The European convention and mental health law in England and Wales: Moving beyond process?

in many developed legal systems mental disorder is regarded as a phenomenon requiring its own statutory framework. In this respect England and Wales is no exception. The Mental Health Act 1983 creates a special legal structure for the provision of care and treatment for mental disorder. Under this Act people with mental disorder can be detained in hospital and treated in the absence of their consent. These are significant powers which can involve a serious loss of individual liberty and as such they have engaged the interest of international human rights law, most particularly the European Convention on Human Rights (ECHR). Indeed one of the initial drivers behind the law reform agenda in England and Wales, begun in 1998, was the desire on the part of the government to ensure that domestic mental health law complied with the European Convention (Department of Health, 2000, para. 2.9). The New Labour government had just incorporated the Convention into UK law and certainly did not wish to be found immediately in breach. The first two Sections of this article provide a very brief account of the impact that the ECHR has already had on mental health law in England and Wales and describe the reform programme currently underway in that jurisdiction. The article then considers two particular aspects of the reforms which raise important substantive issues about the nature of mental health law in any jurisdiction and which might be expected to engage the interest of the European Convention.