act in the short term. There is, however, the potential that human rights may be more actively considered in advance in future legislation. The changes the government made to the Green Paper on the new Mental Health Act confirm this, because they were clearly designed to make the Act compatible with the Human Rights Act 1998 (although many would doubt that they have). Furthermore, the case of Hercegfalvy v. Austria states that any beneficial treatment cannot amount to torture and therefore does not breach article 3 of the Human Rights Act 1998. This was specifically targeted with electroconvulsive therapy in mind. The fact that Mr Hercegfalvy was strapped to a bed for his own security may appear undesirable to us in Britain, but restraint is the tradition in most European countries. They find our use of control and restraint with enforced medication equally undesirable.

The case of HM v. Switzerland is no doubt interesting, but it should not be forgotten that all European countries work with coded law, which renders precedence much less important than it is here. It would be premature to anticipate how the English High Court would decide a similar case in the UK.