Theories , Punishment and Law

The DSPD programme has been prompted by high-profile cases such as that of Micheal Stone, who in 1996, attacked Josie Russell and killed her mother and sister several years after his personality disorder was deemed untreatable. The Home Office regards those with DSPD as  ‘a group hirto poorly served by Criminal Justice or Mental Health Act 1983 only allows people to be committed to hospital where psychiatric believe the person is treatable, and many do not believe personality disorder is’. But proposed reform of the Mental Health Act 1983 allows detention of persons with Personality Disorder, even if they have not committed a crime.

What issues does it raise in relation to the human rights of those individuals labeled DSPD?

In drafting mental health laws, there are constant tensions in balancing the individual rights of the patients and protection of the public. The proposition of the act is that it will be unlawful for public authorities (including hospitals, social services, and prisons) to act in a manner incompatible with the Human Rights Convention.

The Government has been subjected to considerable pressure to reform the Mental Health Act in favour of public protection and also to develop effective strategies to manage those suffering untreatable personality disorders that are considered dangerous.

The Government proposes measures to detain dangerous people suffering from severe personality disorder, who pose risk to society at large. The proposals are aimed at three different categories:

1. Those who have committed serious offence and are seen as a risk and for whom the use of discretionary life sentences could be expanded.
2. Those who are considered dangerous on completion of determinate sentences and for custom continued detention may be recommended.
3. Those who have committed no offence but whose behavior may be dangerous.

The above proposals particularly the last one raises concern in terms of human rights standards and safeguards, and in terms of the accuracy with which risk can be assessed.

Article 5 of ECHR provides right to liberty and security and to detain those who are diagnosed as having DSPD can be done under the following subsections 5.1(a) lawful detention of a person after conviction by a competent court 5.1(c). The lawful arrest or detention of a person affected for the purpose of bringing him before a competent legal authority on reasonable suspicion of having committed an offence or fleeing after having done so; 5.1(e) lawful detention of persons for the prevention of the spreading of infectious diseases of persons of unsound mind, alcoholics or drug addicts or vagrants.

Art 5.4 Everyone who is deprived of his liberty by arrest or detention shall be decided speedily by a court and his release ordered if detention is not so lawful.

The case of Winterwarp v The Netherlands developed criteria for avoiding arbitrariness and thus ensuring the lawfulness of the detention of persons of an unsound mind. Lawfulness under article 5 requires the detention must be necessary and proportionate. This case also declared that for the detention to be justified by Article 5.1 (e) the mental disorder must be established by an objective medical opinion; it must also be to the extent that requires compulsory confinement, and continued detention will only be valid if the mental disorder persists. ‘Nevertheless, the judgment falls short of suggesting that the treatment is an important feature of the detention of these kinds of mental patients’. Other essential characteristics of art 5 protection which apply to those with severe personality disorders, prisoners and mental patients is that there should be regular review, by a judicial body, of any period of indetrement detention to establish weather, it is still necessary and proportionate;(Thynne Gunnell and Wilson v UK) also the conditions of the detention must be appropriate to its purpose. The ECtHR has never considered a well thought out argument on the detention of those with personality disorders where this is not based on proven recidivism. Objective medical opinion will normally entail a confirmed pattern of prior conduct; and if this does not exist it will make it much more difficult, if not impossible, to reach the threshold test for justifying deprivation of liberty.

It is important that mental health tribunals review conditions; of patients compulsorily detained to ensure continuing detention is justified. A common theme of Mental Health cases to be heard by European Commission or court is the delay for a patient’s case to be heard by a Mental Health Review Tribunal in Stanley Johnson v UK the patient suffered a 4-year delay due to a lack of hostel placement. Also in Aerts v Belgium the patient was kept in prison due to no hospital beds were available to him. In these cases there had been unacceptable delay for the review of the patient’s detention, which constituted a violation of art 5(4) that entitles an individual to a "speedy" review of detention and release if the detention is not lawful. ‘…a high court found that breaches  occurred in seven test cases because patients ‘sectioned’ under Mental Health Act did not receive speedy reviews of their detention’. In which individual’s rights under article 5(4) were enshrined.   The European Court of Human Rights suggest 8 week was too long for a patient to wait for his mental health review tribunal and was a breach of article 5(4) the mental health review tribunal should be heard as soon as reasonably practicable. In the case of E v Norway the patient received judgment of his detention 8 weeks after his detention. The ECHR held this did not confer to the notion of ‘Speedy’ detention. Article 6 of HRA states everyone is entitled to a fair and public hearing within a reasonable period of time by an independent and impartial tribunal. Article 6(3) of the Human Rights Act is also of relevance to the issue of tribunals this article ensures ‘equality of arms’ which means the patient is entitled to the exact same information as the tribunal panel, and the patient has the right to call witnesses and have them cross-examined on their behalf.

In JT v UK a patient detained under the 1983 Act had a difficult relationship with her mother her nearest relative, rigidly defined under section 26 of the Mental Health Act 1983. The patient was concerned that her confidential information would be disclosed to her mother, if she were compulsorily admitted again. She complained the 1983 Act infringed on her human rights under art 8 (Right to Respect for her Private and Family life), as it did not allow her to change her nearest relative. The Commission stated that there had been a violation of art 8. The Government agreed to the legislation being amended to give the detainee power to have the nearest relative replaced where the patient reasonably objected to a certain person acting in that capacity. It also gives the provision of certain persons being excluded from acting as “nearest relative”. Article 8 will also lead to challenges of section 26 of the Mental Health Act. This specifies that a patient's "nearest relative" cannot be resident outside the United Kingdom, if so they “shall be ascertained as if that person were dead”. This may disallow the most appropriate person from being a patient's designated nearest relative.

Psychiatrics should take extra care on aspects such as practice relating to human rights that are not directly addressed by the proposed reformed Mental Health Act. Article 3 of Human Rights Act prohibits torture, inhumane and degrading treatment. A possible contravention under article 3 is ‘ward environments’ in Av UK the patient detained at Broadmoor hospital complained that his 5 weeks in seclusion amounted to inhumane and degrading treatment due to the length of seclusion and the insanity condition, in 1985 seclusion procedures were reviewed. R (Munjaz) v Mersey Care NHS Trust and Others is another case that challenged the seclusion procedures adopted by Mersey Care NHS Trust. In all the above cases the court held there cases did not amount to ‘inhumane’ and ‘degrading’ treatment. Another possible contravention under article 3 is ‘forced treatment’ i.e. stomach washout for overdose, forced feeding for anorexia etc. In Herczegtalvy v Austria, the patient collapsed after a hunger strike in prison, he was forced fed, received neuroleptics against his will, was isolated and handcuffed to a security bed Originally it was considered the way he was treated constituted inhuman and degrading treatment which contribute to the worsening of the patients condition. However the court implied that the medical necessity existed and ruled article 3 was not infringement. The crucial element for it to be a breach is whether the treatment was justified by medical necessity.

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