The decision of the European Court of Human Rights in X v Finland (Application no. 34806/04; judgment of 3 July 2012) makes significant new law concerning the provision of mandatory psychiatric treatment. It is at best highly doubtful that the approach in the Mental Health Act 1983, where compulsory treatment flows from detention automatically and with limited distinct procedural and substantive safeguards, is consistent with Article 8 of the ECHR.
The Facts in X
X originally came to the attention of the system through the criminal law. She was charged as a party to child abduction, a charge later discontinued because of her mental condition. Consistent with Finnish law, she was detained for examination in the state hospital by the National Authority for Medico-Legal Affairs, an administrative body, following a diagnosis of paranoid psychosis. This detention was renewed by her treating physician and the head of the hospital six months later, with the Administrative Court duly notified as required by Finnish law. (The fact that both psychiatrists were from the same facility gave rise to a breach of Article 5, but that’s tangential for the purposes of this post.) These orders by the National Authority and the Court expressly considered the desirability of her treatment in the State Hospital, and viewed the treatment favourably. This would seem to have been a central factor in their approval of her detention.
As X did not consent to the treatment, it was therefore provided under compulsion, based on the following provision of the Finnish act –
Section 8 – Conditions for ordering treatment
A person can be ordered to undergo treatment in a psychiatric hospital against his or her will only (1) if the person is diagnosed as mentally ill; (2) if the person needs treatment for a mental illness which, if not treated, would become considerably worse or seriously endanger the person’s health or safety or the health or safety of others; and (3) if all other mental health services are inapplicable or inadequate.
X challenged the hospital’s actions in the Administrative Court at each of these points, without success. Eventually, on the appropriateness of the involuntary treatment and on a number of other points, the case ended up at the ECtHR.
Article 3 or Article 8?
X pleaded the treatment-related issues on the basis of Article 3, the protection from torture and inhuman or degrading treatment or punishment. The Court on its own initiative recast the issues as engaging Article 8, the right to privacy and family life.
This is a rather surprising turn of events. The obvious conclusion is that the Court is not going to re-consider Herczegfalvy (shame in it!), and Article 3 remains a no-go area for cases involving involuntary psychiatric treatment. At the same time, its own re-casting of the case in terms of Article 8 suggests that it is prepared to use that provision. If it is bolting the Article 3 door, it seems to be opening the Article 8 window, sticking out its head, waving at us, shouting ‘kooee! Over here!’ and offering X a boost to get over the sill.
That is potentially good news. While it will not satisfy those who view enforced injection of strong medications as particularly intrusive and offensive, and who therefore want the moral gravitas of an Article 3 claim, it does at least allow a way forward for consideration of involuntary treatment cases at the Strasbourg court – a very important development. The structure of Article 8, with its qualifications to rights to privacy based on (most notably) public health and (in a small number of cases) public safety offers the potential for an interestingly nuanced discussion of involuntary treatment.
Whether Article 3 remains quite as closed as the above analysis suggests may, perhaps, be open to some question. A different panel of the Court has recently held that in a case where a person appropriate admission procedures were not followed in an individual’s admission (creating an Article 5 breach), treatment enforced did breach Article 3 as it was not demonstrably necessary: see Gorobet v Moldova, (Application no. 30951/10, judgment of 11 January 2012). How far this is a significant chink in the Herczegfalvy armour remains to be seen, and is a topic for another time.
The Article 8 findings
It was agreed by all parties that involuntary treatment engaged the right to private life protected by Article 8. The Court also held that the interference had a basis in domestic Finnish law. This was not sufficient to meet the Article 8 requirements, however. In addition, the domestic law had to be compatible with the rule of law:
In the context of forced administration of medication, the domestic law must provide some protection to the individual against arbitrary interference with his or her rights under Article 8. The Court must thus examine the “quality” of the legal rules applicable to the applicant in the instant case. [para 217]
This was not met, it would seem because the involuntary treatment flowed directly from the involuntary admission, and did not have a set of separate substantive and procedural safeguards:
The Court notes in the first place that section 22b of the Mental Health Act contains detailed provisions on the treatment of mental illness, and in particular, that it is for the physician attending to the patient to decide on the treatment to be given, regardless of the patient’s will. According to the preparatory works of that provision (see the Government proposal HE 113/2001 vp), a care order issued for an involuntary hospitalisation of a psychiatric patient is understood to contain also an automatic authorisation to treat the patient, even against his or her will. Even though the doctors may seek to obtain a person’s consent prior to the treatment, there is no obligation to have such consent in written form or to seek such consent from the patient’s relatives or guardian/trustee. If a patient refuses to give his or her consent or withdraws previous consent, the provision allows forced administration of medication. [para 218]
The Court further notes that the decision of the doctor was not subject to appeal. The court continued:
The Court considers that forced administration of medication represents a serious interference with a person’s physical integrity and must accordingly be based on a “law” that guarantees proper safeguards against arbitrariness. In the present case such safeguards were missing. The decision to confine the applicant to involuntary treatment included an automatic authorisation to proceed to forced administration of medication when the applicant refused the treatment. The decision-making was solely in the hands of the treating doctors who could take even quite radical measures regardless of the applicant’s will. Moreover, their decision-making was free from any kind of immediate judicial scrutiny: the applicant did not have any remedy available whereby she could require a court to rule on the lawfulness, including proportionality, of the forced administration of medication and to have it discontinued. [para 220]
On this basis, the Court held that there had been a violation of Article 8.
How big a move is this?
In a sense, we should not be surprised by the Court’s finding. The CPT standards have held for fourteen years that involuntary admission should not automatically result in the loss of rights to consent to treatment: see CPT/Inf (98) 12 para 41. While the CPT had, presumably, considered this to be a matter relating to Article 3 rather than Article 8, the Court’s decision in this context is hardly radical.
The Court further does not in this case begin to engage with the vexing question of when, if ever, involuntary treatment should be allowed. The CPT standards stop conspicuously short of an outright prohibition on compulsory treatment, noting instead that ‘every competent patient, whether voluntary or involuntary, should be given the opportunity to refuse treatment or any other medical intervention’ and that ‘any derogation from this fundamental principle should be based upon law and only relate to clearly and strictly defined exceptional circumstances.’ The Court, similarly, has not ruled out compulsory psychiatric treatment, although the language noted above does give a fairly clear steer that it is going to take violations of patients’ wishes seriously, requiring the sort of clear justifications proposed by the CPT. Indeed, it may be that the appeal to the Court for placing it in an Article 8 context is precisely because of the flexibility of that article in establishing standards for compulsion, taking into account other values and social needs contained in 8(2). While the United Nations Convention on the Rights of Persons with Disabilities may be highly restrictive of compulsory treatment (if indeed it allows it at all), there is still all to play for at the ECtHR on this point.
What does it mean for the Mental Health Act 1983?
Given the reasoning in the X case, there are cogent reasons to suspect that the Mental Health Act 1983 is in violation of Article 8. Like the Finnish act, the MHA 1983 includes a power to treat involuntarily as incidental to psychiatric detention. The medical professionals in the Finnish case were subject to some monitoring by judicial and quasi-judicial agencies (the National Authority and the Administrative Court), and these agencies expressly considered the desirability of X’s treatment under compulsion as part of their decision to detain. While an argument can be made for this for admissions under s3 of the MHA 1983, it does not apply for s2 admissions, where compulsory treatment is permitted while the patient is still under assessment. Even under s3, the question on admission is not whether treatment should be compelled, but merely whether appropriate treatment is available. On questions of substance, the provisions in section 8 of the Finnish act are significantly clearer than those of s 63, the section which applies to the significant bulk of people treated involuntarily. Section 63 contains no substantive or procedural protections or criteria for compulsory treatment at all: it says merely that the detained patient’s consent to treatment for mental disorder is not required. Any form of criterion enters English law only when s58 is triggered after three months, and then the criterion is merely that a SOAD certify that the treatment is ‘appropriate’. On this basis, the English act looks at least as vulnerable as the Finnish.
Does Wilkinson provide an appropriate judicial forum for appeals? It has generated a small handful of cases – about half a dozen reported in more than a decade – and in all, at all stages, the patient has lost. We now see more than 37,000 detentions under s2 and 3 per year. It is difficult to see that Wilkinson offers the sort of serious and practical legal challenge to involuntary treatment that the court in X would seem to want..
There can be little doubt that the legislature fluffed the reform process that commenced with the Richardson Committee Report in 1999. The problems of all those years ago have not by and large gone away, however, and will keep cropping up. X v Finland is a significant warning sign that the 1983 Act is vulnerable in its approach to involuntary treatment. It would be refreshing to see the government actually deal with the problem before an adverse ECHR judgment sends us tail-spinning into another half-baked response, as happened with HL and the DOLS.