Death of the Nearest Relative? Carers’ and Families’ Rights to Challenge Compulsion under Current and Proposed Mental Health Legislation

Abstract

This article explores the scope of carers and family members’ current entitlements to be involved in decisions about the use of compulsion under mental health legislation and the impact of the European Convention on Human Rights on these rights. It then examines the proposals in the Draft Mental Health Bill in relation to family rights, the recommendations of the Joint Parliamentary Scrutiny Committee concerning carers and nominated persons and the Government’s response to these recommendations. It will be argued that the 2004 Draft Bill would represent a significant erosion of the rights of families, which is potentially profoundly antitherapeutic where a public safety agenda based on risk management predominates. It would involve a major shift in the boundary between the public and the private sphere, which is of constitutional significance, and it is argued that the Government should follow the recommendations of the Joint Parliamentary Scrutiny Committee.