3 Council of Europe Recommendation
on the protection of the human rights and dignity of persons with
mental disorder
16. Council of Europe Recommendation 2004/10
is concerned with enhancing the protection of the human rights
of people with mental disorder.[13]
The UK entered a reservation to the Recommendation when it was
adopted.
17. In a written answer in the House of Lords
on 1 October 2007, Professor the Lord Darzi of Denham, Parliamentary
Under Secretary of State at the Department of Health, explained
the reason for the UK reservation as follows:
Because the Government were in the process of revisiting
important aspects of legislation in England and Wales on mental
health and mental capacity, it was at the time not in a position
to identify definitively whether there were specific points in
the recommendation on which it might wish to reserve its right
not to comply.[14]
18. We wrote to the Department of Health on 12
November 2007 to find out whether it intended to withdraw its
reservation to the Recommendation, following the enactment of
the Mental Capacity and Mental Health Acts.[15]
We drew attention to three aspects of the legislative regime for
mental capacity and mental health which, in our view, may be incompatible
with the Council of Europe Recommendation:
- extension of detention, or
a Community Treatment Order, need not be authorised by a doctor,
which may conflict with Article 20(4) of the recommendation;
- a Community Treatment Order may be imposed on
a patient without seeking the authority of hospital managers or
another competent authority, which potentially conflicts with
Article 20(2) of the recommendation; and
- the lack of a second opinion safeguard in relation
to forcible feeding when given as a treatment for the symptoms
or consequences of mental disorder appears to be in conflict with
the provisions of Article 28(1) of the recommendation.
19. Ivan Lewis MP replied on 29 November 2007.[16]
He said that a decision on the UK's reservation to the Council
of Europe Recommendation would be made "once we have completed
the necessary consultation within Government and with the devolved
administrations". He argued that "legislation and practice
in England and Wales already reflect the spirit of the guidelines
in the Recommendation and, to a large degree, their letter as
well". However, there is one area of substantive disagreement.
The Minister confirmed that "the Government disagrees with
the assumption, implicit in the Recommendation's explanatory report,
that 'objective medical expertise' (as required by the European
Convention on Human Rights) can only be provided by a doctor".
He continued:
Without pre-judging our conclusion on the reservation
to the Recommendation in general, this is one area in which we
will not be 'adapting' the law in order to be consistent with
the letter of the guidelines in the Recommendation.
20.
We have previously made it clear that we disagree with the Government's
policy that objective medical evidence of mental disorder can
be provided by health professionals other than doctors. We look
forward to receiving details of the outcome of the Government's
review of its reservation to the Council of Europe Recommendation.
13 Recommendation No. Rec(2004)10 of the Committee
of Ministers to member states concerning the protection of the
human rights and dignity of persons with mental disorder. Back
14
HL Deb, 1 Oct 07, c172WA. Back
15
Appendix 1. Back
16
Appendix 2. Back
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