As a layman, I would appreciate some guidance or correction on the seeming disconnect between the MHA and ECHR:-
A patient has capacity and, with a full knowledge and depth of understanding regarding the action of a drug, its effects and both short and long-term side-effects, does not consent to the administration of a drug. Under S3 of MHA the drug is then administered to the patient who, with no indicators or history of physical resistance, remains passive and non-resistant but non-consensual to the adminstration of the injected drug. The patient is psychologically impacted by this process, the denial of his consent (and as they see it, their rights) and the knowledge of the physical effects that the drug will have.
At this point does MHA S3 contravene ECHR:-
Article 3: Inhuman and degrading treatment… “which could include…serious psychological abuse in a health care setting.”
and possibly
Article 8 : Right to respect for private and family life - if the exceptions as listed in 2) are not applicable in this case?
Here’s an extract from an essay I wrote in 2011 for Northumbria’s LLM course, minus the footnotes. I can’t remember the details much and there probably have been more recent developments.
The Human Rights Act 1998 (HRA)’s incorporation of the ECHR into domestic law has brought Convention rights into sharper focus in domestic courts. The relevant rights are contained in Article 3 (prohibition of torture) and Article 8 (right to respect for private and family life); additionally, Article 6 (right to fair trial) has procedural implications.
The HRA has improved the domestic procedural rights of patients in challenging compulsory treatment, but less progress in relation to substantive rights has been made. Pre-HRA, any judicial review of compulsory treatment would be based on super-Wednesbury review principles; following Wilkinson, the first post-HRA challenge, a full merits inquiry will be carried out, with oral evidence where necessary. To comply with Article 3, treatment must be a ‘medical necessity’ and not reach a ‘minimum level of severity’; Article 8 requires that treatment must be ‘in accordance with the law’ and proportionate. These are not onerous requirements: Bartlett states that the rights are ‘not subject to significant scrutiny’. None of the HRA challenges to Part IV treatment have been successful.
Thank you for your helpful responses; I found the Wilkinson 2001 reference of interest.
As I understand it, compared to the other Council of Europe states, UK HRA has a comparatively good track record of accordance to ECHR. Nevertheless, it still seems to me that there is some discord between MHA and ECHR; sadly, I very much doubt that this is even at the bottom of the agenda of any potential withdrawal from ECHR and redraft of HRA. (This is something that I previously discussed with a solicitor a couple of years ago, who had, I then discovered, succesfully taken a case to Strasbourg in 2013 MH v UK.)