PubMed · 17133677
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Adam James. 2006. Mind the gaps.. https://pubmed.ncbi.nlm.nih.gov/17133677/
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PURPOSE: To extensively review the European Court of Human Rights (ECHR) case law concerning psychiatric commitment, and to estimate the role of this supranational jurisprudence in the practice of contemporary psychiatry. METHOD: Using keywords to search the ECHR computerised database "HUDOC", we reviewed all cases concerning psychiatric commitment registered between September 1953 and December 31, 2004. Four groups were identified: applications declared inadmissible; applications accepted but not judged by the Court; pending cases; and cases judged by the Court. RESULTS: Of the almost 118,000 decisions taken by the ECHR in this time frame, we found 108 situations concerning psychiatric commitment. 41 of these applications were considered by the Court to be inadmissible. 24 other cases were considered admissible but not judged by the ECHR. Three admissible cases were still pending at the end of 2004. The ECHR judged 40 cases, and found in 35 of them that one or several rights as guaranteed by the Convention had been violated. DISCUSSION: The ECHR protects the human rights of persons subjected to involuntary psychiatric commitment by creating supranational law in the following areas: definition of "unsoundness of mind"; conditions of lawfulness of detention; right to a review of detention by a Court; right to information; right to respect for private and family life; and conditions of confinement, which address inhuman and degrading treatment. The respective number of applications submitted to the ECHR did not depend on when the Convention had entered into force in that country. CONCLUSION: The possibility of an individual to access the ECHR depends on the degree of democracy in his country and on the access to legal assistance through non-governmental organisations or individual intervening parties.
In seventeen states, persons convicted of one or more sexually violent offenses may be involuntarily civilly committed at the end of their criminal terms if they suffer from a mental disorder that renders them likely to reoffend sexually. These statutes place the burden on states to show that the sex offender meets the United States Constitutional standard of dangerousness. The key to proving dangerousness is proof of a mental disorder. However, the United States Supreme Court recently found that the offender need not be mentally ill. He need only "suffer" from "mental abnormality" or "personality disorder" that affects his cognitive, emotional or volitional capacities such that he is highly likely to sexually reoffend. These statutes are expressions of disgust: a fear of contamination by persons who engage in sexual conduct that forces us to confront our dark impulses. We do not merely hate the sin; we hate the sinner, and we want the sinner to be removed from our presence. Moreover, the emotions these statutes express are the source of widespread moral panic not warranted by data about recidivism risk. Laws that express disgust are likely to result in the unjust treatment of sex offenders.
Specialised mental health legislation typically provides for the hospitalisation and treatment of those with mental disorders in the absence of their consent. The article examines the possible justifications for the existence of these special powers and argues that two of the most common justifications, the protection of the patient and the protection of others, do discriminate against those with a mental, as opposed to a physical, disorder. The relationship between mental health and mental capacity, or guardianship, legislation is then considered and possible ways forward are discussed with particular reference to the current reform debate in England and Wales.