Reforming mental health law and the ECHR: will the rights of mentally vulnerable adults be protected?

Abstract

This paper highlights some of the main inadequacies of the current law in relation to mentally disordered and incapacitated patients in England and Wales. Particular attention is devoted to the lack of appropriate safeguards for mentally incapacitated patients and the failure of the review procedures for mentally disordered patients to satisfy the minimum requirements of Article 5 of the European Convention on Human Rights (ECHR). The advent of the Human Rights Act 1998 has brought this to the forefront and demonstrated that fundamental human rights of mentally vulnerable individuals are still being compromised. The paper concludes with an account of the recent reform proposals and considers to what extent they will remedy these deficiencies by providing adequate human rights protection. The discussion also demonstrates the lack of coherence in the government's proposals to reform the law. The Draft Mental Incapacity Bill attempts to put patient autonomy at the forefront, whereas the Draft Mental Health Bill focuses on public protection and risk management, at the expense of the rights and wishes of detained patients. These differences in approach provide clear evidence of the government's confused thinking and disjointed approach to mental health and incapacity reform.

Keywords:

• mental disorder
• mental incapacity
• Human Rights Act 1998
• reform proposals