Complete 6 page APA formatted essay: Individual Rights and the Law.
Download file to see previous pages…
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 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. These cases bring into focus the conflict between the individual’s right to liberty, now enshrined in The European Convention for the Protection of Human Rights and Fundamental Freedom (The Convention) and the duty of the state to protect its citizens from harm. We will now, consider three very important cases in this context.
The applicant Karl Anderson formerly known as Karl Tonner pleaded guilty to manslaughter on the basis of diminished responsibility at Dundee Sheriff Court in 1968 to an indictment containing a charge of culpable homicide in respect of assaulting a girl aged 12 and then killing her, . Tonner was charged with culpable homicide and in the High Court at Edinburgh, on 6 December 1968, the judge authorized his admission to, and detention without time limit in, the State Hospital at Carstairs under Section 55 of the Mental Health (Scotland) Act 1960 (“the 1960 Act”). On 8 July 1999 Anderson appealed to the Sheriff at Lanark under Section 63 of the 1984 Act for an absolute discharge under Section 64.
This appeal was based on the 2 August 1999 judgment was given in the case of Ruddle v. The Secretary of State for Scotland 1999 G.W.D. 29-1395. In this case Noel Ruddle appealed to the Sheriff under Section 63(2) of the Mental Health (Scotland) Act 1984.
He sought an order in terms of Section 64(1) (a) of that Act directing his absolute discharge.