Lepping's view that rights under the European Convention on Human Rights were not ‘implemented’ in Britain until the Human Rights Act 1998 is incomplete (Psychiatric Bulletin, 2003, 27, 285-289). The UK has been a signatory to the ECHR since its outset in 1951. Since 1966, it has granted the right of individual access. The HRA ‘ incorporates’ the ECHR into our law but ‘the view that that makes a sea-change is an erroneous one’ (Reference Per COLLINSCollins, 2001). Indeed, there are clear signs of influence by the ECHR in the 1983 Mental Health Act (Hewitt, personal communication - information available from author on request).
As these two examples show, Lepping may also be mistaken in believing that the HRA will now radically improve the condition and treatment of psychiatric patients.
In Hercegfalvy v. Austria a Hungarian refugee was admitted to an Austrian psychiatric hospital in a weakened condition due to a hunger strike. Over several weeks, he was force-fed, sedated against his will, handcuffed, fastened to a security bed by straps and a net, and secured by his ankles with a belt. The European Court held that none of this would breach Article 3. Where a measure was deemed ‘therapeutically necessary’, it could not be regarded as ‘inhuman or degrading’.
In HM v. Switzerland it was held that the confinement of an 84-year-old capable woman in a residential home did not breach Article 5, even though she did not consent to it. It was deemed to be in her best interests. This case could have profoundly deleterious effects on the rights of detained patients in the UK.
Finally, a number of serious concerns have been raised regarding human rights abuses that might be introduced by the Draft Bill (which purports to reconcile domestic law with the ECHR).
Contrary to widespread belief, it seems that the standards of the ECHR, at least in terms of protections for vulnerable psychiatric patients, can be really rather low.
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