Requirement that Patient comply with Mental Health Treatment does not Necessarily Interfere with Right to Privacy and Respect for Family Life
R (on the application of H) v Mental Health Review Tribunal [2007] All ER (D) 29 (Apr)
The claimant was the subject of hospital and restriction orders under the Mental Health Act 1983 (UK). The Mental Health Review Tribunal reviewed the claimant’s position and subsequently ordered the claimant’s discharge under s 73 of the Act on the condition that, amongst other things, the claimant ‘shall comply’ with medication prescribed by a specified doctor. The claimant applied for revocation of this and other conditions and sought an order for absolute discharge on the basis that it interfered with his right under art 8 of the European Convention on Human Rights which provides that ‘[e]veryone has the right to respect for his private and family life, his home and his correspondence’.
The claimant was the subject of hospital and restriction orders under the Mental Health Act 1983 (UK). The Mental Health Review Tribunal reviewed the claimant’s position and subsequently ordered the claimant’s discharge under s 73 of the Act on the condition that, amongst other things, the claimant ‘shall comply’ with medication prescribed by a specified doctor. The claimant applied for revocation of this and other conditions and sought an order for absolute discharge. The claimant wanted to show a willingness to take the medication, free from the requirement to do so. The claimant argued that the condition should be revoked because conditions are subject to the principle of legality and that requiring the claimant to comply with the condition: • interfered with his common law right of ‘absolute choice’ in relation to medical treatment; and • interfered with his right under art 8 of the European Convention on Human Rights which provides that ‘[e]veryone has the right to respect for his private and family life, his home and his correspondence’. The Queen’s Bench Division (Administrative Court) decided that the principle of legality did apply. They also held, however, that the Mental Health Review Tribunal would have meant for the condition to be read as being subject to the real consent of the claimant, because it was trite law that an adult of full capacity has the right of ‘absolute choice’ in relation to medical treatment and that a doctor had to be satisfied that they received real consent from their patient. Therefore, the Court held that the condition that the claimant ‘shall comply’ with medication prescribed by a specified doctor does not require the claimant to take the prescribed medication, but rather to consider the consequences of not taking the medication in deciding whether or not to consent. Accordingly, the Court held that the condition did not interfere with the claimant’s common law right of ‘absolute choice’ in relation to medical treatment or his right under art 8 of the European Convention to respect for his private and family life, his home and his correspondence. The Court clarified that, except in emergency situations, failure to comply with a condition does not mean that the order of conditional discharge is automatically revoked. The order can only be revoked, and the person the subject of the order consequently detained, if up to date medical evidence indicates that the criteria for detention are satisfied. Leana Papaelia, Human Rights Law Group, Mallesons Stephen Jaques
Landmark decision ordering Shell to cut CO2 emissions from its global operations by 45% overturned by Hague Court of Appeal
On 12 November 2024, the Court of Appeal of the Hague overturned the landmark 2021 decision of the District Court of The Hague (District Court) in Milieudefensie et al v Royal Dutch Shell, which had ordered Shell to cut CO2 emissions from its global operations by 45% by the end of 2030.
Read more
Young campaigners landmark victory for children’s rights as new coal-fired power generation deemed unconstitutional in South Africa
The High Court of South Africa ruled that the government’s plans to add 1,500 megawatts of new coal-fired power stations were “unlawful and invalid”. In a youth-driven petition brought by three civil society organisations, the Court found that the plans failed to adequately consider the impacts of coal-fired power on children’s rights, particularly their constitutional right to a healthy environment.
Read more
Tribunal found Southern Restaurants imposed unreasonable conditions on a young breast-feeding mother leading to a finding of discrimination
A young breastfeeding mother was found to have been discriminated against by her employer and awarded $90,000 in compensation.
Read more
Acknowledgement of Country
The Human Rights Law Centre acknowledges the Traditional Owners of the lands across Australia, including the lands of the Wurundjeri, Boon Wurrung, Gadigal, Ngunnawal, Darug and Wadawurrung people where we work from.
We pay our respect to Elders past and present. This land always was, and always will be Aboriginal and Torres Strait Islander land. Sovereignty has never been ceded.
WARNING: This site contains images or names of people who have passed away.