I agree with Bindman et al (Reference Bindman, Maingay and Szmukler2003) that, to date, the jurisprudence of the European Court of Human Rights has not set a ‘high standard’ for modern mental health services. This is apparent not only in areas of the process of detention and its lawfulness, but also in areas of treatment standards and material standards of the facilities in which people are detained. I would also echo their sentiment that the wording of article 5(1)e of the European Convention on Human Rights is at best unfortunate and at worst deeply stigmatising. That said, I believe that the doctrine of the ‘living instrument’ (Tyrer v. United Kingdom, 1978; Reference Reed and MurdochReed & Murdoch, 2002) in Strasbourg jurisprudence is of fundamental importance in interpretation of the Convention and may yet lead to improved protection of the human rights of both patients with mental illnesses and people with learning disabilities.

With respect to patients who are de facto detained, the case of Rierra Blume v. Spain (1999) may improve rights protection. Here, the European Court of Human Rights ruled that the complainants, who had been escorted by the police to receive, among other things, psychiatric treatment, had been de facto detained and that their detention was unlawful. However, many patients for various reasons, especially non-protesting patients as in the Bournewood case ( R v. Bournewood Community and Mental Health NHS Trust, 1998), will not take cases to the courts, and the protection of their rights may depend on relatives or voluntary organisations acting on their behalf.

Legal protection with regard to the autonomy of patients with mental illnesses and people with learning disabilities may improve by a back-door means, arising from the debate over privacy protection and article 8 rights (‘right to respect for private and family life’). However, rights can be secured in court only if challenges are brought, and many people with mental illnesses or learning disabilities may not have the awareness or the means to bring such challenges. The importance of ways other than legislation for highlighting and securing rights, such as the Royal College of Psychiatrists’ anti-stigma campaign ‘Changing Minds’, education campaigns about mental illness and the work of numerous voluntary agencies, cannot be underestimated in promoting equal rights and opportunities for these population groups.