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Doubt cast on the human rights of the mentally ill in court

High Court judges who do not allow people with mental health issues to express their views in court may be breaching their human rights, a group of lawyers has claimed.

Judges in the Court of Protection do not always allow people suffering from mental illness to give evidence, the group said in a submission to peers who are examining the Mental Capacity Act 2005.

While some judges do engage with the mentally ill by visiting them or allowing them to contribute to hearings, others do not, the Independent reports.

The group of solicitors and barristers noted:

“There is marked variation in the willingness of judges to meet P [the patient] and allow P to give evidence, or put across his/her views in whatever way is . We have considerable doubts that the current system which does not presume that judges should have ‘personal contact’ before making decisions about their capacity or best interests is compatible with the European Court of Human Rights.”

And even when those with mental health issues are listened to, their wishes may be overridden, the lawyers claimed:

“We have the impression that where decisions a person makes are contentious, there is often a swift conclusion that the person lacks capacity, and substituted decisions are made for them.”

The submission is one of a number which will be considered by the House of Lords committee. Its findings are due later this year.

Paul Farmer is  chief executive of mental health charity Mind. He said: “We are deeply concerned about any evidence which suggests that people with mental health problems are still not being supported to access and participate in proceedings about their care, when they are assessed to lack capacity. The  Mental Capacity Act also does not adequately protect  the rights of people who are assessed as incapable of making their own decisions.”

The blog team at Stowe is a group of writers based across our family law offices who share their advice on the wellbeing and emotional aspects of divorce or separation from personal experience. As well as pieces from our family law solicitors, guest contributors also regularly contribute to share their knowledge.

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