The Third Way in Mental Health Policy: Negative Rights, Positive Rights, and the Convention

Mentally disordered patients may be said to have rights in two senses: negative rights to freedom from arbitrary detention or interference with their person; and positive rights to expect a certain minimum standard of service, be that in terms of treatment as an in‐patient, or as a patient in the community. The Labour government has appointed a ‘scoping group’ to carry out a root‐and‐branch review of the Mental Health Act 1983. The 1983 Act was mainly concerned with in‐patient treatment. The group is to look at the scope for introducing further compulsory powers in the community, enhancing the rights of carers and relatives, and is to take account of recent British and Strasbourg case law. The primary impact of the Convention on psychiatric patients has been in relation to protection against arbitrary detention under Article 5, unsoundness of mind being one of the permitted grounds of deprivation of liberty under Article 5(1)(e). This article explores the potential impact of Convention rights in developing what Gostin referred to in the early 1980s as a ‘new legalism’. The new legalism linked concern for traditional rights to due process and review by the courts or other external bodies with the ‘ideology of entitlement’ to adequate treatment and services. The article outlines the current policy context of mental health services and looks at the development by the European Court of Human Rights of positive Convention rights to services out of Article 5, whose purpose seems at first sight to be the protection of due process rights. It examines the relevance of Convention rights to community powers.