The UK Government has been ordered by the European Court of Human Rights (ECHR) to pay compensation to a severely disabled British woman with Downs syndrome for detaining her illegally.
The woman, known only as MH, was taken into hospital in January 2003 on mental health grounds, initially for an assessment. However, when her mother tried to have her discharged, the hospital refused, saying that she would have been a danger to herself and others.
The authorities then went further and tried to have MH’s mother “displaced” as her nearest relative, which had the effect of extending her detention for an indefinite period, as during the 14-day period when she could have challenged her detention, she lacked the mental capacity to do so.
She was eventually released in the July but by then judicial review proceedings had begun against the Health Secretary, with lawyers for MH arguing that the lawfulness of her detention had been violated under article 5 of the European Convention on Human Rights because there was no provision under UK law for the automatic review of the detention of persons without legal capacity.
They also argued that there had been no provision for a patient, whether incapacitated or not, to take proceedings before a court or tribunal when the detention had been extended indefinitely.
Earlier this week the court in Strasbourg held unanimously that the UK had violated the woman’s right to liberty during the first four weeks of her detention and ordered the Government to pay her compensation of £3,730 (€4,400). She also received a similar sum for her legal costs.
The judges said that it is clear that special safeguards should be in place in the case of detained mental patients who lack legal capacity to institute proceedings before judicial bodies.