The European Convention on Human Rights was produced after the Second World War by the Council of Europe. The document outlines human rights and the freedoms every person should have including “the right to life, the right to liberty and the right to free expression” (BIHR, June 2006 p. 7) Following this, and in order to enforce the rights highlighted by the Council of Europe, The Human Rights Act came into effect in October 2000. This act means that public authorities in the UK, including Social Services, The NHS and the Government are obliged, by law, to follow the principles set out by the act to ensure protection of the public. It also means private organisations carrying out a public functions; such as charities, private care homes and private hospitals are required to give similar standards of care to those provided by public authorities. The rights highlighted in the act are split into three sections; absolute rights, limited rights and qualified rights. Absolute rights must never be restricted or limited, limited rights can be restricted or limited under certain circumstances and qualified rights can be restricted in order to protect the wider community or the rights of other people. (BIHR, June 2006 p. 8-9) Often rights are, or potentially could be, restricted for patients who have been detained under The Mental Health Act 1983.
Patients are “sectioned” under the MHA when they are considered to be suffering from a mental disorder and lack capacity of the mind. The Mental Health Act part IV states that health care professionals are able to enforce treatment on patients who are detained under certain sections of the MHA, this doesn’t include patients who are detained under “emergency” sections, which can only be used for short term detention (max 72 hours) to enable health care professionals to do a rapid assessment of a person’s mental state (Dawson, 2009). Certain treatments can often be seen as inhumane or degrading if enforced on a patient with mental capacity, which is a breach of The Human Rights Act. When deemed medically necessary and enforced on a patient who is lacking mental capacity and sectioned under the MHA there is no breach of the HRA as long as the treatment(s) is considered to be appropriate for the mental disorder the patient is suffering from, not held in place for longer than necessary, the least intrusive option for the patient and the patients best interests have been considered before the treatment is put into practice (BIHR, June 2006 p. 9-16).