Mental health law briefing 187 – Criminal proceedings and human rights
The applicant, X, was a paediatrician who was charged as a party to child abduction. As part of the criminal proceedings she underwent a psychiatric examination, which resulted in the charges later being dropped on the grounds of lack of criminal responsibility. However, in the course of proceedings, the court ordered her detention and transfer to a psychiatric hospital, where she was diagnosed with a delusional disorder and judged to meet the criteria for involuntary confinement. The National Authority for Medico-legal Affairs then ordered her involuntary treatment and, as she consistently refused treatment, she was forcibly injected with medication.
X unsuccessfully challenged her placement in psychiatric care before the national courts in Finland and finally appealed to the European Court of Human Rights.
Claim before the European Court of Human Rights
X complained that her right to liberty under Article 5 of the European Convention on Human Rights (“ECHR”) had been breached as a result of her involuntary confinement to the hospital. She further complained that the forced administration of medication breached the prohibition on torture and inhuman and degrading treatment contained in Article 3 ECHR. The Court, on its own initiative, recast the second issue as engaging Article 8 ECHR, the right to private life.
Article 5(1)(e) ECHR allows for the ‘lawful detention’ of persons of unsound mind, where it is ‘in accordance with a procedure prescribed by law’. The decision to confine X into involuntary care followed the procedure prescribed by Finnish domestic law at all times. Nonetheless, the lawfulness requirement is not satisfied merely by compliance with domestic law; the domestic law itself must be compatible with the ECHR, and specifically with the principle of the rule of law. Accordingly, the individual must be afforded protection against ‘arbitrary’ interference with their rights (Winterwerp v Netherlands  ECHR 6301/73).
It was held that the domestic law did not conform to the requirements of Article 5(1)(e) ECHR as there were insufficient safeguards in place and there was therefore a violation of X’s right to liberty.
Article 8 ECHR
The State agreed that the involuntary treatment interfered with X’s right to private life under Article 8 ECHR. In order for such interference to be justified under Article 8(2), it must be ‘in accordance with the law’ and, as with Article 5 above, that law must provide proper safeguards against arbitrariness.
Under Finnish law, the decision to confine a psychiatric patient to involuntary treatment included an automatic authorisation to proceed to forced administration of medication when the applicant refused the treatment. The decision-making had been solely in the hands of the treating doctors and did not entail any form of immediate judicial scrutiny. As such, there was no remedy available to X whereby she could require a court to rule on the lawfulness, including proportionality, of the forced administration of medication, or to have it discontinued.
Regardless of whether the domestic law provided a legal basis for the forced medication, there was an absence of adequate legal safeguards to which X was entitled under the rule of law. In these circumstances, the interference in question was held to be in violation of Article 8 ECHR
Implications for the Mental Health Act 1983
The above decision presents a course of action for consideration of involuntary treatment cases at the European Court, via Article 8 ECHR. It makes it clear that compliance with the relevant domestic laws will not necessarily be sufficient in the context of the ECHR.
Arguably, the approach taken in the Mental Health Act 1983 (MHA 1983) is similarly incompatible with the ECHR as it too includes a power for involuntary treatment as incidental to psychiatric detention. Section 63 of the MHA 1983, which applies to the majority of involuntary treatment cases, contains no substantive or procedural protections or criteria for compulsory treatment; rather it states that the detained patient’s consent to treatment for mental disorder is not required. Accordingly, the MHA 1983 looks to be vulnerable in the same way as the Finnish domestic law.
This briefing is for guidance purposes only. RadcliffesLeBrasseur accepts no responsibility or liability whatsoever for any action taken or not taken in relation to this note and recommends that appropriate legal advice be taken having regard to a client's own particular circumstances.