The International Covenant on Civil and Political Rights and United Kingdom Law

By David Harris; Sarah Joseph | Go to book overview

7
Mental Health Care

MICHAEL GUNN


INTRODUCTION

The International Covenant on Civil and Political Rights provides standards against which mental health care provision may be measured. Article 9 provides everyone with the right to liberty and security of the person. It does not contain a list of exceptions, as is, for example to be found in Article 5 of the European Convention on Human Rights (ECHR). However, Article 9(1) prohibits 'arbitrary arrest or detention', and requires that no one be deprived of his or her liberty unless the grounds and procedure are 'established by law'. Article 9(2) provides a right to be given reasons for one's arrest. Article 9(4) secures a right to challenge one's arrest or detention by application to a court; the court shall decide without delay upon the lawfulness of the detention and order his/ her release if the detention is not lawful. Article 9(5) guarantees victims of unlawful arrest and detention an enforceable right to compensation. Article 7 outlaws 'torture or cruel, inhuman, or degrading treatment or punishment' and also provides that no one is to be subjected to medical or scientific experimentation without his or her free consent. Article 10(1) requires that all people who are deprived of their liberty must be 'treated with humanity and with respect for the inherent dignity of the human person'. While Article 9 sets standards for the admission process, Articles 7 and 10(1) together set standards for care and treatment in institutions. In addition, it is possible that Article 17(1) may be of importance, since it makes it clear that there shall be no 'arbitrary or unlawful interference' with a person's 'privacy, family, home, or correspondence'. The provisions of the Covenant with regard to discrimination, which may apply to people with mental illness and people with learning disabilities, are dealt with elsewhere in this book.1 Increasingly there is a move towards care in the community. In this arena, it will be seen that the International Covenant offers less clear standards against which to measure the appropriateness or otherwise of the system adopted in England and Wales.

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1
See ch. 17.

-243-

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