Treatment for Mental Disorder
Introduction.
The existing law has some controls, regarding the involuntary treatment of a person who has been detained on the condition of medical reasons, under the Mental Health Act of 1983. The mental health act, as amended in 2007, contains therein as to the restrictions that govern the compulsory mental treatment of the detained patient. According to article 3 of the ECHR, it is stipulated that no person should be subjected to any kind of torture or treatment that is inhuman or degrading in any way. It is, therefore, imperative that the court considers this article when dealing with a situation of, for example, of dealing with people who may need refugee protection. It should be noted that while the ECHR can not be considered to be an international instrument that can be used in the protection of the refugees per se, the court has interpreted this article to be sufficient in providing protection that is effective against circumstances and places where there is a probability that a person can be subjected to inhuman treatment, punishment or torture. In this paper, therefore, we are going to discuss whether treatment for mental disorder against a person’s will should always be seen as contrary to Article 3 of the ECHR.[1]
The protection provided by Article 3 of the ECHR
For the first time, in 1989, the court’s jurisprudence for this article was established. This was concerning an extradition case against the UK government that involved a person of German nationality who had been accused of a capital offense in the US. In this case, the court held that if the extradition happened, it would be in contravention of article three. The court argued that if the fugitive was extradited, then there existed substantial grounds to believe that the person faced a real risk of being tortured and being treated in a degrading or inhuman way. Therefore, in our case of treatment of a person with mental disorder against that person’s will, we have to establish whether there exists a real risk that the person will be tortured or will be treated in an inhuman or degrading way.[2]
It should be understood that under article 5 of the convention, it provides that every person has a right to security and liberty. Therefore, no person should be denied this right to freedom; however, liberty of a person under article 5 and 1 (e) of the convention that lawful detention of persons with unsound mind or mental disorders can happen. However, the soundness of the mind of the affected person has to be determined by the use of minimum condition so that there is no loophole of using this allowance to subject people to inhuman treatment and degrading behavior. The first condition that was provided by the convention was that the true unsoundness of the mind had to be determined and established before a competent authority, and this was to be done based on evidence that is medically objective. The second condition was that the mental disorder has to be of a degree that warrants and justifies forced confinement. And lastly, for continued detention to exist, then the medical disease also has to persist.
Therefore, the treatment of a person who is suffering from a mental disorder cannot always be seen to be in contravention of Article 3, but there are circumstances under which if this happens, the action might be in violation of article 3 of ECHR. For instance, if the proof that the person has a mental disorder has not sufficiently been proved before an authority that is competent and that it has not been subjected to medical verification, then the treatment and the detention that ensues from this treatment can be deemed to be unlawful and in contravention of this articles 3 of ECHR. Another perspective of looking at this is that there may be circumstances that the above conditions have been fulfilled, but at the detention facility, the patient is subjected to treatment that is inhuman and degrading. The fact that the person is of unsound mind doesn’t mean that he can be treated inhumanly or in a demeaning manner. At the facility that the person is receiving treatment, the person has at all times, be treated in a humane way.
Bibliography
https://www.unhcr.org/uk/3ead2d262.pdf
[1]https://www.unhcr.org/uk/3ead2d262.pdf
[2]https://www.unhcr.org/uk/3ead2d262.pdf