The result will be a new mental health act and legislation for the detention of dangerous people, which will maintain a balance between the rights of individual patients and the rights of the community as a whole.Article 5of the Human Rights Act guaranteeing liberty is the most important article for detained mentally disordered people. Interpretations of Article 5in the context of persons of unsound mind resulted from the decision of the European Court in the case of Winterwerp V the Netherlands. Detention under article 5(1) e is considered lawful only if the patient is deemed to be of unsound mind. Also, it is necessary that the mental disorder must be of a kind or degree warranting compulsory confinement. Further, continued confinement should depend on the persistence of the disorder. Finally, the detention must be in accordance with the prescribed law. (Potential impact of the Human Rights Act on psychiatric practice: the best of British values? Rosanne MacgregorMorris, Jane Ewbank, Luke Birmingham).Scottish and other European Cases challenging restricted medical treatment have largely been unsuccessful as current clinical practice generally does not breach an individual’s human rights and recent Scottish Case Laws, have high – lighted that an individual patient’s rights may be of a lower priority than public safety.Following the decision of the European Court of Human Rights, in X V United Kingdom, 1981, 4EHRR 188, The Mental Health (Scotland) Act 1983, introduced a periodic right of appeal for restricted patients enabling them to apply to the sheriff annually for a discharge. The relevant provision is section 63 of the 1984 act. According to this section as long as it is required, the sheriff and Scottish ministers do not discharge a restricted patient from the hospital. This is in order to protect the public from serious harm, regardless of whether the patient is treatable or not.
The Human Rights Act