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Title: An examination of the rights of the mentally disordered in English law in the context of Articles 3 and 5(I) of the European convention of Human Rights and Fundamental Freedoms
Author: Davidson, L. A.
Awarding Body: University of Cambridge
Current Institution: University of Cambridge
Date of Award: 2004
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This thesis examines the rights of the mentally disordered in English law under Articles 3 and 5(1) of the European Convention on Human Rights and Fundamental Freedoms (ECHR). The primary sources have been examined in depth, and general principles traced back through the relevant cases to their original contexts. Inconsistencies, weaknesses, and difficulties in the interpretation of these Articles have been highlighted in a critique of the ECHR jurisprudence. The Convention recently incorporated into the law of England and Wales of the ECHR by way of the Human Rights Act 1998, is used as a framework for a discussion of the legal rights of those with suspected or diagnosed mental disorder in the United Kingdom, which may be adversely affected by way of state intervention. The ECHR jurisprudence is applied also to the government’s recent proposals concerning those with mental disorder. The thesis considers not only how mental health law may affect human rights, but also how human rights violations may themselves adversely affect mental health. It is in two Parts, dealing first with Article 3, and then with Article 5(1). Article 3 protects against torture, inhuman or degrading punishment or treatment. Treatment contrary to this Article may cause mental disorder. With regard to the mentally disordered specifically, this Article may apply also in the context of, for example, the kind of institution in which they are detained, its regime, or the type of sentence imposed on mentally disordered offenders. It is submitted that Article 3 will become increasingly important in the ECHR’s jurisprudence in the future as standards considered to be ‘acceptable’ evolve. Part II examines Article 5(1), which governs the right to liberty and security of the person. The focus is on sub-paragraphs (a) and (e) concerning, respectively, the detention of offenders and those of “unsound mind”. Article 5 is critical for those who are compulsorily detained, and has led to a great deal of jurisprudence. For the mentally disordered, Article 5(1) requires scrutiny of issues such as the provision of treatment, appropriate environments, and the containment of the untreatable -topical themes at the crux of the English legislation and common law principles governing the detention of the mentally disordered.
Supervisor: Not available Sponsor: Not available
Qualification Name: Thesis (Ph.D.) Qualification Level: Doctoral
EThOS ID:  DOI: Not available