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The European Convention on Human Rights was adopted in 1950 and drafted within the Council of Europe which was itself formed after the Second World War. The Convention was a reaction to fascism which had devastated Europe in the 1940s and at the time was seen also as a bulwark against Communism. It came into force in 1953 but had to be ratified by the Member States of the Council of Europe.
For almost 50 years the UK has been subject to the Convention since the Convention itself was signed and ratified by successive UK Governments. The Convention was never directly incorporated into United Kingdom Law and therefore citizens of the UK were not able to have those Rights protected by the domestic Courts. This had the knock-on effect of forcing citizens of the UK to go to the European Court in Strasbourg which could be a lengthy and costly process.
However that has now changed with the passing of the Human Rights Act 1998 which received the Royal Assent on 9 November 1998. Section 18 (Appointment to the European Court of Human Rights) 20 (Orders etc under the Act) and 21(5) (Interpretation etc: replacement of death penalty) came into force on the passing of the Act.
Section 57 of the Scotland Act (1998) provides that a member of the Scottish Executive has no power to make any subordinate legislation or to do any act which is incompatible with any of the Convention Rights. Since 20 May 1999 the Prosecuting Authorities in Scotland have been obliged to comply with Convention Rights as defined by the Human Rights Act 1998.
Section 6 of the Human Rights Act provides that it is unlawful for a Public Authority to act in a way which is incompatible with a Convention Right and act includes a failure to act.
This Section crucially however does not apply to an act or failure to act if the Authority, as the result of other primary legislation, could not have acted differently. In other words if the Public Authority by statute is compelled to act in a certain way then acting in that way even if it breaches a Convention Right will not give rise to unlawfulness.
Not all the articles contained in the Convention are incorporated by the Human Rights Act but the most important of the Articles are.
Section 7 of the Human Rights Act provides that a person who claims that a Public Authority has acted (or proposes to act) in a way made unlawful by the Human Rights Act may bring proceedings against the Authority under the Act in the appropriate court or tribunal but only if he is (or would be) a victim of the unlawful act. (The person may rely on a right or rights deriving from the Convention in any legal proceeding.) In other words only a person affected by the act can bring an action and not for example a third party such as a pressure group.
Section 8 of the Human Rights Act provides that in relation to any act or proposed act of a Public Authority which the court finds is unlawful it may grant such relief or remedy or make such order within its powers as it considers just and appropriate and that would include an award of damages where appropriate.
In the context of this sub group the most likely relevant Convention Rights are:
Article 5 which is the right to liberty and security and provides that no one shall be deprived of his liberty save in specified cases and in accordance with procedure prescribed by law;
Article 5, paragraph 1(e), allows for the lawful detention of persons for the prevention of the spreading of infectious diseases, for persons of unsound mind, alcoholics or drug addicts or vagrants;
Article 5.2 gives a person the right to prompt knowledge of the reasons for the arrest and, if detailed for psychiatric reasons, the knowledge that he or she is detained;
Article 5.5 gives an enforceable right to compensation for unlawful detention;
Article 5, 4 provides everyone who is deprived of liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of detention shall be decided speedily by a court and release ordered if the detention of not lawful;
Article 8 provides a right to respect for private and family life which includes home life and correspondence. It provides that there has to be no interference by a Public Authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic wellbeing of the country, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and the freedoms of others;
Article 3 also may apply which provides that no one shall be subjected to torture or to inhuman or degrading treatment or punishment.
These specific Articles bearing on mental health issues provide for procedures and safeguards relating to the detention of persons on grounds of mental illness. The term "unsound mind" in Article 5 is not precisely defined. The Court has decided that the concept is to be narrowly interpreted given the importance of the right to liberty. Before someone can be lawfully detained in terms of the Treaty that person of "unsound mind" has to be one suffering from a true mental disorder established by objective medical criteria. It has to be of a kind of degree to warrant compulsory confinement and the validity of the continued detention depends on the continuation of the disorder.
Medical authorities are allowed a certain discretion or margin of appreciation with regard to evaluating the patient's condition and are entitled to proceed with caution before the release of such a person is allowed. Medical authorities must conform to a legal framework imposed by domestic law.
Finally it is important that a review process is in existence to review the lawfulness of the detention and the continuing need for it.
So far as Article 3 is concerned (the prohibition on torture), the European Commission has found that compulsory medical treatment is not struck at by Article 3 if it is necessary from a medical point of view and carried out in conformity with agreed medical standards. It follows of course that stepping beyond accepted medical practice would possibly constitute a breach of this Article.
There is no specific mention in the Convention of protection of confidentiality but the considerable case law which has built up over the years in the Strasbourg Court would seem to indicate that the Convention can stretch to cover situations not obviously covered by the Articles itself.
The Commission and the European Court seem to accept the necessity to protect the confidentiality of medical records and if such records are to be disclosed to a third party then disclosure must be justified in the public interest outweighing the interest of the individual not to have disclosure.
This vital principle of confidentiality of medical data was emphasised in the case of Z -v- Finland and in M.S. -v- Sweden. In the case of M.S. -v- Sweden it was found legitimate for State Medical Authorities to pass onto Social Insurance Authorities details of the medical history of a claimant. It was held that the balancing exercise justified the passing on of the details and that the breach of confidentiality was justified. However in the case of Z -v- Finland disclosure of a witness' HIV status was not accepted as legitimate.
The existence of a Convention Right does not mean that the person alleging infringement of this right will automatically be successful.
The most important fundamental principle underlying all of the European Courts decisions is the fact that a Convention Right exists does not necessarily mean that it is paramount. Convention Rights of individuals will frequently require to be balanced with completing rights of other persons and with the interests of the community at large. In Soering -v- UK Series A, no 161; (1989 11 EHRR.439) the European Court of Human Rights stated that "inherent in the whole Convention is a search for a fair balance between the demands of the general interest of the community and the requirements of the individual's fundamental rights". It follows therefore that the Convention Rights of one party cannot be considered in isolation. For example the search of an accused's house under warrant obviously prima facia breaches the Article 8 Convention Right to respect for home and correspondence but the interest of society at large in obtaining evidence outweighs this individual Convention Right.
This approach to balancing the competing interests has been described as "proportionality" (i.e. no sledgehammer to crack nuts). In addition the European court has in several cases applied what is known as "the margin of appreciation". In general this means that the State is allowed a certain measure of discretion in taking action which might breach a Convention Right. For example in the Handyside case ("the Little Red Book" case) the court had to decide whether a conviction for possessing an obscene article could be justified under Article 10 as a limitation upon freedom of expression that was necessary for the protection of morals. Also implicit in this is a realisation that a certain degree of deference is given by the European court to the judgement of National Authorities when they weigh competing public and individual interests in view of their special knowledge and overall responsibility under domestic law.
It cannot be stressed too strongly that the proper minuting of decisions taken including decisions taken not to act are crucial. The effect of the Human Rights Act is that decisions taken many years ago may be reviewed in the future and the "paper trail" is crucial. In view of the measure of discretion allowed to Authorities even a decision which might be seen to be "bad" may be held legitimate if good reasons were recorded for the making of it in the first place.
CONCLUSIONS
1. The interaction between the Scotland Act and the Human Rights Act has resulted in practical changes for the Prosecution system in Scotland.
2. The Human Rights Act brings similar changes to all other Public authorities including Health Boards.
3. The assessment of Mental Health Risk and any action taken based on that assessment may constitute a prima facia breach of a Convention Right.
The principle of proportionality and discretion will operate to protect those making decisions provided a weighing exercise has been undertaken and decisions recorded.
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