In case you haven’t already visited the University of Nottingham’s Mental Health and Capacity Law blog, can I point you towards two great blog posts on two great ECtHR rulings. The first is X v Finland, a case concerning the application of Article 8 ECHR to forced treatment. The ruling found that because forced treatment was an interference with a person’s Article 8 rights, ‘the domestic law must provide some protection to the individual against arbitrary interference with his or her rights under Article 8’ . The court was particularly concerned that ‘the applicant did not have any remedy available whereby she could require a court to rule on the lawfulness, including proportionality, of the forced administration of medication and to have it discontinued’ . Over at the Mental Health and Capacity Law Blog it is suggested that this may have repercussions for compulsory treatment under the Mental Health Act 1983, because although we have – on paper – Wilkinson hearings, ‘It is difficult to see that Wilkinson offers the sort of serious and practical legal challenge to involuntary treatment that the court in X would seem to want.’
The second important case the Nottingham bloggers report is Đorđević v Croatia. This case concerned a man with learning disabilities who had suffered disability related harassment from local schoolchildren. Although the police had investigated, the children were too young to prosecute, and the authorities had made no serious attempts to tackle the problem. The court found that this amounted to a violation of Article 3 ECHR – a very important finding because, as Nell Munro writes, the ECtHR rarely finds positive obligations in Article 3, and ‘Nothing about the facts make it stand out as a case which could only occur in Zagreb, or Croatia, or in a Central European country. It could easily occur in London, or Copenhagen or Paris.’ Readers may remember the rather depressing Court of Appeal ruling in X v Hounslow (2009), where a council had failed to take action to help a family where the parents had learning disabilities who were the subject of ongoing serious harassment and abuse by a local gang of youths, resulting in an horrific attack on the entire family one weekend. For reasons I’ve never entirely fathomed, although the Court of Appeal said that it was alleged that the council had ‘acted in a manner incompatible with the claimants’ rights under articles 3 and 8′, the human rights arguments were never discussed in the judgment, which focussed on why no duty of care was found to exist. X and Y appealed to the ECtHR and the UK government settled, so we never did get to examine whether the state had positive obligations to take steps where people were subject to disability related harassment like this. But Đorđević v Croatia strongly suggests that they do; it will be interesting to see if any domestic policy developments, or domestic litigation, arises out of this case.
And the final bit of news, is that Hillingdon Borough Council were ordered to pay £35,000 to Steven Neary in compensation for his unlawful detention in 2010. It’s good news that the compensation issue was treated seriously in this case, although clearly it can’t make up for what Steven and his family went through. I was curious what the case might have cost the council in total… watch this space. The sad thing is that whilst compensation can be helpful to the victims in both a practical sense and in recognition of the wrong that was done to them, it’s still money that’s coming out of local authority budgets. Let’s hope high legal costs have a deterrent effect, and encourage local authorities to consider investing in good Mental Capacity Act, DoLS and human rights training! A stitch in time saves nine, and all that.
And finally, this isn’t news of any kind, but an appeal for information if you’ve got nothing better to do with your time. I should emphasise that I’m asking for this information in a totally self-interested way to tidy up a section of my thesis, and that my need for it arises entirely from my own ignorance and I might be missing something really obvious, so please feel free to tut and ignore. I was re-reading Masterman-Lister v Brutton & Co  the other day, and in particular paragraph 17 leapt out at me. On my reading, it seems to suggest that compliance with Article 6 ECHR requires that litigation capacity must fall to be determined by a court, and with medical evidence. Additional requirements could, I think, be read into Stanev v Bulgaria (in particular, see paragraphs 229 – 246), regarding direct rights of access to the court for people who are said to lack capacity. But it seems to me that the Civil Procedure Rules (in particular Rule 21.5) and the Court of Protection Rules 2007, don’t make any specific requirements along these lines, and I’m not sure how ‘real and effective’ the provisions to terminate the appointment of litigation friends are in light of the fact a person would probably need assistance – legal and financial – to make an application to the court and provide the requisite evidence? And what are the safeguards on the quality of litigation friends’ decisions? I’ve drawn up a list of questions, and if you’ve just got far too much time on your hands and have any comments on what happens in practice (or any important bits of paper I’ve overlooked), then I’d really appreciate your thoughts.