The Impact Of Article 3 On Detained Mental Health Patients

Introduction

Prior to internationally ratified and understood human rights, the inpatient treatment of those with mental health difficulties (“MHD”) was often barbaric and cruel, with a significant biological focus. Treatment has now advanced, and more importantly, the rights of those receiving treatment has been recognised through many international instruments, including the EU and UN Conventions Against Torture, the International Covenant on Civil and Political Rights, the Convention on the Rights of Persons with Disabilities, and the focus of this blog, Article 3 of the European Convention on Human Rights, though, it is important to note that several other international laws afford and protect this same right.

I will be looking at the achievements of Article 3, but more so the arbitrary, confusing, and discriminatory way the courts apply it in the context of those with MHD. Particular, I will be analysing the court’s decision in Munjaz v Ashworth Hospital.

Principles of Article 3

Article 3 is the only absolute right under the convention as there is no provision for derogation regardless of circumstance. Due to this, a severity threshold exists in respect of breaches to the right, in Pretty v UK the court stated this minimum level of severity:

“involves actual bodily injury or intense physical or mental suffering. Where treatment humiliates or debases an individual showing a lack of respect for, or diminishing, his or her human dignity or arouses feelings of fear, anguish or inferiority.”

The European Court enshrined a distinction between torture and inhuman and degrading treatment. In Ireland v UK, multiple detainees were subject to interrogation which included stress positions, ‘hooding’, and deprivation of sleep. The court stated this treatment did not reach the severity of torture, and held that:

“this distinction derives principally from a difference in the intensity of the suffering”

A ruling that makes this more complicated is Kalashnikov v Russia, where the court stated that severity:

“depends on all the circumstances of the case, such as the duration of the treatment, its physical and mental effects and, in some cases, the sex, age and state of health of the victim”

This ruling effectively adds an element of relativity to Article 3, in that the subjective circumstances will affect whether or not it is breached. This relativity element is not necessarily a negative for those with MHD as the courts have stressed such patients are more vulnerable. In Parascineti v Romania the court stated:

“people with mental disorders are more likely to feel inferior and helpless […] increased vigilance is required in monitoring compliance with the Convention”

Application of These Principles

In applying the foundation principles of Article 3, the ECtHR have established strong caselaw that has, over the years, protected and bolstered the rights of those who have been detained due to MHD. In Keenan v UK, the court held that the rights of a prisoner suffering with schizophrenia were violated when, due to a lack of monitoring, disproportionate punishment, and ineffective medical assessment and treatment, the prisoner took his own life. This judgment has had a significant impact on mental healthcare, and made clear that inadequate mental health treatment can breach Article 3. This principle has now been echoed throughout domestic caselaw and was upheld in R (S) v SSHD:

‘‘The implications of Keenan […]  are clear […] there must be in place effective monitoring of the detainee and the obtaining of suitable expert advice as to how that person should be dealt with and treated.”

Another case which has had a significant and somewhat controversial impact is Kaprykowski. The applicant was detained on multiple occasions in psychiatric units. During one detention, he was administered an expensive drug which improved his symptoms but was later transferred to another hospital who exchanged his medication for a generic version which worsened his condition. The court noted:

“that the change to generic drugs resulted in an increase in the number of his daily seizures and made their effects more severe and as such contributed to the applicant’s increased feeling of anguish and physical suffering.”

The court held that this contributed to the inadequate medical care, and thus held the state to be in breach of Article 3. Though this does not hold that a patient must be prescribed the best or more expensive drugs if they help, it does seem to imply that preventing a patient from taking such drugs could breach Article 3. This may impose a quasi-positive obligation on the state to ensure certain medications are available, which almost certainly contradicts the court’s ruling in Nitecki v Poland to not impose unfair financial burdens on states.

The ECtHR also has a strong persuasive power. In Nevmerzhitsky the court relied on a lack of medical records to record a finding of torture in respect of force feeding the applicant. It considered that the absence of records showing necessity of treatment must imply that the treatment was therefore not necessary. Whilst the court did not find an obligation for a hospital to maintain good records, it will undoubtedly have led to states adopting rigorous procedures surrounding the recording of treatments.

Munjaz: A U-turn on Article 3?

Article 3 has provided important rights and protections to mental health inpatients; however, it also has significant deficiencies and oversights which can be evidenced by the Munjaz case.

Ashworth hospital had implemented a seclusion policy that departed from national guidance issued by the government under s.118 of the Mental Health Act 1983. The applicant was secluded on multiple occasions under the policy and brought judicial review on whether the hospital had acted against the law in implementing it. The key difference in Ashworth’s policy was that they allowed for significantly longer periods between reviewing the seclusion of a patient.

The court recognised that seclusion was capable of breaching Article 3, however, stated the risk of such a breach occurring due to Ashworth’s policy was low. It was therefore ruled that the policy was not in breach. Lord Steyn delivered a powerful dissenting judgment in which he stated:

‘‘If Ashworth Hospital is permitted in its discretion to reject the Code […] it will be open to other hospitals to do so too […] the judgment of the majority of the House permits a lowering of the protection offered by the law to mentally disordered patients […] the decision today is a set-back for a modern and just mental health law.”

In effect the court qualified the right and allowed for those who are considered more dangerous to be treated worse than those at lower security hospitals. Potentially raising questions under Article 14, as the reason for allowing the departure was based on the patients’ MHD. Stephanie Palmer argues that the Lords analysis is confusing, and goes so far as to state that Lord Hope’s comments are misleading. She argues that the Lords gave insufficient weight to the vulnerability of detained patients, and great weight to the fact that there was no evidence of psychological damage to the patients at the time. Whilst Palmer raises these points from a proportionality basis, they are also relevant to this discussion as they suggest the House ignored two of the foundational ECtHR judgments discussed earlier, Parascineti and Keenan. The issues Palmer raises are now permeating into practice, with Martin Curtice arguing:

“proportionality now appears to be being used in assessing the standard of medical care.”

The Ashworth decision, and the position on seclusion in the UK with regards to high security patients in general, was recently raised by the Committee Against Torture. The Committee stated they have:

“serious misgivings about the measure of long-term segregation as currently applied in the high secure hospitals.”

The fact that the Committee (a body which is intrinsically linked to the Convention) are so concerned about seclusion, yet the ECtHR are not, furthers the confusion and only reinforces the inference that the court derides those with mental health difficulties.

From a legal perspective, mental health inpatients are treated more akin to prisoners than they are traditional medical patients. Jonathan Bindman has stated of this that:

“Some judgements may strike present-day clinicians not so much as protecting patients’ rights but as permitting undesirable practices”

Bindman notes that Article 5(1)(e) of the convention lists those with MHD alongside ‘drug addicts’, ‘vagrants’, and those who ‘spread disease’. The very nature of this reflects the beliefs of society during the time the ECHR was drafted. These thoughts and beliefs have now perpetuated into domestic law. Ensuring legislation and decisions are compatible with human rights is a start, however, when those rights themselves are flawed, and the basis for the rights allow for mistreatment, then no amount of judicial intervention will solve the problem. Bindman expresses this by recognising that declaring an Act compatible with the Convention is consequently “not a difficult test to meet.”

Discrimination Contextualised

The discrimination explored under the former heading can be best understood by comparing two deportation cases.

In Chahal v UK, the ECtHR reinforced the absolute nature of Article 3 by holding that the terrorist activities of the applicant were irrelevant factors, and that so long as the applicant was at risk of torture, then his deportation would breach Article 3. The domestic courts have taken this positive treatment further and have released terror suspects due to the detention having serious effects on their mental health (G v SSHD (Bail Application)).

The decision in Bensaid v UK is therefore extremely confusing in light of Chahal, and indeed all prior jurisprudence explored in this essay. Bensaid suffered from severe schizophrenia and argued against a deportation decision as, if he were deported, he would no longer have access to medication, access to a hospital would be infeasible, and his condition would certainly worsen. The court took a harsh view on the case, going so far as to point out that the applicant’s arguments were “to a large extent speculative.”

a point which is silently manifest in practically every judicial decision regarding deportation. The fact that the court pointed this out shows an almost disdain for the applicant, and the discriminating distinction between those with MHD and others.

The difference between these two cases is that one applicant would be at risk of ‘torture’, the other at risk of ‘inhuman and degrading treatment’. The courts have made a distinction between these two forms of treatment, however, in Bensaid, they recognised that either would be a barrier to deportation. The reason for the different rulings is therefore perplexing. The arbitrary distinction between the two forms of treatment seems to have led to an injustice in Bensaid, a distinction still carried over today. This is despite accepted medical evidence that there is no difference in terms of psychological damage between torture and inhuman and degrading treatment, as well as evidence that negative treatment of mental health inpatients can produce the same effects as torture. Even more confusing is that Bensaid was appealed to the ECtHR by the UK Government, however, the ruling in G was simply accepted when the SIAC held that detaining G would breach Article 3. This arbitrary application and confusing interpretation of the law has left detainees, lawyers, and the courts in a state of uncertainty regarding the rights protected under Article 3; moreover, it has shown a clear disfavour of applicants with mental health difficulties.

Conclusion

I would submit that it is not an outrageous claim to argue that the ECtHR have wilfully and continually treated applicants worse where their application is based on deterioration to mental health. I would also consider it fair to argue that the courts have a worrying lack of understanding about the effects of treatment which could fall under Article 3. Finally, the distinction between torture and inhuman and degrading treatment is a helpless one at best.

Human rights have afforded protections for those with MHD; however, these protections are far from equal to those afforded to others. Medical expertise, societal understanding, and judicial and legal application must come together to ensure equal and consistent protections for mental health patients. The overarching treaty must also be reviewed in light of these factors in the same way that other such legislation is, such as the Mental Health Acts. Without such review, any law created in the light of the ECHR will be inherently tainted.

---