England's Human Rights Act Leads to More Mental Health Law Litigation, Better Protections, Says Gledhill
No area of British law has been affected by the Human Rights Act of 1998 more than mental health law, according to Kris Gledhill '85, a University of Virginia LL.M. alumnus who spoke at the Law School Sept. 8 about the impact of human rights law on mental health. The Institute of Law, Psychiatry and Public Policy, the J.B. Moore Society of International Law, and the Human Rights Program sponsored the lecture.
"In five years, we've had a fundamental change to our mental health law as a direct result of the incorporation of the European Convention on Human Rights," said Gledhill. "Previously, you had cases where it took [9 years] to get the law changed. We've cut that down considerably. It demonstrates in my view that where you have vulnerable groups in society, frankly, you need a bill of rights document in place to ensure the basic fundamental safeguards that should be respected."
Gledhill, a barrister with Camberwell Chambers in London, outlined the human rights situation in England before the development of the Human Rights Act of 1998, which was put into action in October 2000. Before this instrumental act, there were no concrete human rights laws in England save for those outlined under European Convention case law. However, there were instances of domestic lawyers willing to take human rights cases to the European Court of Human Rights in Strasbourg, France.
The Act, however, changed the landscape of human rights law in England. "When you introduce a piece of human rights legislation, which is effectively a bill of rights, to a developed, civilized legal system with public funding available, then you're going to have an explosion of litigation," said Gledhill.
The Act stated that the jurisprudence of international law under the European Commission is not a binding precedent; instead, the Commission's rulings will be followed in practice unless there are good reasons not to do so. Section 2 of the Act stresses that "so far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention Rights." The Act also established the notion of Declarations of Incompatibility, which provide "an authoritative court ruling that legislation needs to be amended," according to Gledhill.
"[This] is a definitive statement by the [European] High Court and above that the legislation breaches the requirements of the European Convention," said Gledhill.
The fourth manner in which the European Convention is made part of domestic law is through Section 6 of the Act, which notes that "it is unlawful for a public body to breach convention rights." This section created a new tort giving the courts the power to issue injunctions and declarations and award damages in cases where public bodies have breached the human rights.
As a result, the Human Rights Act has had an enormous impact in "[bringing] international law down into the domestic arena," Gledhill said, especially in regards to the mental health laws of the United Kingdom. Since the implementation of the act, there have been five Declarations of Incompatibility. Two of these led to amendments to England's Mental Health Act of 1983 and three are still outstanding, according to Gledhill. The issues involved in these declarations ranged from the question of detaining those of "unsound mind" to the proper channels for changing a patient's guardian.
Gledhill stressed the continued importance of human rights not only for the United Kingdom, but for the world. "In the times that we're living in at present, where we have terrorist threats, where we have responses to terrorist threats by governments, it demonstrates again the importance of having fundamental principles at play which are immutable, which say there are basic human rights which have to be guaranteed because otherwise there is too great a risk of things going badly wrong," he said.
In a later interview Gledhill suggested that the immediate future of human rights and mental health law will be a struggle between those who recognize that society's disadvantaged need a voice and those who want to restrict the freedoms of all mentally disordered individuals for the sake of eliminating the risks posed by a small minority. "[These] are two strands which pull in opposite directions," he said. "It will be a question of which becomes more prominent."
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