Mental health policy and practice across Europe: an overview

A human rights perspective 331
Article 8 covers a broad range of areas relevant to detainees, such as the
administration of medical treatment, personal searches, receiving and sending
correspondence, mixed-sex wards and/or bathroom facilities, access to health
and personal records, contact with family and friends and the duty of confidentiality
(staff must be required to keep personal information relating to
detainees confidential).
The CPT Standards recommend that individuals in mental health facilities
should be able to send and receive correspondence, to have access to a telephone,
and to receive visits from family and friends. They should also be able
to have confidential access to a lawyer. REC(2004)10 seeks to reflect these
points, stating that individuals’ rights to communicate with their lawyers,
representatives or appropriate authority should not be unreasonably restricted.
The Explanatory Memorandum to REC(2004)10 makes clear that any such
restrictions should only be in exceptional circumstances, such as to prevent a
criminal offence.
Given that people confined in institutions are particularly vulnerable to
abuses of their basic rights, the CPT has recommended that regular visits
should be made to psychiatric establishments by an independent outside body.
REC(2004)10 has adopted some specific recommendations of the CPT in relation
to such monitoring. Thus, Article 37 states that those involved in monitoring
should be able to meet privately with individuals who are subject to the
provisions of mental health law and receive confidential complaints from such
individuals.
The CPT also recommends that detainees and their families should be given
an introductory brochure setting out the psychiatric facility’s routine and the
patients’ rights.
Protection of life and prevention of ill-treatment
Given the vulnerable position of detainees, authorities are under a duty to protect
them from harm. For example, the CPT Standards state that appropriate
procedures must be in place to protect patients from other patients who may
cause them harm and there should be adequate numbers of staff present at all
times.
Case law under the ECHR has established that states have a duty to protect the
health of detainees (Hurtado v. Switzerland 1994) and that the lack of medical
treatment may amount to treatment contrary to Article 3 (prohibition of torture
and inhuman and degrading treatment and punishment) (Ilhan v. Turkey 2002).
Furthermore, Article 2 (the right to life) can impose a duty to take preventative
measures to ‘diminish the opportunities of self-harm’ (Keenan v. United Kingdom
2001). An independent investigation must take place where a person has died in
circumstances which might amount to a breach of Article 2 or has an arguable
claim that the individual has been seriously ill-treated in breach of Article 3.
Such an investigation must be capable of leading to the identification and
punishment of those responsible (Assenov & Others v. Bulgaria 1998).
In Keenan v. United Kingdom (2001) the European Court of Human Rights
held that there had been a lack of both effective monitoring and informed
psychiatric input into the assessment and treatment of a 28-year-old prisoner,