Common Law - Free Law Essay

Outline and critically evaluate doctors statutory and common law powers to treat mentally disordered patients without their consent.

Explain the effect of the Human Right Act 1998 on this area


The area of mental health has always posed a difficult area for doctors and human rights and consent is the key problem, because where does the law draw the line for treatment against or without the patient's will? In most normal circumstances no treatment can be performed without the patient's consent; however how does this work if the patient has been determined mentally incapable of making rational decisions and therefore unable or unwilling to give consent. Should the doctor's still proceed as it is in the best welfare of the patient or withhold treatment because the patient is unable or unwilling to give consent? Prior to the enactment of the HRA 1998 the problem of consent was a lot less murky as rights were given on the basis that there was no law restricting them, i.e. civil liberties. Therefore if parliament deemed that that rights such as consent for medical treatment should be restricted because of one's mental health this was justification enough, as parliament is supreme. The HRA 1998 changed this because a set of inherent rights were introduced which conflicted in cases with the will and supremacy of parliament, of which the right to a private life and the liberty and security of the person came to the forefront of the debate of consent and mental health, i.e. the person has the control to determine what happens to their body and freedom and this is not determined by the wishes, albeit good of parliament. In order to determine the legitimacy of the current law of consent and treatment under the Mental Health Act 1983 (MHA 1983) and through common law provisions with reference to the rights contained in the HRA 1998 this discussion will; consider the difference between civil liberties and human rights; consider the statutory and common law provisions in respect for the need of consent for mental health patients; and finally determine whether the current law meets the inherence of modern human rights.

Civil Rights v Inherent Rights - The Nature of Rights Pre & Post HRA 1998:

Under Hohfeld's view it becomes clear that, traditionally, most freedoms were merely liberties; one did no wrong to exercise them, but there was no positive duty on any organ of the state to allow or facilitate them Nevertheless, some of our entitlements clearly had and have the quality of Hohfeldian claim-rights [akin to inherent rights] in that they are protected by a positive correlative duty However, even when a citizen holds a right, there were - under domestic law - no legal guarantees that the legislation providing the positive protection would not be repealed. When the Human Rights Act 1998 came fully into force many Hohfeldian liberties became rights in Hohfeldian terms since public authorities have been laid under a positive duty to respect them and will act unlawfully if they do not, unless the only possible reading of contrary primary legislation is that the right must be infringed The 1998 Act does not provide a set of immunities since it can be overridden by primary legislation [as these rights would stand under the ECHR or under US Constitution]. But the Act clearly represents a dramatic shift in rights protection in the UK, away from residual freedoms towards positive rights.

Therefore the HRA 1998 has provided a new vision of rights, which the UK has to deal with and only after almost four years of being in force, it cannot be expected that the hundreds of years of English Legal development has to change course.

Traditional rights in the UK are known as civil liberties, which follows he arguments of utilitarianism. Modern utilitarian theorists have extended the theory of Bentham, but have put it in more modern terms. Instead of maximising the pleasures and desires of the individual the government would be maximising the general welfare of individuals therefore minimising frustration of wants and preferences. Therefore what one can see is that the governing bodies must put the general welfare first, yet minimise the individual's needs - therefore causing a conflict of rights between what is in the name of the society and what the individual wants. The problems with this theory is it is socially constructed, there is no autonomy of being and no argument for universal rights that transcend all cultures and religions, therefore falling short of what is needed for an all-encompassing human rights theory, as the general welfare can be different for differing cultures. Hart's theory is based within the positive and negative liberties; it follows the traditional civil liberties method whereby the rights are either given directly or impliedly by the state. This is based upon a traditional positive frame, but there is an understanding that the duties between the right holder and the duty bearer are not within the traditional form. The traditional view was that the rights holder should be regarded as a beneficiary of the legal obligation to be performed by the duty bearer: a recipient in other words, of the benefit provided by such performance.

Inherent human rights are based on core rights theorists. The basis of the core rights theorists is the work of Immanuel Kant. Kant's argument, which is more commonly known as Kant's ethic, tries to get away from the needs, desires and wants, which are the basis of the rights from the state of nature. Instead it is an a priori ethic, which transcends all needs, desires, wants, purposes and end. In other words it is not part of human construction. How does Kant argue that this is an all-encompassing ethic outside of societal conventions, without the aid of a divine being? Kant argues that it is the individual's ability to reason and autonomous will that is the basis of his a priori argument. Shestack describes the basis of Kant's argument as; 'rights then flow from the autonomy of the individual in choosing his and her ends, consistent with a similar freedom for all... In short, Kant's imperative is that the central focus of morality is 'personhood', namely the capacity to take responsibility as a free and rational agent for one's system of ends'.

In modern theories there are different strands of this Kantian argument; however they all base round a transcendental need for the autonomous nature of the individual to be free in society. There are arguments from necessity, i.e. the minimum rights and freedoms to ensure the autonomous being; yet again it seems to be just a new veneer of the Kantian ethic. This ethic was one of the most influential arguments for universal human rights, in response to Nazism, eugenics and ethnic cleansing, which can be illustrated in the Universal Declaration of Human Rights with words such as inherent, inalienable and equality applied to rights and the basis of these rights are the foundation of freedom, justice and peace in world.

The traditional civil liberty view has been eclipsed with the HRA 1998 because the ECHR contains inherent rights and not mere civil liberties. Therefore for English mental health law to succeed it can only encroach on one's rights to the liberty and security of the person in certain specific circumstances. Under Article 5(1)(e) it allows the detention of persons of unsound mind on the basis of lawful detention and procedure is prescribed under domestic law. The definition of unsound mind was left to an evolving definition in Winterwerp v Netherlands; however detention can not be made merely on the basis that the individual's belief system and behaviour are deviate from the norm. The use of detention under 5(1)(e) can only be for self-protection or the protection of the public, whereby the detention should only occur when; a medical disorder by an objective medical personnel; the nature and degree of the disorder is significantly extreme; and the detention is only as long as the medical disorder. In Ashingdane v UK it was added that detention can only occur in a hospital or appropriate medical institution. The only circumstances that these requirements are weakened are with respect to emergency admissions but the detention should be properly assessed and continued detention should cease if the person is not of unsound mind. Detention is an important part of mental health treatment and it is in these cases that treatment against one's wishes will occur. Therefore if the requirements of detention are fulfilled then can further treatment such as medications or therapies be enforced? This is a question of physical integrity, which falls under Article 8 and Article 3. If torture, inhumane and degrading treatment is not sufficed then Article 8 is used; however this article can be restricted. In most cases the question of withholding medical treatment is the key; however if a person does not want treatment and the doctors still proceed this breaches one's dignity and physical integrity. The state is required to provide an adequate level of medical treatment, including psychiatric care. An individual of sound mind can stop any medical procedures and treatment, therefore should this not be the same for those who are mentally ill? The problem is do they understand their actions, because not all mental health patients have no understanding at all. If it can be shown that the individual has no further understanding than a child then it should be the decisions of the individual's relatives and not doctors. This is a clear case that treatment without consent should not occur without positive medical proof that the person can not make the decision, therefore there should not be a blanket law clumping all mental health patients as the same. This will be the main problem with the UK law, because it sets to limit without respecting the inherent rights of individuals.

Mental Health Patients and the Nature of Consent:

The MHA 1983 12(2) allows for doctors to treat mental health patients without consent, except in specific circumstances. Certain treatments require consent or a second opinion, and others require both consent and a second opinion. The actions that require both include neurosurgery and hormone, sterility treatment - in these cases if an individual cannot or will not give consent then the treatment will not go ahead. There have been proposed changes such as not allowing Electroshock Therapy (ECT) without both consent and a second opinion, but at the same time as relaxing the stringent tests surrounding consent, i.e. if an individual is incapable of giving consent. The problem with this act is that is acts from the presumption that there are no human rights and doctors can treat mental health as they wish except in extreme therapies. This seems to be direct contravention of inherent human rights, because if the person was not mentally ill treatment without consent would be regarded as degrading treatment at the worst and breach of a person's physical integrity at best.

The common law approach follows this approach as well, in F v West Berkshire Health Authority it was held if a person lacks capacity to give consent then the doctor may do as he or she deems fit. Those detained under the MHA 1983 can decline treatment as long as they meet the Re C Test:

  • v     Can the patient understand and retain the relevant treatment information?
  • v     Does the patient believe it?
  • v     Can the patient weigh the information in the balance to arrive at a choice?

The third part of the above criteria may easily be weighted against the mental health patient because this individual is unsound of mind, therefore how can they balance the information to come to a choice? Therefore giving an opt out for doctors to get consent in most mental health treatments in detention. Also under the MHA 1983 58 this consent cannot be overridden in respect to ECT and medication over 3 months. Also Section 63 denies the need for consent if treatment is issued by a responsible medical officer. Under English law mental illness has been broadly interpreted as per B v Croydon Health Authority in order to include force feeding of an anorexic; however overriding the consent of a sectioned patient can only occur in relation to a recognized mental illness of which the patient has been classified. It is believed that as long as the actions are done in accordance to the MHA 1983 it would not breach Articles 3 or 8, as concluded in R (PS) v Dr G and Dr W. Therefore the rights of mental health patients are greatly reduced and regardless if the individual can come to a decision about treatment themselves in all likelihood it would be overridden. At this point the only UK case taken to the European Court of Human Rights was the Bournewood Case (HL v UK) which was purely in reference to detention which found informal detentions as a breach of Article 5. As of yet the medical treatment and consent procedures have not gone to the European Court of Human Rights but the overriding of consent seems not be proportionate or necessary, where it may not reach the severity of Article 3 it must reach the level of Article 8. Also how can giving ECT or forced treatment without consent not be just as bad as or worse than hitting a child? The ECHR cases have purposely left the definition of mental health and treatment out in order to allow for the evolution of human rights in this area. Mental Health has always been a much misunderstood area of medicine and it should not follow that the individual has no thought processes just because they have a mental illness, such beliefs led to mass sterilization and in some cases eugenics of the mentally ill. In a world repulsed by eugenics and the fear of cloning we still treat mental health patients as less than equal and this must be stopped otherwise the fears that the human genome project bring may cause the eradication of difference and deviation from the norm. The greatest fear is that the Human Genome Project will create inequalities in society; hence creating a society which is contrary to fundamental human rights theory and law. The first main problem is whether enhancing individuals will erode the essence of the individual? It seems to be in this area scientists are being very cautious in order not to destroy this essence. It is important to understand what makes the human being, before one can enhance it. Therefore the best response to such fears is through applying the EC's precautionary principle, i.e. no action should be taken without knowing the harm, in this case to the rights and integrity of the individual. The actions in House of Lords have been to ignore such proportionate responses to mental health and the rights of these patients, as was the case in the Bournewood Case:

Further, the amorphous nature of the beast is well illustrated when the House of Lords can unanimously and decisively reverse a unanimous decision of a strong Court of Appeal (presided over by the Master of the Rolls), a judgment which had been widely acknowledged to make logical sense and strike a blow for the protection of the liberties of some of the weakest members of the community, whatever practical problems might have arisen in its wake.



  • Hewitt, 2004, Between Necessity and Chance, NLJ 154(7124)
  • Mahendra, 1998, Unto the Breach, The Practioner, in the NLJ 148(6857)
  • NHS, Section 12(2) of MHA 1983 Website, can be found at: Fenwick, 2002, 15