Whether Gove or May Wins on Human Rights, Psychiatric Patients Will Lose

09/05/2016 20:09 | Updated 09 May 2016

We recently learned that whereas Theresa May wants to stay in the EU, scrap the Human Rights Act and leave the European Convention on Human Rights, Michael Gove wants to keep the European Convention, scrap the Human Rights Act and leave the EU. Neither is really a surprise, as the 2015 Conservative Party manifesto did ominously commit to 'scrap the Human Rights Act, and introduce a British Bill of Rights...break[ing] the formal link between British courts and the European Court of Human Rights'.

The link between mental health and human rights cannot be overstated: mental healthcare practices can breach human rights, and breaches of human rights can be deleterious to mental health. People with mental health problems are particularly vulnerable to rights violations, and are also likely to be disproportionately affected. Finally, mental healthcare can enable people to exercise their human rights, by helping them to recover from periods of incapacity.

Accordingly, either proposal should be of serious concern to anyone providing or receiving mental healthcare, as both threaten to remove legal frameworks which have quietly been safeguarding and bolstering the rights of people with mental health problems for decades. The 'best-case' scenario, whereby despite losing the Human Rights Act the European Convention is kept, would still be hugely regrettable; the whole point of introducing the UK's Human Rights Act was to avoid the delay and cost of having to go to the European level, which could strongly disincentivise individuals from bringing important cases.

There can be no doubt that both the European Convention and the Human Rights Act have significantly affected domestic legislation and practice. During the 1980s the mental health charity MIND used the European Convention to successfully argue a series of human rights-based cases with the broader intention of changing the law. This led to legal aid being made available for patients applying to mental health tribunals, regular reviews of the necessity for detention being required, and the power to discharge patients being vested in independent tribunals rather than with the Home Secretary.

The Mental Health Act 2007 subsequently reflected the outcome of key human rights cases. Important protections were added, for example that people who cannot make decisions but are compliant in receiving treatment should be given legal protections in a similar way to how those who are non-compliant (and 'sectioned') are.

One case in particular demonstrates how human rights frameworks have changed the law to correct a fundamental and longstanding injustice. Previously, people had to prove to mental health tribunals that they could be discharged from hospital. The Court of Appeal ruled that this was in conflict with the Human Rights Act, and that the onus should be on the hospital to demonstrate why someone's detention should be continued. The Mental Health Act was changed as a direct result of this case.

Returning to the Conservative manifesto, the reassurance is given that any reforms'will remain faithful to the basic principles of human rights'. A horrendous case where a woman who was detained under the Mental Health Act and found that she could not challenge the appointment of her adoptive father as her 'nearest relative' (even though he had sexually abused her when she was a child) belies this. A court found that the woman's inability to contest this appointment was a breach of her human rights, and following the judgement the Mental Health Act 2007 provided that challenges could be made. The right she invoked to challenge this legal loophole was the right to a private and family life - one of the particular rights that the Conservative manifesto had in its sights (on the spurious ground that it gives foreign criminals some kind of blanket right to stay in the UK - although actually it does no such thing). Without this right being available, the woman in question would have had no legal recourse, and there would have been no lever to change the faulty legislation.

There is still more to be done, and human rights laws continue to act as levers for positive change. These include recent cases which changed CPS guidelines to safeguard against people with mental illness automatically being treated as unreliable witnesses, and which established that holding someone experiencing a mental health crisis in a police cell can amount to inhuman treatment in certain circumstances. Legislation is currently being passed to significantly reduce the amount of time that someone who is mentally ill can be lawfully detained in a police cell, and the citation of this last case (MS v UK) in the accompanying evidence review suggests it was a key influence.

Mental health is still a long way away from achieving 'parity of esteem' with physical health. Although this is a complicated topic and not always straightforward, repealing the Human Rights Act and/or withdrawing from the European Convention on Human Rights will remove mechanisms that have made huge strides in closing the current gulf, and which have the potential to continue to make a positive difference. If the government is serious about giving mental health parity of esteem - which it certainly professes to be - then neither May nor Gove's proposal should be on, or anywhere near, the table.