Expand Human rights treaties and mental health law by Hunter Watson

Hunter Watson
Mental health human rights campaigner, retired maths lecturer, and former carer, Aberdeen, Scotland.

The United Nations (the UN) was founded in October 1945, the month after Japan’s acceptance of the Allies’ peace terms and hence the end of World War 2. The discovery of the full extent of the atrocities committed by Nazi Germany during that war led to the formulation of the Universal Declaration of Human Rights and its adoption by the UN on 10 December 1948.

The provisions of the Universal Declaration of Human Rights are not legally binding but have been highly influential in the construction of human rights treaties including the 1950 European Convention on Human Rights and the 2006 Convention on the Rights of Persons with Disabilities. Regrettably, it appears that states which have ratified those and other human rights treaties have failed to ensure that their provisions apply to persons with a mental disorder.

The European Convention on Human Rights

 Among the Articles in the European Convention on Human Rights are the following:

(2) “Everyone’s life shall be protected by law. …”

(3) “No one shall be subjected to torture or to inhuman or degrading treatment or punishment”.

(5) “Everyone has the right to liberty and security of person. …”

(6) “In the determination of his civil rights … , everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal …”

Scottish mental health law is not compatible with those Articles. For example, in contravention of Articles 5 and 6 of the European Convention on Human Rights, it permits mental health patients to be deprived of their liberty and also their right to refuse treatment before they have had a fair hearing. Further, in contravention of Articles 2 and 3 of the European Convention on Human Rights, Scottish mental health law permits patients to be given treatment which poses a risk to their lives or is inhuman or degrading.

The European Court of Human Rights

The European Convention on Human Rights was the first of the treaties produced by the Council of Europe , a body created in May 1949 to uphold human rights, democracy and the rule of law in Europe. The provisions of the European Convention on Human Rights were intended to be legally binding and it was for this reason that the Council of Europe in January 1959 established the European Court of Human Rights. Individuals could raise an action in the Court if they had exhausted all domestic remedies.

The rulings of the Court constitute European Convention on Human Rights case law and the Court periodically produces guides to those rulings. On 30 April 2021 it produced a guide to Article 2, in which it is stated in section I.A. paragraph 1. that:

The Court’s approach to the interpretation of Article 2 must be guided by the fact that the object and purpose of the Convention as an instrument for the protection of individual human beings requires that its provisions must be interpreted and applied so as to make its safeguards practical and effective.

 As noted in section 2 above, Scotland fails to interpret the provisions of the European Convention on Human Rights in this way as far as they apply to persons with a mental disorder. Scotland is not alone in this respect.

The Convention on the Rights of Persons with Disabilities

Unlike the European Convention on Human Rights, the Convention on the Rights of Persons with Disabilities is an international human rights treaty. Hence, any state can ratify it and so indicate its consent to be bound by its provisions and also its willingness to enact the necessary legislation to give domestic effect to those provisions.

Some of the provisions of the Convention on the Rights of Persons with Disabilities correspond to those in the European Convention on Human Rights. However, the principal purpose of this UN treaty is to safeguard the rights of persons with disabilities, including persons with a mental disorder. It is for this reason that the Convention on the Rights of Persons with Disabilities contains provisions such as Article 4.1.b, which requires States Parties “To take all appropriate measures, including legislation, to modify or abolish existing laws, regulations, customs and practices that constitute discrimination against persons with disabilities”. Presumably it was the unacceptable way in which persons with a mental disorder have been treated from time immemorial that led to the inclusion of this Article.

Article 12.4 of the Convention on the Rights of Persons with Disabilities is also noteworthy: “States Parties shall ensure that all measures that relate to the exercise of legal capacity provide for appropriate and effective safeguards to prevent abuse in accordance with international human rights law”.

It is possible that there is no state which has enacted mental health legislation with effective safeguards.

Concluding remarks

Successive Scottish Governments have failed to comply with human rights treaties which have been ratified by the UK. In particular, notwithstanding Article 2 of the European Convention on Human Rights, they have failed to introduce effective safeguards to ensure that elderly care home residents with dementia are not subjected to chemical restraint, which is liable to shorten their lives. Also notwithstanding a guide produced by the European Court of Human Rights  and Article 12.4 of the Convention on the Rights of Persons with Disabilities , they have failed to introduce effective safeguards to ensure that the rights of mental health patients are respected.

However, there is currently taking place, under the chairmanship of John Scott QC, a wide review of Scottish mental health law. There is a possibility, therefore, that Scotland will give a lead as far as enacting legislation which contains effective safeguards to protect the human rights of persons with a mental disorder.