The Human Rights Act

When public authorities make decisions that affect you they must pay proper attention to the Human Rights Act. Everytime government proposes a new law in Parliament it has to make a statement under the Human Rights Act about how the new law fits in with the Convention rights. This will include the new Mental Health Act.

Who does the Human Rights Act cover?

The HRA covers 'public authorities'. These include:
Government departments, local authorities, police, prison, immigration officers
public prosecutors, courts and tribunals, non-departmental public bodies or any person exercising a "public function", including voluntary organisations providing services under contract with local authorities and trusts

Which rights are covered in the HRA?

The UK did not adopt all of the rights of the European Convention on Human Rights to be enforceable under UK law. There are 16 basic rights in the HRA. The HRA incorporates Article 2 to 12 and 14 to 18 of the Convention plus Article 1 to 3 of the First Protocol to the Convention.

The Articles
Articles are divided into absolute, limited and qualified rights.

Absolute rights
Are rights of the European Convention on Human Rights that we have decided to adopt fully. These rights are not limited and they cannot be infringed no matter how necessary it might seem to do so. They are as follows:
Article 2: Right to Life
You have the absolute right to have your life protected by law. There are only certain very limited circumstances where it is acceptable for the State to take away someone's life, for example, if a police officer acts justifiably in self defence.

Article 3: Prohibition of Torture
You have the absolute right not to be tortured or subjected to treatment or punishment which is inhuman or degrading.

Article 4: Prohibition of Slavery and Forced Labour
You have the absolute right not to be treated as a slave or forced to perform certain kinds of labour.

Article 7: No Punishment Without Law
You normally have the right not to be found guilty of an offence arising out of actions which at the time you committed them were not criminal. You are also protected against later increases in the possible sentence for an offence.

Limited rights
Certain rights of the European Convention on Human Rights are limited in the UK by specific limitation. These are limited rights. They are as follows:

Article 5: Right to Liberty and Security
You have the right not to be deprived of your liberty - 'arrested or detained' - except in limited cases specified in the Article (for example, where you are suspected or convicted of committing a crime) and where this is justified by a clear legal procedure.

Article 6: Right to a Fair Trial
You have the right to a fair and public hearing within a reasonable period of time. This applies to both criminal charges against you, or sorting out cases concerning your civil rights and obligations. Hearings must be by an independent and impartial tribunal established by law. It is possible to exclude the public from the hearing (through not the judgment) if that is necessary to protect things like national security or public order. If it is a criminal charge you are presumed innocent until proved guilty according to law and have certain guaranteed rights to defend yourself.

Article 12: Right to Marry
Men and women have the right to marry and start a family. The national law will still govern how and at what age this can take place, and now includes same-sex marraiges and partnerships.

Qualified rights
Any infringement needs to promote a specific legitimate aim - in interests of national security, public safety etc. The infringement must be properly regulated by the law and must be necessary in a democratic society. This latter concept means the interference with the right must be a proportionate response to the legitimate aim. If the aim can be achieved by a less intrusive method then that method must be used instead. They are as follows:

Article 8: Right to Respect for Private and Family Life
You have the right to respect for your private and family life, your home and your correspondence. This right can only be restricted in specified circumstances.

Article 9: Freedom of Thought, Conscience and Religion
You are free to hold a broad range of views, beliefs and thoughts, as well as religious faith. Limitation are permitted only in specified circumstances.

Article 10: Freedom of Expression
You have the right to hold opinions and express your views on your own or in a group. This applies even if they are unpopular or disturbing. This right can only be restricted in certain circumstances.

Article 11: Freedom of Assembly and Association
You have the right to assemble with other people in a peaceful way. You also have the right to associate with other people, which can include the right to form a trade union. These rights may be restricted only in specified circumstances.

Article 14: Prohibition of Discrimination
In the application of the Convention rights, you have the right not to be treated differently because of your race, religion, sex, political views or any other status, unless this can be justified objectively. Everyone must have equal access to Convention rights, whatever their status.

Protocol 1, Article 1: Protection of Property
You have the right to the peaceful enjoyment of your possessions. Public authorities cannot usually interfere with things you own or the way you use them except in specified limited circumstances.

The Mental Health Act (MHA) has been challenged on several occasions for its compatibility with the Human Rights Act. Successful cases for breaches of human rights under the Mental Health Act have included:

• the European Court of Human Rights suggested that 8 weeks was too long for a patient on a section 3 to wait for his mental health review tribunal and breached Article 5. The MHRT should be heard as soon as reasonably practicable.
  
• following an MHRT in which the patient under section 3/41 was not discharged, an appeal was launched. The courts found found that both section 72 and 73 of the MHA breached Article 5 of the Human Rights Act. The wording of the sections has now been changed so that the MHRT must discharge the patient if it is not satisfied that the criteria for a section are met
  

In general, while the courts recognise the importance of respecting the medical professional judgments in implementing the Mental Health Act, the Human Rights Act has led to the court scrutinising the medical necessity of some treatments and the understanding of consent.