scholarly journals Making Sense of Bournewood

2014 ◽  
Vol 1 (12) ◽  
pp. 17
Author(s):  
Robert Robinson ◽  
Lucy Scott-Moncrieff
Keyword(s):  
Mental Health ◽  
Human Rights ◽  
Mental Health Professionals ◽  
Health Professionals ◽  
European Convention ◽  
Effective Control ◽  
European Court ◽  
The Government ◽  
High Level ◽  
Article 5

<p>The judgment of the European Court of Human Rights in HL v UK has been understood by some commentators as making it unlawful, without the use of formal legal powers, to give treatment in a psychiatric hospital to a person who lacks capacity to consent and over whom the mental health professionals directly involved are exercising complete and effective control. This understanding follows from a reading of the judgment which equates complete and effective control with deprivation of liberty for the purposes of Article 5 of European Convention on Human Rights. If this interpretation is correct, the same principle would apply to people living in nursing homes who require a high level of care and supervision and who lack capacity. While the former could be formally detained in hospital (or a ‘registered establishment’) under the Mental Health Act 1983, the Act’s detention powers do not extend to other care settings.</p><p>This article suggests that to understand the European Court of Human Rights' judgment in HL v UK it is necessary to take account of the unusual facts of the case. It is suggested that it does not follow from the judgment that the admission of a compliant incapacitated patient will necessarily deprive that person of liberty for the purpose of Article 5. The Government’s initial responses to the judgment fails to distinguish admissions which do engage Article 5 from those which do not. It is suggested that the Government should provide guidance to assist mental health professionals and others to make this distinction in individual cases.</p>

Mental Health Professionals as Pawns in Oppressive Practices: A Case Example Concerning Psychologists’ Involvement in the Denial of Education Rights to Roma/Gypsy Children

2007 ◽  
Vol 9 (1) ◽  
pp. 14-24 ◽  
Author(s):  
Sonja Grover
Keyword(s):  
Mental Health ◽  
Human Rights ◽  
Mental Health Professionals ◽  
Health Professionals ◽  
Best Interests ◽  
Educational Placement ◽  
Intellectually Disabled ◽  
The Czech Republic ◽  
Educational Psychologists ◽  
European Court

This article examines a 2006 European Court of Human Rights judgment concerning educational discrimination against Roma children in the Czech Republic and the involvement of educational psychologists in the case. The court held the school to be the proper final arbiter on the question of the best interests of the child regarding educational placement. Based largely on culturally biased psychological testing results, the Roma children in question were declared mentally handicapped by educational psychologists. On that basis, they were placed in a segregated school for the intellectually disabled where the curriculum was quite deficient. Despite statistical evidence of the overrepresentation of Roma children in such segregated Czech schools, and of widespread discrimination against Roma in schools and in the larger society, the court rejected the claim that the children’s right to an education had been violated. The implication for psychologists and educators internationally, to avoid becoming pawns contributing to an oppressive human rights situation, is discussed.

Abortion for Foetal Abnormalities in Ireland; The Limited Scope of the Irish Government’s Response to the A, B and C Judgment

2013 ◽  
Vol 20 (2) ◽  
pp. 117-143 ◽  
Author(s):  
Stephen Donoghue ◽  
Claire-Michelle Smyth
Keyword(s):  
Human Rights ◽  
European Convention ◽  
Legal Abortion ◽  
Member States ◽  
Non Invasive ◽  
European Court ◽  
Margin Of Appreciation ◽  
Controversial Topic ◽  
The Government ◽  
Limited Scope

Abstract Abortion has been a controversial topic in Irish law and one which the Government has been forced to address following the decision of the European Court of Human Rights in A, B and C v. Ireland. The Working Group established to make recommendations have specifically been instructed to deal only with the issues raised in the A, B and C judgment and legislate on the basic of the ‘X case’. This restricted approach calls for legalisation of abortion only where the life of the mother is at risk, a position unique only to Ireland and Andorra within Europe. The vast majority of member states to the European Convention on Human Rights allow for legal abortion on the basis of foetal abnormality and with this emerging consensus the margin of appreciation hitherto afforded by the European Court to member states is diminishing. The advancement and availability of non-invasive genetic tests that can determine foetal abnormalities together with the ruling in R. R. v. Poland leaves Ireland in a precarious position for omitting any reference to foetal abnormalities in any proposed legislation.

Human rights in community psychiatry

2016 ◽  
Author(s):  
Genevra Richardson
Keyword(s):  
Mental Health ◽  
Human Rights ◽  
Community Mental Health ◽  
Mental Health Professionals ◽  
Global Mental Health ◽  
Mental Health Policy ◽  
European Convention ◽  
Health It ◽  
Persons With Disabilities ◽  
United Nations Convention

This chapter examines the increased concern for human rights within the global mental health policy agenda and considers what value human rights might add in relation to the use of coercion in community mental health. It describes the position underlying the European Convention on Human Rights (ECHR) and compares it with the more radical approach of the United Nations Convention on the Rights of Persons with Disabilities (CRPD). While the CRPD might be more challenging to mental health professionals, it contains within its principles that the wishes and preferences of the person be centre stage and as such deserve to be taken seriously in the provision of community mental health care.

Human rights

2015 ◽  
Author(s):  
Jamie Fellner
Keyword(s):  
Mental Health ◽  
Human Rights ◽  
Mental Health Professionals ◽  
Health Professionals ◽  
Health Staff ◽  
Mental Health Staff ◽  
Health Practitioners ◽  
International Issues ◽  
Correctional Mental Health ◽  
Policies And Practices

In this chapter, North American and international issues are reviewed covering the range of human rights issues, challenges, and controversies that exist in correctional mental health care. This chapter provides a brief overview of the key internationally recognized human rights that should inform the work of correctional mental health professionals. Human rights reflect a humanistic vision predicated on the foundation of human dignity, which complement the ethical principles of beneficence and non-maleficence. The human rights framework supports correctional mental health staff in their efforts to protect patients from harm and provide them the treatment they need. Human rights provide a universally acknowledged set of precepts that can be used during internal and external advocacy. Mental health professionals should not – consistent with their human rights and ethical obligations – acquiesce silently to conditions of confinement that harm prisoners and violate human rights. They are obligated not only to treat inmates with mental illness with independence and compassion, but to strive to change policies and practices that abuse inmates and violate their rights, even those that involve custodial decisions (e.g. segregation, use of force, restraints). In short, for practitioners who want improved policies and practices, human rights offers a powerful rationale and vision for a different kind of correctional mental health services. The more correctional mental health practitioners embrace and advocate for human rights, the greater the likelihood prisoners’ rights will be respected.

scholarly journals The United Kingdom’s Coronavirus Act, deprivations of liberty, and the right to liberty and security of the person

2020 ◽  
Vol 7 (1) ◽  
Author(s):  
Jonathan Pugh
Keyword(s):  
Public Health ◽  
Human Rights ◽  
European Convention ◽  
Human Rights Law ◽  
Legal Certainty ◽  
The Public ◽  
European Court ◽  
The Uk ◽  
The Right ◽  
Article 5

Abstract In response to the SARS-CoV-2 coronavirus pandemic the UK government has passed the Coronavirus Act 2020 (CA). Among other things, this act extends existing statutory powers to impose restrictions of liberty for public health purposes. The extension of such powers naturally raises concerns about whether their use will be compatible with human rights law. In particular, it is unclear whether their use will fall within the public heath exception to the Article 5 right to liberty and security of the person in the European Convention of Human Rights. In this paper, I outline key features of the CA, and briefly consider how the European Court of Human Rights has interpreted the public health exception to Article 5 rights. This analysis suggests two grounds on which restrictions of liberty enforced some under the CA might be vulnerable to claims of Article 5 rights violations. First, the absence of specified time limits on certain restrictions of liberty means that they may fail the requirement of legal certainty championed by the European Court in its interpretation of the public health exception. Second, the Coronavirus Act’s extension of powers to individuals lacking public health expertise may undermine the extent to which the act will ensure that deprivations of liberty are necessary and proportionate.

scholarly journals MIGRANTS IN DETENTION: APPROACH OF THE EUROPEAN COURT OF HUMAN RIGHTS

TEME ◽  
2020 ◽  
pp. 957
Author(s):  
Veljko Turanjanin ◽  
Snežana Soković
Keyword(s):  
Human Rights ◽  
Main Part ◽  
European Convention ◽  
European Court ◽  
Fundamental Freedoms ◽  
The Mediterranean ◽  
Migration Crisis ◽  
The One ◽  
Article 5

The Mediterranean migrant crisis is not calming down and in the last six decades the nature and character of these migrations has changed. The authors deal with the one of the aspects of their position – detention. This work is divided into several parts. In the first part, the authors explore the problem of the migration crisis. After that, they explain in detail an Article 5 of the European Convention on Human Rights and Fundamental Freedoms. The main part of this work is devoted to the jurisprudence of the European Court of Human Rights related to the migrant’s detention.

scholarly journals The problem of applying reservations to international human rights agreements

2021 ◽  
pp. 68-73
Author(s):  
Ivanna Maryniv ◽  
Liubov Rudai
Keyword(s):  
Human Rights ◽  
International Law ◽  
Legal Regulation ◽  
European Convention ◽  
Effective Control ◽  
International Treaties ◽  
International Human Rights ◽  
European Court ◽  
Human Rights Treaties ◽  
International Human

A problem statement. Human rights law, as a branch of public international law, to date, is mainly codified and consists mainly of treaty rules contained in universal and regional conventions. At the same time, in most cases, the parties to these agreements make reservations of both a substantive and procedural nature that apply to all generations of human rights. The question arises as to the legitimacy of the reservations declared by states to international acts on human rights and freedoms. Аnalysis of research and publications. Many international lawyers deal with the issue of reservations to human rights treaties and their validity. Thus, the works of E.S. Alisievich, are devoted to this issue, I.I. Lukashuk, V.G. Butkevich, V.L. Tolstoy, M.V. Buromensky and others. However, there are a number of problems with the legal regime of reservations to human rights treaties. The main thesis that reveals their essence is that there is no mechanism for effective control over the legitimacy of such reservations. The main text. The article considers the concept of reservations to international treaties, examines the problem of issuing reservations to international human rights treaties. The application of the institution of reservations is studied on the example of certain international treaties in the field of human rights, such as: the European Convention on Human Rights, the Convention on the Elimination of All Forms of Discrimination against Women, the African Charter on Human and Peoples’ Rights. The case law of the European Court of Human Rights on the application of reservations to the European Convention on Human Rights is studied. Conclusions. Today, the sovereign right of every state to stipulate international treaties is firmly established in international law, but there is no clear legal regulation of this institution that would prevent abuses by states in this area. We see the need to further study the institution of reservations to human rights treaties, its development and the development of general principles, procedures, and control over their legitimacy.

Emergencies and Equivocality Under the Inherent Jurisdiction: A Local Authority v BF [2018] EWCA CIV 2962 and Southend-On-Sea Borough Council v Meyers [2019] EWHC 399 (FAM)

2019 ◽  
Vol 27 (4) ◽  
pp. 675-686
Author(s):  
Amber Pugh
Keyword(s):  
Human Rights ◽  
Local Authority ◽  
European Convention ◽  
European Court ◽  
Borough Council ◽  
Level I ◽  
Article 5 ◽  
Vulnerable Adults ◽  
Court Of Appeal

Abstract In A Local Authority v BF [2018] EWCA Civ 2962, the Court of Appeal refused to grant permission to appeal against an interim judgment that deprived a capacitous man, Mr Meyers, of his liberty. The deprivation of liberty was held to be justified on the basis that there was evidence suggesting that he was of unsound mind under Article 5(1)(e) of the European Convention on Human Rights and, in any event, it was an emergency which temporarily obviated the need to establish that he was of unsound mind. In this commentary, I argue that the decision was flawed in two respects. First, the need to establish ‘unsound mind’ could not be dispensed with because it was not an emergency and, secondly, the Court’s interpretation of ‘unsound mind’ was overly broad and cannot be reconciled with the jurisprudence of the European Court of Human Rights. Subsequently, in Southend-On-Sea Borough Council v Meyers [2019] EWHC 399 (Fam), which was the substantive hearing of Mr Meyers’ case, Hayden J made an order preventing Mr Meyers from living with his son, with the decision being framed as a restriction on movement rather than a deprivation of liberty. I contend that the restrictions placed on Mr Meyers may amount to a deprivation of liberty. On a broader level, I argue that the use of the inherent jurisdiction to deprive vulnerable adults of their liberty is incompatible with Article 5, and that these cases demonstrate the potential for draconian decisions to be made when using a jurisdiction with shifting parameters to protect adults who are deemed to be ‘vulnerable’, a concept that is equivocal in nature.

Advocacy beyond litigation: Examining Russian NGO efforts on implementation of European Court of Human Rights judgments

2012 ◽  
Vol 45 (3-4) ◽  
pp. 255-268 ◽  
Author(s):  
Lisa McIntosh Sundstrom
Keyword(s):  
Human Rights ◽  
European Convention ◽  
Military Operations ◽  
North Caucasus ◽  
Russian Government ◽  
The North ◽  
European Court ◽  
Police Detention ◽  
High Level ◽  
The Impact

This article examines the ways in which various Russian NGOs, involved in litigation at the European Court of Human Rights (ECtHR), have worked to advocate for improved domestic implementation of rulings made by the Court. The paper traces these advocacy activities in four key problem areas for Russia’s implementation of the Convention: (1) domestic judges’ knowledge and citation of the European Convention or ECtHR case law; (2) the execution of domestic court judgments by Russian state bureaucratic bodies; (3) extrajudicial disappearances and killings in anti-terrorist military operations in the North Caucasus; and (4) torture or inhumane treatment in police detention. The author finds that the impact Russian NGOs can have upon domestic implementation depends greatly upon the professional cultures and incentives of the actors involved as well as whether or not prevention of violations is compatible with other high-level Russian government agendas.

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