What is the Human Rights Act?
The Human Rights Act came into force on October 2 2000. It incorporates directly into English law most of the provisions of the European Convention on Human Rights.

What does the Act do?
The Act gives all persons certain basic human rights (which are known as "articles" and are listed at the end of the Act). Some are absolute rights and others are qualified, which means there may be situations where infringement of these rights are justified.

Who does the Act apply to?
The Act applies to all authorities undertaking public functions. This certainly includes the NHS and probably also include private sector mental health care providers looking after NHS patients.

What rights are relevant to mental health law?

Article 2 - the right to life;

Article 3 - the prohibition of inhuman and degrading treatment;

Article 5 - the right to liberty;

Article 6 - the right to a fair hearing;

Article 8 - the right to a private family life;

The First Protocol - the right to peacefully enjoy possessions.

Why are these rights relevant to mental health law?

Article 5 (the right to liberty) has an exception for the detention of persons of unsound mind. However, the European court of human rights in Strasbourg has already held that to be lawful such a detention must:

- be based on medical opinion;

- be a confinement for a mental disorder;

- continue only for as long as the mental disorder persists;

- be in accordance with the law - in the UK it must therefore be in compliance with the Mental Health Act.

The detention of patients under Sections 2 and 3 of the Mental Health Act (which allow patients to be detained for assessment and treatment) is likely to comply with these requirements. There are however doubts about detention under Section 136 (which allows the police to remove mentally disordered persons from a public to a safe place).

Whether any particular treatment is likely to breach Article 3 (the prohibition of inhuman and degrading treatment) will depend on the facts of the case. The European court has already considered whether force feeding a patient is inhuman and degrading (the court held it was not), and whether giving a patient a cheaper psychiatric drug with worse side effects than a more expensive one was inhuman treatment (the court ruled it was).

Article 8 (the right to private and family life) is likely to have implications for mental health in several areas. Patients are likely to rely on this article to ensure that they get visits by family and children, and long-term patients could use it to press for conjugal rights and to ensure that children are not detained without their parents' consent. This article may also be used to challenge powers of search (in conjunction with the right to the peaceable enjoyment of possessions).

Article 6 (the right to a fair hearing) will clearly be applicable to mental health review tribunal hearings, but it is likely that it will also be relevant to hospital managers' hearings. Although these hearings are intended to be informal, there will be an increased need to ensure that the principles of natural justice are observed and that the parties are on a level playing field. This may be done by ensuring that reports are available to everyone in sufficient time (and adjourning the hearing if this is not the case).

The most obvious implication of Article 2 (the right to life) is the issue of suicide. The European court has already held that the article requires hospital authorities to take positive steps to secure an individual's right to life. Where clinical practice permits attempted or actual suicide, this article is likely to be relied on as an additional or further basis for a claim.

So what will the courts do? Can't the Mental Health Act be relied upon?

The courts are required to interpret English law to give effect to the rights set out in the Human Rights Act. In doing so they must take account of European court cases. Existing English law (including the Mental Health Act) may, therefore, be interpreted differently from now on.

To give effect to human rights, the courts may make orders requiring authorities to take action, or refrain from acting in breach of the Human Rights Act. Where this is an insufficient remedy, they may also award damages. However, if a judge finds that it is impossible to construe existing English law to give effect to the Human Rights Act, he may make what is known as a "declaration of incompatibility" which authorises a minister of state to change the existing English law by statutory instrument.

(Andrew Parsons,Guardian Unlimited, Nov 2000)