Much of the House of Lords debate surrounding yesterday’s Second Reading of the Care and Support Bill focused on seeking solutions to complex issues around the future provision of care. Additionally, as several peers flagged, the Bill also provides a timely opportunity to clarify which bodies have legal obligations to uphold protections under the Human Rights Act. Baroness Campbell noted “those who receive their care not from a public authority but from a private body lack the full protection of the Human Rights Act…[This] is a loophole that must be closed.”
Section 6 of the Human Rights Act essentially creates a legal duty to respect, protect and fulfil certain human rights (drawn from the European Convention on Human Rights). This duty is placed on public authorities and those performing “public functions”. The second type of body – those performing public functions – has proved somewhat awkward in practice, particularly in relation to those who receive care services.
A quick post to draw your attention to the British Institute of Human Rights’ excellent new publication, Mental Health Advocacy and Human Rights: Your Guide (PDF).
The Guide is aimed at non-lawyers, is attractively presented and looks very useful indeed. From the BIHR launch site:
This Mental Health Awareness week, BIHR is pleased to launch Mental Health Advocacy and Human Rights: Your Guide, our latest practical resource to help respect and protect the human rights of people with mental health problems. This guide has been produced with Mind Brighton and Hove, Wish and NSUN, three of the partner organisations involved in our Human Rights in Healthcare project.
Aimed at both advocates and people who use services, this handy guide explains how the Human Rights Act can be used in mental health settings to secure better treatment and care for people. It draws on real life stories of how laws and legal cases can be used in everyday advocacy practice, providing helpful flow-charts, worked through examples and top tips.
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J Council v GU and others  EWHC 3531 (COP) – Read judgment
On 11 December 2012 Mr Justice Mostyn handed down judgment in J Council v GU and others  EWHC 3531 (COP) approving arrangements aimed at safeguarding the Article 8 (private and family life) rights of a 57 year old man detained under the Mental Capacity Act 2005 in a private care home. At seven pages, the judgment was admirably concise.
The detained man concerned, referred to in the judgment as George, suffered from a number of separable mental disorders: childhood autism, obsessive-compulsive disorder, dissocial personality disorder, mixed anxiety disorder and paedophilia. He lacked the capacity to litigate or to make decisions concerning his care needs (including where he lives), medication he should take, contact he should have with others and about his finances, property and affairs. It was likely that this incapacity would continue, possibly for the remainder of his life. He lived in a private care home and it was agree by all, including the Official Solicitor (who represented George in the proceedings) that it was in his best interests for him to remain living there indefinitely. Furthermore, he should be subjected to restrictions in relation to his contact with others and correspondence in order to minimise the risks that he presented.
Last month 1 Crown Office Row hosted a fascinating panel debate on the Court of Protection and the incredibly difficult issues surrounding assisted dying. The panel included Philip Havers QC, the philosopher A.C. Grayling and Leigh Day & Co.’s human rights partner Richard Stein. You can now view the video here or below. Also see here for Rosalind English’s report of the event.
R (on the application of EH) v Secretary of State for the Home Department  EWHC 2569 (Admin) – read judgment
1 Crown Office Row’s Robert Kellar was instructed for the Defendant in this case. He is not the writer of this post.
The High Court has ruled that the failure to consider the continued detention of a mentally ill failed asylum seeker in accordance with immigration policy rendered his detention unlawful in part.
The Claimant applied for asylum based upon his account of an attack during the Rwandan genocide and subsequent events. The Home Secretary refused the application and the Claimant appealed. At the appeal he was unrepresented and he adduced no medical evidence. The Immigration Judge dismissed his appeal, disbelieving the entirety of his account. Once his appeal rights had been exhausted (that is, he was unable to appeal any further through the courts), the Secretary of State detained him on 19 October 2010 for the purpose of removal.
Attitudes changing, slowly
DORDEVIC v. CROATIA – 41526/10 – HEJUD  ECHR 1640 – read judgment
The European Court of Human Rights has declared in Đorđević v Croatia that the failure of the Croatian State to prevent the persistent harassment of a severely disabled young man was a breach of his Article 3 ECHR right not to be subjected to torture, inhuman or degrading treatment or punishment.
It also amounted to a breach of his mother’s Article 8 ECHR right to respect for her family and private life. The applicants had no effective remedy in the domestic courts in breach of Article 13 ECHR.
This is an important judgment on the protection from harassment that the State must ensure for disabled people and their families.
Eleven Winterbourne View staff have pleaded guilty to 38 charges of ill-treatment and neglect of a mental health patient under s127 Mental Health Act 1983 (MHA). In this post I want to consider why we need ‘special’ offences like s127 MHA and also s44 Mental Capacity Act 2005 (MCA), rather than prosecuting crimes in care settings using more ‘mainstream’ offences.
The UN Convention on the Rights of Persons with Disabilities (CRPD), with articles emphasising access to justice (Article 13) and equal recognition before the law (Article 12) encourages us to think about how we can ensure disabled people have effective access to the law that protects us all before we develop parallel ‘special’ systems of rights protection (see, for example, Inclusion Europe, European Disability Forum). So my question is: why are we using ‘special’ offences of ill-treatment and neglect to prosecute crimes that occur in care, rather than the ordinary ‘offences against the person’ those outside of care rely upon?