Mental health – human rights – compatibility – detention – treatment – public safety
Article 5 of the European Convention (right to liberty) does not require that the continued detention of restricted patients on the grounds of public safety be dependent on their condition being capable of treatment.
S1 Mental Health (Public Safety and Appeals) (Scotland) Act 1999 amends the Mental Health (Scotland) Act 1984 so as to allow the sheriff to refuse an appeal for discharge by a restricted patient if satisfied that, by reason of mental disorder, it is necessary, in order to protect the public from serious harm, that the patient continue to be detained in a hospital, whether for medical treatment or not. Three restricted patients argued that the provisions of section 1 were incompatible with article 5, inter alia in that the Convention did not allow the detention of persons of unsound mind in circumstances where there was neither a genuine intention to provide medical treatment to that person nor the possibility of benefit from such treatment. S1 should therefore be struck down by the Court for want of legislative competence, in accordance with s29 Scotland Act 1998.
The Privy Council found that neither the Convention nor Convention jurisprudence stipulated that a person of ‘unsound mind’ could only be detained where the mental disorder in question was treatable. The position, as stated in Winterwerp v The Netherlands, was that ‘a true mental disorder must be established before a competent authority on the basis of objective medical expertise; the mental disorder must be of a kind or degree warranting compulsory confinement; and the validity of continued confinement depends on the persistence of such a disorder’.
To read in a requirement of ‘treatability’ would be to give the rights of a detainee who was a danger to society priority over the rights of the citizen to live in peace and security, and did not accord with common sense. The question of whether a person who is detained by reason of ‘unsound mind’ should also receive treatment for his mental disorder as a condition of detention was one for domestic law, and the fact that his mental disorder was not susceptible to treatment did not mean that, in Convention terms, his continued detention in hospital was arbitrary or disproportionate.