Book Review: Anselm Eldergill, Matthew Evans and Eleanor Sibley, European Court of Human Rights and Mental Health (Bloomsbury, 2024, 1301 pp, paperback / ebook c £150)
European Court of Human Rights and Mental Health has three authors and is three books in one. The three authors are Professor Anselm Eldergill, very recently retired as a Court of Protection judge; Matthew Evans, a solicitor and director of the indispensably important AIRE Centre; and Eleanor Sibley, a barrister at Garden Court and the AIRE Centre. They are an authoritative trio.
The three books include two expressly identified as such, and one which lurks beneath the surface.
The first book, in Part 1, is a detailed thematic analysis of the key issues that arise where the ECHR and mental disability (broadly defined)[1] intersect, covering such matters as hospitals, treatment and social care; legal capacity and civil rights; and, importantly, criminal law and extradition / deportation. It is very useful for those wanting to understand the general approaches of the Strasbourg court to these areas, and, even for those familiar with them, to be stimulated and challenged.
The second book, in Part 2, is a comprehensive review of the case-law concerning mental disability and Articles 2, 3, 5, 6, 8 and 12 ECHR (together with briefer summaries of other articles). Part 2 is particularly valuable for its detailed analysis of a whole range of cases broken down in a very practitioner-friendly way, including summaries of the more important ones; particularly helpful is the giving of the date in the body of the text each time a case is mentioned, which gives the reader a sense of where it sits on the Strasbourg court’s evolving journey.
And, like Pale Fire, the Nabokov novel in which an entirely separate story starts to be told in the commentary to the poem which forms its alleged subject, the book contains woven throughout a third tale. This third tale is a sustained critique of the way in which business is done in England & Wales, in particular as regards the approach to deprivation of liberty, and the work of the Court of Protection. The critique is particularly powerful because so much of it clearly reflects the views and experiences of Professor Eldergill, a very recent ‘insider’ within the judicial system.
At times, I must confess that I wished that this third book could have been broken out and published separately, for two reasons. The first, negative, one was that focusing so much on one jurisdiction made me want to see the experiences of other jurisdictions brought out so as to compare them with the Anglo perspective (those jurisdictions could even have been very close to home, because Scotland’s experiences of mental health and (in)capacity law are very different to those in England & Wales).[2] The second, more positive, one was that I would like to have seen the monograph pulling together all the disparate challenges to be found throughout the book into one place.
Some of the choices made in the book are ones that challenge in other ways. As the authors recognise, the fact that they are looking both to draw out themes and to address the case-law on an article by article basis means that there is a degree of repetition, although extensive and helpful cross-referencing mean that it is generally easy to identify where the most detailed discussion of a particular issue is to be found. And, whilst the authors explain why they use the term “commit suicide,” (on the basis that as a matter of plain language, it is an act of commission, nor omission; p.3), it is one that many will find jarring as it has the connotation of the commission of a criminal offence, which suicide has not been in England & Wales since the Suicide Act 1961.
But the authors are not in the business of pulling their punches, as can be seen in their approach to the debates around the UN Convention on the Rights of Persons with Disabilities, and, in particular, the approach adopted by the UN Committee on the Rights of Persons with Disabilities. They are robust in their dismissal of that approach, at a legal, democratic and ethical level and, in effect, urge the Strasbourg court to hold the line in the face of demands to move towards greater compliance with the Committee’s interpretation of the Convention. Before readers more sympathetic to the Committee’s approach rush too quickly to dismiss the book in consequence, it is worth setting out in full footnote 137 to chapter 1, a footnote which is itself an important and powerful statement: “One of the authors, Judge Eldergill, has a long-standing diagnosis of depression, with a differential diagnosis of bipolar disorder. It is both an important part of who he is an individual and an illness. Both these things – the individuality and the illness – are true and to be respected. Psychiatric or psychosocial illnesses no less than physical illnesses have unwanted consequences and must be respected.”
Overall, this is a magisterial work which is essential reading for those practising in the area of mental disability. I just hope that the authors have the energy for further editions to keep pace with the continuing evolution of Strasbourg case-law.
[Full disclosure: I was provided with a review copy by the publishers. I am always happy to review books in the fields of mental capacity, mental health law and healthcare law].
[1] To this end, the title is misleading, insofar as it suggests that the book is focused on those with mental health conditions; it is just as concerned with those with cognitive impairments such as learning disability or dementia.
[2] This is perhaps particularly on my mind having just returned from a symposium to celebrate the 80th birthday of Adrian Ward, instrumental in the development of adult incapacity law in Scotland. In this regard, those new to the deprivation of liberty wars would also be well-advised to start with the discussion in Part 2 of Article 5 before turning back to the detailed discussion of deprivation of liberty in Chapter 2, which is in significant part a challenge to the UK Supreme Court’s decision in Cheshire West, and also delves deep into specifically English problems in response to the decision.
